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HomeMy WebLinkAboutPoliti Library 2023 lease - signed by lessor and county.pdf L-116/Politi Library Gong-Young/Library 1 LEASE AGREEMENT 2 This Lease Agreement ("Agreement") is dated -"W\`A Z-?1 Z073 and is between 3 Gong and Young, INC., a California corporation located at 3142 Willow Ave Ste. 101, Clovis, CA 4 93612 ("Lessor"), and the County of Fresno, a political subdivision of the State of California 5 ("Lessee"). 6 Article 1 7 Leased Premises 8 1.1 Leased Premises. The Lessor hereby leases to the Lessee the office space at the 9 location commonly known as 5771 N. First Street, Fresno, CA 93711 (the "Premises"). The 10 Lessor shall pay for water, garbage, and sewer services. The Lessor represents that the 11 Premises is approximately five thousand (5,000) square feet of office space and the non- 12 exclusive right, in common with other tenants of the shopping center, to use 262 unreserved 13 parking spaces in the parking lot. 14 1.2 Covenants. The Lessor covenants that the Premises are in compliance with all 15 applicable laws, ordinances and regulations, including but not limited to safety regulations, 16 health and building codes, including, without limitation, the Americans with Disabilities Act and 17 that the Premises shall remain in such compliance throughout the term of this Agreement. 18 1.3 Compliance with Laws. The Lessor shall, at its own cost, comply with all applicable 19 federal, state, and local laws and regulations in the performance of its obligations under this 20 Agreement, including but not limited to workers compensation, labor, and confidentiality laws 21 and regulations. 22 Article 2 23 Lessee's Responsibilities 24 2.1 The Lessee shall use the Premises as library space or office space for any County of 25 Fresno department or office, as determined by the Lessee. The Lessee agrees to comply with 26 applicable laws, ordinances and regulations in connection with such use. 27 28 1 L-116/Politi Library Gong-Young/Library 1 Article 3 2 Rent, Invoices, and Payments 3 3.1 The Lessee agrees to pay, and the Lessor agrees to receive, rent for the use of its 4 Premises under this Agreement, as described in Exhibit A to this Agreement, titled "Rent." 5 3.2 Maximum Rent. The maximum Rent payable to the Lessor under this Agreement is 6 $324,000 for Rent. The Lessor acknowledges that the Lessee is a local government entity, and 7 does so with notice that the Lessee's powers are limited by the California Constitution and by 8 State law. The Lessor further acknowledges that Lessee employees have no authority to pay 9 the Lessor except as expressly provided in this Agreement. 10 3.3 Utilities. Lessee shall pay those metered cost associated with the use of natural gas 11 and electricity monthly to the utility provider. Lessee shall also pay all costs associated with its 12 use of telephone service. The Lessee shall pay for natural gas and electricity in advance, on or 13 about the first of each month. 14 3.4 Janitorial. The Lessee shall be responsible for interior janitorial services, including 15 paper supplies and changing the internal air conditioning filters at the Premises. 16 3.6 Invoices. The Lessor shall submit monthly invoices to County of Fresno, Library 17 Attention: Business Office, 2420 Mariposa St, Fresno, CA 93721. The Lessor shall submit each 18 invoice 60 days prior to the month in which the Lessee uses the Premises and, for the last 19 invoice, in any event within 60 days after the end of the term or termination of this Agreement. 20 3.6 Payment. The Lessee shall pay rent for each month for each correctly completed 21 and submitted invoice not later than the first day of the month, provided however, such due date 22 shall be extended by each day that Lessor is late in submitting such correctly completed invoice 23 under Section 3.5. 24 3.7 Incidental Expenses. The Lessor is solely responsible for all of its costs and 25 expenses that are not specified as payable by the Lessee under this Agreement. 26 27 28 2 L-116/Politi Library Gong-Young/Library 1 Article 4 2 Term of Agreement 3 4.1 Term. This Agreement is effective on August 1, 2023 and terminates on July 31, 4 2024, except as provided in section 4.2, "Extension," or Article 6, "Termination and Suspension," 5 below. 6 4.2 Extension. The term of this Agreement may be extended for no more than four, one- 7 year periods at the rental rates outlined in Exhibit A only upon written approval of both parties at 8 least 60 days before the first day of the next one-year extension period. The County 9 Administrative Officer or the Director of Internal Services/Chief Information Officer or his or her 10 designee is authorized to sign the written approval on behalf of the Lessee based on the 11 Lessor's satisfactory performance. The extension of this Agreement by the Lessee is not a 12 waiver or compromise of any default or breach of this Agreement by the Lessor existing at the 13 time of the extension whether or not known to the Lessee. 14 Article 5 15 Notices 16 5.1 Contact Information. The persons and their addresses having authority to give and 17 receive notices provided for or permitted under this Agreement include the following: 18 For the Lessee: 19 County of Fresno (L-116) Director of Internal Services/CIO 20 333 W. Pontiac Way Clovis, CA 93612 21 isdcontracts@fresnocountyca.gov 22 For the Lessor: Gong &Young, Inc. 23 c/o Dana Butcher &Associates 1690 W. Shaw, Suite 220 24 Fresno, CA 93711 Fax: (559)446-2091 25 5.2 Change of Contact Information. Either party may change the information in section 26 5.1 by giving notice as provided in section 5.3. 27 5.3 Method of Delivery. Each notice between the Lessee and the Lessor provided for or 28 permitted under this Agreement must be in writing, state that it is a notice provided under this 3 L-116/Politi Library Gong-Young/Library 1 Agreement, and be delivered either by personal service, by first-class United States mail, by an 2 overnight commercial courier service, or by Portable Document Format(PDF) document 3 attached to an email. 4 (A) A notice delivered by personal service is effective upon service to the recipient. 5 (B) A notice delivered by first-class United States mail is effective three Lessee 6 business days after deposit in the United States mail, postage prepaid, addressed to the 7 recipient. 8 (C)A notice delivered by an overnight commercial courier service is effective one 9 Lessee business day after deposit with the overnight commercial courier service, 10 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to 11 the recipient. 12 (D)A notice delivered by telephonic facsimile transmission or by PDF document 13 attached to an email is effective when transmission to the recipient is completed (but, if 14 such transmission is completed outside of Lessee business hours, then such delivery is 15 deemed to be effective at the next beginning of a Lessee business day), provided that 16 the sender maintains a machine record of the completed transmission. 17 5.4 Claims Presentation. For all claims arising from or related to this Agreement, 18 nothing in this Agreement establishes, waives, or modifies any claims presentation 19 requirements or procedures provided by law, including the Government Claims Act(Division 3.6 20 of Title 1 of the Government Code, beginning with section 810). 21 Article 6 22 Termination and Suspension 23 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are 24 contingent on the approval of funds by the appropriating government agency. If sufficient funds 25 are not allocated, then the Lessee, upon at least 30 days' advance written notice to the Lessor, 26 may: 27 (A) Modify the services provided by the Lessor under this Agreement; or 28 (B) Terminate this Agreement. 4 L-116IPoliti Library Gong-Young/Library 1 6.2 Termination for Breach. 2 (A) Upon determining that a breach (as defined in paragraph (C) below) has 3 occurred, the Lessee may give written notice of the breach to the Lessor. The written 4 notice may suspend performance under this Agreement, and must provide at least 30 5 days for the Lessor to cure the breach. 6 (B) If the Lessor fails to cure the breach to the Lessee's satisfaction within the time 7 stated in the written notice, the Lessee may terminate this Agreement immediately. 8 (C) For purposes of this section, a breach occurs when, in the determination of the 9 Lessee, the Lessor has: 10 (1) Obtained or used funds illegally or improperly; 11 (2) Failed to comply with any part of this Agreement; 12 (3) Submitted a substantially incorrect or incomplete report to the Lessee; or 13 (4) Improperly performed any of its obligations under this Agreement. 14 6.3 Termination without Cause. In circumstances other than those set forth above, the 15 Lessee may terminate this Agreement by giving at least 30 days advance written notice to the 16 Lessor. 17 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the Lessee 18 under this Article 6 is without penalty to or further obligation of the Lessee. 19 6.6 Lessee's Rights upon Termination. Upon termination for breach under this Article 20 6, the Lessee may demand repayment by the Lessor of any monies disbursed to the Lessor 21 under this Agreement that, in the Lessee's sole judgment, were not expended in compliance 22 with this Agreement. The Lessor shall promptly refund all such monies upon demand. This 23 section survives the termination of this Agreement. 24 Article 7 25 Independent Lessor 26 7.1 Status. In performing under this Agreement, the Lessor, including its officers, 27 agents, employees, and volunteers, is at all times acting and performing as an independent 28 5 L-116IPoliti Library Gong-Young/Library 1 Lessor, in an independent capacity, and not as an officer, agent, servant, employee,joint 2 venturer, partner, or associate of the Lessee. 3 7.2 Verifying Performance. The Lessee has no right to control, supervise, or direct the 4 manner or method of the Lessor's performance under this Agreement, but the Lessee may 5 verify that the Lessor is performing according to the terms of this Agreement. 6 7.3 Benefits. Because of its status as an independent contractor, the Lessor has no 7 right to employment rights or benefits available to Lessee employees. The Lessor is solely 8 responsible for providing to its own employees all employee benefits required by law. The 9 Lessor shall save the Lessee harmless from all matters relating to the payment of Lessor's 10 employees, including compliance with Social Security withholding and all related regulations. 11 7.4 Services to Others. The parties acknowledge that, during the term of this 12 Agreement, the Lessor may provide services to others unrelated to the Lessee. 13 Article 8 14 Indemnity and Defense 15 8.1 Indemnity. The Lessor shall indemnify and hold harmless and defend the Lessee 16 (including its officers, agents, employees, and volunteers) against all claims, demands, injuries, 17 damages, costs, expenses (including attorney fees and costs), fines, penalties, and liabilities of 18 any kind to the Lessee, the Lessor, or any third party that arise from or relate to the 19 performance or failure to perform by the Lessor (or any of its officers, agents, subcontractors, or 20 employees) under this Agreement. The Lessee may conduct or participate in its own defense 21 without affecting the Lessor's obligation to indemnify and hold harmless or defend the Lessee. 22 8.2 Survival. This Article 8 survives the termination of this Agreement. 23 Article 9 24 Insurance 25 9.1 The Lessor shall comply with all the insurance requirements in Exhibit C to this 26 Agreement. 27 28 6 L-116/Politi Library Gong-Young/Library 1 Article 10 2 Inspections, Audits, and Public Records 3 10.1 Inspection of Documents. The Lessor shall make available to the Lessee, and the 4 Lessee may examine at any time during business hours and as often as the Lessee deems 5 necessary, all of the Lessor's records and data with respect to the matters covered by this 6 Agreement, excluding attorney-client privileged communications. The Lessor shall, upon 7 request by the Lessee, permit the Lessee to audit and inspect all of such records and data to 8 ensure the Lessor's compliance with the terms of this Agreement. 9 10.2 State Audit Requirements. If the compensation to be paid by the Lessee under this 10 Agreement exceeds $10,000, the Lessor is subject to the examination and audit of the 11 California State Auditor, as provided in Government Code section 8546.7, for a period of three 12 years after final payment under this Agreement. This section survives the termination of this 13 Agreement. 14 10.3 Public Records. The Lessee is not limited in any manner with respect to its public 15 disclosure of this Agreement or any record or data that the Lessor may provide to the Lessee. 16 The Lessee's public disclosure of this Agreement or any record or data that the Lessor may 17 provide to the Lessee may include but is not limited to the following: 18 (A) The Lessee may voluntarily, or upon request by any member of the public or 19 governmental agency, disclose this Agreement to the public or such governmental 20 agency. 21 (B) The Lessee may voluntarily, or upon request by any member of the public or 22 governmental agency, disclose to the public or such governmental agency any record or 23 data that the Lessor may provide to the Lessee, unless such disclosure is prohibited by 24 court order. 25 (C)This Agreement, and any record or data that the Lessor may provide to the 26 Lessee, is subject to public disclosure under the Ralph M. Brown Act(California 27 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950). 28 7 L-116/Politi Library Gong-Young/Library 1 (D)This Agreement, and any record or data that the Lessor may provide to the 2 Lessee, is subject to public disclosure as a public record under the California Public 3 Records Act(California Government Code, Title 1, Division 10, Chapter 3, beginning 4 with section 7920.200) ("CPRA"). 5 (E) This Agreement, and any record or data that the Lessor may provide to the 6 Lessee, is subject to public disclosure as information concerning the conduct of the 7 people's business of the State of California under California Constitution, Article 1, 8 section 3, subdivision (b). 9 (F) Any marking of confidentiality or restricted access upon or otherwise made with 10 respect to any record or data that the Lessor may provide to the Lessee shall be 11 disregarded and have no effect on the Lessee's right or duty to disclose to the public or 12 governmental agency any such record or data. 13 10.4 Public Records Act Requests. If the Lessee receives a written or oral request 14 under the CPRA to publicly disclose any record that is in the Lessor's possession or control, and 15 which the Lessee has a right, under any provision of this Agreement or applicable law, to 16 possess or control, then the Lessee may demand, in writing, that the Lessor deliver to the 17 Lessee, for purposes of public disclosure, the requested records that may be in the possession 18 or control of the Lessor. Within five business days after the Lessee's demand, the Lessor shall 19 (a) deliver to the Lessee all of the requested records that are in the Lessor's possession or 20 control, together with a written statement that the Lessor, after conducting a diligent search, has 21 produced all requested records that are in the Lessor's possession or control, or(b) provide to 22 the Lessee a written statement that the Lessor, after conducting a diligent search, does not 23 possess or control any of the requested records. The Lessor shall cooperate with the Lessee 24 with respect to any Lessee demand for such records. If the Lessor wishes to assert that any 25 specific record or data is exempt from disclosure under the CPRA or other applicable law, it 26 must deliver the record or data to the Lessee and assert the exemption by citation to specific 27 legal authority within the written statement that it provides to the Lessee under this section. The 28 Lessor's assertion of any exemption from disclosure is not binding on the Lessee, but the 8 L-116/Politi Library Gong-Young/Library 1 Lessee will give at least 10 days' advance written notice to the Lessor before disclosing any 2 record subject to the Lessor's assertion of exemption from disclosure. The Lessor shall 3 indemnify the Lessee for any court-ordered award of costs or attorney's fees under the CPRA 4 that results from the Lessor's delay, claim of exemption, failure to produce any such records, or 5 failure to cooperate with the Lessee with respect to any Lessee demand for any such records. 6 Article 11 7 Disclosure of Self-Dealing Transactions 8 11.1 Applicability. This Article 11 applies if the Lessor is operating as a corporation, or 9 changes its status to operate as a corporation. 10 11.2 Duty to Disclose. If any member of the Lessor's board of directors is party to a self- 11 dealing transaction, he or she shall disclose the transaction by completing and signing a "Self- 12 Dealing Transaction Disclosure Form" (Exhibit B to this Agreement) and submitting it to the 13 Lessee before commencing the transaction or immediately after. 14 11.3 Definition. "Self-dealing transaction" means a transaction to which the Lessor is a 15 party and in which one or more of its directors, as an individual, has a material financial interest. 16 Article 12 17 General Terms 18 12.1 Maintenance. The Premises shall be kept in a good and clean order, repair, and 19 condition at all times during the Term, suitable in appearance, free from any vermin, or 20 any insects, and fully capable of serving Lesse's occupancy and use during the Term. The 21 Lessor shall be responsible for the structural condition of the Premises and for all exterior and 22 interior maintenance, including, but not limited to, the air condition, heating, electrical, windows, 23 plumbing, roof, floor coverings, exterior painting and graffiti removal as needed, fire/life-safety 24 systems including, but not limited to, fire suppression systems and alarms and smoke/fire alarm 25 systems, landscaping, and parking lot, and replacing lighting. The Lessor covenants that the 26 Premises shall be maintained in substantially the same condition as that existing at the 27 commencement of this Agreement. 28 9 L-116/Politi Library Gong-Young/Library 1 Lessee's maintenance obligation includes interior painting as needed due to normal wear 2 and tear. In the event that damage to the Premises is caused by Lessee's negligence to 3 properly supervise its patrons, it will be Lessee's responsibility to remedy the condition by 4 making the necessary repairs at Lessee's expense and to Lessor's reasonable expectation. 5 12.2 Breach of Obligation to Maintain. In the event the Lessor breaches its obligation to 6 maintain the Premises as herein provided, the Lessee may give written notice to the Lessor 7 within 15 days of the discovery of such breach. The Lessor shall then have 30 days from the 8 date of notice to cure its breach. If the period for cure expires and if, in the Lessees' reasonable 9 determination, the Lessor has failed to cure, then the Lessee may, at their election: 10 (A) Terminate this Agreement as herein after provided. In such case, the Lessee 11 shall have the right to demand the Lessor refund any monies which, in the judgement of 12 the Lessee, were paid to the Lessor pursuant to the Agreement but which were not 13 earned by the Lessor by consequence of its breach. Upon receipt of such demand, the 14 Lessor shall promptly refund all such monies; or 15 (B) Cure the Lessor's breach and deduct the cost of such cure, together with 16 reasonable administrative costs, from the Lessees' future rent obligation. The Lessee's 17 decision to cure the Lessor's breach shall not constitute a waiver of any rights or 18 remedies that Lessee may have arising from this Agreement or by operation of law. 19 12.3 Destruction or Damage from Casualty. If the Premises are damaged or destroyed 20 as a result of fire, earthquake, act of God, or any other identifiable event of a sudden, 21 unexpected, or unusual nature (hereinafter"Casualty"), then the Lessor shall either promptly 22 and diligently repair the damage at its own cost, or terminate the Agreement as hereinafter 23 provided. 24 (A) If the Lessor elects to repair the Casualty damage to the Premises, then it shall 25 within 30 days after the date of Casualty provide written notice (hereinafter"Notice of 26 Repair")to the Lessee indicating the anticipated time required to repair. The Lessor shall 27 bear the cost of all repairs to the Premises, including the cost to repair any alteration or 28 fixtures installed or attached thereto by the Lessee. Such repairs shall restore the 10 L-116IPoliti Library Gong-Young/Library 1 Premises to substantially the same condition as the existing at the commencement of 2 this Agreement and shall be made in compliance with all applicable state and local 3 building codes. The Lessor shall not be liable to the Lessee for compensation for any 4 loss of business, or any inconvenience or annoyance arising from repair of the Premises 5 as a result of the Casualty except for rent reduction as hereinafter provided. The Lessee 6 shall be responsible at its sole cost and expense for the replacement of its personal 7 property. 8 (B) The Lessor may only elect to terminate the Agreement due to Casualty if: the 9 Premises have been destroyed or substantially destroyed by said Casualty; and the 10 estimated time to repair the Premises exceeds 240 days from the date of the Casualty. 11 The Lessor shall provide the Lessee with written notice of its election to terminate within 12 30 days after the date of Casualty. 13 (C) In the event of Casualty, the Lessee's obligation to pay rent shall be reduced 14 beginning on the date of the Casualty. Such reduction shall be proportional to the 15 damage caused to the Premises by the Casualty as determined by the Lessee. If the 16 Lessor elects to repair the Premises pursuant to the terms of this Agreement, then the 17 rent reduction shall continue until the date of the local governing body issuing a safe to 18 stock certificate for the Premises. 19 (D) If the Lessee does not receive a Notice of Repair from Lessor within 30 days 20 after a Casualty, or if the anticipated period of repair contained in the Notice of Repair 21 exceeds 240 days, then the Lessee may elect to terminate this Agreement as hereinafter 22 provided. In such case, the Lessee shall have the right to demand that the Lessor refund 23 any monies which, in the judgment of the Lessee, were paid to the Lessor pursuant to 24 the Agreement but which were not earned by the Lessor by consequence of the 25 Casualty. Upon receipt of such demand, the Lessor shall promptly refund all such 26 monies. 27 12.4 Surender of Possession. Upon the expiration or termination of this Agreement, the 28 Lessee will surrender the Premises to Lessor in such condition as that existing at the 11 L-116/Politi Library Gong-Young/Library 1 commencement of this Agreement, less reasonable wear and tear, less the effects of any 2 Casualty as herein defined, and less the effects of any breach of the Lessor's covenant to 3 maintain. The Lessee will not be responsible for any damage with the Lessee is not obligated 4 here under to repair. 5 12.6 Fixtures. The Lessor agrees that any equipment, fixtures or apparatus installed in or 6 on the Premises by the Lessor shall continue to be the property of that governmental entity and 7 may be removed by that governmental entity at any time. The respective governmental entity 8 shall repair damage caused by the removal of its fixtures. Any fixtures not removed with the 9 Lessee surrender possession shall become the property of the Lessor. 10 12.6 Right of Entry. The Lessor, or its representative(s), upon twenty-four (24) hour 11 notice, shall have the right to enter the Premises at any time during business hours, or at such 12 other time as the Lessee deems appropriate, to make any alterations, repairs or improvements 13 to the Premises. The normal business of the Lessee or its invitees shall not be unnecessarily 14 inconvenienced. In the event of an emergency, the Lessor may enter the Premises at any time 15 without giving prior notice to the Lessee. 116 12. 7 Estoppel Certificate. Lessee shall, at any time upon not less than sixty (60) days' prior 17 written request by Lessor, execute, acknowledge and deliver to Lessor a written estoppel 18 certificate, in a form reasonably satisfactory to Lessor, certifying that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and 19 effect as modified and stating the modifications) and, if applicable, the dates to which the 20 monthly rent and any other charges have been paid in advance. Any such statement delivered 21 pursuant to this Section 12.7 may be relied upon by third persons, including a prospective 22 purchaser or encumbrancer of the Premises. 12.8 Subordination, Non-Disturbance. and Attornment. If after the Effective Date, Lessor desires to obtain a loan from a bank (the"Bank") and thereby encumbers the Premises with a 24 deed of trust("Deed of Trust"), the Parties agree, and Lessor shall cause the Bank, as 25 beneficiary of the Deed of trust, to agree, to enter into a Subordination, Non-Disturbance, and 26 Attornment Agreement("SNDA") in form and substance reasonably acceptable to Lessee, 27 Lessor, and the Bank. The agreed-upon SNDA shall include the following terms, generally 28 outlined below, which outline not an exhaustive list of terms, or the specific terms, for the agreed-upon SNDA: 12 L-116/Politi Library Gong-Young/Library 1 (i) This Lessee shall subordinate the priority of this Lease to the Deed of Trust; 2 (ii) In the event of a foreclosure of the Deed of Trust, or a transfer of the Premises in lieu thereof 3 or in any other manner whereby Bank or its successors-in-interest succeed to the interest of Lessee under this Lease, so long as there shall then exist no breach or event of default by 4 Lessee under this Lease which has continued to exist for such period of time (after notice, if 5 any, required by this Lease) as would entitle Lessor to terminate this Lease: (a) this Lease, 6 including the leasehold interest of Lessee hereunder, shall not be disturbed or otherwise 7 adversely affected by reason of such foreclosure or transfer of the Premises in lieu thereof or in 8 any other manner; (b) other than as set forth in the SNDA, none of Lessee's rights and interest under this Lease, or the rights and interest of any, shall be affected in any way by reason of any 9 default under the Deed of Trust, and this Lease shall continue in full force and effect; (c) Bank 10 and its successors-in-interest shall recognize and accept Lessee as the lessee under this 11 Lease, subject to the terms and conditions of this Lease as modified by the SNDA; (d) the Bank 12 and its successors-in-interest as lessor under this Lease, shall have all of the rights and 13 obligations of Lessor under this Lease (provided that neither Bank nor such successors-in- interest shall be liable for any act or omission of Lessor as the prior lessor under this Lease, 14 except that Lessee shall be entitled to exercise all of its rights and remedies under this Lease 15 with respect to continuing defaults hereunder resulting from the acts or omissions of Lessor 16 arising after Bank, or its successor-in-interest, has received Lessee's notice to Bank, or its 17 successor-in-interest, with respect to such defaults and has not, after a reasonable opportunity 18 to cure, under the SNDA cured the same under the SNDA); (e) Bank shall not join Lessee as a party defendant in any action or foreclosure proceeding unless such joinder is with respect to 19 this Lease, including the Premises, and required by law to foreclose the Deed of Trust, then only 20 for such purpose and not for the purpose of terminating this Lease; and (f) Lessee shall to attorn 21 to the Bank, and its transferee, as if the Bank and such transferee were Lessor under this 22 Lease; 23 (iii) Upon Lessee's receipt of written demand from Bank, which shall include notice of same has been given in writing to Lessor, that Bank has elected to terminate the license granted to 24 Lessor to collect Rents from Lessee under this Lease, as provided in the Deed of Trust, and 25 directing Lessee to make payment thereof directly to Bank, (a) Lessee shall, for any Rents due 26 and payable thirty (30) days thereafter, comply with such written demand and direction to pay 27 and shall not be required to determine whether Lessor is in default under any obligations to 28 Bank, or to honor any conflicting demand from Lessor, and (b) Lessee shall be entitled to full 13 L-116/Politi Library Gong-Young/Library 1 credit under this Lease for any Rents paid to Bank in accordance with such written demand and 2 direction to the same extent as if such Rents were paid directly to Lessor; 3 (iv) Any disputes between or among the Bank, including its successors-in-interest, and Lessor shall be dealt with and adjusted solely between or among the Bank, including its including its 4 successors-in-interest, and Lessor; and (v) The SNDA shall be governed by California law. 5 12.9 Memorandum of Lease. Upon the parties' execution of this LEASE, the parties shall 6 enter into a Memorandum of Lease, a form of which is attached hereto and incorporated herein 7 by this reference as Exhibit D. LESSEE is authorized to immediately thereafter record the fully- 8 executed Memorandum of Lease against the Premises with the County of Fresno Recorder's 9 Office. 10 12.10 Modification. Except as provided in Article 6, "Termination and Suspension,"this 11 Agreement may not be modified, and no waiver is effective, except by written agreement signed 12 by both parties. The Lessor acknowledges that Lessee employees have no authority to modify 13 this Agreement except as expressly provided in this Agreement. 14 12.11 Non-Assignment. Neither party may assign its rights or delegate its obligations under 15 this Agreement without the prior written consent of the other party. 16 12.12 Governing Law. The laws of the State of California govern all matters arising from or 17 related to this Agreement. 18 12.13 Jurisdiction and Venue. This Agreement is signed and performed in Fresno County, 19 California. The Lessor consents to California jurisdiction for actions arising from or related to this 20 Agreement, and, subject to the Government Claims Act, all such actions must be brought and 21 maintained in Fresno County. 22 12.7 Construction. The final form of this Agreement is the result of the parties' combined 23 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be 24 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement 25 against either party. 26 12.14 Days. Unless otherwise specified, "days" means calendar days. 27 12.15 Headings. The headings and section titles in this Agreement are for convenience only 28 and are not part of this Agreement. 14 L-116IPoliti Library Gong-Young/Library 1 12.16 Severability. If anything in this Agreement is found by a court of competent jurisdiction 2 to be unlawful or otherwise unenforceable, the balance of this Agreement remains in effect, and 3 the parties shall make best efforts to replace the unlawful or unenforceable part of this 4 Agreement with lawful and enforceable terms intended to accomplish the parties' original intent. 5 12.17 Nondiscrimination. During the performance of this Agreement, the Lessor shall not 6 unlawfully discriminate against any employee or applicant for employment, or recipient of 7 services, because of race, religious creed, color, national origin, ancestry, physical disability, 8 mental disability, medical condition, genetic information, marital status, sex, gender, gender 9 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to 10 all applicable State of California and federal statutes and regulation. 11 12.18 No Waiver. Payment, waiver, or discharge by the Lessee of any liability or obligation of 12 the Lessor under this Agreement on any one or more occasions is not a waiver of performance 13 of any continuing or other obligation of the Lessor and does not prohibit enforcement by the 14 Lessee of any obligation on any other occasion. 15 12.19 Force Majeure. The Parties shall not be liable for any failure or delay in the performance 16 of their respective obligations hereunder caused by forces beyond its reasonable control, 17 including, but not limited to the following, acts of God, nature or war; riots; pandemics; (each an 18 event of"force majeure"), provided however, (a) as soon as commercially practicable after the 19 occurrence of any such event of force majeure, the party claiming an event of force majeure 20 shall promptly provide written notice thereof to the other party and in such notice shall give 21 reasonably full particulars concerning the nature, scope and anticipated duration of the event of 22 force majeure, and unless such party gives notice of the cessation, or extension, of the 23 occurrence of the event of force majeure, the event of force majeure shall be deemed to have 24 ceased as of the date in such notice, or subsequent notice for the same event, of force majeure, 25 and (b) an event of force majeure will in no event include economic hardship, or acts, 26 omissions, circumstances, or events caused by, or through, a third party that is under contract 27 with a party where and to the extent that the acts, omissions, circumstances, or events caused 28 by, or through, the third party could have been avoided by commercially-reasonable, timely, and 15 L-1161Politi Library Gong-Young/Library 1 diligent management or administration of the third party's performance of its contractual 2 obligations and duties under its contract by the party to such contract. 3 12.20 Entire Agreement. This Agreement, including its exhibits, is the entire agreement 4 between the Lessor and the Lessee with respect to the subject matter of this Agreement, and it 5 supersedes all previous negotiations, proposals, commitments, writings, advertisements, 6 publications, and understandings of any nature unless those things are expressly included in 7 this Agreement. If there is any inconsistency between the terms of this Agreement without its 8 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving 9 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the 10 exhibits. 11 12.21 No Third-Party Beneficiaries. This Agreement does not and is not intended to create 12 any rights or obligations for any person or entity except for the parties. 13 12.22 Authorized Signature. The Lessor represents and warrants to the Lessee that: 14 (A) The Lessor is duly authorized and empowered to sign and perform its obligations 15 under this Agreement. 16 The individual signing this Agreement on behalf of the Lessor is duly authorized to do 17 so and his or her signature on this Agreement legally binds the Lessor to the terms of 18 this Agreement. 19 12.23 Electronic Signatures. The parties agree that this Agreement may be executed by 20 electronic signature as provided in this section. 21 (B) An "electronic signature" means any symbol or process intended by an individual 22 signing this Agreement to represent their signature, including but not limited to (1) a 23 digital signature; (2) a faxed version of an original handwritten signature; or(3) an 24 electronically scanned and transmitted (for example by PDF document) version of an 25 original handwritten signature. 26 (C) Each electronic signature affixed or attached to this Agreement(1) is deemed 27 equivalent to a valid original handwritten signature of the person signing this Agreement 28 for all purposes, including but not limited to evidentiary proof in any administrative or 16 L-116IPoliti Library Gong-Young/Library 1 judicial proceeding, and (2) has the same force and effect as the valid original 2 handwritten signature of that person. 3 (D)The provisions of this section satisfy the requirements of Civil Code section 4 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, 5 Part 2, Title 2.5, beginning with section 1633.1). 6 (E) Each party using a digital signature represents that it has undertaken and 7 satisfied the requirements of Government Code section 16.5, subdivision (a), 8 paragraphs (1) through (5), and agrees that each other party may rely upon that 9 representation. 10 (F) This Agreement is not conditioned upon the parties conducting the transactions 11 under it by electronic means and either party may sign this Agreement with an original 12 handwritten signature. 13 12.24 Severability. Each provision of this Agreement is severable from any and all other 14 provisions of this Agreement. Should any provision(s) of this Agreement be for any reason 15 unenforceable, the balance shall nonetheless be of full force and effect. 16 12.26 Counterparts. This Agreement may be signed in counterparts, each of which is an 17 original, and all of which together constitute this Agreement. 18 [SIGNATURE PAGE FOLLOWS] 19 20 21 22 23 24 25 26 27 28 17 L-116/Politi Library Gong-Young/Library 1 The parties are signing this Agreement on the date stated in the introductory clause. 2 Gong and Young, Inc. COUNTY OF FRESNO 3 4 5 Frank Gong, ie �E�ecutiv Y fficer Robert W. Bash, Director of Internal Services/Chief Information Officer 6 3142 Wiillo Ave Ste 101 Clovis, CA 93612 7 APPROVED AS TO LEGAL FORM: Daniel C. Cederborg, County Counsel 8 data& mutt 9 By: 9 Deputy 10 For accounting use only: APPROVED AS TO ACCOUNTING FORM: Oscar J. Garcia, CPA 11 Org No.: 75110100 Auditor-Controller/Treasurer-Tax Collector Account No.: 7340 12 Fund No.: 0107 By: 13 Subclass No.: 10000 � 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Exhibit A 1 Rent Schedule 2 Date Cost S IFt MonthIv Rent Annual Rent August 1, 2023 $ 1.04 $ 5,200.00 $ 62,400.00 3 August 1, 2024 $ 1.06 $ 5,300.00 $ 63,600.00 4 August 1, 2025 $ 1.08 $ 5,400.00 $ 64,800.00 August 1, 2026 $ 1.10 $ 5,500.00 $ 66,000.00 5 August 1, 2027 $ 1.12 $ 5,600.00 $ 67,200.00 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A-1 Exhibit B Self-Dealing Transaction Disclosure Form In order to conduct business with the Lessee of Fresno ("Lessee"), members of a Lessor's board of directors ("Lessee Lessor"), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the Lessee. A self- dealing transaction is defined below: "A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest." The definition above will be used for purposes of completing this disclosure form. Instructions (1) Enter board member's name,job title (if applicable), and date this disclosure is being made. (2) Enter the board member's company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the Lessee. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation's transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. The form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). C-1 Exhibit B c} mpany Board Mem;ber;lnfc�rmatifln, Name: Date: Jab Title: C+�it as �. �., .y/AcJeriicy Name and Address:;:, describe the r�eture of the self dealing tra�sa�ct�or�yc�u ark a i*4) Explain why this sel# dealing transacts©n �s cons�s#ant with the requirements:of Corporat�an Gode§` 233(a} ;„ (5)Authorized Signature Signature: Date: C-2 Exhibit C Insurance Requirements 1. Required Policies Without limiting the Lessee's right to obtain indemnification from the Lessor or any third parties, the Lessor, at its sole expense, shall maintain in full force and effect the following insurance policies throughout the term of this Agreement. (A) Commercial General Liability. Commercial general liability insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis. Coverage must include products, completed operations, property damage, bodily injury, personal injury, and advertising injury. The Lessor shall obtain an endorsement to this policy naming the County of Fresno, its officers, agents, employees, and volunteers, individually and collectively, as additional insureds, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insureds will apply as primary insurance and any other insurance, or self-insurance, maintained by the Lessee is excess only and not contributing with insurance provided under the Lessor's policy. (B) Automobile Liability. Automobile liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages. Coverage must include any auto used in connection with this Agreement. (C)Workers Compensation. Workers compensation insurance as required by the laws of the State of California with statutory limits. (D) Employer's Liability. Employer's liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and for disease. (E) Molestation Liability. Sexual abuse/molestation liability insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence, with an annual aggregate of Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis. 2. Additional Requirements (A) Verification of Coverage. Within 30 days after the Lessor signs this Agreement, and at any time during the term of this Agreement as requested by the Lessee's Risk Manager or the County Administrative Office, the Lessor shall deliver, or cause its broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by mail or email to the person identified to receive notices under this Agreement, certificates of insurance and endorsements for all of the coverages required under this Agreement. (i) Each insurance certificate must state that: (1) the insurance coverage has been obtained and is in full force; (2) the Lessee, its officers, agents, employees, and volunteers are not responsible for any premiums on the policy; and (3) the Lessor has waived its right to recover from the Lessee, its officers, agents, employees, and volunteers any amounts paid under any insurance policy required by this Agreement and that waiver does not invalidate the insurance policy. Exhibit C (ii) The commercial general liability insurance certificate must also state, and include an endorsement, that the County of Fresno, its officers, agents, employees, and volunteers, individually and collectively, are additional insureds insofar as the operations under this Agreement are concerned. The commercial general liability insurance certificate must also state that the coverage shall apply as primary insurance and any other insurance, or self-insurance, maintained by the Lessee shall be excess only and not contributing with insurance provided under the Lessor's policy. (iii) The automobile liability insurance certificate must state that the policy covers any auto used in connection with this Agreement. (B) Acceptability of Insurers. All insurance policies required under this Agreement must be issued by admitted insurers licensed to do business in the State of California and possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no less than A: VI I. (C) Notice of Cancellation or Change. For each insurance policy required under this Agreement, the Lessor shall provide to the Lessee, or ensure that the policy requires the insurer to provide to the Lessee, written notice of any cancellation or change in the policy as required in this paragraph. For cancellation of the policy for nonpayment of premium, the Lessor shall, or shall cause the insurer to, provide written notice to the Lessee not less than 10 days in advance of cancellation. For cancellation of the policy for any other reason, and for any other change to the policy, the Lessor shall, or shall cause the insurer to, provide written notice to the Lessee not less than 30 days in advance of cancellation or change. The Lessee in its sole discretion may determine that the failure of the Lessor or its insurer to timely provide a written notice required by this paragraph is a breach of this Agreement. (D) Lessee's Entitlement to Greater Coverage. If the Lessor has or obtains insurance with broader coverage, higher limits, or both, than what is required under this Agreement, then the Lessee requires and is entitled to the broader coverage, higher limits, or both. To that end, the Lessor shall deliver, or cause its broker or producer to deliver, to the Lessee's Risk Manager certificates of insurance and endorsements for all of the coverages that have such broader coverage, higher limits, or both, as required under this Agreement. (E) Waiver of Subrogation. The Lessor waives any right to recover from the Lessee, its officers, agents, employees, and volunteers any amounts paid under the policy of worker's compensation insurance required by this Agreement. The Lessor is solely responsible to obtain any policy endorsement that may be necessary to accomplish that waiver, but the Lessor's waiver of subrogation under this paragraph is effective whether or not the Lessor obtains such an endorsement. (F) Lessee's Remedy for Lessor's Failure to Maintain. If the Lessor fails to keep in effect at all times any insurance coverage required under this Agreement, the Lessee may, in addition to any other remedies it may have, suspend or terminate this Agreement upon the occurrence of that failure, or purchase such insurance coverage, and charge the cost of that coverage to the Lessor. The Lessee may offset such charges against any amounts owed by the Lessee to the Lessor under this Agreement. C-2 Exhibit C (G)Subcontractors. The Lessor shall require and verify that all subcontractors used by the Lessor to provide services under this Agreement maintain insurance meeting all insurance requirements provided in this Agreement. This paragraph does not authorize the Lessor to provide services under this Agreement using subcontractors. C-3 EXHIBIT This document is recorded solely for the purposes of and benefit of the COUNTY OF FRESNO, a political subdivision of the State of California. See below for exemptions of this recorded document from recording fees and documentary transfer tax. AND WHEN RECORDED MAIL TO: FOR RECORDER'S USE ONLY County of Fresno Director of Internal Services/ Chief Information Officer 333 W. Pontiac Way Clovis, CA 93612 EXEMPT FROM RECORDING FEES PURSUANT TOGOV7. CODE SECTIONS O1O3. 27383 AND 27380.1(u)(2)/O\0\B11O. 8B2\ AND DOCUMENTARY TRANSFER TAX PURSUANT TO REVENUE AND TAXATION CODE SECTION 11S22. MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE ("Memorandum") is made and entered into this day of____2O23. bv Gong and Young, |no.. o California corporation(''Leaeor^)whose address 000f the date hereof|oat8142 Willow Ave Ste. 1O1. Clovis, CA83812. and the County of Fresno, a political subdivision of the State of California ("Lessee"); A. Loma0r represents that it is the sole fee owner of that certain improved naa| property located in Fresno County, State of California, and having a street address of 5771 N. First Street, Fresno, CA83711 /^Pranniaea^\; B. Pursuant to that certain Lease Agreement of the same dmba as this Memorandum of Lease (the "Lease Agreement"), Lgaeur has |aoaed to Lessee certain Premises(as defined in the Lease Agreement) located on and constituting a portion of the Real Property; C. The Lease Aorearngrd is effective on the first date of occupancy of the Pnanniaea by Lessee ("First Date of Occupancy"), and its initial term is one (1) year. The Lease Agreement may be extended for no more than four, one-year periods. |nnoevent ehmU the term of this A0naornent extend beyond five years after the First Date of Occupancy; O. Pursuant to the terms and conditions of the Lease Agreement, this Memorandum is to be recorded in the Official Records of the Fresno County Recorder with respect to the Real Pnopedx, for the purpose of memorializing the existence of the Lease Agreement, and the terms and conditions of which inure to the benefit of, and bind the Lessor, the Lessee, and their respective successors and assigns. Any third-party interested in obtaining information about the Lease Agreement may contact the parties at the above-referenced addresses; E. A copy of the Lease Agreement may be obtained from the Clerk of the Fresno County Board of Supervisors, 2281 Tulare Street, Fresno, California 93721; F. This Memorandum of Lease does not constitute the Lease Agreement, and is only an abbreviated form, containing a summary of only a few of the terms and conditions of the Lease Agreement. In the event that there is any inconsistency between this Memorandum of Lease and the Lease Agreement, the terms and conditions of the Lease Agreement shall prevail over this Memorandum of Lease. IN WITNESS WHEREOF, this Memorandum of Lease has been executed as of the day and year first above written. LESSOR: LESSEE: Gong and Young, Inc., COUNTY OFF ESNO: By: By: Robert W. Bash, Director of Internal Services/ Chief Information Officer [Notary Attestation-Attached] [Notary Attestation-Attached] a o ra�orr�arr . WA *own, M*10.8W LV 2 CALIFORNIA NOTARY ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On before me, (insert name and title of the officer), personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 3 CALIFORNIA NOTARY ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Ye 5 nO ^n On Zvi before me, (insert name and title of th6 officer), personally appeared 2=11 W - , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 7NOTARyPL*M.CjMRNL4RTIZ UE4 p.My 16.2027 4