HomeMy WebLinkAboutAgreement A-15-341 with Austin Enterprises.pdfL-165 ClintonWay
Austin Enter/DSS/561 0
Agreement No. 15-341
1 LEASE AGREEMENT
2 THIS LEASE AGREEMENT (hereinafter "LEASE") is made and entered into this~
3 day of ~ ~ , 2015, by and between AUSTIN ENTERPRISES, a limited partnership,
4 5108 E. Clinton Way, Suite 109, Fresno, CA 93727 (hereinafter "LESSOR"), and the COUNlY
5 OF FRESNO, a political subdi\4sion of the State of California, 2220 Tulare Street, 21st Floor,
6 Room 2101, Fresno, CA 93721-2106, (hereinafter "LESSEE"). LESSOR and LESSEE shall
7 also be referred to herein singularly as a "Party" and collectively, as "Parties".
8 1. LEASED PREMISES -LESSOR hereby leases to LESSEE the office space at
9 the location commonly known as 4944 E. Clinton Avenue, Suites 107, 109, 110, 111, and 112,
10 Fresno, CA 93727, which is approximately 8,000 square feet, together with common area
11 parking (hereinafter "Premises").
12 2. NEW LEASE -The Parties agree that effective August 1, 2015, the prior lease
13 agreement for the Premises, entered into between the Parties on November 3, 1998 (County
14 Agt. #98-576), with automatic annual renewal terminated effective November 30, 2013, and
15 currently month to month, shall terminate, and shall be replaced and superseded in all
16 respects by this LEASE.
17 3. TERM -The initial term of this LEASE shall be for three (3) years beginning
18 August 1, 2015 through July 31, 2018 (hereinafter "Initial Term"). After the Initial Term of this
19 LEASE, this LEASE will renew annually for two (2) one-year periods, unless either Party
20 provides One Hundred Eighty (180) days written notice of non-renewal prior to the end of the
21 then current term of this LEASE. In no event shall the term of this LEASE extend beyond July
22 31' 2020.
23 4. RENT -LESSEE agrees to pay to LESSOR rent in advance on or about the first of
24 each month for the Premises beginning August 1, 2015 according to the following schedule:
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Rent Year
August 1, 2015
August 1, 2016
August 1, 2017
August 1, 2018
August 1, 2019
Rent/ Month Cost/SF
$ 8,800.00 $ 1.1000
$ 9,064.00 $ 1.1330
$ 9,335.92 $ 1.1670
$ 9,616.00 $ 1.2020
$ 9,904.48 $ 1.2381
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5. UTILITIES-LESSEE shall pay those metered costs associated with its use of
2 natural gas and electricity, to include water, garbage and sewer fees, all of which are in
3 addition to the Rent. LESSEE shall also pay all costs associated with its use of telephone
4 service.
5 6. USE -LESSEE shall use the Premises as office space for the Department of
6 Social Services or any other County department or authorized agent. LESSEE agrees to
7 comply with all applicable laws, ordinances and regulations in connection with such use.
8 LESSOR covenants that: (i) the Premises are suitable for the intended use; (ii) the
9 Premises are in compliance with all applicable laws, ordinances and regulations, including but
10 not limited to safety regulations, health and building codes; and (iii) the Premises shall remain
11 in such compliance throughout the term of this LEASE.
12 7. MAINTENANCE-LESSOR shall be responsible for the structural condition of the
13 Premises and for all exterior maintenance, including but not limited to the air conditioning,
14 heating, plumbing systems, electrical systems, fire sprinkler systems, roof, painting,
15 landscaping and parking lot. LESSEE shall provide janitorial services, including supplies.
16 LESSOR covenants that the Premises shall be maintained in substantially the same condition
17 as that existing at the commencement of this LEASE, normal wear and tear excepted.
18 8. LESSOR IMPROVEMENTS TO PREMISES -LESSOR, at no cost to LESSEE,
19 shall paint and carpet the interior of the premises and replace the restroom flooring and the
20 work will be completed on or before October 1, 2015.
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9. COMPLIANCE WITH ALL LAWS-As to the Premises, LESSOR acknowledges
public funds are used for payments made by LESSEE under this LEASE and for "public works"
projects. Accordingly, LESSOR shall comply with, and shall ensure compliance by all
contractors and subcontractors with, all applicable laws and regulations, including the payment
of prevailing wages pursuant to Section 1770 et. seq. of the Labor Code.
10. BREACH OF OBLIGATION TO MAINTAIN -In the event LESSOR breaches its
obligation to maintain the Premises as herein provided, LESSEE shall give written notice to
LESSOR within fifteen (15) days of the discovery of such breach. LESSOR shall then have
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1 thirty (30) days from the date of notice to cure its breach; provided, however, that if such
2 default continues for thirty (30) days after written notice thereof from LESSEE to LESSOR then
3 LESSOR will not be in default hereunder if within such thirty (30) day period, LESSOR
4 commences the curing of such default and diligently and in good faith prosecutes the same to
5 completion. If the period for cure expires and if, in LESSEE'S reasonable determination,
6 LESSOR has failed to cure, then LESSEE may, at its election:
7 (A) terminate this LEASE as provided in Section 12. hereinbelow. In such case,
8 LESSEE shall have the right to demand LESSOR refund any monies which, in the
9 judgment of LESSEE, were paid to LESSOR pursuant to the LEASE but which
10 were not earned by LESSOR by consequence of its breach. Upon receipt of such
11 demand, LESSOR shall promptly refund all such monies; or
12 (B) cure LESSOR'S breach in which case LESSEE may deduct the reasonable cost of
13 such cure, together with reasonable administrative costs, from LESSEE'S future
14 rent obligation (but LESSEE'S decision to cure LESSOR'S breach shall not
15 constitute a waiver of any rights or remedies that LESSEE may have arising from
16 this LEASE or by operation of law).
17 11. DESTRUCTION OR DAMAGE FROM CASUALTY -If the Premises are damaged
18 or destroyed as a result of fire, earthquake, act of God, or any other identifiable event of a
19 sudden, unexpected, or unusual nature (hereinafter "Casualty"), then LESSOR shall either
20 promptly and diligently repair the damage at its own cost, or terminate this LEASE as
21 hereinafter provided.
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(A) LESSOR'S Election to Repair: If LESSOR elects to repair the Casualty damage
to the Premises, then it shall within thirty (30) days after the date of Casualty
provide written notice (hereinafter the "Notice of Repair") to LESSEE indicating
the anticipated time required to repair. LESSOR shall bear the cost of all repairs
to the Premises, including the cost to repair any alterations or fixtures installed or
attached thereto by LESSEE. Such repairs shall restore the Premises to
substantially the same condition as that existing immediately prior to the Casualty
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damage and such repairs shall also be made in compliance with all applicable
state and local building codes. LESSOR shall not be liable to LESSEE for (i)
compensation for any loss of business, or any inconvenience or annoyance
arising from repair of the Premises as a result of the Casualty except for rent
reduction as hereinafter provided or (ii) any damage caused by the negligence or
willful misconduct of LESSEE or its officers, agents, invitees or employees.
LESSEE shall be responsible at its sole cost and expense for the replacement of
its personal property.
(B) LESSOR'S Election to Terminate Due to Casualty: LESSOR may only elect
to terminate the LEASE due to Casualty if: the Premises have been destroyed or
substantially destroyed by said Casualty and the estimated time to repair the
Premises exceeds one hundred twenty (120) days from the date of the Casualty.
LESSOR shall provide LESSEE with written notice of its election to terminate
within thirty (30) days after the date of Casualty, in accordance with the
provisions of Section 12. hereinbelow.
(C) Rent Reduction Due to Casualty: In the event of Casualty, LESSEE'S
obligation to pay rent shall be reduced beginning on the date of the Casualty in
an amount proportionate to the damage caused to the Premises by the Casualty
as reasonably determined by LESSEE. If LESSOR elects to repair the Premises
pursuant to the terms of this LEASE, then the rent reduction shall continue until
the date of substantial completion of the repairs.
(D) LESSEE'S Election to Terminate Due to Casualty: If LESSEE does not receive a
Notice of Repair from LESSOR within thirty (30) days after a Casualty, or if the
anticipated period of repair contained in the Notice of Repair exceeds one
hundred twenty ( 120) days, then LESSEE may elect to terminate this LEASE as
provided in Section 12. hereinbelow. In such case, LESSEE shall have the right
to demand that LESSOR refund any monies which, in the judgment of LESSEE,
were paid to LESSOR pursuant to the LEASE but which were not earned by
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1 LESSOR by consequence of the Casualty. Upon receipt of such demand,
2 LESSOR shall promptly refund all such monies.
3 12. TERMINATION -If either LESSOR or LESSEE has an election under the terms
4 hereof to terminate this LEASE and such Party so elects, then written notice of such
5 termination shall be provided to the non-terminating Party, specifying a termination date not
6 less than ninety (90) days from the date of said notice.
7 In case of any termination of this LEASE by LESSEE, either the County Administrative
8 Officer, or the Director of Internal Services/Chief Information Officer, or the Director of the
9 Department of Social Services, or a designee of one of them, is hereby authorized to provide
10 such notice to terminate this LEASE.
11 13. NON FUNDING TERMINATION -This LEASE is contingent on the allocation of
12 funds by a governmental agency. Should funds not be allocated, this LEASE may be
13 terminated by the Board of Supervisors by giving at least thirty (30) days prior written notice to
14 LESSOR. LESSEE shall pay to LESSOR, within forty-five (45) days after the LEASE
15 termination date, any unpaid rent due LESSOR.
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14. HOLD HARMLESS-LESSOR agrees to indemnify, save, hold harmless, and at
LESSEE'S request, defend LESSEE, its officers, agents, and employees from any and all
costs and expenses, damages, liabilities, claims, and losses occurring or resulting to LESSEE
in connection with the performance or failure to perform by LESSOR, its officers, agents or
employees under this LEASE, and from any and all costs and expenses, damages, liabilities,
claims, and losses occurring or resulting to any person, firm, or corporation who may be
injured or damaged by the performance or failure to perform by LESSOR, its officers, agents,
or employees under the LEASE.
This LEASE is made upon the expressed condition that the LESSEE is to be free of all
liability, damages or injury arising from structural failures of the Leased Premises, including,
but not limited to external walls, doors, roof and floor. The parties acknowledge that as
between LESSOR and LESSEE, each is responsible for the negligence of its own officers,
agents, employees and invitees.
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15. INSURANCE-Without limiting the LESSEE'S right to obtain indemnification from
LESSOR or any third parties, LESSOR, at its sole expense, shall maintain in full force and
effect, the following insurance policies or a program of self-insurance throughout the term of
this LEASE:
a. Commercial General Liability -Commercial General Liability Insurance with
limits of not less than One Million Dollars ($1 ,000,000) per occurrence and an annual
aggregate of Two Million ($2,000,000). This policy shall be issued on a per occurrence basis.
LESSEE may require specific coverages including completed operations, products liability,
contractual liability, Explosion-Collapse-Underground, fire legal liability, or any other liability
insurance deemed necessary because of the nature of this contract.
b. Property Insurance -Against all risk of loss to LESSEE property, at full
replacement cost with no coinsurance penalty provision, naming LESSEE as additional loss
payee.
c. Automobile Liability-Comprehensive Automobile Liability Insurance with
limits for bodily injury of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per
person, Five Hundred Thousand Dollars ($500,000.00) per accident and for property damages
of not less than Fifty Thousand Dollars ($50,000.00), or such coverage with a combined single
limit of Five Hundred Thousand Dollars ($500,000.00). Coverage should include owned and
non-owned vehicles used in connection with this LEASE.
d. Worker's Compensation -A policy of Worker's Compensation insurance may
be required by the California Labor Code.
LESSOR shall obtain endorsements to the Commercial General Liability insurance
naming the County of Fresno (hereinafter "County"), its officers, agents, and employees,
individually and collectively, as additional insured, but only insofar as the operations under this
LEASE are concerned. Such coverage for additional insured shall apply as primary insurance
and any other insurance, or self-insurance, maintained by, its officers, agents, and employees
shall be excess only and not contributing with insurance provided under LESSOR'S policies
herein. This insurance shall not be cancelled or changed without a minimum or thirty (30) days
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advance written notice given to County.
Within (30) days from date LESSOR executes this LEASE, LESSOR shall provide
certificates of insurance and endorsement as stated above for all of the foregoing policies, as
required herein, to the County of Fresno, Attn: lSD Lease Services (L-165), 2220 Tulare
Street, 21st Floor, Room 2101, Fresno, CA 93721-2106, stating that such insurance
coverages have been obtained and are in full force; that the County, its officers, agents and
employees will not be responsible for any premiums on the policies; that such Commercial
General Liability insurance names the County, its officers, agents, and employees, individually
and collectively, as additional insured, but only insofar as the operations under this Lease are
concerned; that such coverage for additional insured shall apply as primary insurance an any
other insurance, or self-insurance shall not be cancelled or changed without a minimum of
thirty (30) days advance, written notice given to County.
In the event LESSOR fails to keep in effect at all times insurance coverage as herein
provided, the County may, in addition to other remedies it may have, suspend or terminate this
LEASE upon the occurrence of such event.
All policies shall be with admitted insurers licensed to do business in the State of
California. Insurance purchased shall be purchased from companies possessing a current AM
Best Company rating of A FSC VII or better.
LESSEE shall maintain during the term of this LEASE the following policies of
insurance, which coverages may be provided in whole or in part through one or more
programs of self-insurance:
a. Commercial General liability insurance with limits of not less than One Million
Dollars ($1 ,000,000.00) per occurrence and an annual aggregate of not less than Two Million
Dollars ($2,000,000.00). This policy shall be issued on an occurrence basis.
b. All-Risk property insurance.
16. SURRENDER OF POSSESSION-Upon the expiration ortermination of this
LEASE, LESSEE shall surrender the Premises to LESSOR in such condition as existing at the
commencement of this LEASE less reasonable wear and tear, less the effects of any
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Casualty, and less the effects of any breach of LESSOR'S covenant to maintain. LESSEE will
not be responsible for any damage which LESSEE was not obligated hereunder to repair.
17. FIXTURES -LESSOR agrees that any equipment, fixtures or apparatus installed
in or on the Premises by LESSEE shall continue to be the property of LESSEE and may be
removed by LESSEE at any time; provided, however that LESSEE shall remove such fixtures
at its sole cost and shall repair any damage caused by the removal of fixtures. Any fixtures
not removed when LESSEE surrenders possession shall become the property of LESSOR.
18. RIGHT OF ENTRY-LESSOR, or its representative(s), upon giving twenty-four
(24) hours written notice, shall have the right to enter the Premises at any time during
business hours, or at such other time as LESSEE deems appropriate, to make any alterations,
repairs or improvements to the Premises; however, the normal business of LESSEE or its
invitees shall not be unnecessarily inconvenienced.
19. AMENDMENT -This LEASE may be amended in writing by the mutual consent of
the Parties without in any way affecting the remainder.
20. ASSIGNMENT-Neither party shall assign, transfer or sub-let this LEASE, or the
rights or duties under this LEASE, without the prior written consent of the other party, which
consent shall not be unreasonably withheld or denied.
21. GOVERNING LAW -Venue for any action arising out of or relating to this
LEASE shall be in Fresno County, California. This LEASE shall be governed by the laws of
the State of California.
22. NOTICES -All notices given under this LEASE by either Party to the other
Party shall be in writing, and given by any one of the following methods:
(I) Personal delivery to the applicable address as set for below; or
(II) Sent by certified United States mail, first class postage prepaid, with return
receipt requested, to the applicable addresses as set forth below, in which case such notice
shall be deemed given three (3) business days if LESSOR is the recipient, or three (3)
business days if LESSEE is the recipient, after such deposit and postmark with the United
States Postal Service; or
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1 (Ill) Sent by a reputable overnight commercial courier, in which case such
2 notice shall be deemed given one ( 1) business day if LESSOR is the recipient, or one ( 1)
3 business day if LESSEE is the recipient, after such deposit with that courier to the applicable
4 addresses as set forth below.
5 (IV) The addresses and telephone numbers of the Parties for purposes of
6 giving or receiving notices under this LEASE are as follows:
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LESSEE:
County of Fresno (L-165)
Robert W. Bash, Director of
Internal Services
2220 Tulare Street, 21st Floor, Room 2101
Fresno, CA 93721-2106
(559) 600-1715
LESSOR:
Austin Enterprises, Inc.
Attn: Rick Austin
5108 E. Clinton Way, Suite 100
Fresno, CA 93727
(559) 456-3005
12 Provided however, such notices may be given to such person or at such other place as
13 either of the Parties may from time to time designate by giving written notice to the other Party,
14 and provided further however, in any event notices of changes of address or termination of this
15 LEASE shall not be effective until actual delivery of such notice. Notices given hereunder shall
16 not be amendments or modifications to this LEASE.
17 23. DISCLOSURE OF SELF DEALING TRANSACTIONS-This provision is only
18 applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation) or if
19 during the term of this LEASE, the LESSOR changes its status to operate as a corporation.:.
20 Members of LESSOR'S Board of Directors shall disclose any self-dealing transactions
21 that they are a party to while LESSOR is providing goods or performing services under this LEASE.
22 A self-dealing transaction shall mean a transaction to which the LESSOR is a party and in which
23 one or more of its directors has a material financial interest. Members of the Board of Directors
24 shall disclose any self-dealing transactions that they are a party to by completing and signing a
25 Self-Dealing Transaction Disclosure Form Exhibit "A", attached hereto and by this reference
26 incorporated herein, and submitting it to the County of Fresno prior to commencing with the self-
27 dealing transaction or immediately thereafter.
28 24. AUTHORITY-Each individual executing this LEASE on behalf of LESSOR
COUNTY OF FRESNO
Fresno, Callfomla 9
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1 represents and warrants that that individual is duly authorized to execute and deliver this LEASE on
2 behalf of AUSTIN ENTERPRISES, and that this LEASE is binding upon AUSTIN ENTERPRISES
3 in accordance with its terms. The terms of this LEASE are intended by the parties as a final
4 expression of their agreement with respect to such terms as are included in this LEASE and may
5 not be contradicted by evidence of any prior or contemporaneous agreement, arrangement,
6 understanding or negotiation (whether oral or written).
7 25. INDEPENDENT CONTRACTOR-In performance of the work, duties and
8 obligations assumed by LESSOR under this LEASE, it is mutually understood and agreed that
9 LESSOR, including any and all of the LESSOR'S officers, agents, and employees will at all times
1 0 be acting and performing as an independent contractor, and shall act in an independent capacity
11 and not as an officer, agent, servant, employee, joint venturer, partner, or associate of the LESSEE.
12 Furthermore, LESSEE shall have no right to control or supervise or direct the manner or method by
13 which LESSOR shall perform its work and function. However, LESSEE shall retain the right to
14 administer this LEASE so as to verify that LESSOR is performing its obligations in accordance with
15 the terms and conditions thereof.
16 LESSOR and LESSEE shall comply with all applicable provisions of law and the
17 rules and regulations, if any, of governmental authorities having jurisdiction over matters the
18 subject thereof.
19 Because of its status as an independent contractor, LESSOR shall have absolutely
20 no right to employment rights and benefits available to LESSE'S employees. LESSOR shall be
21 solely liable and responsible for providing to, or on behalf of, its employees all legally required
22 employee benefits. In addition, LESSOR shall be solely responsible and save LESSEE harmless
23 from all matters relating to payment of LESSOR'S employees, including compliance with Social
24 Security withholding and all other regulations governing such matters. It is acknowledged that
25 during the term of this LEASE, LESSOR may be providing services to others unrelated to the
26 LESSEE or to this LEASE.
27 26. ENTIRE LEASE-This LEASE constitutes the entire LEASE between the
28 LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior leases,
COUNTY OF FRESNO
Fresno, California 1 0
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1 negotiations, proposals, commitments, writings, advertisements, publications, and
2 understandings of any nature whatsoever unless expressly referenced in this LEASE. This
3 LEASE shall be binding on and inure to the benefit of LESSOR'S heirs, successors and assigns.
4 EXECUTED as of the date first herein written.
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COUNTY OF FRESNO
Fresno, California
LESSEE:
COUNTY OF FRESNO
ATTEST: E ICE E. SEIDEL, CLERK
BOARD OF SUPERVISORS
By oQ"'~ (\. ~
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG,COUNTY COUNSEL
By~.};~
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A.
AUDITOR-CONTROLLERITREASURER-
T AX COLLECTOR
-.., .. -.
By c. t?.t' f z c.~ -12_/ L (._
7}
c~ Obert W8sh,DireCtOi"Ofil1t -
Services/Chief Information Officer
Fund 0001, Subclass 10000, Org No. 5610, Acct. No. 7340
Property/L-165/Austin/DSS561 0
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LESSOR:
AUSTIN ENTERPRISES
partners hi
Rick Roy Austin,
Date~
SEL..F-OEALJNG TRANSACTION DISCLOSURE FORM
Exhibit "A"
L-165
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as "County Contractor"),
must disclose any self-dealing transactions that they are a party to while providing goods,
performing services, or both for the County. A self-dealing transaction is defined below:
·~ self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to
the County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the
transaction; and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4 ).
Mail the completed form to: County of Fresno
Attn: Lease Services (L-165)
Internal Services Department
2220 Tulare Street, Suite 2100, Room 2101
Fresno, CA 93721-2106
{1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
Exhibit "A"
L-165
(4) Explain why this self-deaUng transaction is consistent with the requirements of Corporations Code 5233 (a):
(S) Authorized Signature
Signature: I Date:
I