HomeMy WebLinkAboutAgreement A-16-457 with Botfee LLC.pdfL-310 Pontiac/ISD
Botfee/ITSD/8905
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COUNTY OF FRESNO
Fresno, California
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LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter “Lease”) is made and entered into this_____
day of _______________, 2016 (the “Effective Date”), by and between Botfee LLC, a limited
liability company, 2780 N. Miami Ave., Ste. 101, Fresno, CA 93727, (hereinafter “LESSOR”),
and the COUNTY OF FRESNO, a political subdivision of the State of California, 2220 Tulare
Street, 21st Floor, Room 2101, Fresno, CA 93721-2120 (hereinafter “LESSEE”). LESSOR
and LESSEE may be referred to in this Lease individually as a “Party” or collectively at times
as the “Parties”.
1. PREMISES - LESSOR represents and covenants to LESSEE that LESSOR is
(or will be prior to the “Rent Commencement Date,” as that term is defined hereinbelow) the
fee title owner of a 4.788 parcel of premises at the location commonly known as 333 W.
Pontiac, Clovis, CA 93612, which is currently a part of APN 493-070-57s (hereinafter the
“Premises”). LESSOR hereby leases the Premises to LESSEE, which include a building
containing approximately 39,263 square feet (the “Building”) and adjacent common area
parking, as approximately depicted on Exhibit “A-1”, and legally described on Exhibit “A”, both
exhibits of which are attached to and by this reference incorporated herein.
2. TERM -The initial term of this Lease shall begin on the Rent Commencement
Date (as defined in Section 3 hereinbelow) and end on the July 31 following the tenth (10th)
anniversary of the Rent Commencement Date (or on the date that fee title ownership to the
Premises is conveyed by LESSOR to LESSEE pursuant to the “Purchase Option,” as defined
hereinbelow) (the “Initial Term”). LESSEE shall have the option to extend the Initial Term for
a maximum of one (1) five (5) year period (the “Extension Term”). The Extension Term option
shall be deemed automatically exercised by LESSEE unless LESSEE provides LESSOR with
written notice to terminate this Lease at least one hundred eighty (180) days prior to the
expiration of the Initial Term. All terms and conditions of this Lease shall apply during the
Extension Term. Notwithstanding the foregoing, LESSEE’S right to the Extension Term shall
at LESSOR’s discretion, be deemed void and of no force or effect if LESSEE is in default
under this Lease beyond any applicable notice and cure period on the date that is one
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hundred eighty (180) days prior to the expiration of the Initial Term, in which event this Lease
shall terminate upon the expiration of the Initial Term (or such sooner date as LESSOR may
terminate this Lease pursuant to the terms hereof). The Initial Term and the Extension Term
may be referred to herein collectively at times as the “Term” or “term”.
3. RENT/OPERATION COST –
A. Base Rent-From and after the Rent Commencement Date and throughout the
Initial Term, LESSEE shall pay to LESSOR without offset, demand or prior notice,
base rent for the Premises in the sum of Four Hundred Forty-three Thousand
Three Hundred and Four and No/100 Dollars ($443,304.00) per annum, paid in
equal monthly installments, on or before the first of each month, of Thirty-Six
Thousand Nine Hundred and Forty-Two and 00/100 Dollars ($36,942.00) (“Base
Rent”). Upon commencement of the Extension Term, Base Rent shall increase by
two percent (2%) annually.
B. Additional Rent-In addition to the Base Rent, LESSEE shall pay, on or before the
first of each month, as “Additional Rent,” the following Premises annual operation
costs (collectively, “Operation Costs”) to LESSOR: Commencing on the Rent
Commencement Date and throughout the term of this Lease, LESSEE shall
reimburse LESSOR for (1) LESSOR’s actual out of pocket costs for premises
taxes for the Premises (excepting any penalties or interest assessed due to
LESSOR’s late payment of same); and (2) LESSOR’s Insurance Costs (as defined
in Section 14 hereinbelow).
Provided the County of Fresno Board of Supervisors (“Board”) approves this
Lease at its July 12, 2016 meeting as scheduled, the Rent Commencement Date shall be the
date that LESSOR has delivered possession of the Premises to LESSEE. The Parties shall
confirm the Rent Commencement Date in writing, which writing shall become an exhibit to
this Lease. As to LESSEE, its County Administrative Office or Director of Internal
Services/Chief Information Officer, or a designee of one of them, is hereby authorized to
execute said writing confirming the Rent Commencement Date.
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All of the payments described in this Section 3 for which LESSEE is
responsible and any other charges and reimbursements payable to LESSOR by LESSEE
under this Lease (including but not limited to, any amounts expended by LESSOR in
accordance with the terms of Section 10 hereinbelow) are hereinafter collectively referred to
as “Rent.” If the Rent Commencement Date does not occur on the first (1st) day of a month
or if the Term ends on a day other than the last day of a month, then Rent for any such partial
month shall be prorated based on the number of days in such month.
4. UTILITIES – LESSEE is responsible for contracting directly with the applicable
utility provider and paying directly thereto for electricity, natural gas, water/sewer, telephone
and internet services for the Premises and any and all other utility services LESSEE requires
in connection with its use of the Premises.
5. MAINTENANCE – LESSOR shall have no obligation to maintain the Premises.
This Lease is intended by the parties to be a true triple net (“NNN”) lease. Accordingly, as the
sole occupant of the Building and Premises, LESSEE shall be responsible for 100% of real
property taxes, insurance, maintenance (including maintenance of all landscaping at or on the
Premises) and repair costs attributable to the Premises. This Lease shall be interpreted in all
respects to be a NNN lease.
6. USE - LESSEE shall use the Premises as office space for its Internal Services
Department or any other County department. LESSEE shall strictly comply with all applicable
laws, ordinances and regulations in connection with such use.
7. IMPROVEMENTS TO THE PREMISES –
A. NO LESSOR IMPROVEMENTS TO THE PREMISES – LESSEE
acknowledges that it is accepting the Building and the Premises in AS-Is
condition, and LESSOR has no obligation to perform any work whatsoever
at or on the Premises.
LESSOR shall, within fifteen (15) days after the Effective Date of this Lease,
provide and assign and/or provide to LESSEE (to the extent the same are assignable
pursuant to their terms to the extent the same are in LESSOR’S possession and control) the
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following:
(i) Assignment of the roof warranty for the Premises to LESSEE; and
(ii) Building plans and any information LESSOR has available regarding
security cameras for the Premises; and
(iii) Any and all warranties for the mechanical systems at the Premises that
are in LESSOR’S possession.
B. LESSEE IMPROVEMENTS TO THE PREMISES – The Parties understand
and agree that LESSEE shall make certain improvements to the Premises.
All such LESSEE improvements to the Premises shall be provided by
LESSEE at LESSEE’s sole cost and expense (the “LESSEE’s Work”).
LESSEE’s Work shall include, but shall not be limited to, all leasehold
improvements, fixtures, equipment, and personal property necessary for
LESSEE to ready the Premises for its use.
C. INDEPENDENT CONTRACTOR - In performance of the work, duties and
obligations assumed by LESSOR under this Lease, if any, it is mutually
understood and agreed that LESSOR, including any and all of the LESSOR'S
officers, agents, and employees will at all times be acting and performing as an
independent contractor, and shall act in an independent capacity and not as an
officer, agent, servant, employee, joint venture, partner, or associate of the
LESSEE. Furthermore, LESSEE shall have no right to control or supervise or
direct the manner or method by which LESSOR shall perform its work and
function; provided; LESSOR shall satisfy and comply with its obligations as set
forth herein.
LESSOR and LESSEE shall comply with all applicable provisions of law and the rules
and regulations, if any, of governmental authorities having jurisdiction over matters the
subject thereof.
Because of its status as an independent contractor, LESSOR shall have absolutely no
right to employment rights and benefits available to LESSEE’S employees. LESSOR shall be
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solely liable and responsible for providing to, or on behalf of, its employees all legally-required
employee benefits. In addition, LESSOR shall be solely responsible and save LESSEE
harmless from all matters relating to payment of LESSOR’S employees, including compliance
with Social Security withholding and all other law and regulations governing such matters. It
is acknowledged that during the term of this Lease, LESSOR may be providing services to
others unrelated to the LESSEE or to this Lease.
9. COMPLIANCE WITH ALL LAWS – If any work is undertaken at the Premises by
or on behalf of LESSOR, 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. Notwithstanding the
foregoing, neither this Lease nor either party contemplates LESSOR’s performance of any work
at or on the Premises.
10. BREACH OF OBLIGATION TO MAINTAIN – In the event LESSEE breaches
its obligation to maintain the Premises as herein provided, LESSOR may give written notice
to LESSEE after the discovery of such breach. LESSEE shall then have thirty (30) days from
the date of notice to cure its breach, provided, however, that if the item of maintenance is of
such a nature that it requires more than thirty (30) days to complete, then LESSEE shall have
such additional time as is necessary to complete such maintenance as long as LESSEE
commences work on such maintenance within said thirty (30) day period and diligently
prosecutes such maintenance to completion. Subject to the foregoing, if the period for cure
expires and if LESSEE has failed to cure, then LESSOR shall have the right, but not the
obligation, to cure LESSEE’s breach and seek reimbursement from LESSEE for the
reasonable and actual verifiable costs incurred by LESSOR in curing such breach. LESSEE
shall reimburse LESSOR for such costs within thirty (30) days after LESSEE’s receipt of a
written demand therefor which shall be accompanied by invoices evidencing such costs
incurred
LESSOR's decision to cure LESSEE’s breach shall not constitute a waiver of any
rights or remedies that LESSOR may have arising from this Lease or by operation of law.
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11. CONDEMNATION OR PROHIBITED USE – If the Premises, or any portion
thereof, is appropriated, condemned, or taken by any governmental authority or public agency
other than LESSEE by use or exercise of eminent domain proceedings or other proceedings,
or by inverse condemnation, or is sold under threat of use or exercise of eminent domain by
any governmental authority or public agency other than LESSEE, or if by reason of law,
ordinance, regulation, or court judgment, LESSEE’s use or occupancy of the Premises, or
any portion thereof, shall be materially and adversely affected for the period set forth in
clause (i) below, but excluding therefrom any day that is not a LESSEE business day
(hereinafter collectively “Condemnation or Prohibited Use”), then LESSEE shall have the right
to do either of the following:
(i) If the Condemnation or Prohibited Use has a material adverse effect on
LESSEE’s use and occupancy of the Premises and is reasonably anticipated to impact such
use in excess of ninety (90) days, then LESSEE may terminate this LEASE by giving written
notice thereof to LESSOR. Such notice shall specify a date of termination of this LEASE not
less than one hundred eighty (180) calendar days, and not more than two-hundred ten (210)
calendar days, from the date of such notice, or from the date that LESSEE’s use of the
Premises will be materially adversely affected pursuant to the notice LESSEE receives from
LESSOR of such appropriation, condemnation, taking, or sale that shall prohibit LESSEE’s
use or occupancy of the Premises, or the affected part thereof, whichever is earlier. The
County Administrative Officer or the Director of Internal Services/Chief Information Officer, or
a designee of one of them, shall have the authority to provide such notice on behalf of
LESSEE.
(ii) LESSEE may renegotiate with LESSOR with respect to the terms of
any amounts to be owed by LESSEE hereunder, including any portion or installment of the
Base Rent, when such are due and payable, and/or any other amounts otherwise due and
payable hereunder, for the remainder of Premises not affected by such Condemnation or
Prohibited Use during the balance of the term of this LEASE. Any such renegotiated terms of
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the Base Rent, and/or any other amounts otherwise to be due and payable herein shall be
sought in good faith and without unreasonable delay by the Parties, and made only by written
amendment, pursuant to Section 18, herein.
12. DESTRUCTION OR DAMAGE FROM CASUALTY – If the Premises are
damaged or destroyed as a result of fire, earthquake, act of God, or any other identifiable
event of a sudden, unexpected, or unusual nature (hereinafter "Casualty"), then LESSOR
shall either promptly and diligently repair the damage at its own cost, or terminate this Lease
as hereinafter provided. If LESSOR obtains any proceeds from the Property Insurance Policy
(as defined in Section 14 hereinbelow) that are not otherwise payable to any mortgagee or
beneficiary, and this Lease is not terminated as a result of such Casualty pursuant to the
terms hereof, then LESSOR shall promptly apply all of such insurance proceeds toward the
repair and restoration of the Premises pursuant to LESSOR’s obligations under this Section
12.
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 "Notice of Repair") to
LESSEE indicating the anticipated time required to repair. LESSOR shall
bear the cost of all repairs to the Premises, expressly including the cost to
repair any alterations, fixtures, or personal property installed on or in the
Premises or constructed by LESSEE (but expressly excluding the cost of
LESSEE’s personal property located on the Premises, unless damage or
loss thereto was caused by LESSOR’s willful misconduct or gross
negligence), the costs incurred or to be incurred by LESSOR to satisfy its
repair obligations set forth in this Subsection A being referred to collectively
herein as “LESSOR’s Repair and Restoration Costs”). Such repairs shall
restore the Premises to substantially the same condition as that existing as
of the date of the Casualty; such repairs shall also be made in compliance
with all applicable state and local building codes. If LESSOR or LESSEE
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do not elect to terminate this Lease as provided herein, then LESSOR shall
diligently apply for and pursue receipt of all required permits and approvals
in connection with the repair and restoration and after receipt thereof shall
forthwith and with all due diligence repair the same and restore the
Premises as required herein. LESSOR shall not be liable to LESSEE for
compensation for any loss of business, or any inconvenience or annoyance
arising from repair of the Premises as a result of the Casualty, provided
however, there shall be abatement of the Base Rent, and/or any amounts
otherwise owed by LESSEE hereunder, as hereinafter provided except for
rent reduction as hereinafter provided. LESSEE shall be responsible at its
sole cost and expense for the replacement of its personal property, unless
damage or loss thereto was caused by willful misconduct or gross
negligence of LESSOR. Notwithstanding anything to the contrary set forth
herein, LESSOR’s Repair and Restoration Costs shall be capped at an
amount equal to the insurance proceeds actually received by LESSOR
from the Property Insurance Policy (or if LESSOR failed to obtain and
maintain the Property Insurance Policy as required herein, then the
proceeds which would have been received by LESSOR had LESSOR
maintained the Property Insurance Policy as required hereunder).
B. LESSOR'S Election to Terminate Due to Casualty: LESSOR may only
elect to terminate this 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 eighty (180) days from
the date LESSOR receives all permits and approvals required in
connection with such restoration and repair. “Substantially destroyed” as
used herein means the cost to repair such Casualty exceeds twenty-five
percent (25%) of the Building’s replacement value, valued as of the date of
Casualty. LESSOR shall provide LESSEE with written notice of its election
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to terminate within thirty (30) days after the date of Casualty, specifying a
termination date not less than thirty (30) days from the date of said notice.
C. Abatements Due to Casualty: In the event of any Casualty, LESSEE’s
obligations to pay Base Rent, and/or any other amounts otherwise owed by
LESSEE hereunder shall be abated, as provided in Section 31 herein,
commencing on the date of the Casualty and continuing thereafter until the
date of LESSOR’s completion of repair to, or replacement or restoration of,
the Premises, or applicable portion thereof, pursuant to this LEASE, unless
this LEASE is terminated earlier as provided herein.
13. HOLD HARMLESS – LESSOR will indemnify, defend, and hold LESSEE harmless
from and against any and all liabilities, claims, demands, actions, proceedings, costs,
expenses or damages of any kind or nature (collectively, “Claims”) in any manner directly or
indirectly caused, occasioned or contributed to by reason of the negligence, whether active or
passive, of LESSOR or anyone acting under its direction or control or on its behalf in
connection with or incidental to the performance of LESSOR’S obligations pursuant to this
Lease.
LESSEE will indemnify, defend, and hold LESSOR harmless from and against any
Claims in any manner directly or indirectly caused, occasioned or contributed to by reason of
the negligence, whether active or passive, of LESSEE or anyone acting under its direction or
control or on its behalf in connection with or incidental to the performance of this Lease or any
Claims otherwise arising in connection with LESSEE’S use and occupancy of the Premises.
The parties acknowledge that as between LESSOR and LESSEE, each is
responsible for any Claims arising from the acts or omissions of its own employees and
invitees and notwithstanding anything to the contrary in this Section 13, each Party hereby
waives any claim for or right to consequential or punitive damages.
14. INSURANCE –
A. LESSOR shall maintain in full force and effect, the following insurance policies
throughout the term of the Lease:
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a. Commercial General Liability - Commercial General Liability Insurance
covering the common areas located on the Premises 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 shall be issued on a per occurrence basis.
b. Property Insurance – A “Property Insurance Policy” which is defined herein
to mean a policy of special form, so called “all-risk” of physical loss property insurance
insuring against fire, theft, vandalism, malicious mischief, sprinkler leakage and such
additional perils as are now or hereafter may be included in broad form coverage (at LESSOR
or LESSEE’s option or if otherwise required by LESSOR’s mortgagee, if any, also to include
coverage against earthquake and flood) from time to time in general use in the State of
California covering the full replacement value of all alterations, additions, partitions,
improvements, machinery, equipment, and fixtures made or placed by LESSEE in the
Premises, covering the Building and other improvements on the Premises, and covering any
other perils which LESSEE deems reasonably necessary and so requests to be covered by
written notice to LESSOR. The Property Insurance Policy shall name LESSOR and the
holder of any mortgage or deed of trust encumbering the Premises (if any), as its interest may
appear, as a loss payee under such policy. The limits for such insurance shall be for not less
than the full replacement value of the Building as improved and existing as of the date of
Casualty (the “Minimum Insured Amount”). On the Delivery Date, from time to time as
LESSEE makes improvements to the Building, upon LESSOR’s request, and at such other
times during the Term as LESSEE elects in its discretion, LESSEE shall deliver to LESSOR
written notice of the Minimum Insured Amount and LESSOR shall communicate such
Minimum Insured Amount to its insurer. Neither LESSOR nor LESSEE shall do or permit
anything to be done which invalidates any such insurance policies.
c. Rental Loss Insurance - A policy of rental interruption or rental loss
insurance against loss, total or partial, of the use and occupancy of the Premises, in an
amount sufficient to pay the Base Rent and Additional Rent required to be paid by LESSEE
hereunder for a twenty -four (24) month period, as a result of any of the hazards covered by
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the Property Insurance Policy required hereunder.
d. Worker’s Compensation - Worker’s Compensation insurance, if 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. This insurance shall not be cancelled or
changed without a minimum or thirty (30) days advance written notice given to County.
Within (30) days after the Effective Date, 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: ISD Lease Services (L-310), 2220 Tulare Street, 21st
Floor, Fresno, CA 93721-2106, stating that such insurance coverages have been obtained
and are in full force; that such Commercial General Liability insurance names the LESSEE, its
officers, agents, and employees, individually and collectively, as additional insured as
required herein and that such insurance shall not be cancelled or changed without a minimum
of thirty (30) days advance, written notice given to LESSEE.
In the event LESSOR fails to keep in effect at all times insurance coverage as
herein provided, then LESSEE may, after thirty (30) days written notice to LESSOR, obtain
such insurance on LESSOR’S behalf and offset Base Rent by the amount of such insurance
premiums incurred by LESSEE after providing written notice of such amounts and proof of
insurance to LESSOR.
The costs incurred by LESSOR in obtaining and maintaining the insurance policies
required of LESSOR hereunder (including any deductibles payable in the event of a loss
covered by such policies) shall be referred to herein collectively as “LESSOR’S Insurance
Costs” and shall be reimbursable to LESSOR as Additional Rent in accordance with Section 3
hereinabove.
B. 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
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programs of self-insurance (provided that any such self-insurance program shall not diminish
or reduce LESSEE’S liability hereunder):
a. Commercial General Liability insurance with limits of not less than Two
Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of not less than Four
Million Dollars ($4,000,000.00). This policy shall be issued on an occurrence basis, shall
name LESSOR as additional insured, and shall be primary and non-contributing as to
occurrences and claims in connection with events occurring within the Building (as opposed
to in the common area of the Premises for which LESSOR’S Commercial General Liability
policy shall be primary).
b. All-Risk property insurance. A Special form casualty insurance coverage
which shall include fire and such other perils as are customarily included in such insurance
maintained by prudent tenants leasing similar space in the same general area of the
Premises, in an amount adequate to cover the replacement cost of (i) LESSEE’S
merchandise, trade fixtures, furnishings, equipment and other personal property of LESSEE
located on or within the Premises, and (ii) at LESSEE’s option, the leasehold improvements,
alterations and additions to the Premises for which LESSOR shall be named as a loss payee
under such insurance, provided however, the proceeds of such insurance shall be delivered
to and used by LESSOR to repair or replace the affected leasehold improvements, alterations
and additions, and if not so used, shall be paid to LESSEE.
c. All insurance coverage required under this LEASE to carry out LESSEE’s
Work pursuant to Section 7.b hereinabove.
LESSEE shall provide copies of the insurance policies, appropriately
authenticated by the insurer, or original insurance certificates reasonably acceptable to
LESSOR, evidencing the insurance coverages called for above. Such copies of policies or
certificates shall be furnished to LESSOR upon execution of this Lease. The policies or
certificates shall contain a provision that the insurer will not cancel or refuse to renew the
policies, or change in any material way the nature or extent of the coverage provided by such
policies without first giving LESSOR thirty (30) days prior written notice. Thirty (30) days prior
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to expiration of any policies of insurance carried by LESSEE, LESSEE shall provide proof of
continuing coverage.
C. Waiver of Subrogation. Neither LESSOR nor LESSEE shall be liable to the
other or to any insurance company (by way of subrogation or otherwise) insuring the other
party for any loss or damage to any building, structure or other tangible property, or any
resulting loss of income and benefits, even though such loss or damage might have been
occasioned by the negligence of such party, its agents or employees, if any such loss or
damage is covered by insurance benefiting the party suffering such loss or damage or was
required to be covered by insurance pursuant to this Lease. LESSOR and LESSEE shall
require their respective insurance companies to include a standard waiver of subrogation
provisions in their respective policies.
D. 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 A.M Best Company rating of A FSC VII or better.
15. SURRENDER OF POSSESSION / HOLDOVER – Upon the expiration or
termination of this Lease, LESSEE will surrender the Premises to LESSOR broom clean and
otherwise in such condition as existing on the Rent Commencement Date, less reasonable
wear and tear, but including all improvements made by LESSEE. If LESSEE holds over after
the expiration of the Term or earlier termination thereof, with or without the express or implied
consent of LESSOR, such tenancy shall be tenancy at sufferance only, and shall not
constitute a renewal hereof or an extension for any further term, and in such case LESSEE
shall pay one hundred three percent (103%) of Base Rent, in effect just prior to expiration or
termination, until either party gives the other thirty (30) days written notice of termination,
reciting therein the effective date of cancellation. LESSOR hereby expressly reserves the
right to require LESSEE to surrender possession of the Premises to LESSOR as provided in
this Lease upon the expiration or other termination of this Lease. The provisions of this
Section 15 shall not be deemed to limit or constitute a waiver of any other rights or remedies
of LESSOR provided herein or at law. Notwithstanding anything to the contrary in this
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Section 15, the provisions of this Section 15 shall have no force or effect if LESSEE
purchases the Real Property including the Premises pursuant to Section 24 herein below.
16. 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. LESSEE shall pay for the repair of any damage
caused by the removal of fixtures. Any fixtures not removed after LESSEE surrenders
possession shall be deemed abandoned by LESSEE and become the property of LESSOR.
17. RIGHT OF ENTRY – LESSOR, or its representative(s), upon twenty-four (24)
hour 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. The normal business of LESSEE or its invitees shall not be
unnecessarily inconvenienced. In the event of an emergency, LESSOR may enter the
Premises at any time without giving prior notice to LESSEE.
18. AMENDMENT – This Lease may be amended in writing by the mutual consent
of the parties without in any way affecting the remainder of this Lease.
19. NON-ASSIGNMENT – LESSEE shall not assign or transfer its rights or
obligations under this Lease, or sub-lease said Premises or any portion thereof, without the prior
written consent of the LESSOR, which consent shall not be unreasonably withheld, provided,
however, that in the event of any such assignment, sublease or transfer of LESSEE’s rights or
obligations hereunder, the originally named LESSEE hereunder (i.e., the COUNTY OF
FRESNO, a political subdivision of the State of California) shall remain fully and primarily
liable for all duties and obligations of LESSEE under this Lease.
20. 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.
21. NOTICES – All notices to be 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
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(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) days if LESSEE is the recipient, after such deposit and postmark with the United
States Postal Service; or
(iii) Sent by a reputable overnight commercial courier, in which case
such notice shall be deemed given one (1) business day if LESSOR is the recipient, or one
(1) day if LESSEE is the recipient, after such deposit with that courier to the applicable
addresses as set forth below.
The addresses and telephone numbers of the Parties for purposes of giving
receiving notices under this Lease are as follows:
LESSEE:
County of Fresno
Jean M. Rousseau
County Administrative Office (CAO)
2281 Tulare Street, Suite 304
Hall of Records
Fresno, CA 93721
(559) 600-1710
with copies to:
County of Fresno
Robert W. Bash (L-310)
Director of Internal Services
333 W. Pontiac Way
Clovis, CA 93612
(559) 600-6200
LESSOR:
Botfee LLC, a limited liability
company
Attn: Todd Cook
2780 N. Miami Ave., Ste. 101
Fresno, CA 93727
(559) 346-1400
toddcook@cooklandcompany.com
Bryan W. Burton
Sr. Staff Analyst
2220 Tulare, Ste. 2101
Fresno, CA 93721
(559) 600-5647
Provided however, such notices may be given to such person or at such other place as
either of the Parties may from time to time designate by giving written notice to the other Party,
and provided further however, in any event notices of changes of address or termination of this
Lease shall not be effective until actual delivery of such notice. Notices given
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hereunder shall not be amendments or modifications to this Lease.
22. DISCLOSURE OF SELF DEALING TRANSACTIONS – This provision is only
applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation)
or if during the term of this Lease, the LESSOR changes its status to operate as a
corporation.
Members of LESSOR’S Board of Directors shall disclose any self-dealing transactions
that they are a party to while LESSOR is providing goods or performing services under this
Lease. A self-dealing transaction shall mean a transaction to which the LESSOR is a party
and in which one or more of its directors has a material financial interest. Members of the
Board of Directors shall disclose any self-dealing transactions that they are a party to by
completing and signing a Self-Dealing Transaction Disclosure Form Exhibit “B”, attached
hereto and by this reference incorporated herein, and submitting it to the County of Fresno
prior to commencing with the self-dealing transaction or immediately thereafter.
23. AUTHORITY – Each individual executing this Lease on behalf of LESSOR
represents and warrants that the individual(s) executing this Lease on behalf of LESSOR are
duly authorized to execute and deliver this Lease on behalf of Botfee LLC, a limited liability
company and that this Lease is binding upon Botfee LLC, a limited liability company in
accordance with its terms. The terms of this Lease are intended by the parties as a final
expression of their agreement with respect to such terms as are included in this Lease and
may not be contradicted by evidence of any prior or contemporaneous agreement,
arrangement, understanding or negotiation (whether oral or written).
24. RIGHT OF PURCHASE OPTION – LESSEE shall have the option to purchase
the Premises for the sum of Four Million Five Hundred Seventy-Five Thousand and No/100
Dollars ($4,575,000.00) (“Purchase Option”). The Purchase Option shall be exercised, if at
all, by way of a written notice timely delivered to LESSOR six (6) months prior to the
proposed Purchase Date (“Purchase Option Notice”). The Purchase date shall be any day
upon completion of the second year of the lease term and at any time thereafter. If LESSEE
exercises the Purchase Option pursuant to the terms hereof, then, LESSOR shall promptly
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give LESSEE written notice of receipt of the Purchase Option Notice, and the parties shall
enter into a Sale and Purchase Agreement. All due diligence regarding the Premises shall be
performed prior to the exercise of LESSEE’S Purchase Option and delivery of the Purchase
Option Notice pursuant to the terms and conditions set forth in this Section 24.
Notwithstanding anything to the contrary in Section 21 of this Lease, the following
persons are each authorized to (i) execute, on behalf of LESSEE, the Purchase Option
Notice, and, (ii) to deliver to LESSOR said Purchase Option Notice pursuant to the terms
hereof:
County Administrative Officer (CAO)
County of Fresno
2281 Tulare Street, Suite 304
Hall of Records
Fresno, CA 93721
Director of Internal Services
County of Fresno
333 W. Pontiac Way
Clovis, CA 93612
a. Due Diligence. LESSEE and LESSEE’S agents, employees, and
representatives (collectively "LESSEE’S Agents"), shall, prior to delivering the Purchase
Option Notice perform all due diligence on the Real Property (subject to the terms and
conditions set forth herein), including reviewing matters of title, inspecting the physical
conditions of the Premises, obtaining an acceptable appraisal of the Premises, receiving an
acceptable Phase 1 Environmental Assessment Report, obtaining a termite report, performing
inspections, reviewing agreements relating to the Premises and conducting such other due
diligence as the LESSEE determines. LESSEE’S delivery of the Purchase Option Notice
shall be deemed LESSEE’S acceptance of all aspects of and the condition of the Premises
Notwithstanding anything to the contrary in this Section 24(a), LESSEE shall not
perform any soil borings or other invasive testing to the land or any improvements located
thereon without LESSOR’S prior written approval which approval shall not be unreasonably
withheld, conditioned or delayed. LESSOR or its representative may be present to observe
any testing or other inspection performed on the Real Property. LESSEE’S right to enter
upon the Premises or allow any of LESSEE’S Agents to enter upon the Premises to perform
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the due diligence investigations contemplated in this Section 24, shall be conditioned on
LESSEE’S agreement to maintain worker’s compensation and commercial general liability
insurance policies to cover LESSEE’s and LESSEE’S Agents’ due diligence activities on the
Premises and to keep the Premises free and clear of all mechanics’ and materialmen’s liens
or other liens arising out of any of its activities or those of its representatives, agents or
contractors. If the same is not already in effect pursuant to this Lease, then at least two (2)
business days before commencing such due diligence investigations on the Real Property,
LESSEE shall deliver to LESSOR a certificate of insurance evidencing insurance coverage in
compliance with the terms of this subsection. LESSEE shall maintain and keep in effect, at
LESSEE’S sole expense, at all times during the period of escrow, a general commercial
liability insurance policy as set forth in Section 14.B herein.
b. Due Diligence Materials. If LESSOR has not previously delivered the same to
LESSEE, then within fifteen (15) days after the Effective Date of this Lease, LESSOR shall
provide (electronically or otherwise) all due diligence materials relating to the Real Property
which are in its possession and control, including but not limited to such reports, inspections,
appraisals, agreements and other documentation as described in subsection 24(a)
hereinabove (“LESSOR’s Due Diligence Materials”). LESSOR’s Due Diligence Materials and
any other such items shall be delivered to LESSEE without representation or warranty by
LESSOR with respect to the contents, accuracy or completeness thereof, and shall be subject
to any rights of third parties as to their use, reliance thereon or disclosure. LESSOR shall
thereafter deliver any additional Due Diligence Materials pertaining to the Real Property which
may come into LESSOR’S possession within fifteen (15) days after LESSEE’S written request
therefor.
c. Title Matters. A Preliminary Title Report shall be issued to LESSEE within
fifteen (15) days after LESSEE’S request for same (which request shall be made sufficiently
in advance of the Purchase Date to allow LESSEE to analyze and approve the title matters
affecting the Real Property if LESSEE wishes to exercise the Purchase Option). Except for
any permitted encumbrances at the execution date and other than any mortgage or deed of
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trust or similar debt instrument provided the same is released and reconveyed as of the close
of escrow in connection with the Purchase Option pursuant to Section 38 hereinbelow, if
LESSEE notifies LESSOR in writing of any disclosed title matters in the Preliminary Title
Report which are unacceptable to LESSEE, then LESSOR shall have ten (10) business days
from receipt of such objection notice in which to (i) cure and/or remove from title to the Real
Property, at LESSOR’s sole cost, any such disclosed title matters, which have been caused
or permitted by LESSOR, including LESSOR, at its sole cost, curing, and/or removing from
title to the Real Property any lien (other than a mortgage, deed of trust or other debt
instrument the removal of which is addressed in Section 38 below) and (ii) as to any other
disclosed title matters which were not caused or permitted by LESSOR, inform LESSEE in
writing whether or not LESSOR will agree to (and as to such items that LESSOR so agrees,
LESSOR agrees to) cure and/or remove from title (through bonding over or otherwise) to the
Real Property, at LESSOR’s sole cost, any other title matters to which LESSEE has objected
prior to the close of escrow in connection with the Purchase Option (LESSOR’S failure to
timely so notify LESSEE shall be deemed LESSOR’S election not to so cure any of
LESSEE’S title objections under this subsection (ii)). The foregoing title review, objection,
and cure procedure shall take place prior to LESSEE’S delivery of the Purchase Option
Notice, provided however, LESSOR’s obligations under this subsection 24(c) shall apply until
the close of escrow.
25. ENTIRE AGREEMENT – This Lease constitutes the entire Lease between the
LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior
leases, negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly referenced in this Lease.
26. SUCCESSORS – This Lease shall inure to the benefit of and be binding upon
the heirs, executors, administrators, successors and assigns of the respective parties hereto,
always providing that nothing in this Section 26 shall impair any of the provisions herein
above set forth prohibiting assignment or other transfer of this Lease by LESSEE without the
prior written consent of LESSOR.
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27. LESSEE'S DEFAULT AND LESSOR'S REMEDIES –
A. LESSEE’S Default. LESSEE shall be in default under this Lease if LESSEE
fails to perform any of its obligations hereunder and (i) if the failure is in the payment of Base
Rent, or any other failure which can be cured by the payment of money, the failure continues
uncured for a period of five (5) days after written notice thereof from LESSOR (provided,
however, LESSOR shall have no obligation to provide such written notice more than two (2)
times in any twelve (12) consecutive month period), or (ii) if the failure is in any of the other
provisions of this Lease and such failure continues uncured for a period of thirty (30) days
after written notice thereof from LESSOR, unless such cure is not capable of completion
within thirty (30) days, in which case LESSEE shall be afforded such additional time as may
be reasonably necessary to complete the cure provided LESSEE commences the cure within
thirty (30) days of LESSOR’S notice and diligently pursues such cure to completion, or, in the
event of a threatened injury to life or property due to such failure, continues for such lesser
period as LESSOR may specify in such written notice.
B. LESSOR’S Remedies. In the event of a default by LESSEE then, besides any
other rights and remedies of LESSOR at law or equity, LESSOR shall have the following
rights and remedies. All remedies herein conferred on LESSOR shall, to the fullest extent
permitted by law, be deemed cumulative and no one exclusive of the other or of any other
remedy conferred by law or in equity, and nothing herein shall prevent LESSOR from
pursuing any and all other remedies it may have upon LESSEE’S default.
a. Election to Continue or Terminate Lease. LESSOR shall have the right
to elect either to continue or terminate this Lease, as follows:
(1) Continuation of Lease. LESSOR shall have the remedy
described in California Civil Code Section 1951.4 (LESSOR may continue this Lease in effect
after LESSEE’S breach and abandonment and recover rent as it becomes due, if LESSEE
has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if
LESSOR does not elect to terminate this Lease on account of any default by LESSEE,
LESSOR may, from time to time, without terminating this Lease, enforce all of its rights and
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remedies under this Lease, including the right to recover all Rent as it becomes due.
(2) Termination of Lease. LESSOR shall have the right to
terminate this Lease, by giving written notice of termination to LESSEE or, if LESSEE’S
address is unknown, by posting such notice on the Premises. Absent such written notice, no
acts of LESSOR (including entering, repairing, preparing to re-let, or re-letting the Premises)
shall be construed as an election to terminate the Lease. In the event that LESSOR elects to
terminate this Lease, then LESSOR shall be entitled to its statutory unlawful detainer remedy.
C. No Event of Default. Notwithstanding anything herein to the contrary,
LESSEE shall NOT be in default under this LEASE solely because of the failure to pay any
amounts to be owed by LESSEE hereunder—including any portion or installment of the Base
Rent, when they are to be due and payable herein, and/or any other amounts otherwise due
and payable herein—to the extent such amounts are subject to abatement as set forth in
Section 31, herein.
In the event this Lease is terminated, the Purchase Option shall also terminate and
shall be of no further force or effect.
D. No Acceleration of Future Rent or Other Payments/Amounts.
Notwithstanding anything to the contrary contained herein this Lease or any right or remedy
of which LESSOR may otherwise avail itself pursuant to applicable law, any right of LESSOR
to recover any rents (including Base Rent and Additional Rent) and/or any other amounts to
be paid by LESSEE as provided in this Lease shall be without acceleration of any future Base
Rent and/or any future Additional Rent, and/or any other amounts to be paid by LESSEE
herein, before they are due and payable hereunder. LESSOR hereby expressly waives its
right to accelerate rent in the event of a termination of this Lease pursuant to California Civil
Code section 1951.2.
28. WAIVER – No covenant or condition of this Lease shall be deemed waived,
except by the written consent of LESSOR or LESSEE, as appropriate, and any forbearance
or indulgence by the party entitled to performance shall not constitute a waiver of the
covenant or condition to be performed. Until complete performance of such covenant or
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condition, the party entitled to performance shall have the right to invoke any remedy
available to it under this Lease or by law, despite such forbearance or indulgence. The
subsequent acceptance of Rent hereunder by LESSOR shall not be deemed to be a waiver of
any preceding default by LESSEE of any term, covenant or condition of this Lease, other than
the failure of LESSEE to pay the particular Rent so accepted, regardless of LESSOR’S
knowledge of such preceding default at the time of acceptance of such Rent.
29. LATE CHARGES – LESSEE hereby acknowledges that late payment by
LESSEE to LESSOR of Rent or other sums due hereunder shall cause LESSOR to incur
costs not contemplated by this Lease, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, processing and accounting charges.
Accordingly, if any installment of Rent or any other sums due from LESSEE shall not be
received by LESSOR or LESSOR’S assignee within forty-five (45) days after the date due,
then LESSEE shall pay to LESSOR a late charge equal to three (3%) percent of such
overdue amount plus any attorney's fees incurred by LESSOR by reason of LESSEE’S failure
to pay Rent and/or other sums when due hereunder; provided that any payment postmarked
by the 5th of the month shall be presumed to be mailed in a timely manner. The parties
hereby agree that such late charge represents a fair and reasonable estimate of the cost that
LESSOR will incur by reason of the late payment by LESSEE. Acceptance of such late
charges by LESSOR shall in no event constitute a waiver of LESSEE’S default with respect to
such overdue amounts, nor prevent LESSOR from exercising any of the other rights and
remedies granted hereunder. In addition, LESSEE shall pay to LESSOR interest at the
Interest Rate on any delinquent payments, commencing ninety (90) days after the date
payment was due and continuing until paid.
30. INTEREST – Any amount owing from one party to the other under this Lease
which is not paid within ninety (90) days of the date when due shall thereafter bear interest at
the Interest Rate. As used herein, the term “Interest Rate” means a per annum rate of
interest equal to the lesser of (i) five percent (5%) per annum over the then most recent
annual prime or reference rate of interest announced by Bank of America N.A. (or in the event
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Bank of America N.A. ceases to publish a prime or reference rate, the prime rate of a
comparable national banking institution reasonably agreed upon by the parties), or (ii) the
maximum rate permitted by applicable law.
31. ABATEMENT OF BASE RENTS, AND OTHER PAYMENTS - Notwithstanding
anything to the contrary in this LEASE, (i) LESSEE’s obligations to pay the Base Rent, and/or
any other amounts otherwise due and payable hereunder to LESSOR shall be abated during
any period, and to the extent, that the Premises, or any portion thereof (in the case of an
affected portion of the Premises, then, such abatement shall also be in proportion thereof),
cannot be used and occupied by LESSEE pursuant to this LEASE as a result of any title
defect (excluding any permitted encumbrances at execution date), or of any Condemnation or
Prohibited Use of the Premises, or any portion thereof, and (ii) any abatement of any Base
Rent, and/or other amounts otherwise due and payable, herein pursuant to this Section shall
not be deemed to be a default under this LEASE on the part of LESSEE.
Abatement of any Base Rent, and/or of any other amounts otherwise due and payable
hereunder shall only suspend the period during which LESSEE is otherwise required to pay
Base Rent, and/or any other amounts otherwise due and payable, hereunder to LESSOR,
and shall not relieve LESSEE from subsequently paying the remainder of all such Base Rent ,
and/or any other amounts otherwise due and payable herein, pursuant to this LEASE once
the condition giving rise to the abatement has been cured, corrected, eliminated, or
satisfactorily resolved. Such abatement shall continue for the period commencing with the
date of such title defect referred to in this Section 31, or of any Condemnation or Prohibited
Use of the Premises, or any portion thereof, and ending with the cure, correction, elimination
or satisfactory resolution of the title defect whereby LESSEE may use and occupy the
Premises, or the adversely affected portion thereof, pursuant to this LEASE. Cure, correction,
elimination or satisfactory resolution may, upon prior mutual written approval of LESSOR and
LESSEE (which the parties will negotiate in good faith and without unreasonable delay),
occur in commercially reasonable stages, as determined by the nature of the problem being
remedied and the impact that such staged remedial action and the coordination and timing
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thereof would have on LESSEE, LESSEE’s Director of Internal Services/Chief Information
Officer, or his/her designee, shall be authorized to execute such written approval for LESSEE.
The monthly Base Rent, and any other amounts otherwise due and payable
hereunder, by LESSEE to LESSOR with respect to the Premises, or any portion thereof, shall
be abated to the extent that the amount of the monthly fair rental value of the portion of the
Premises in respect of which there is no substantial interference with LESSEE’s use and
occupancy of the Premises is less than the amount of monthly Base Rent and any other
amounts otherwise due and payable hereunder, in which case the monthly Base Rent and
any other amounts otherwise due and payable hereunder shall be abated only by an amount
equal to the difference thereof.
During the occurrence of any Casualty which is covered by rental interruption
insurance or rental loss insurance in Section 14A(c) herein, the proceeds of any rental
interruption insurance or rental loss insurance that LESSOR may receive as a result of such
Casualty shall be applied by LESSOR, to the credit of LESSEE, for any monthly Base Rent,
and any other amounts otherwise due and payable hereunder; in such instance of such
amounts so received, LESSOR shall so inform LESSEE of any such amounts so received.
Nothing contained in this Section 31 shall obligate LESSEE for payments of Base
Rent, and/or any other amounts otherwise due and payable hereunder if this LEASE is
terminated pursuant to Section 12 herein.
32. LESSOR EXCULPATION – It is expressly understood and agreed that
notwithstanding anything in this Lease to the contrary, and notwithstanding any applicable law
to the contrary, the liability of LESSOR and the LESSOR’S members, owners, agents,
employees, and partners (including any successor landlord) (collectively, the “LESSOR
Parties”) and any recourse by LESSEE against LESSOR or the LESSOR Parties shall be
limited solely and exclusively to an amount which is equal to the ownership interest of
LESSOR in the Building in which the Premises is located (excluding any proceeds thereof),
and neither LESSOR, nor any of LESSOR’s members shall have any personal liability
therefor, and LESSEE hereby expressly waives and releases such personal liability on behalf
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of itself and all persons claiming by, through or under LESSEE.
33. ENERGY CONSUMPTION DISCLOSURE – If LESSEE (or any party claiming
by, through or under LESSEE) pays directly to the provider for any energy consumed at the
Premises, LESSEE shall, promptly upon request, deliver to LESSOR (or, at LESSOR’S
option, execute and deliver to LESSOR an instrument enabling LESSOR to obtain from such
provider) any data about such consumption that LESSOR, in its reasonable judgment, is
required to disclose to a prospective buyer, tenant or mortgagee or prospective mortgagee
under California Public Resources Code § 25402.10 or any similar law.
34. DISABILITY ACCESS INSPECTION – Neither the Building nor the common
areas located on the Premises have undergone inspection by a Certified Access Specialist
(CASp) within the meaning of California Civil Code Section 1938, and LESSOR is not
providing any representations or warranties regarding whether the Premises meets all
applicable construction-related accessibility standards.
35. COUNTERPARTS – This Lease may be executed in one or more
counterparts (which may be facsimile or .pdf e-mail counterparts followed by originals), each
of which will be deemed an original and all, taken together, will constitute one and the same
instrument.
36. FORCE MAJEURE – In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, adverse weather (including rain), inability to procure labor or materials,
failure of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or
other casualty or other reason of a similar nature beyond the reasonable control of the party
delayed in performing work or doing the act required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay and the period from the
performance of any such act shall be extended for a period equivalent to the period of such
delay (any such delay is herein referred to as an “Force Majeure Delay”). In no event shall
LESSEE’S inability to satisfy a monetary obligation hereunder constitute or be subject to
Force Majeure Delay.
L-310 Pontiac/ISD
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37. ESTOPPEL CERTIFICATE – LESSEE shall, at any time upon not less than
thirty (30) days prior request by LESSOR, execute, acknowledge and deliver to LESSOR a
written estoppel certificate, in form 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 effect as modified and stating the modifications) and, if applicable, the dates to
which the Rent and any other charges have been paid in advance. Any such statement
delivered pursuant to this Section 37 may be relied upon by third persons, including a
prospective purchaser or encumbrancer of the Premises.
LESSEE’S failure to execute and deliver an estoppel certificate within thirty (30) days
after LESSEE’S receipt of LESSOR’S written request therefore shall be conclusive upon
LESSEE that this Lease is in full force and effect, without modification except as may be
represented by LESSOR, that there are no uncured defaults in LESSOR’S performance, that
not more than one month’s rental has been paid in advance, and that all other statements
required to be made in the estoppel certificate are conclusively made.
38. SUBORDINATION AND ATTORNMENT – At LESSOR’S option, this Lease
shall be subordinated to any mortgage or deed of trust which is now or shall hereafter be
placed upon the Premises, and LESSEE agrees to execute and deliver any instrument which
may be necessary to further effect the subordination of the Lease to any such mortgage or
deed of trust; provided, however, that such instrument of subordination shall provide, or the
mortgagee or beneficiary of such mortgage or deed of trust otherwise shall agree in writing in
recordable form delivered to LESSEE, that the mortgagee or beneficiary, including their
successors and assigns, recognize LEESSE’s leasehold interest under this Lease and that so
long as LESSEE is not in default under this Lease, foreclosure of any such mortgage or deed
of trust or sale pursuant to exercise of any power of sale thereunder, or deed given in lieu
thereof, shall not affect this Lease but such foreclosure or sale, or deed given in lieu thereof,
shall be made subject to this Lease which shall continue in full force and effect, binding on
LESSEE, as lessee, and the transferee, as lessor. LESSEE shall attorn to the transferee as if
said transferee was LESSOR under this Lease. If LESSEE exercises the Purchase Option
L-310 Pontiac/ISD
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then any such mortgage or deed of trust shall be released and reconveyed prior to or
concurrent with the close of escrow.
[SIGNATURES ON FOLLOWING PAGE(S)]
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L-310 Pontiac/ISD
Botfee/ITSD/8905
2 EXECUTED as of the EFFECTIVE DATE.
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LESSEE:
COUNTY OF FRESNO
By£,~~~
Ernest Buddy Mend s, Charrman
Board of Supervisors
Date: ::.Y ~ 1-1 1 1.o lla
ATTEST: BERNICE E. SEIDEL, CLERK
~~A~~ F ~~R~,SORS
Deputy
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG, COUNTY
COUNSEL ~ /.1 By.~/~
~ty
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A.
AUDITOR-CONTROLLERITREASURER-
T AX COLLECTOR
By: _lUte_· ~·-c;:=-""'--=LQ.=;;.e~·)~-
(/
:~
Robert W. Bash, Director of .___
Internal Services/Chief Information
Officer
Fund 1020
Subclass 10000
Org No. 8905
Acct. No. 7340
L -31 0 Pontiac/Cook/ITSD/8905
LESSOR:
Botfee LLC, a limited liability company,
~~·7 By: Jef~~ By~~
od Cook
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L-310 Pontiac/ISD
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EXHIBIT A
Legal Description of Premises
That portion of Parcel A of Grant Deed recorded March 28,2003 as Document No. 2003
0070637, Official Records of Fresno County in the City of Clovis, County of Fresno, State of
California, described as follows:
BEGINNING at the Northwest corner of said Parcel A; thence North 89°49'36" East, along the
North line of said Parcel A, a distance of 762.64 feet; thence South 00°04'10" West, a
distance of 267.50 feet; thence South 18°14'07" West, a distance of 68.50 feet to a point on
the Southerly line of said Parcel A, said point being the beginning of a 1465.43 foot radius
non-tangent curve, concave to the South, a radial to said beginning bears North 18°14'07"
East; thence Westerly and Northerly along the Southerly and West lines of said Parcel A, the
following courses:
Westerly, along said curve, through a central angle of 18°24'32", an arc distance of 470.84
feet; thence tangent to said curve, South 89°49'35" West, a distance of 253.30 feet to the
beginning of a 24.50 foot radius tangent curve, concave to the Northeast; thence
Northwesterly, along said curve, through a central angle of 90°10'25", an arc distance of
38.56 feet; thence tangent to said curve, North 00°00'00" West, a distance of 232.93 feet to
the POINT OF BEGINNING.
RESERVING THEREFROM an easement for private utility purposes, described as follows:
COMMENCING at the Northwest corner of said Parcel A; thence North 89°49'36" East, along
the North line of said Parcel A, a distance of 762.64 feet; thence South 00°04'10" West, a
distance of 13.48 feet to the TRUE POINT OF BEGINNING;
Thence South 00°04'10" West, a distance of 15.00 feet; thence South 88°39'50" West, a
distance of 182.32 feet; thence South 21°03'10" East, a distance of 304.28 feet to a point on
the Southerly line of said Parcel A, said point being the beginning of a 1465.43 foot radius
non-tangent curve, concave to the South, a radial to said beginning bears North 16°08'17"
East; thence Westerly, along the Southerly line of said Parcel A, along said curve, through a
central angle of 00°43'57", an arc distance of 18.73 feet; thence non tangent to said curve,
North 21°03'10" West, a distance of314.36 feet; thence North 88°39'50" East, a distance of
204.00 feet to the TRUE POINT OF BEGINNING.
TOGETHER WITH an easement for private irrigation purposes, described as follows:
COMMENCING at the Northwest corner of said Parcel A; thence North 89°49'36" East, along
the North line of said Parcel A, a distance of 762.64 feet; thence South 00°04'10" West, a
distance of 52.48 feet to the TRUE POINT OF BEGINNING;
Thence North 89°46'50" East, a distance of 239.70 feet; thence South 00°08'10" West, a
distance of 367.36 feet to a point on the South line of said Parcel A, said point being the
beginning of a 769.46 foot radius non-tangent curve, concave to the North, a radial to said
beginning bears South 16°06'02" West; thence Westerly, along the South line of said Parcel
A, along said curve, through a central angle of 10°09'54", an arc distance of 15.65 feet;
thence non-tangent to said curve, North 00°08'10" East, a distance of 347.81 feet; thence
South 89°46'50" West, a distance of 224.68 feet; thence North 00°04'10" East, a distance of
15.00 feet to the TRUE POINT OF BEGINNING.
Excepting therefrom all mineral deposits in, on and under the above described property as
defined in Section 6407 of the Public Resources Code together with the right to prospect for,
mine and remove such deposit, as conveyed to the State of California by deed recorded April
3, 1979 in Book 7254, Page 49 as Document No. 38447 of Official
Records.
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EXHIBIT A-1
Site Plan
333 W. Pontiac Way
Clovis, CA 93612
APN 493-070-57s
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EXHIBIT B
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
members of a contractor’s board of directors (hereinafter referred to as “County Contractor”),
must disclose any self-dealing transactions that they are a party t o while providing goods,
performing services, or both for the County. A self -dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self -dealing transaction that is being disclosed to
the County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the
transaction; and
b. The nature of the material financial interest in the Corporation’s transaction
that the board member has.
(4) Describe in detail why the self -dealing transaction is appropriate based on
applicable provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self -dealing
transaction described in Sections (3) and (4).
Mail the completed form to: County of Fresno
Attn: Lease Services (L-305)
Internal Services Department
2220 Tulare Street, Suite 2100
Fresno, CA 93721-2106
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(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233
(a):
(5) Authorized Signature
Signature: Date: