HomeMy WebLinkAboutAgreement A-16-551 with Fresno Air, LTD.pdf
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LEASE AGREEMENT
THIS LEASE AGREEMENT (“LEASE”) is made and entered into this day of ,
2016, by and between the COUNTY OF FRESNO, a Political Subdivision of the State of
California, hereinafter referred to as "LESSEE", and FRESNO-AIR LTD , a California Limited
Partnership, whose address is 8050 N. Palm, Suite 300, Fresno, CA 93711, hereinafter referred to
as "LESSOR".
1. LEASED PREMISES – LESSOR hereby leases to LESSEE office space of approximately
5,620 square feet and adjacent warehouse space of approximately 5,313 square feet, a
total of 10,933 square feet, shown on Exhibit “B”, which is by this reference incorporated
herein, together with common area parking at the location commonly known as 2590 N.
Grove Industrial Drive, Suite 105, Fresno, CA 93727 (hereinafter “Premises”). The parties
agree that their respective duly authorized representatives shall initial their
acknowledgement of their agreement to and receipt of Exhibit “B”, and that they shall each
retain a duplicate original thereof separate and apart from this LEASE. LESSEE’s Director
of Internal Services/Chief Information Officer (hereinafter “LESSEE’s Director”) is hereby
authorized to give such acknowledgement on behalf of LESSEE.
2. TERM – The term of this LEASE shall be for five (5) years commencing July 1, 2016
through June 30, 2021.
3. RENT – LESSEE agrees to pay rent to LESSOR for the Premises on or about the first of
each month according to the following schedule:
Date Total Monthly Rent Total Annual Rent
July 1, 2016
July 1, 2017
July 1, 2018
July 1, 2019
July 1, 2020
$ 6,630.05
$ 6,795.80
$ 6,965.70
$ 7,139.84
$ 7,318.34
$ 79,560.60
$ 81,549.60
$ 83,588.40
$ 85,678.08
$ 87,820.08
4. UTILITIES – LESSEE is responsible for water, sewer, garbage, electricity, natural gas and
telephone services.
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5. USE - LESSEE shall use the Premises as office and warehouse space by the Sheriff or for
any other County of Fresno department, office, or agency. LESSEE agrees to comply with
all applicable laws, ordinances and regulations in connection with such use.
LESSOR covenants that the Premises are suitable for the LESSEE’s intended use.
LESSOR further covenants that the Premises shall be in compliance with all applicable
laws, ordinances and regulations, including but not limited to safety regulations, health and
building codes.
6. MAINTENANCE – LESSOR shall, at its sole cost and expense, be responsible for all
exterior and interior maintenance, including all maintenance and repair of air conditioning,
heating units, plumbing systems, fire sprinkler systems, electrical systems, and roof, and all
maintenance of landscape and parking and the common area parking. LESSOR is also
responsible, at its sole cost and expense, for the structural condition of the building and
agrees that the building will always be maintained in a condition acceptable for the
LESSEE’S intended use of the Premises. This will include exterior and interior painting as
needed due to normal wear and tear. LESSEE shall provide interior janitorial service and
supplies.
7. LESSOR IMPROVEMENTS – LESSOR will be responsible, at its sole cost and expense,
for improvements to include touch up painting throughout the office space and warehouse
space as needed and as mutually agreed upon by the parties, professional cleaning of all
carpets and replacing carpet in areas mutually determined by the parties to be beyond
cleaning, installing a new water heater in the break room, and installing a 110v (dedicated
30 amp) electrical outlet on the south wall of the warehouse at a location mutually agreed
upon by the parties. LESSEE’s Director is hereby authorized to act on behalf of LESSEE
under this Section 7.
8. TENANT IMPROVEMENTS – LESSOR will provide LESSEE with written plans and
specifications, a written work schedule, and a written quote from a qualified and licensed
contractor, for the LESSOR’s proposed build-out of new showers and washer and dryer
connections (“Tenant Improvements”), all of which shall be subject to the review and
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written approval by LESSEE through LESSEE’s Director, provided however, in no event
shall the amount payable by LESSEE to LESSOR as additional rent herein for such Tenant
Improvements exceed $30,000.00 (“Maximum Additional Rent”).
LESSOR, at its sole cost and expense, shall provide all labor, material and
equipment, and obtain all necessary approvals and permits from governmental agencies,
and pay all applicable taxes, fees and charges (the “Construction Costs”), for the
satisfactory completion of the foregoing tenant improvements in strict accordance with the
plans and specifications, work schedule, and Construction Costs, all as approved by
LESSEE herein. LESSOR and LESSEE shall mutually agree as to the hours when
construction of the tenant improvements shall take place in order to avoid unnecessary
inconvenience to LESSEE or its invitees.
As additional rent payable by LESSEE for the use of the Premises, as improved by
such tenant improvements, during the term of this LEASE, LESSEE shall reimburse
LESSOR for the actual Construction Costs, only in the amount approved by LESSEE
herein up to the Maximum Additional Rent, for LESSOR’s satisfactory completion of the
tenant improvements herein, within forty-five (45) days from LESSEE’s receipt of
LESSOR’s bi-weekly progressive invoices for same, provided however, such bi-weekly
progressive invoices shall represent the reasonable approximate portion of such
construction completed to date of the bi-weekly progressive invoices, and LESSEE shall be
entitled to retain ten percent (10%) of the amount of each such bi-weekly progressive
invoice, and pay such retained amounts upon the final satisfactory completion of such
tenant improvements, and removal of all waste and debris from the work site.
9. INDEPENDENT CONTRACTOR – In performance of the work, duties and obligations
assumed by LESSOR under this LEASE, it is mutually understood and agreed that
LESSOR, including any and all of the LESSOR’S officers, agents, employees, contractors
and subcontractors, 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
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right to control or supervise or direct the manner or method by which LESSOR shall
perform its work and function. However, LESSEE shall retain the right to administer this
LEASE so as to verify that LESSOR is performing its obligations in accordance with the
terms and conditions thereof.
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 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 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.
10. COMPLIANCE WITH ALL LAWS – As to the Premises, LESSOR shall comply with, and
ensure compliance by all contractor and subcontractors with, all applicable laws and
regulations, including the payment of prevailing wages pursuant to Section 1770 et. seq. of
the Labor Code.
11. BREACH OF OBLIGATION – In the event LESSOR breaches any of its obligations herein
provided, LESSEE shall give written notice to LESSOR within fifteen (15) days of the
discovery of such breach. LESSOR shall then have thirty (30) day from the date of notice to
cure its breach, provided, however, that if the breach involves an item of maintenance that
is of such a nature that it requires more than thirty (30) days to complete, then LESSOR
shall have such additional time as is necessary to complete such maintenance as long as
LESSOR 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, in LESSEE’S reasonable determination, LESSOR has failed
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to cure, then LESSEE may, at its election:
A. Terminate this LEASE upon thirty (30) days written notice to LESSOR. In such case,
LESSEE shall have the right to demand LESSOR refund any monies which were paid
to LESSOR pursuant to the LEASE but which were not earned by LESSOR by
consequence of its breach. Upon receipt of such demand, LESSOR shall promptly
refund all such monies; or
B. Cure LESSOR’S breach and deduct the cost of such cure, together with reasonable
administrative cost, from LESSEE’S future rent obligation. LESSEE’S decision to cure
LESSOR’S breach shall not constitute a waiver of any rights or remedies that LESSEE
may have arising from this LEASE or by operation of law.
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.
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, 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 at the time of Casualty; such repairs shall also be made in compliance with all
applicable state and local building codes. 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 except for rent reduction as
hereinafter provided. LESSEE shall be responsible at its sole cost and expense for the
replacement of its personal property.
/ / /
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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 ninety (90) 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, specifying a termination date not less than thirty (30) days from the
date of said notice.
C. Rent Reduction Due to Casualty: In the event of Casualty, LESSEE'S obligation to pay
the rent shall be reduced beginning on the date of the Casualty. Such reduction shall be
proportional to the damage caused to the Premises by the Casualty as mutually
determined by LESSEE and LESSOR. 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 repair.
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 the date of Casualty, or if the
anticipated period of repair contained in the Notice of Repair exceeds ninety (90) days
from the date of Casualty, then LESSEE may elect to terminate this LEASE. LESSEE
shall provide LESSOR with written notice of its election to terminate this Lease,
specifying a termination date not less than thirty (30) days from the date of said notice.
In such case, LESSEE shall have the right to demand that LESSOR refund any monies
which were paid to LESSOR pursuant to the LEASE but which were not earned by
LESSOR by consequence of the Casualty. Upon receipt of such demand, LESSOR
shall promptly refund all such monies.
13. HOLD HARMLESS - LESSOR agrees to indemnify, save, hold harmless, and at
LESSEE'S request, defend the LESSEE, its officers, agents, and employees from any and
all costs and expenses (including attorney’s fees and costs), 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, or by
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LESSOR’s contractors or subcontractors in connection with this LEASE, and from any and
all costs and expenses (including attorney’s fees and costs), 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 of LESSOR, its officers, agents, or
employees under the LEASE, or by LESSOR’s contractors or subcontractors in connection
with this 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 Premises
including external walls, doors, roof and floor, unless caused by the negligence or willful
misconduct of LESSEE, its officers, agents or employees.
LESSEE agrees to indemnify, save, hold harmless, and at LESSOR'S request,
defend the LESSOR, its officers, agents, and employees from any and all costs and
expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses
occurring or resulting to LESSOR in connection with the performance, or failure to perform,
by LESSEE, its officers, agents, or employees under this LEASE, and from any and all
costs and expenses (including attorney’s fees and costs), 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 of LESSEE, its officers, agents, or
employees under the LEASE.
The parties acknowledge that as between LESSOR and LESSEE, each is
responsible for the negligence of its own employees and invitees, and that LESSOR is
responsible for its contractors and subcontractors.
14. INSURANCE - LESSOR shall, at its sole cost and expense, maintain in full force and
effect during the term of this LEASE the following policies of insurance:
A. Commercial General Liability insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence and an annual aggregate limit of not less than Two Million
Dollars ($2,000,000). This policy shall be issued on an occurrence basis; and
B. Fire insurance and extended coverage.
C. Automobile Liability-Comprehensive Automobile Liability Insurance with limits for bodily
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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 shall include
owned and non-owned vehicles used in connection with this LEASE.
D. Worker's Compensation-A policy of Worker's Compensation insurance as may be
required by the California Labor Code.
Within thirty (30) days of the execution of this LEASE, the LESSOR shall provide
LESSEE with certificates of insurance with proper endorsements. LESSOR shall mail the
certificates of insurance to: County of Fresno, Attn: Lease Services (L-286), Internal
Services, 333 Pontiac Way, Clovis, CA 93619. The policy is to be written by an admitted
insurer licensed to do business in California and with an AM Best 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) per occurrence and an annual aggregate of not less than Two
Million Dollars ($2,000,000). This policy shall be issued on an occurrence basis.
B. All-Risk property insurance covering the personal property of LESSEE.
15. NON-FUNDING TERMINATION – This LEASE is contingent on the allocation of funds by
a governmental agency. Should funds not be allocated, this LEASE may be terminated by
the Board of Supervisors by giving at least thirty (30) days prior written notice to LESSOR.
Should LESSEE terminate this LEASE pursuant to this Section 15, LESSEE shall pay to
LESSOR any unpaid rent due LESSOR within forty-five (45) days after the LEASE
termination date.
16. SURRENDER OF POSSESSION - Upon the expiration or termination of this LEASE,
LESSEE will surrender Premises to LESSOR in such condition as existing at the
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commencement of this LEASE, less reasonable wear and tear, less the effects of any
Casualty as herein defined, and less the effects of any breach of LESSOR'S covenants to
maintain or repair the Premises, or cause the Premises to comply with laws, herein.
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. LESSEE shall pay for the repair of 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 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.
19. AMENDMENT - This LEASE may be amended in writing by the mutual consent of the
parties without in any way affecting the remainder.
20. 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.
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 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:
A. Personal delivery;
B. 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
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shall be deemed given three (3) business days of the recipient party after such deposit
and postmark with the United States Postal Service;
C. Sent by a reputable overnight commercial courier, in which case such notice shall be
deemed given one (1) business day of the recipient party after such deposit with that
courier to the applicable addresses as set forth below; or
D. Sent by facsimile to the applicable telephone number set forth below, provided that the
Party sending such notice retains a legible written copy of documents transmitted and a
legible, accurate, written confirmation of the time and date that such facsimile was
transmitted (it being agreed that the burden of proving timely receipt will be on the Party
sending such notice, and that if such sending Party's confirming document contains an
inaccurate time or date, it shall be deemed to have been received by the other Party at
9:00a.m. on the next succeeding business day of the recipient Party after transmission),
and provided further that if such transmission is otherwise completed in compliance with
this Section 22 after 5:00 p.m. on any day, it shall not be deemed given until the next
succeeding business day of the recipient party. The addresses and telephone numbers
of the Parties for purposes of giving receiving notices under this LEASE are as follows:
LESSEE: LESSOR:
The County of Fresno Fresno-Air Ltd
Director of Internal Services/ C/O Managing Member of
Chief Information Officer High Sierra Development, LLC
333 Pontiac Way 8050 N. Palm, Suite 300
Clovis, CA 93612 Fresno, CA 93711
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, facsimile
numbers, or termination of this LEASE shall not be effective until actual delivery of such
notice. Notices given hereunder shall not be amendments or modifications to this LEASE.
23. ENTIRE AGREEMENT - This LEASE is the entire agreement between the LESSOR and
LESSEE with respect to the subject matter of this LEASE, and it supersedes all previous
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negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature unless those things are expressly included in this LEASE.
24. 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 "A", 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.
[NEXT PAGE IS SIGNATURE PAGE]
1 IN WITNESS WHEREOF , the part ies hereto have executed this LEASE as of the day and
2 year first hereinabove written .
3 LESSEE:
4
5 1~---=~~~~~~~--~~~~~--Russe G . t , nag ing Membe r of High S ierra
6 Development , LLC , Gene ra l Pa rtn e r
7 DATE :
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FOR ACCOUNTING USE ONLY:
ORG No.: 3110
Account No .: 7340
Fund : 0001
Subclass : 1 0000
COUNTY OF FRESNO
DATE:
ATTEST: BERNICE E. SEIDEL , CLERK
BOARD OF SUPERVISORS
By : ~~sh
Deputy C'f>
APPROVED AS TO LEGAL FORM :
DANIEL C . CEDERBOR , COUNTY COUNSEL
APPROVED AS TO ACCOUNTING FORM :
V ICKI CROW, C .P.A.
AUDITOR -CONTROLLER/TREASURER-TAX
CO LLECTOR
By :
R~~n;::ED FOR APPROVAL
~~Ma rgaret Mims , Sheriff
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Exhibit “A”
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-286)
Internal Services Division
333 Pontiac Way
Clovis, CA 93612
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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):
Authorized Signature
Signature: Date:
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Exhibit “B”
(On file with each of the Parties)