HomeMy WebLinkAboutAgreement A-17-285 with Heritage Centre, LLC.pdf1
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Fresno, California 2
4.UTILITIES – LESSOR shall be responsible for all utilities necessary for
LESSEE’S “normal office use,” excepting telephone service. For purposes of this LEASE,
“normal office use” shall mean use of utilities for general office purposes between the hours of
7:00 a.m. and 7:00 p.m. Monday through Friday and 8:00 a.m. until 2:00 p.m. Saturdays,
excluding holidays. LESSEE shall not, without the written consent of LESSOR, use any
apparatus or device at the Premises, including without limitation electronic data processing
machines, punch card machines, or any other machines using in excess of 120 volts which
consume more electricity than normally furnished or supplied for the use of the Premises as
general office space, as determined by LESSOR.
5.USE – LESSEE shall use the Premises as office space for its Department of
Behavioral Health 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: (i) the Premises are suitable for the intended use; (ii) the
Premises are in compliance with all applicable laws, ordinances and regulations, including but
not limited to safety regulations, health and building codes; and (iii) the Premises shall remain
in such compliance throughout the term of this LEASE.
6.MAINTENANCE AND REPAIRS – LESSOR shall be responsible for all exterior
and interior maintenance, including repair of air conditioning, heating units, plumbing systems,
electrical systems, interior light fixture ballasts and lamp replacement fire sprinkler system,
roof, painting, flooring, landscape, quarterly parking lot sweeping, and parking and other
common area maintenance at the Premises, including janitorial service and supplies.
Janitorial service will be provided five (5) days per week and will include the services listed in
Exhibit “B”, attached hereto and by this reference incorporated herein. LESSOR is also
responsible for the structural condition of the building and agrees that the building will always
be maintained in a condition suitable for the LESSEE'S intended use of the Premises.
LESSOR’s maintenance responsibilities shall include exterior painting, as needed, due to
normal wear and tear.
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In the event any Building systems such as air conditioning and heating units
malfunction, restroom fixtures are not draining properly, or water intrusion, leaks or other
events that immediately impact LESSEE’s occupancy of the Premises occur, LESSOR shall
respond within twenty-four (24) hours after contact by LESSEE to initiate repairs and replace
equipment to restore the systems to full working order. Structural issues, including but not
limited to damaged doors, walls, roof, and windows shall be a priority, and shall be addressed
within the same day such are reported. LESSOR covenants that the Premises shall be
maintained in substantially the same condition as that existing at the commencement of this
LEASE.
7. LESSOR’S IMPROVEMENTS TO THE PREMISES – Upon commencement of
this LEASE, LESSOR shall, at its sole expense, conduct the following work at the Premises:
Replace carpet, where carpet currently exists, throughout the Premises. Color to be selected
by LESSEE from samples provided by LESSOR. LESSOR shall ensure that the normal
business of LESSEE or its invitees shall not be unnecessarily inconvenienced by the
performance of such work.
8. 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, in connection with this LEASE (including construction
of the Tenant Improvements) 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.
9. 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 its discovery of such breach. LESSOR shall then have
thirty (30) days from the date of such notice to cure its breach, provided, however, that if the
item of maintenance requires more than (30) days to complete, then LESSOR will not be in
default hereunder if within such thirty (30) day period, LESSOR commences the work on such
maintenance and diligently and in good faith prosecutes the same to completion. Subject to
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the foregoing, if the period for cure expires and if, in LESSEE'S sole determination, LESSOR
has failed to cure, then LESSEE may, at its election:
(A) Terminate this LEASE by providing thirty (30) days prior written notice. In such
case, LESSEE shall have the right to demand LESSOR refund any prepaid
monies. 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 costs, 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.
10.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 a "Casualty"), then LESSOR shall either
promptly and diligently repair the damage at its own cost, or terminate this LEASE as provided
hereinbelow.
(A) LESSOR'S Election to Repair: If LESSOR elects to repair the Casualty damage
to the Premises, then it shall within fifteen (15) 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 commencement of this
LEASE; 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 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 sixty (60) 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 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 reasonably determined by LESSEE. If LESSOR elects to repair the
Premises pursuant to the terms of this LEASE, then such rent reduction shall
continue until the date of substantial completion of 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 sixty (60)
days, then LESSEE may elect to terminate this LEASE by providing thirty (30)
days prior written notice to LESSOR. 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
LESSOR by consequence of the Casualty. Upon receipt of such demand,
LESSOR shall promptly refund all such monies.
11.TERMINATION NOTICES – In the case of LESSEE, the County Administrative
Officer, Director of Internal Services/Chief Information Officer, Director of Behavioral Health
or a designee of one of them, shall have the power to provide termination notices as
described herein to terminate this LEASE.
12.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
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terminated by the Board of Supervisors at any time by giving at least thirty (30) days prior
written notice to LESSOR.
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, 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 express 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, glass, doors, roof and floor. The
parties acknowledge that as between LESSOR and LESSEE, each is responsible for the
negligence of its own employees and invitees.
14. 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 the Agreement:
a. Commercial General Liability - Commercial General Liability Insurance with
limits of not less than One Million Dollars ($1,000,000) per occurrence and a
general aggregate of Two Million Dollars ($2,000,000). This policy shall be issued
on a per occurrence basis and name LESSEE as an additional insured.
b. Fire Insurance and Extended Coverage. LESSOR shall add LESSEE as an
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
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($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 as
may be required by the California Labor Code.
Within (30) days from the 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: ISD Lease Services (L-317), 333 Pontiac Way,
Clovis, CA 93612, stating that such insurance coverages have been obtained and are in full
force; that the LESSEE, its officers, agents and employees will not be responsible for any
premiums on the policies; that such Commercial General Liability insurance names the
LESSEE, 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 and any other insurance or
self- 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, the LESSEE 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 A.M
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
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Million Dollars ($2,000,000.00). This policy shall be issued on an occurrence basis.
b. All-Risk property insurance.
15. 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 a 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 16 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.
16. 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 LESSEE’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
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LESSEE, as lessee, and the transferee, as lessor. LESSEE shall attorn to the transferee as if
said transferee was LESSOR under this Lease.
17. SURRENDER OF POSSESSION - Upon the expiration or termination of this
LEASE, LESSEE will 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
Casualty as herein defined, 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.
18. 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 repair any damage caused by the
removal of fixtures. Any fixtures not removed when LESSEE surrenders possession shall
become the property of LESSOR.
19. RIGHT OF ENTRY - LESSOR, or its representative(s), upon giving 24 hours
written notice (other than in an emergency, when such notice shall not be required), 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.
20. AMENDMENT - This LEASE may be amended in writing by the mutual consent
of the parties without in any way affecting the remainder.
21. ASSIGNMENT - LESSEE shall not assign, transfer or sub-let this LEASE, or its
rights or duties under this LEASE, without the prior written consent of LESSOR, which consent
shall not be unreasonably withheld or denied. LESSOR shall have the right to assign this LEASE
in connection with any sale of the Premises, provided that LESSOR promptly notifies LESSEE in
writing of any proposed or impending such sale.
22. 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
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the State of California.
23. 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; 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)
LESSEE business 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)
LESSEE business day if LESSEE is the recipient, after such deposit with that courier to the
applicable addresses as set forth below; or
The addresses and telephone numbers of the Parties for purposes of giving receiving
notices under this LEASE are as follows:
LESSEE: LESSOR:
County of Fresno (L-317) Heritage Centre LLC
Robert W. Bash, Director of Internal Attn: Steve Schwartz
Services/Chief Information Officer 837 Arnold Drive, Suite 8
333 Pontiac Way Martinez, CA 94553
Clovis, CA 93612
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 hereunder shall
not be amendments or modifications to this LEASE.
24. 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, and employees will at all times
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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. 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 LESSE’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.
25.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 “C”, 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.
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26. AUTHORITY - Each individual executing this LEASE on behalf of LESSOR
represents and warrants that such individual is duly authorized to execute and deliver this
LEASE on behalf of, HERITAGE CENTRE, LLC and that this LEASE is binding upon,
HERITAGE CENTRE, LLC in accordance with its terms.
27. ENTIRE LEASE - 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.
This LEASE shall be binding on and inure to the benefit of LESSOR'S heirs,
successors and assigns. EXECUTED as of the date first herein written.
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LESSEE : ::UN;L[LSNO
Brian Pacheco , Cha irman
Board of Supervisors
4 ATTEST: BERNICE E . SEIDEL , CLERK
BOARD OF SUPERVISORS
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By k ~ DAsbct,p
Deputy
APPROVED AS TO LEGAL FORM: 8
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DANIEL C . CEDERBORG OUNTY COUNS E L
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COUNTY OF FRESNO
F,.ano, California
APPROVED AS TO ACCOUNTING FORM:
OSCAR J . GARCIA, C .P .A
T P\X COLLECTOR AUDITOR-
CONTROLLE~REASURER
By Qed. L ~-~
:~
Robert W . Bash , Director of lntemar====:=
Services/Chief Information Officer
RECOMMENDED FOR APPROVAL :
By ~7~
Dawan Utecht. Director
Department of Behavioral Health
Fund 0001
Subclass 10000
Org No . 5630
Acct. No . 7340
13
Exhibit“C"L-318(1)CompanyBoardMemberInformation:Name:Date:JobTitle:(2)Company/AgencyNameandAddress:(3)Disclosure(Pleasedescribethenatureoftheself-dealingtransactionyouareapartyto):(4)Explainwhythisself-dealingtransactionisconsistentwiththerequirementsofCorporationsCode5233(a):(5)AuthorizedSignatureSignature:Date:
Exhibit“C"L-318(1)CompanyBoardMemberInformation:Name:Date:JobTitle:(2)Company/AgencyNameandAddress:(3)Disclosure(Pleasedescribethenatureoftheself-dealingtransactionyouareapartyto):(4)Explainwhythisself-dealingtransactionisconsistentwiththerequirementsofCorporationsCode5233(a):(5)AuthorizedSignatureSignature:Date:
Exhibit“C"L-318Signature:Date:
Exhibit“C"L-318(1)CompanyBoardMemberInformation:Name:Date:JobTitle:(2)Company/AgencyNameandAddress:(3)Disclosure(Pleasedescribethenatureoftheself-dealingtransactionyouareapartyto):(4)Explainwhythisself-dealingtransactionisconsistentwiththerequirementsofCorporationsCode5233(a):(5)AuthorizedSignatureSignature:Date:
Exhibit“C"L-318(1)CompanyBoardMemberInformation:Name:Date:JobTitle:(2)Company/AgencyNameandAddress:(3)Disclosure(Pleasedescribethenatureoftheself-dealingtransactionyouareapartyto):(4)Explainwhythisself-dealingtransactionisconsistentwiththerequirementsofCorporationsCode5233(a):(5)AuthorizedSignatureSignature:Date: