HomeMy WebLinkAboutAgreement A-24-266 Lease Agreement with McMahan-Kays LLC.pdf Agreement No. 24-266
1 LEASE AGREEMENT
2 This Lease Agreement ("Lease") is made and entered into the 4t" day of June
3 2024 ("Effective Date"), by and between McMahan-Kays, LLC, a California limited liability
4 company ("Lessor"), and the County of Fresno, a political subdivision of the State of California
5 ("Lessee"). Lessor and Lessee may be referred to in this Lease individually as a "Party" or
6 collectively at times as the "Parties."
7 1. PREMISES
8 a. Real Property. Lessor represents, covenants, and warrants to Lessee that
9 Lessor is the sole fee title owner of the real property at the locations depicted on Exhibit "A,"
10 attached hereto and incorporated herein by this reference, which includes a building
11 containing approximately 21,130 square feet of rentable office space ("Building"), together
12 with related improvements, and an adjacent paved parking lot that contains forty (40) paved
13 parking stalls, six (6) of which are paved Accessible Stalls ("Parking Area"), and associated
14 landscaping, as described in this Section 1 (collectively, the "Real Property").
15 i. The legal descriptions of the Real Property are set forth in Exhibit "B,"
16 which is attached hereto and incorporated herein by this reference.
17 ii. The Building's physical address is 311 Coalinga Plaza, Coalinga, California
18 93210. The Parking Area's physical addresses are 353 Coalinga Plaza, Coalinga,
19 California 93210 and 150 West Durian Avenue, Coalinga, California 93210.
20 iii. "Accessible Stall" (or"Accessible Stalls") means a paved parking stall
21 restricted to use by vehicles displaying a valid California Department of Motor
22 Vehicles "disabled person" placard or license plate or a similar valid placard or license
23 plate issued by other states according to their respective laws, or to vehicles
24 otherwise complying with the accessible vehicle requirements of the Americans With
25 Disabilities Act. Lessor shall restrict all of the Parking Area to Lessee's, and its
26 invitee's, exclusive use under this Lease.
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1 b. Lessee's Exclusive Use; Premises. Lessee has been in continuous possession
2 of the Premises since September 2002 and thereby, Lessor represents, covenants, and
3 warrants to Lessee that the Real Property (collectively, the "Premises"), shall be immediately
4 available to Lessee for its use under this Lease commencing as of the Rent Commencement
5 Date (as defined in Section 4(b) hereof). Lessee intends to use the Premises as offices for
6 Lessee's Department of Social Services, and/or for any other of Lessee's departments,
7 offices, and agencies. Lessor acknowledges that such uses by Lessee include Lessee's
8 invitees, who are members of the public, and that Lessor's performance of its obligations
9 under this Lease take into account such public use.
10 C. Quiet Enjoyment. As long as there is no uncured default on the part of
11 Lessee under this Lease, Lessor represents, covenants, and warrants to Lessee that
12 Lessee shall have the quiet use and enjoyment of the Premises commencing upon the
13 Effective Date (as defined in Section 3 hereof) and continuing thereafter at all times herein
14 through and during the Term (as defined in Section 3 hereof).
15 d. Land Use and Permits. Lessee has been in continuous possession and using
16 the Premises for the intended use since September 2002, and thereby Lessor represents,
17 covenants, and warrants to Lessee that as of the Effective Date, all required and applicable
18 land use approvals and permits have been obtained and completed, in order to allow for
19 Lessee's intended purposes for the Premises, under this Lease.
20 e. Clear Title. Lessor represents, covenants, and warrants to Lessee that the
21 Real Property, including the Premises, commencing upon the Effective Date and continuing
22 thereafter at all times herein through and during the Term (as defined in Section 3 hereof), is
23 and shall remain for purposes of Lessee's use of the Premises under this Lease, and
24 Lessee's right to exercise its Purchase Option (as defined in Section 12hereof) under Section
25 12 hereof, free and clear of any and all liens, claims, title defects, and/or encumbrances,
26 except for (i) any mortgage or deed of trust or similar debt instrument, including, but not
27 limited to, the Wachovia Bank (succeeded by Wells Fargo Bank & Company) Deed of Trust
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1 (as defined in Section 13(c)(iii) hereof), that may be recorded against the Real Property, or
2 any portion thereof, which mortgage or deed of trust or similar debt instrument Lessor shall, at
3 its sole cost and expense, remove from title to the Real Property pursuant to Section 13
4 hereof, and (ii) only the exceptions to title, number 6 in the Preliminary Title Report, dated as
5 of April 18, 2023, a copy of pages 6 and 7 thereof, are Exhibit "C," attached hereto and
6 incorporated herein by this reference.
7 2. HAZARDOUS MATERIAL
8 a. Generally— Lessee has been in continuous possession of the Property since
9 September 2002 and neither Lessee nor Lessor are aware of any Hazardous Materials on the
10 Property. Lessor shall deliver the Premises to Lessee so that there shall not be, as of the
11 Delivery Date, any Hazardous Material (as that term is defined below) present, stored, or
12 disposed of in, under, or about the Premises in violation of any Environmental Laws (as that
13 term is defined below). Lessor represents, covenants, and warrants to Lessee that, to
14 Lessor's knowledge, as of the Execution Date, there have not been: (i) any inquiries,
15 investigations, proceedings, or claims by any government agencies or other persons
16 regarding the presence of Hazardous Material on, under, or about the Premises, or (ii) any
17 release reports or commitment statements, as those terms are defined in California Civil
18 Code Section 850, issued with respect to the Premises. Subject to the first sentence of this
19 Section 2, neither Party shall cause or permit any Hazardous Material to be generated,
20 brought onto, used, stored, or disposed of in, under, or about the Premises by such Party or
21 its agents, employees, contractors, subtenants, or invitees, except for such substances that
22 are required and lawfully used, stored, and disposed of in the ordinary course of Lessor's
23 performance of its obligations under this Lease, or of Lessee's operations conducted at the
24 Premises, or are otherwise approved by Lessor, which approval shall not be unreasonably
25 withheld or delayed. Each Party shall:
26 i. Use, store, and dispose of all such permitted Hazardous Material in
27 strict compliance with all applicable laws and regulations that relate to public health
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1 and safety and protection of the environment ("Environmental Laws"), including,
2 without limitation, those Environmental Laws identified below; and
3 ii. Otherwise comply at all times during the Term with all Environmental
4 Laws.
5 b. Notice — If, during the Term, either Lessor or Lessee becomes aware of(i) any
6 actual or threatened release of any Hazardous Material on, under, or about the Premises, or
7 (ii) any inquiry, investigation, proceeding, or claim by any government agency or other person
8 regarding the presence of Hazardous Material on, under, or about the Premises, that Party
9 shall give the other Party written notice of the release or investigation within five (5) calendar
10 days after learning of it, and shall simultaneously furnish to the other Party copies of any
11 claims, notices of violation, reports, or other writings received by the Party providing notice
12 that concern the release or investigation.
13 C. Definition —As used in this Section 2, the term "Hazardous Material" shall
14 mean any hazardous or toxic substance, material, or waste at any concentration that is or
15 becomes regulated by the United States, the State of California, or any local government
16 authority having jurisdiction over the Building. Hazardous Material includes, without limitation:
17 i. Any "hazardous substance," as that term is defined in the
18 Comprehensive Environmental Response, Compensation, and Liability Act of 1980
19 (CERCLA) (42 United States Code Sections 9601-9675);
20 ii. "Hazardous waste," as that term is defined in the Resource
21 Conservation and Recovery Act of 1976 (RCRA) (42 United States Code
22 Sections 6901-6992k);
23 iii. Any pollutant, contaminant, or hazardous, dangerous, or toxic
24 chemical, material, or substance, within the meaning of any other applicable laws and
25 regulations (including applicable consent decrees and administrative orders imposing
26 liability or standards of conduct concerning any hazardous, dangerous, or toxic waste,
27 substance, or material, now or hereafter in effect);
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1 iv. Petroleum products;
2 V. Radioactive material, including from any source, special nuclear, or
3 byproduct material as defined in 42 United States Code Sections 2011-2297b-7;
4 vi. Asbestos in any form or condition; and
5 vii. Polychlorinated biphenyls (PCBs) and substances or compounds
6 containing PCBs.
7 d. The provisions of this Section 2 shall survive the termination of this Lease.
8 3. EFFECTIVE DATE; TERM —This Lease is effective on the date of execution
9 hereof by the Parties (the "Effective Date") and shall be in full force and effect commencing
10 upon the Effective Date, and continuing thereafter at all times herein through and during the
11 Term (as defined in this Section 3).
12 a. Lessee's right and obligation to occupy the Premises under this Lease shall be
13 for a period of ten (10) continuous years ("Term"), commencing upon the Rent
14 Commencement Date.
15 b. This Lease shall terminate on the tenth (10t") anniversary of the Rent
16 Commencement Date (as defined in Section 4(b) hereof), or upon the earlier date that fee title
17 ownership to the Premises is conveyed by Lessor to Lessee pursuant to the Purchase Option
18 (as defined in Section 12 hereof), provided however, in the event of any condition giving rise
19 to a suspension of the Lease under Section 18 hereof, the tenth (10t") anniversary of the Rent
20 Commencement Date shall be extended for the same number of days of such suspension.
21 c. All references in this Lease to any year during this Lease for purposes of
22 Lessee's right to exercise its Purchase Option (as defined in Section 12 hereof), shall be with
23 respect to the Term.
24 4. RENT.
25 a. Lessee's Debt Limitation — Notwithstanding anything to the contrary in this
26 Lease, (i) Lessee's obligation to pay Rent (as defined in Section 4(c) hereof) and any other
27 amounts payable under this Lease, shall commence upon the Rent Commencement Date,
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1 and shall be subject to Lessee's constitutional debt limitation (Article XVI, Section 18 of the
2 California Constitution), and (ii) in no event shall Lessee's obligation to pay Rent (as defined
3 in Section 4(c) hereof) and any other amounts payable under this Lease, be or interpreted to
4 be, debt within the meaning of Lessee's constitutional debt limitation (Article XVI, Section 18
5 of the California Constitution).
6 b. Rent Commencement Date of the Premises - The Rent Commencement Date
7 shall be the first day of the month following the date this lease is executed.
8 C. Description of Rent— Subject to Section 4(a) hereof, from and after the Rent
9 Commencement Date and throughout the Term, in consideration for Lessee's use of the
10 Premises, Lessee shall pay to Lessor without offset, demand or prior notice, with the
11 exception of an offset for abatement pursuant to Section 18 hereof, on or before the first of
12 each month base rent, in the fixed, monthly rate of$28,000.00 ("Base Rent") plus such
13 amounts incurred by Lessor that may be charged monthly to Lessee pursuant to Section
14 4(d) hereof, with respect to the Premises, as necessary for the payment of the following
15 items: (i) the costs of any utilities serving the Premises that cannot be separately metered
16 for the use of water, natural gas and electricity; (ii) maintenance costs and expenses
17 incurred under Section 6 hereof; (iii) property insurance costs incurred and property taxes
18 to the extent that they are chargeable to Lessee under Section 7 hereof; and (iv) insurance
19 costs incurred under Section 24 hereof(collectively, "Additional Rent;" Base Rent together
20 with Additional Rent shall be defined as"Rent"). If the Rent Commencement Date does
21 not fall on the first day of a month, the first Rental payable under this Section 4 shall be
22 prorated in an amount equal to the number of days in that month from and after the Rent
23 Commencement Date relative to the total number of days in that month. Thereafter,
24 Lessee shall pay each month's Rent on or before the first of each month, in accordance
25 with this Section 4.
26 d. Additional Rent Payments — Lessor shall make timely, direct payment of all
27 amounts owed to third parties in connection with amounts that Lessor may charge to Lessee
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1 as Additional Rent under this Lease, and Lessee shall reimburse Lessor for such Additional
2 Rent under Section 4(c) hereof, and this Section 4(d).
3 i. Estimated Cost Statement— On or before sixty (60) calendar days prior
4 to each year during the Term, Lessor shall deliver to Lessee a written statement
5 ("Estimated Cost Statement"), the form of which is attached hereto as Exhibit H itemizing
6 each of the estimated amounts that constitute Additional Rent, based on such itemized
7 amounts for such year, and Lessee will either comment on, approve, or disapprove the
8 Estimated Cost Statement within sixty (60) calendar days following its receipt thereof, and
9 any failure by Lessee to provide any comment or disapproval shall be deemed approval of
10 the Estimated Cost Statement. The Estimated Cost Statement shall be delivered to Lessee
11 at the following addresses:
12 County of Fresno County of Fresno
13 Director of Internal Services Director of Social Services
14 Attention: Time Sensitive Attention: Time Sensitive
15 333 W. Pontiac Way 205 W. Pontiac Way
16 Clovis, CA 93612 Clovis, CA 93612
17 If Lessee disapproves any portion of the Estimated Cost Statement, the Parties shall promptly
18 meet and confer in good faith, and discuss the reason for the disapproval. If the Parties reach
19 agreement with respect to the Estimated Cost Statement, Lessor, if necessary, shall revise
20 the Estimated Cost Statement accordingly and re-submit it to Lessee for its requested
21 approval. Lessee shall continue to make payments for Additional Rent under Section 4(c)
22 hereof, and this Section 4(d) based on the Estimated Cost Statement approved by Lessee for
23 the prior year, until Lessee has approved the Estimated Cost Statement in writing. Upon
24 approving the Estimated Cost Statement, Lessee shall, under this Section 6(d), pay
25 Additional Rent based on the approved Estimated Cost Statement, plus all additional
26 amounts, if any, owed by Lessee for the period during which the Parties were in the process
27 of reaching agreement as to the Estimated Cost Statement, and reached agreement on such
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1 amounts. The Parties shall attempt in good faith to resolve any disagreement regarding the
2 Estimated Cost Statement within sixty (60) calendar days of the date that Lessor delivers the
3 Estimated Cost Statement to Lessee, provided however, if Lessee continues to disagree with
4 Lessor, Lessee shall pay the disputed amounts promptly following the end of such sixty (60)
5 calendar day period, but such payment shall be subject to Lessee's right to pursue any
6 remedy allowed by law with respect to such disputed amount. Lessee's obligation to pay
7 Additional Rent to Lessor shall be allocated equally on a monthly basis within the relevant
8 year, and each payment thereof shall be made monthly pursuant to Section 4(c) hereof, on
9 the date that Rent is due during the Term. ii. Actual Cost Statement—Within
10 sixty (60) calendar days after the end of each year during the Term, Lessor shall deliver to
11 Lessee at the address specified in Section 4(d)(i) hereof, a written statement ("Actual Cost
12 Statement") itemizing the total actual amount of the Additional Rent for such year,
13 accompanied by copies of all supporting documents for each of such items of the Additional
14 Rent. If the total amount of the Actual Costs Statement is less than the amount of the
15 Estimated Cost Statement for the relevant year, Lessor shall refund the amount overpaid to
16 Lessee within thirty (30) calendar days after the date that Lessor delivered the Actual Cost
17 Statement to Lessee. If the total amount of the Actual Costs Statement is more than the
18 amount of the Estimated Cost Statement for the relevant year ("Excess Costs"), Lessee shall
19 pay such Excess Costs to Lessor within forty-five (45) calendar days after its receipt of the
20 Actual Cost Statement, except that (a) to the extent that the Excess Costs are more than ten
21 percent (10%) of the Estimated Cost Statement for the relevant year ("Excess Costs Above
22 10%"), or (b) if Lessee has requested, but not received, supporting documents for any Excess
23 Costs within fifteen (15) calendar days thereafter("Excess Non-Documented Costs"), Lessee
24 shall not be obligated to pay Excess Costs Above 10%, or Excess Non-Documented Costs,
25 unless and until Lessor provides documentation to the reasonable satisfaction of Lessee that
26 the Excess Costs Above 10% and/or the Excess Non-Documented Costs are in amounts that
27 are reasonable for the types of costs or expenses incurred and chargeable to Lessee as
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1 Additional Rent under this Lease. The Parties shall attempt in good faith to resolve any
2 disagreement regarding the Actual Cost Statement within sixty (60) calendar days of the date
3 that Lessor delivers the Actual Cost Statement to Lessee (or the later date that Lessor
4 provides any additional documentation), provided however, if Lessee continues to disagree
5 with Lessor, Lessee may, at its expense, during Lessor's normal business hours, elect to
6 audit Lessor's actual Additional Rent costs for such calendar year only, subject to the
7 following conditions: (1) the audit shall be prepared by an independent certified public
8 accounting firm; (2) in no event shall any audit be performed by a firm retained on a
9 "contingency fee" basis; (3) the audit shall commence within thirty (30) days after Lessor
10 makes Lessor's books and records available to Lessee's auditor, and shall conclude within
11 sixty (60) days after commencement; (5) the audit shall be conducted where Lessor maintains
12 its books and records or at an office designated by Lessor in the reasonable vicinity of the
13 Premises, and shall not unreasonably interfere with the conduct of Lessor's business; and (6)
14 Lessee and its accounting firm shall treat any audit in a confidential manner and shall each
15 execute Lessor's commercially reasonable confidentiality agreement for Lessor's benefit prior
16 to commencing the audit. Lessee shall deliver a copy of such audit within ten (10) business
17 days after its finalized. This paragraph shall not be construed to limit, suspend, or abate
18 Lessee's obligation to pay Rent when due, including the estimated Operating Costs. After
19 verification, Lessor shall credit any overpayment determined by the audit report against the
20 next Rent due and owing by Lessee or, if no further Rent is due, refund such overpayment
21 directly to Lessee within (30) days of determination. Likewise, Lessee shall pay Lessor any
22 underpayment determined by the audit report within thirty (30) days of determination. If the
23 audit finds that Lessee has overpaid actual Operating Costs, the Estimated Cost Statement
24 currently in use will be adjusted to reflect the actual Operating Costs. The foregoing
25 obligations shall survive the expiration or earlier termination of the Lease. If Lessee does not
26 give written notice of its election to audit during the Audit Election Period, Lessor's Operating
27 Costs for the applicable calendar year shall be deemed approved for all purposes, and
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1 Lessee shall have no further right to review or contest the same. If the audit proves that
2 Lessor's calculation of Operating Costs for the calendar year under inspection was overstated
3 by more than five percent (5%) in the aggregate, then, after verification, Lessor shall pay
4 Lessee's actual reasonable audit and inspection fees applicable to the review of said
5 calendar year statement within thirty (30) days after production of the audit results to Lessor.
6 If Lessee continues to disagree with Lessor, Lessee shall pay the disputed amounts promptly
7 following the end of such sixty (60) calendar day period (or the later date that Lessor provides
8 any additional documentation), but such payment shall be subject to Lessee's right to pursue
9 any remedy allowed by law with respect to such disputed amount.
10 iii. Notice Prior to Exceeding Estimated Cost Statement Amount— Prior to
11 incurring any expense that Lessor reasonably believes will cause any cost or expense
12 category to be an amount greater than ten percent (10%) of its estimated cost or expense
13 shown on the Estimated Cost Statement, Lessor shall give written notice to Lessee
14 describing the amount and reason for the amount. Lessor shall obtain Lessee's prior
15 approval before proceeding with the expense which will be provided within fifteen (15) days
16 unless mutually agreed between Lessor and Lessee. Provided however, no such notice is
17 required to be given to Lessee under this Subsection 4(d)(iii) if the amount will be incurred
18 in connection with a sudden and/or unexpected event or circumstance, that is, or results in,
19 or an imminent threat of a condition that threatens the life, health, or safety of any person,
20 or condition of the Premises, provided further however, Lessor shall provide Lessee copies
21 of all supporting documents for each of such items of the Additional Rent under Section
22 4(d)(ii) hereof. The Parties shall attempt in good faith to resolve any disagreement regarding
23 any cost or expense referenced under this Section 4(d)(iii) in the same manner as they are
24 required under Section 4(d)(ii) hereof, but any payment by Lessee for any disputed amount
25 shall be subject to Lessee's right to pursue any remedy allowed by law with respect to such
26 disputed amount. Unless the notice provided above occurs within ninety (90) days of the
27 end of the year of the term, Lessor must provide Lessee a new Estimated Cost Statement
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1 within thirty (30) days after receiving Lessee's approval in pursuant to this Section 4(d)(iii)
2 that accounts for this increased cost for the remainder of the lease year. Lessee shall be
3 obligated to pay this new Additional Rent to Lessor for the remainder of the lease year.
4
5 iv. Approval —As to Lessee, any one of the following is hereby authorized
6 to, and may individually, give any comment on, or approval or disapproval of, any
7 amounts charged or to be charged by Lessor under Sections 4(c) and 4(d) hereof and
8 to participate in any attempt to resolve any disputed amount with Lessor: Lessee's
9 County Administrative Officer or his or her designee; or Lessee's Director of Internal
10 Services/CIO of the Internal Services Department, or his or her designee ("Lessee's
11 Director of ISD/CIO").
12 V. Management Fee— Lessee shall pay to Lessor, for management of the
13 Additional Rent amounts and associated responsibilities, a reasonable management
14 fee ("Management Fee"), equal to 3% of the total annual Additional Rent amounts.
15 This Management Fee shall be divided into equal 1/12 (or pro-rated for any partial
16 month) payments and billed to Lessee with the Additional Rent described in Section
17 4(d) hereof. The Management Fee shall be subject to the same true-up process as to
18 Additional Rent, described in 4(d) hereof.
19 5. UTILITIES — Lessee shall make timely, direct payment of all amounts owed to third
20 party service providers for metered utilities, including water, sewage, garbage, gas, and
21 electricity. Lessee shall pay for telecommunications services that Lessee requires in its use of
22 the Premises.
23 6. MAINTENANCE
24 a. Lessor's Maintenance Duties — Lessor shall maintain and keep the Premises,
25 the costs and expenses of which shall be reimbursed by Lessee as Additional Rent in
26 accordance with Section 4(d) hereof, in good order, condition, and repair, and in good
27 sanitary, habitable condition, including, but not limited to:
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1 i. Building —The non-structural portions of the Building, including, but not
2 limited to, canopy, roof membranes, downspouts and gutters of the Building, electrical,
3 mechanical, and plumbing systems (including above ground and underground piping
4 for water and sewer, from the street to the point of entry or exit to the Building, and to
5 other areas serviced by the piping), fire/life-safety system components including, but
6 not limited to, fire suppression and protection systems and smoke/fire alarm systems,
7 and any other equipment of the Building that was or is installed by Lessor (but
8 excluding any security alarm systems that Lessee may install);
9 ii. Lighting — Exterior lighting fixtures of the Building and parking lot,
10 including glass replacement, and appropriate and timely adjustments to exterior
11 lighting for daylight savings time;
12 iii. Paintin — Exterior repainting of the Building;
13 iv. Grounds — Grounds and landscaping, including irrigation and sprinkler
14 systems;
15 V. Parking lot—The parking lot for the Premises, including all surfaces,
16 approaches, parking and directional signs, and, if any, fences; and sweeping,
17 repaving, sealing, and striping parking lots;
18 vi. Graffiti abatement— Immediately removing graffiti or other defacements
19 from the Premises;
20 vii. Pest control — regular insect, pest, and vermin control;
21 viii. Protection from weathering —Taking appropriate measures to protect
22 exterior surfaces of the Building, including window frames, doors, and roofing, from
23 weathering and deterioration, excluding weathering or deterioration due to Lessee's
24 over-use of any landscaping sprinkler system;
25 ix. Water Seepage— Preventing and protecting against any water
26 seepage into the Building from the roof, walls, or underground.
27 X. Repair and Restoration — Repair of and any restoration to any other
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1 improvements with respect to the Premises; and
2 xi. Inspections— Inspections, from time to time, of the Premises to ensure
3 that the Premises are in good order, condition, and repair, and in good sanitary
4 condition, provided however, Lessor shall not be responsible for providing security
5 alarm service or security guard or "night watchman" services to protect persons or
6 property in or about the Premises, including the Premises itself; Lessee may provide
7 all such security alarm service, security guard, or"night watchmen" services at
8 Lessee's sole cost and expense.
9 b. Maintenance of Structure — Lessor shall, at Lessor's sole cost and expense,
10 maintain and keep in good order, condition, and repair, and habitable condition the
11 Building's structure, including all exterior walls, foundation, and the roof structure.
12 C. Lessee Notification — Lessor represents, covenants, and warrants to Lessee
13 that the Premises shall be maintained in substantially the same condition as existed on the
14 Date of Delivery, less ordinary wear and tear and Lessee damage thereafter. Lessee shall
15 inform Lessor of any items that Lessee discovers requiring repair or restoration in or about
16 the Premises, or any portion thereof, under this Section 6, within a reasonable time after
17 Lessee's discovery thereof, not to exceed fifteen (15) calendar days after such discovery for
18 any such routine items, but within forty-eight (48) hours after such discovery for any such
19 items involving an imminent threat of the health or safety of any person who may be in or
20 about the Premises or which would, without Lessee reporting such item to Lessor within
21 such forty-eight (48) hour period, directly result in material damage or materially increased
22 repair or restoration costs if not thereafter promptly repaired or restored by Lessor (by way
23 of example, and not as a limitation, a water pipe in the building bursts that results in a flood
24 that damages the Building), provided however, such reporting obligation of Lessee, or the
25 failure of Lessee to perform such reporting obligation, does not relieve Lessor from:
26 i. performing maintenance of the Premises (except Lessee shall pay any
27 reasonable materially increased repair or restoration costs directly due to Lessee's
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1 delay, if any, beyond the time permitted in this Section 6 for reporting the problem.
2 However, Lessee shall not be responsible for any such additional costs if Lessee
3 takes reasonable steps to attempt to inform Lessor of such problem, but is
4 unsuccessful in providing such information to Lessor because of Lessor's
5 unavailability at such time; or
6 ii. performing maintenance herein with respect to any condition of the
7 Premises of which Lessor first was aware or should have discovered upon reasonable
8 inspection.
9 d. Damage Caused by Lessee's Misuse— Notwithstanding any other provision of
10 this Section 6 or elsewhere in this Lease, Lessee shall be solely responsible for repairing all
11 damage to the Premises caused by Lessee's (including its suppliers, contractors and their
12 subcontractors at any tier, and invitees) misuse of the Premises, If Lessee fails to repair
13 such damage caused by Lessee's misuse, Lessor may, after giving Lessee at least thirty
14 (30) calendar days' advance written notice—or such shorter period as is reasonable in
15 exigent circumstances—and Lessee failing to repair such damage within such notice
16 period, make such repairs, and Lessee shall reimburse Lessor for the reasonable cost
17 thereof. However, if such repair is not reasonably capable of completion within such thirty
18 (30) calendar day period, Lessor shall not be entitled to undertake such repair and charge
19 any cost thereof to Lessee provided Lessee gives Lessor a written notice within such thirty
20 (30) calendar day period describing, with reasonable particularity, the reason why Lessee
21 cannot reasonably complete such repair within such thirty (30) calendar day period, the
22 steps that Lessee will take to complete such repair, and promptly commences, and
23 diligently and continuously prosecutes, the completion of such repair within a reasonable
24 period, not to exceed ninety (90) calendar days.
25 7. INSURANCE & TAXES — Commencing on the Rent Commencement Date (as defined
26 in Section 4(b) hereof) and throughout the Term (as defined in Section 3 hereof), Lessee
27 shall reimburse Lessor, with respect to the Premises, for (1) Lessor's actual out of pocket
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1 costs for property taxes for the Premises, provided however, (i) Lessee shall not be
2 responsible for reimbursing Lessor for any interest, penalties, or charges due to Lessor's
3 late payment of, or failure to pay, such property taxes, or (ii) in the event of any change in
4 ownership that results in an increased assessment of property taxes upon the Premises,
5 Lessor, or its successor or assign, shall be solely responsible for any increase in taxes as a
6 result of such change in ownership; and (2) Lessor's insurance costs (as defined in Section
7 24(a) hereof).
8 a. Notice — Lessor shall promptly provide Lessee (and those listed in Section 31
9 of this Agreement) with copies of any notices provided by or on behalf of any governmental
10 agencies (including any such notices provided by or on behalf of a board, officer, or agency
11 of Lessee) to Lessor concerning any proposed property taxes or increases in then-existing
12 property taxes (but excluding therefrom any proposed increase in a property tax that is
13 based solely on a preexisting formula of a then-currently existing property tax) that may be
14 assessed to the Premises or any part thereof. If Lessor, by virtue of its status as a
15 landowner of the Premises or any part thereof, has any protest or voting rights with respect
16 to any such proposed property taxes or increases in existing property taxes, Lessor first
17 shall consult with Lessee concerning same prior to the time that Lessor may be entitled to
18 such protest or vote on (and regardless of whether Lessor actually protests or votes on) any
19 such proposed property taxes or increases in property taxes. Lessor shall also promptly
20 provide Lessee with copies of any notices provided by the Fresno County Assessor and/or
21 the Fresno County Auditor-Controller/Treasurer-Tax Collector to Lessor for the assessment,
22 levy, collection, refund, or cancellation of any property taxes with respect to the Premises.
23 b. Lessor Responsibility to Pay— Except for Lessee's obligations to (i) pay for
24 metered utilities under Section 5 hereof, and (ii) pay Additional Rent under Section 4(d)
25 hereof, Lessor shall be solely responsible for paying any and all other assessments,
26 charges, and fees for which the payment thereof may be a lien upon the Premises,
27 including, but not limited to, any interest, penalties, and other charges for the late payment
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1 of, or failure to pay, any of the foregoing items (except to the extent such matters result
2 from Lessee's breach of any of the foregoing duties). Lessor represents and covenants to
3 Lessee that all property taxes, and all other charges and fees chargeable to the Premises
4 under this paragraph have been fully paid as of the Effective Date to the extent then due
5 and payable, and shall continue to be fully paid current by Lessor, as they become due and
6 payable.
7 8. INDEPENDENT CONTRACTOR— In performance of the work, duties and obligations
8 assumed by Lessor under this Lease, it is mutually understood and agreed that Lessor, including
9 any and all of Lessor's officers, agents, and employees, shall at all times be acting and
10 performing as an independent contractor, and shall act in an independent capacity, and not as
11 an officer, agent, servant, employee,joint venture, partner, or associate of Lessee. Furthermore,
12 Lessee shall have no right to control or supervise or direct the manner or method by which
13 Lessor shall perform its work and function, provided, Lessor shall satisfy and comply with its
14 obligations as set forth herein.
15 Because of its status as an independent contractor, Lessor shall have absolutely no
16 right to employment rights and benefits available to Lessee's employees. Lessor shall be
17 solely liable and responsible for providing to, or on behalf of, its employees all legally-required
18 employee benefits. In addition, Lessor shall be solely responsible and save Lessee harmless
19 from all matters relating to payment of Lessor's employees, including compliance with Social
20 Security withholding and all other law and regulations governing such matters. It is
21 acknowledged that during the Term, Lessor may be providing services to others unrelated to
22 Lessee or to this Lease.
23 9. COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS
24 a. Prevailing Wage — In addition to the provisions of Section 9(b) hereof, Lessor,
25 including all of its officers, agents, and employees, at its sole cost and expense, shall comply
26 with, and shall ensure compliance by all of Lessor's suppliers and contractors and their
27 subcontractors at any tier with, all applicable laws and regulations with respect to all of
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1 Lessor's work related to the Premises throughout the Term (including, by way of example of
2 such work, and not as a limitation of such work, the maintenance work to be performed under
3 this Lease in connection with the Premises), including the payment of prevailing wages,
4 pursuant to Section 2 (commencing with Section 1770 [payment of the general prevailing
5 wage rate]) of Chapter 1 of Part 7 of the California Labor Code.
6 b. Compliance with All Laws and Regulations—The provisions of this Section 9(b)
7 are in addition to the provisions of Section 2 hereof. Lessor represents, covenants, and
8 warrants to Lessee that the Premises shall be, upon the Delivery Date, in compliance with all
9 applicable federal, state and local laws, ordinances and regulations, including but not limited
10 to human occupancy and safety laws and regulations, health and building codes, and,
11 provided that Lessee keeps Lessor advised as to any increases in employee load and change
12 in operations, that the Premises shall remain in such compliance throughout the Term (as
13 defined in Section 3 hereof) and until the closing of escrow under the Sale and Purchase
14 Agreement if Lessee exercises the Purchase Option (as defined in Section 12 hereof) under
15 Section 12 hereof. By way of example of the foregoing obligations of Lessor, and not as a
16 limitation on any of Lessor's obligations, herein, Lessor shall, with respect to the Premises, be
17 solely responsible for all applicable seismic safety requirements as set forth in the most
18 current edition of the California Building Code (CBC) adopting the ICC International Code
19 Conference, Title 24 of the California Code of Regulations, all applicable then-current
20 requirements for accessibility by persons with disabilities, including, but not limited to, the
21 Americans With Disabilities Act (42 United States Codes, secs. 12101, et seq., and all related
22 guidelines, standards, and regulations), and all applicable laws and regulations concerning
23 the presence of mold and mold contamination in buildings, and the presence of asbestos and
24 asbestos containing materials and in buildings. If, during the Term, Lessor receives notice of
25 any inquiry, investigation, proceeding, or claim by any government agency concerning the
26 subject of this Section 9(b), Lessor shall (i) give Lessee written notice thereof, including
27 copies of any claims, notices of violation, reports, or other writings received by Lessor, within
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1 five (5) calendar days after receiving such notice, or such related documents, (ii) shall
2 promptly give Lessee copies of any further correspondence, including notices received by
3 Lessor or provided by Lessor to such governmental agency concerning the subject thereof,
4 and (iii) shall promptly take corrective action to resolve such inquiry, investigation,
5 proceeding, or claim by such government agency, and promptly give Lessee notice upon the
6 completion of such corrective action. Any changes to the Premises necessitated by a change
7 in Lessee's occupancy or operations shall be borne by Lessee.
8 c. The provisions of this Section 9 shall survive the termination of this Lease as to
9 violations which were existing as of the termination of this Lease.
10 10. IMPROVEMENTS; FIXTURES — Lessee shall have the right to make improvements,
11 including, but not limited to, equipment, fixtures, signs, or apparatus (collectively, "Lessee
12 Improvements") to the Premises at any time during the Term. Within thirty (30) calendar days
13 of completion of any of such Lessee Improvements, Lessee shall deliver to Lessor a copy of
14 the plans and specifications of such Lessee Improvements for any Lessee Improvements that
15 are made as a result of such plans and specifications. Lessor agrees that any Lessee
16 Improvements installed in or on the Premises by Lessee shall continue to be the property of
17 Lessee, and may be removed by Lessee at any time. Lessee shall repair or pay for the repair
18 of any damage caused by the installation or removal of Lessee Improvements. Any Lessee
19 Improvements not removed after Lessee surrenders possession, provided that Lessee has
20 not exercised its Purchase Option (as defined in Section 12 hereof) under this Lease, shall be
21 deemed abandoned by Lessee, and shall become the property of Lessor.
22 11. RIGHT OF ENTRY— Lessor, or its representative(s), upon twenty-four (24) hour
23 notice given to Lessee, shall have the right to enter the Premises at any time during business
24 hours, or at such other time as Lessee deems appropriate, to make any alterations, repairs or
25 improvements to the Premises that are consistent with this Lease, provided however, the
26 normal business of Lessee, or its invitees, shall not be unnecessarily inconvenienced.
27 12. PURCHASE OPTION —Lessor hereby grants to the Lessee the one-time right and
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1 option to purchase the Real Property, on the terms set forth herein in Exhibit G, such purchase
2 to close on, and be effective as of, the Parties' mutual business day immediately following the
3 Expiration Date ("Purchase Date"), by delivering written notice to Lessor of such exercise
4 ("Purchase Option Notice") at any time during the last year of the Term of this Lease, but at
5 least one hundred eighty (180) calendar days prior to the Expiration Date ("Purchase
6 Option"). The purchase price for the Real Property (including the Premises, and further
7 including the Building and Parking Area, and all such facilities) under the Purchase Option
8 shall be $240,000.00 ("Purchase Price"), and the condition of title to the Real Property shall
9 be as required by Section 1(e) hereof. The following persons are each authorized,
10 individually, to (i) execute, on behalf of Lessee, the Purchase Option Notice, and (ii) to deliver
11 to Lessor said Purchase Option Notice pursuant to the terms hereof:
12 County Administrative Officer (CAO) Director of Internal Services/CIO
13 County of Fresno County of Fresno
2281 Tulare Street, Suite 304 333 W. Pontiac Way
14 Hall of Records Clovis, CA 93612
Fresno, CA 93721
15
16
17 13. DUE DILIGENCE — Performance of Due Diligence. Prior to the Effective Date, Lessee
18 shall have performed all due diligence on the Premises (subject to the terms and conditions
19 set forth herein), including reviewing matters of title (the title for the Premises shall be exactly
20 the same as provided in the Fidelity National Title Company Preliminary Report dated April
21 18, 2023), inspecting the physical conditions of the Premises, obtaining an acceptable
22 appraisal of the Premises, obtaining or receiving an acceptable Phase 1 Environmental
23 Assessment Report, obtaining a termite report, performing inspections, reviewing agreements
24 relating to the Premises, and conducting such other due diligence as Lessee determines is
25 necessary ("Due Diligence"), provided however, Lessee's performance of such due diligence
26 activities shall be solely for Lessee's benefit, and such performance or lack thereof by Lessee
27 shall not relieve Lessor of its obligations under this Lease.
28 a. Testing — Notwithstanding anything to the contrary in this Section 13(a),
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1 Lessee shall not perform any soil borings or other invasive testing to the Premises without
2 Lessor's prior written approval, which approval shall not be unreasonably withheld,
3 conditioned, or delayed. Lessor or its representative may be present to observe any testing or
4 other inspection performed on the Premises. Lessee's right to enter upon the Premises or
5 allow any of Lessee's agents to enter upon the Premises to perform the Due Diligence
6 investigations contemplated in this Section 13 shall be conditioned on Lessee's agreement to
7 maintain worker's compensation and commercial general liability insurance policies to cover
8 Lessee's and Lessee's agents' Due Diligence activities on the Premises, and to keep the
9 Premises free and clear of all mechanics' and materialmen's liens or other liens arising out of
10 any of its activities or those of its representatives, agents or contractors. Further, Lessee shall
11 make whatever remediation or repair is necessary to put the Premises back in the same
12 condition it was in prior to the testing.
13 b. Insurance— Lessee shall maintain and keep in effect, at its sole cost and
14 expense, at all times during the period of escrow, a general commercial liability insurance
15 policy, as set forth in Section 24 hereof.
16 C. Title Matters —A Preliminary Report, as described herein, has been issued by
17 Fidelity National Title Company to Lessee. The condition of title to the Real Property shall be
18 as follows:
19 i. Lessor shall have sole fee title to the Real property.
20 ii. Permitted exceptions to Lessor's title to the Real Property shall only be
21 as described and listed on Exhibit C, Fidelity National Title Company Preliminary
22 Report, cover pages 1 through 5, and "Preliminary Report Permitted Exceptions,"
23 pages 6 through 8, dated April 18, 2023, at 7:30 AM, which is incorporated herein by
24 this reference. Any mortgage or deed of trust or similar debt instrument relating to the
25 Premises, even as allowed under Section 1(e) hereof, and if agreed to by Lessee
26 under Section 15 hereof, shall be considered a title defect, and shall be cured by
27 Lessor's removal of such title defect from the Real Property, at Lessor's sole cost and
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1 expense, prior to the Close of Escrow in connection with the Purchase Option (as
2 defined in Section 12 hereof) under Section 12 hereof.
3 iii. Without limiting the generality of the foregoing provisions of this
4 Section 15(e), that certain Deed of Trust, Assignment of Rents and Leases and
5 Fixture Filing, recorded in the Office of the Fresno County Recorder on June 16, 2000,
6 recorded instrument No. 2000-0072359 ("Wachovia Bank Deed of Trust") in favor of
7 Wachovia Bank, N.A., a national banking association ("Beneficiary"), the beneficiary
8 thereunder, in the amount of$145,000, is considered a title defect that Lessor shall
9 remove, at its sole cost and expense, under this Section 13(c)(iii) and that Lessor shall
10 secure for and deliver to Lessee, on or before the Close of Escrow, a true and
11 complete copy of the written verification to be provided by the Beneficiary or its
12 successor or assign to the escrow agent, that the Wachovia Bank Deed of Trust has
13 been released and reconveyed by the Beneficiary, or its successor and assign, prior
14 to or concurrent with the Close of Escrow, as represented in that certain Release of
15 Obligation Under Deed of Trust, dated September 1, 2022, and recorded in the Office
16 of the Fresno County Recorder on September 6, 2022, recorded instrument No. 2022-
17 0111449.
18 iv. Lessor's title to the Real Property shall be marketable record title and
19 Lessee shall, at [closing of escrow] be able to purchase a [CLTA] title policy issued for
20 the Real Property in the full amount of the Purchase Price (as defined in Section 12
21 hereof).
22 14. ESTOPPEL CERTIFICATE — Lessee shall, at anytime upon not less than forty-five
23 (45) calendar days prior request by Lessor, execute, acknowledge, and deliver to Lessor a
24 written estoppel certificate, in the form as attached in Exhibit D and incorporated herein by
25 this reference. Any such statement delivered pursuant to this Section 14 may be relied upon
26 by third persons, including a prospective purchaser or encumbrancer of the Premises.
27 Lessee's Director of ISD/CIO (as defined in Section 4 hereof) shall be authorized to
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1 execute the estoppel certificate on behalf of Lessee. However, Lessor acknowledges that
2 Lessee's Director of ISD/CIO may desire for Lessee's Board of Supervisors to act on behalf
3 of Lessee with respect to any requested approval of any estoppel certificate on behalf of
4 Lessee, which shall be upon a regularly-scheduled meeting of Lessee's Board of Supervisors
5 within the foregoing forty-five (45) calendar day time limit.
6 Lessee's failure to execute and deliver the estoppel certificate within forty-five (45)
7 calendar days after Lessee's receipt of Lessor's written request therefor, which shall be
8 delivered to Lessee in the same manner as providing notices under Section 31 hereof, shall
9 be conclusive upon Lessee that this Lease is in full force and effect and without modification,
10 that there are no uncured defaults in Lessor's performance, that not more than one month's
11 Rent has been paid in advance, provided however, if Lessor subsequently requests Lessee to
12 deliver an estoppel certificate, and Lessee timely does so under this Section 14, then such
13 subsequently delivered estoppel certificate shall supersede such conclusive result upon
14 Lessee, and such conclusive result shall have no force or effect against Lessee.
15 15. SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT—At Lessor's option,
16 this Lease shall be subordinated to any mortgage or deed of trust which shall upon or after
17 Effective Date be recorded against the Real Property, provided that Lessor and Lessee first
18 execute and enter into a Subordination, Non-Disturbance, and Attornment Agreement
19 ("SNDA") substantially in the form as in Exhibit "I," which is attached hereto and incorporated
20 herein by this reference (provided that any deviations from such form of the SNDA in Exhibit
21 "1" do not impair Lessee's rights or burden Lessee's obligations that are set forth in such
22 SNDA in Exhibit "I"), and Lessor records such SNDA against the Real Property and provides
23 a copy of such recorded SNDA to Lessee. Lessee's Director of ISD/CIO is hereby authorized
24 by Lessee to approve and enter into the SNDA on behalf of Lessee upon such terms and
25 conditions set forth in Exhibit I," along with any revisions thereto that he or she deems to be
26 in the best interest of Lessee, provided that the SNDA shall, prior to Lessee's Director of
27 ISD/CIO's execution thereof, be subject to approval as to legal form by Lessee's legal
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1 counsel. Notwithstanding anything to the contrary in this Section 17, if Lessee exercises the
2 Purchase Option (as defined in Section 12 hereof) under Section 12 hereof, then any such
3 mortgage or deed of trust shall be deemed to be a title defect and removed from the title of
4 the Real Property, and fully paid off by Lessor, and released and reconveyed, with verification
5 thereof given to Lessee, prior to or concurrent with the Close of Escrow, pursuant to the
6 procedures in Section 13(d) hereof.
7 16. CONDEMNATION OR PROHIBITED USE — If the Premises, or any portion thereof,
8 is appropriated, condemned, or taken by any governmental authority or public agency other
9 than Lessee by use or exercise of eminent domain proceedings or other proceedings, or by
10 inverse condemnation, or is sold under threat of use or exercise of eminent domain by any
11 governmental authority or public agency other than Lessee, or if by reason of law, ordinance,
12 regulation, or court judgment, Lessee's use or occupancy of the Premises, or any portion
13 thereof, shall be materially and adversely affected for the period set forth in clause (a) below,
14 but excluding therefrom any day that is not a Lessee business day (collectively
15 "Condemnation or Prohibited Use"), then Lessee shall have the right to do either of the
16 following:
17 a. Termination — If the Condemnation or Prohibited Use has a material
18 adverse effect on Lessee's use and occupancy of the Premises, and is reasonably
19 anticipated to impact such use in excess of ninety (90) calendar days, then Lessee may
20 terminate this Lease by giving written notice thereof to Lessor. Such notice shall specify a
21 date of termination of this Lease not less than one hundred eighty (180) calendar days, and
22 not more than two-hundred and ten (210) calendar days, from the date of such notice, or from
23 the date that Lessee's use of the Premises will be materially adversely affected pursuant to
24 the notice Lessee receives from Lessor of such appropriation, condemnation, taking, or sale
25 that shall prohibit Lessee's use or occupancy of the Premises, or the affected part thereof,
26 whichever is earlier. Lessee's County Administrative Officer and Lessee's Director of ISD/CIO
27 (as defined in Section 4(d)(iv) hereof), or one of them acting alone, shall have the authority to
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1 provide such notice on behalf of Lessee.
2 b. Renegotiation — Lessee may renegotiate with Lessor with respect to the
3 terms of any amounts to be owed by Lessee hereunder, including any portion or installment
4 of the Rent, when such are due and payable, and/or any other amounts otherwise due and
5 payable hereunder, for the remainder of Premises not affected by such Condemnation or
6 Prohibited Use during the balance of the Term. Any such renegotiated terms of the Rent,
7 and/or any other amounts otherwise to be due and payable herein shall be sought in good
8 faith and without unreasonable delay by the Parties, and made only by written amendment,
9 pursuant to Section 27.
10 17. DESTRUCTION OR DAMAGE FROM CASUALTY
11 a. Casualty— If the Premises are damaged or destroyed as a result of fire,
12 earthquake, act of God, or any other identifiable event of a sudden, unexpected, or unusual
13 nature ("Casualty"), then Lessor shall either promptly and diligently repair the damage at its
14 own cost and expense, renegotiate the terms and conditions of this Agreement with Lessee,
15 or terminate this Lease as hereinafter provided.
16 b. Lessor's Election to Repair— If Lessor elects to repair the Casualty damage to
17 the Premises, then it shall within thirty (30) calendar days after the date of Casualty provide
18 written notice ("Notice of Repair") to Lessee indicating the anticipated time required to repair.
19 Lessor shall bear the cost of all repairs to the Premises, including the cost to repair any of
20 Lessee's Improvements to the Premises, or fixtures installed or attached thereto by Lessee.
21 Such repairs shall restore the Premises to substantially the same condition as that existing at
22 the Rent Commencement Date (as defined in Section 4(b) hereof). Such repairs shall also be
23 made in compliance with all applicable state and local building codes. Lessor shall not be
24 liable to Lessee for compensation for any loss of business, or any inconvenience or
25 annoyance arising from repair of the Premises as a result of the Casualty, except for
26 abatement of Rent as hereinafter provided. Lessee shall be responsible, at Lessee's sole cost
27 and expense, for the replacement of its personal property.
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1 C. Lessor's Election to Renegotiate — If Lessor does not elect to Repair as stated
2 in Section 17 (b), Lessor shall renegotiate with Lessee with respect to the Rent and Purchase
3 Option in this Agreement. Amounts shall be sought in good faith and without unreasonable
4 delay by the Parties, and made only by written amendment, pursuant to Section 27.
5 d. Lessor's Election to Terminate Due to Casualty— Lessor may only elect to
6 terminate this Lease due to Casualty if Sections 17(a)— 17(c) have been pursued by both
7 Parties. Lessor may elect to terminate this Lease due to Casualty if the Premises have been
8 destroyed or substantially destroyed by said Casualty, and the reasonably estimated time to
9 repair the Premises exceeds one hundred eighty (180) calendar days from the date of the
10 Casualty. In such event, Lessor shall provide Lessee with written notice of its election to
11 terminate within forty five (45) calendar days after the date of Casualty. In the event of such a
12 termination by Lessor, Lessor shall refund to Lessee all Rent paid to Lessor for Lessee's
13 anticipated use of the Premises pursuant to this Lease, but which were not earned by Lessor,
14 because Lessee was unable to use the Premises due to the Casualty.
15 e. Rent Abatement Due to Casualty— In the event of Casualty, Lessee's
16 obligation to pay Rent and/or any other amounts otherwise due and payable to Lessor, shall
17 be abated pursuant to Section 18 hereof.
18 f. Lessee's Election to Terminate Due to Casualty— If Lessee does not receive a
19 Notice of Repair from Lessor within thirty (30) calendar days after a Casualty, or if the
20 reasonably anticipated period of repair contained in the Notice of Repair reasonably exceeds
21 one hundred eighty (180) calendar days, then Lessee may elect to terminate this Lease as
22 hereinafter provided. In such case, Lessee shall have the right to demand that Lessor refund
23 any monies which were paid to Lessor for Lessee's anticipated use of the Premises pursuant
24 to this Lease, but which were not earned by Lessor, because Lessee was unable to use the
25 Premises due to the Casualty. Upon receipt of such demand, Lessor shall promptly refund all
26 such monies.
27 18. ABATEMENT OF RENT AND OTHER PAYMENTS DUE TO CASUALTY, OR TITLE
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1 DEFECT
2 a. Abatement— Notwithstanding anything to the contrary in this Lease, Lessee's
3 obligations to pay the Rent, and/or any other amounts otherwise due and payable to Lessor,
4 shall be abated during any period, and to the extent, that the Premises, or any portion thereof
5 (in the case of an affected portion of the Premises, then, such abatement shall also be in
6 proportion thereof), cannot be used and occupied by Lessee pursuant to this Lease as a
7 result of any Casualty with respect to the Premises, or any portion thereof, any title defect
8 (excluding any permitted exceptions under Section 13(c) hereof, at Execution Date), or of any
9 Condemnation or Prohibited Use of the Premises, or any portion thereof, and (ii) any
10 abatement of Rent and/or any other amounts otherwise due and payable to Lessor shall not
11 be deemed to be a default under this Lease on the part of Lessee.
12 b. Period of Abatement—Abatement of any Rent and/or any other amounts
13 otherwise due and payable to Lessor shall only suspend the period during which Lessee is
14 otherwise required to pay Rent and/or any other amounts otherwise due and payable to
15 Lessor. This shall not relieve Lessee from its duty to pay Rent and/or any other amounts
16 otherwise due and payable to Lessor pursuant to this Lease once the condition giving rise to
17 the abatement has been cured, corrected, eliminated, or satisfactorily resolved. Such
18 abatement shall continue for the period commencing with the date of such title defect referred
19 to in this Section 18, or of any Casualty, Condemnation, or Prohibited Use of the Premises, or
20 any portion thereof, and ending with the cure, correction, elimination or satisfactory resolution
21 of the title defect, Casualty, Condemnation, or Prohibited Use of the Premises, whereby
22 Lessee may use and occupy the Premises, or the adversely affected portion thereof, pursuant
23 to this Lease. Cure, correction, elimination, or satisfactory resolution may, upon prior mutual
24 written approval of Lessor and Lessee (which the parties will negotiate in good faith and
25 without unreasonable delay), occur in commercially reasonable stages, as determined by the
26 nature of the problem being remedied and the impact that such staged remedial action and
27 the coordination and timing thereof would have on Lessee. Lessee's Director of ISD/CIO (as
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1 defined in Section 4(d)(iv) hereof) shall be authorized to execute such written approval for
2 Lessee.
3 C. Rent— During this period of abatement, Lessee shall only pay Rent and/or any
4 other amounts otherwise due and payable to Lessor for the portion of the Premises that
5 Lessee is able to use and occupy.
6 d. Rental Interruption or Loss Insurance— During the occurrence of any Casualty
7 that is covered by rental interruption insurance or rental loss insurance in Section 24(a)(iii)
8 hereof, the proceeds of any rental interruption insurance or rental loss insurance that Lessor
9 may receive as a result of such Casualty shall be applied by Lessor, to the credit of Lessee,
10 for the Rent; Lessor shall so inform Lessee of any such amounts so received.
11 19. DEFAULT AND TERMINATION
12 a. Lessee's Default— Lessee shall be in default under this Lease if Lessee fails to
13 perform any of its obligations hereunder and:
14 i. if the failure is a failure to pay Rent and/or any other amounts otherwise
15 due and payable to Lessor, or any other failure that can be cured by the payment of
16 money, and the failure continues uncured for a period of fifteen (15) calendar days
17 after written notice from Lessor, provided, however, Lessor shall have no obligation to
18 provide such written notice more than two (2) times in any twelve (12) consecutive
19 month period, or
20 ii. if the failure is in any of the other provisions of this Lease, and such
21 failure continues uncured for a period of thirty (30) calendar days after written notice
22 from Lessor, unless such cure is not capable of completion within thirty (30) calendar
23 days, in which case Lessee shall be afforded such additional time as may be
24 reasonably necessary to complete the cure, provided Lessee commences the cure
25 within thirty (30) calendar days of Lessor's notice and diligently pursues such cure to
26 completion, or, in the event of a threatened injury to life or property due to such failure,
27 continues for such lesser period as Lessor may reasonably specify in such written
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1 notice.
2 iii. Notwithstanding anything to the contrary in this Lease, Lessee shall not
3 be in default under this Lease solely because of Lessee's failure to pay any amounts
4 hereunder, including any portion of the Rent and/or any other amounts otherwise due
5 and payable to Lessor, that would be due and payable herein, if such amounts are
6 subject to abatement as set forth in Section18 hereof.
7 b. Lessor's Remedies — In the event of a default by Lessee, besides any other
8 rights and remedies of Lessor at law or equity (except as provided in this Section 19(b),
9 Lessor shall have the following rights and remedies. All remedies herein conferred on Lessor
10 shall, to the fullest extent permitted by law (except as provided in this Section 19(b), be
11 deemed cumulative, and no one exclusive of the other or of any other remedy conferred by
12 law or in equity, and nothing herein shall prevent Lessor from pursuing any and all other
13 remedies it may have upon Lessee's default (except as provided in this Section19(b)).
14 i. Election to Continue or Terminate Lease— Lessor shall have the right
15 to elect either to continue or terminate this Lease, as follows:
16 1. Continuation of Lease—Lessor may continue this Lease in effect
17 after Lessee's breach and abandonment and recover Rent and/or any other
18 amounts otherwise due and payable to Lessor as it becomes due, if Lessee
19 has the right to sublet or assign, subject only to reasonable limitations.
20 Accordingly, if Lessor does not elect to terminate this Lease due to a default by
21 LESSEE, Lessor may, from time to time, without terminating this Lease,
22 enforce all of its rights and remedies under this Lease, including the right to
23 recover all Rent and/or any other amounts otherwise due and payable to
24 Lessor as it becomes due.
25 2. Termination of Lease — Lessor shall have the right to terminate
26 this Lease, by giving written notice of termination to Lessee. Absent such
27 written notice, no acts of Lessor under subsection 19 (b)(i) hereof(including
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1 entering, repairing, preparing to re-let, or re-letting the Premises) shall be
2 construed as an election to terminate this Lease.
3 3. No Acceleration of Future Rent or Other Payments/Amounts —
4 Notwithstanding anything to the contrary contained herein this Lease or any
5 right or remedy of which Lessor may otherwise avail itself pursuant to
6 applicable law, any right of Lessor to recover any Rent as provided in this
7 Lease shall be without acceleration of any future Rent before it is due and
8 payable hereunder. Lessor hereby expressly waives its right to accelerate
9 Rent in the event of a termination of this Lease, pursuant to California Civil
10 Code section 1951.2.
11 C. LESSOR'S BREACH OF OBLIGATION TO MAINTAIN — In the event Lessor
12 breaches its obligation to maintain the Premises as herein provided, Lessee shall have the
13 right to give written notice to Lessor within fifteen (15) calendar days of the discovery of such
14 breach. Lessor shall then have thirty (30) calendar days from the date of notice to cure its
15 breach. If the period for cure expires and if, in Lessee's determination, which Lessee may
16 exercise in its sole and absolute discretion, Lessor has failed to cure, then Lessee may cure
17 Lessor's breach and deduct the cost of such cure, together with reasonable administrative
18 costs, from Lessee's future obligation to pay Rent and/or any other amounts otherwise due
19 and payable to Lessor as it becomes due. Lessee's decision to cure Lessor's breach shall not
20 constitute a waiver of any rights or remedies that Lessee may have arising from this Lease or
21 by operation of law.
22 20. SURRENDER OF POSSESSION / HOLDOVER — Upon the expiration or termination
23 of this Lease, Lessee shall surrender the Premises to Lessor broom clean, and otherwise in
24 such condition as existing on the Rent Commencement Date (as defined in Section 4(b)
25 hereof), less reasonable wear and tear. If Lessee holds over after the expiration of the Term
26 or earlier termination thereof, with or without the express or implied consent of Lessor, such
27 tenancy shall be tenancy at sufferance only, at 125% of the current Rent, and shall not
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COUNTY OF FRESNO
1 constitute a renewal hereof or an extension for any further term. Lessor hereby expressly
2 reserves the right to require Lessee to surrender possession of the Premises to Lessor, as
3 provided in this Lease upon the expiration or other termination of this Lease. The provisions
4 of this Section 20 shall not be deemed to limit or constitute a waiver of any other rights or
5 remedies of Lessor provided herein or at law (except as provided in Section 19(b) hereof).
6 Notwithstanding anything to the contrary in this Section 20, the provisions of this Section 20
7 shall have no force or effect if Lessee exercises its Purchase Option (as defined in Section 12
8 hereof) and purchases the Real Property, pursuant to Section 12 of this Lease.
9 21. WAIVER— No covenant or condition of this Lease shall be deemed waived, except by
10 the written consent of Lessor or Lessee, as applicable, and any forbearance or indulgence by
11 the Party entitled to performance shall not constitute a waiver of the covenant or condition to
12 be performed. Until complete performance of such covenant or condition, the Party entitled to
13 performance shall have the right to invoke any remedy available to it under this Lease or by
14 law (except that Lessor's rights and remedies at law or equity are subject to Section 19(b)
15 hereof), despite such forbearance or indulgence. The subsequent acceptance of Rent
16 hereunder by Lessor shall not be deemed to be a waiver of any preceding default by Lessee
17 of any term, covenant, or condition of this Lease, other than the failure of Lessee to pay the
18 particular Rent so accepted, regardless of Lessor's knowledge of such preceding default at
19 the time of acceptance of such Rent.
20 22. RECORDATION OF MEMORANDUM OF LEASE —The Parties shall, at the same
21 time they execute this Lease, also execute a Memorandum of Lease in the form of the
22 document attached as Exhibit "E," which is incorporated herein by this reference, with the
23 legal description shown as Exhibit B. Lessee's Director of ISD/CIO (as defined in Section
24 4(d)(iv) hereof), shall be authorized to execute the Memorandum of Lease on behalf of
25 Lessee, subject to approval as to legal form by Lessee's legal counsel. Lessee shall be
26 authorized to immediately record the executed Memorandum of Lease against the Real
27 Property in the Office of the Fresno County Recorder. The Parties shall cause their respective
28
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COUNTY OF FRESNO
1 signatures on the Memorandum of Lease to be notarized to facilitate recordation thereof.
2 23. INDEMNIFICATION AND DEFENSE.
3 a. Lessor and Lessee (each, as applicable, the "Indemnifying Party") agrees,
4 respectively, to indemnify, save, hold harmless, and at each other Party's request, defend the
5 other Party, including its officers, agents, and employees (and for Lessor, including any
6 mortgagee or beneficiary of a mortgage or deed of trust) (hereinafter collectively "Indemnified
7 Parties," respectively) with counsel selected by the Indemnifying Party and reasonably
8 satisfactory to the other Party, from and against any and all costs or expenses (including
9 attorney's fees and costs, and consultants' fees and costs), damages (and for Lessor,
10 including any lost Rents; and for Lessee, including any lost use of the Premises), liabilities,
11 judgments, claims, losses, fines, liens, assessments, or penalties, occurring or resulting to
12 any of the Indemnified Parties arising out of or in connection with the performance, or failure
13 to perform (including any breach of, or default in the performance by, the Indemnifying Party
14 of any of its obligations under this Lease), by the Indemnifying Party, its officers, agents,
15 employees, contractors, or invitees under or in connection with this Lease, and from any and
16 all costs or expenses (including attorney's fees and costs and consultants' fees and costs),
17 damages (and for Lessor, including any lost Rents; and for Lessee, including any lost use of
18 the Premises), liabilities, judgments, claims, losses, fines, liens, assessments, or penalties,
19 occurring or resulting to any person, firm, or corporation who may be injured or damaged
20 arising out of or in connection with the performance, or failure to perform (including any
21 breach of, or default in the performance by, the Indemnifying Party of any of its obligations
22 under this Lease), by the Indemnifying Party, its officers, agents, employees, contractors, or
23 invitees under or in connection with this Lease. The Indemnified Parties need not have first
24 paid any amounts in order to be defended or indemnified under this Section 23(a).
25 b. The obligations of an Indemnifying Party under this Section 23 shall not cover
26 the acts or omissions of the other Party, including its officers, agents, employees, contractors,
27 or invitees.
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COUNTY OF FRESNO
1 C. The Parties acknowledge that, as between Lessor and Lessee, each is only
2 responsible and liable for the negligent or wrongful acts or omissions of itself, including its
3 officers, agents, employees, contractors, and invitees. In the event of joint responsibility
4 between the Parties for any liability arising out of or in connection with this Lease, Lessor and
5 Lessee shall apportion such liability between the Parties under the California laws of
6 comparative negligence.
7 d. The provisions of this Section 23 shall survive the termination of this Lease as
8 to any conditions or circumstances that existed as of the termination of this Lease.
9 24. INSURANCE
10 a. Lessor—Without limiting Lessee's right to obtain indemnification from Lessor
11 or any third parties, Lessor shall maintain in full force and effect, the following insurance
12 policies throughout the Term:
13 i. Commercial General Liability - Commercial General Liability Insurance
14 with limits of not less than Two Million Dollars ($2,000,000) per occurrence and an
15 annual aggregate of Four Million ($4,000,000). This policy shall be issued on a per
16 occurrence basis. Lessee may require specific coverages including completed
17 operations, products liability, contractual liability, Explosion-Collapse-Underground,
18 fire legal liability or any other liability insurance deemed necessary because of the
19 nature of this contract.
20 ii. Property Insurance—Against all risk of loss to property, at full
21 replacement cost with no coinsurance penalty provision.
22 iii. Rental Loss Insurance —A policy of rental interruption or rental loss
23 insurance against loss, total, or partial, of the use and occupancy of the Premises, in
24 an amount sufficient to pay Rent hereunder for a twenty-four (24) month period, as a
25 result of any of the hazards covered by the insurance policy required under Section
26 24(a)(ii) hereof.
27 iv. Worker's Compensation —A policy of Worker's Compensation
28
32
COUNTY OF FRESNO
1 insurance as may be required by the California Labor Code.
2 V. Endorsements — Lessor shall obtain endorsements to the Commercial
3 General Liability insurance naming the County of Fresno, its officers, agents, and
4 employees, individually and collectively, as additional insured, but only insofar as the
5 operations under this Lease are concerned. Such coverage for additional insured shall
6 apply as primary insurance and any other insurance, or self-insurance, maintained by
7 Lessee, its officers, agents, and employees shall be excess only and not contributing
8 with insurance provided under Lessor's policies herein. This insurance shall not be
9 cancelled or changed without a minimum or thirty (30) calendar days advance written
10 notice given to Lessee.
11 vi. Waiver of Subrogation — Lessor hereby waives its right to recover from
12 Lessee, its officers, agents, and employees any amounts paid by the policy of
13 worker's compensation insurance required by this Lease. Lessor is solely responsible
14 to obtain any endorsement to such policy that may be necessary to accomplish such
15 waiver of subrogation, but Lessor's waiver of subrogation under this paragraph is
16 effective whether or not Lessor obtains such an endorsement.
17 vii. Evidence of Coverage—Within (30) calendar days from date Lessor
18 executes this Lease, Lessor shall provide certificates of insurance and endorsement
19 as stated above for all of the foregoing policies, as required herein, to the County of
20 Fresno, Attn: ISD Lease Services (L-335), 333 W. Pontiac Way, Clovis, CA 93612,
21 stating that such insurance coverages have been obtained and are in full force; that
22 the County, its officers, agents and employees will not be responsible for any
23 premiums on the policies that for such worker's compensation insurance the
24 Contractor has waived its right to recover from the County, its officers, agents, and
25 employees any amounts paid under the insurance policy and that waiver does not
26 invalidate the insurance policy; that such Commercial General Liability insurance
27 names the County, its officers, agents, and employees, individually and collectively, as
28
33
COUNTY OF FRESNO
1 additional insured, but only insofar as the operations under this Lease are concerned;
2 that such coverage for additional insured shall apply as primary insurance an any
3 other insurance, or self- insurance shall not be cancelled or changed without a
4 minimum of thirty (30) calendar days advance, written notice given to County.
5 viii. Remedies— In the event Lessor fails to keep in effect at all times
6 insurance coverage as herein provided, Lessee may, in addition to other remedies it
7 may have, suspend this Lease upon the occurrence of such event, or obtain such
8 insurance coverage to cure Lessor's deficiencies, and deduct the cost for such
9 insurance coverage from the Rent otherwise due to Lessor.
10 ix. Insurer Qualifications —All policies shall be with admitted insurers
11 licensed to do business in the State of California. Insurance purchased shall be
12 purchased from companies possessing a current A.M. Best Company rating of A FSC
13 VII, or better.
14 b. Lessee — Shall maintain throughout the Term the following policies of
15 insurance, which coverages may be provided in whole or in part through a program of self-
16 insurance.
17 i. General Liability Insurance — Commercial General liability insurance
18 with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and an
19 annual aggregate of not less than Four Million Dollars ($4,000,000.00). This policy
20 shall be issued on an occurrence basis.
21 ii. Personal Property Insurance — Property insurance covering the
22 personal property of Lessee.
23 iii. Worker's Compensation Insurance—A policy of Worker's
24 Compensation insurance as may be required by the California Labor Code.
25 iv. Remedies — In the event Lessee fails to keep in effect at any times insurance
26 coverage as herein required, Lessor may, in addition to other remedies it may have,
27 following written and oral (e.g., telephone call to Lessee's Director of Internal
28
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COUNTY OF FRESNO
1 Services/CIO (as defined in Section 4(d)(iv) hereof) notice thereof given to Lessee,
2 obtain such insurance coverage, for such reasonable coverage period, to cure
3 Lessee's deficiencies in such insurance coverage, and add the reasonable cost for
4 such insurance coverage to the Rent otherwise due to Lessor, provided however,
5 Lessor shall immediately give Lessee a copy of evidence of any such insurance
6 coverage so obtained.
7 25. AUDITS AND INSPECTIONS —At Lessee's request, Lessor shall at any time
8 during business hours, and as often as Lessee may deem necessary, make available to
9 Lessee for examination records and data with respect to the matters covered by this Lease.
10 Lessor shall, upon request by Lessee, permit Lessee to audit and inspect all of such records
11 and data necessary to ensure Lessor's compliance with the terms of this Lease.
12 If this Lease exceeds ten thousand dollars ($10,000), Lessor shall be subject to the
13 examination and audit of the California State Auditor for a period of three (3) years after final
14 payment under contract (Government Code Section 8546.7).
15 26. AUTHORITY— Lessor represents, warrants, and covenants to Lessee that the
16 individual(s) executing this Lease on behalf of Lessor is(are) duly authorized to execute and
17 deliver this Lease on behalf of McMahan-Kays LLC, and that this Lease is binding upon
18 McMahan-Kays LLC, in accordance with its terms and conditions. Lessee represents,
19 warrants, and covenants to Lessor that the individual(s) executing this Lease on behalf of
20 Lessee is(are) duly authorized to execute and deliver this Lease on behalf of the County of
21 Fresno and that this Lease is binding upon the County of Fresno in accordance with its terms
22 and conditions. The terms of this Lease are intended by the Parties as a final expression of
23 their agreement with respect to such terms as are included in this Lease and may not be
24 contradicted by evidence of any prior or contemporaneous agreement, arrangement,
25 understanding or negotiation (whether oral or written).
26 27. AMENDMENT—This Lease may be amended only in writing by the mutual
27 consent of the parties without in any way affecting the remainder of this Lease.
28
35
COUNTY OF FRESNO
1 28. NON-ASSIGNMENT— Neither Party shall assign, transfer, or sublet this Lease,
2 or the rights, obligations, or duties under this Lease, without the written consent of the other
3 Party, which consent shall not be unreasonably withheld or delayed.
4 29. COUNTERPARTS —This Lease may be executed in one or more counterparts
5 (which may be facsimile or .pdf e-mail counterparts followed by originals), each of which will
6 be deemed an original and all, taken together, will constitute one and the same instrument.
7 30. GOVERNING LAW—Venue for any action arising out of or relating to this
8 Lease shall be in Fresno County, California. This Lease shall be governed by the laws of the
9 State of California.
10 31. NOTICES —The persons and their addresses having authority to give and
11 receive notices under this Lease including the following:
12
Lessee: Lessor:
13
County of Fresno McMahan-Kays, LLC
14 Director of Internal Services/CIO c/o Doug Kays
333 W. Pontiac Way 614 Corte Campanero
15 Clovis, CA 93612 Camarillo, CA 93010
16 With a copy to:
County of Fresno
17 Director of Social Services
205 W. Pontiac Way
18 Clovis, CA 93612
19 All notices between Lessee and Lessor provided for or permitted under this Lease
20 must be in writing and delivered either by personal service, by first-class United States mail or
21 by an overnight commercial courier service. A notice delivered by personal service is effective
22 upon service to the recipient. A notice delivered by first-class United States mail is effective
23 three (3) Lessee business days after deposit in the United States mail, postage prepaid,
24 addressed to the recipient. A notice delivered by an overnight commercial courier service is
25 effective one (1) Lessee business day after deposit with the overnight commercial courier
26 service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed
27 to the recipient. For all claims arising out of or related to this Lease, nothing in this section
28
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COUNTY OF FRESNO
1 establishes, waives, or modifies any claims presentation requirements or procedures
2 provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1
3 of the Government Code, beginning with section 810).
4 32. DISCLOSURE OF SELF DEALING TRANSACTIONS —This provision is only
5 applicable if Lessor is operating as a corporation (a for-profit or non-profit corporation) or if
6 during the Term, Lessor changes its status to operate as a corporation.
7 Members of Lessor's Board of Directors shall disclose any self-dealing transactions
8 that they are a party to while Lessor is providing goods or performing services under this
9 Lease. A self-dealing transaction shall mean a transaction to which Lessor is a party and in
10 which one or more of its directors has a material financial interest. Members of the Board of
11 Directors shall disclose any self-dealing transactions that they are a party to by completing
12 and signing a Self-Dealing Transaction Disclosure Form which is attached hereto as Exhibit
13 "F" and incorporated herein by this reference, and submitting it to Lessee prior to
14 commencing with the self-dealing transaction or immediately thereafter.
15 33. TIME OF THE ESSENCE —Time is of the essence with respect to the
16 performance of all obligations to be performed or observed by the Parties, respectively, under
17 this Lease.
18 34. FURTHER DOCUMENTS — Subject to the terms and conditions of this Lease,
19 the Parties promptly shall execute and deliver any and all additional documents, and
20 instruments, notices and shall do any and all other acts and things, reasonably necessary in
21 connection with the performance of their respective obligations under this Lease and to carry
22 out the provisions of this Lease.
23 35. ENTIRE AGREEMENT—This Lease constitutes the entire agreement between
24 Lessor and Lessee with respect to the subject matter hereof and supersedes all prior leases,
25 negotiations, proposals, commitments, writings, advertisements, publications, and
26 understandings of any nature whatsoever unless expressly referenced in this Lease.
27 36. EQUAL CONSTRUCTION —The terms of this Lease shall not be construed in
28
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COUNTY OF FRESNO
1 favor of or against any Party. In connection with the negotiation and drafting of this Lease, the
2 Parties have been represented by counsel.
3 37. SUCCESSORS —This Lease shall inure to the benefit of and be binding upon
4 the heirs, executors, administrators, successors and assigns of the respective Parties hereto,
5 always providing that nothing in this Section 37 shall impair any of the provisions herein
6 above set forth prohibiting assignment or other transfer of this Lease by Lessor or Lessee
7 without the prior written consent of Lessor or Lessee, as applicable.
8 38. NO LITIGATION — Lessor represents, covenants, and warrants to Lessee that
9 (a) Lessor is not involved in or aware of pending or threatened claim, demand, or litigation
10 which could affect the Real Property and/or this Lease, and (ii) there are no proceedings
11 pending or threatened against Lessor before any court or administrative agency relating to
12 the Real Property and/or this Lease, which may adversely affect the Real Property now or in
13 the future, or which may adversely affect Lessor's ability to fulfill all obligation under this
14 Lease.
15 39. NO THIRD—PARTY BENEFICIARIES — Except for mortgagee or beneficiary of
16 a mortgage or deed of trust under Section 15 hereof, none of the provisions in this Lease are
17 intended by the Parties, nor shall they be deemed, to confer any right or benefit on any
18 person or entity not a party to this Lease; to that end, there shall be no other third—party
19 beneficiaries of this Lease.
20 40. DAYS — In the event an act is to be performed by a Party under this Lease on
21 a date other than a Lessee business day, the act shall be performed on the next Lessee
22 business day.
23 41. TITLES —The section titles and headings contained in this Lease are inserted
24 as a matter of convenience and for ease of reference only and shall be disregarded for all
25 other purposes, including the construction or enforcement of this Lease or any of its
26 provisions.
27 [SIGNATURES ON FOLLOWING PAGE]
28
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COUNTY OF FRESNO
1 IN WITNESS WHEREOF, the Parties hereto have executed this Lease as of the day
2 and year first hereinabove written.
3
4 Lessor: Lessee:
McMAHAN-KAYS, LLC COUNTY OF FRESNO
5
6 By: 11-3- IZ f
Douglas B. Kays, Managincj Member Nathan Magsig, Chairman of the Board of
7 614 Corte Campanero Supervisors of the County of Fresno
Camarillo, CA 93010
8 ATTEST:
Bemice E. Seidel
9 y Clerk of the Board of Supervisors
County of Fresno, State of California
10
r
11
By:
12 Deputy
13
14
15
16
17
18
19
20
21
22
23 FOR ACCOUNTING USE ONLY:
24
ORG: 56107001
25 Account: 7340
Fund: 0001
26 Subclass: 10000
27
28
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COUNTY OF FRESNO
EXHIBIT A
THE REAL PROPERTY
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311%Coalinga Plaza.
• Coalinga, CA 932160
Boundary not to scale.
A-1
EXHIBIT B
LEGAL DESCRIPTION
For APN/Parcel ID(s): 072-105-25 and 072-105-05
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF COALINGA, COUNTY OF FRESNO,
STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
TRACT A:
PARCEL 1:
THE NORTHWESTERLY 45.02 FEET OF LOTS 28 THROUGH 32 INCLUSIVE, IN BLOCK 13 OF THE TOWN
(NOW CITY)OF COALINGA, ACCORDING TO THE CORRECTED MAP THEREOF RECORDED IN BOOK 3 AT
PAGE 14 OF RECORD OF SURVEYS, ALSO ACCORDING TO THE OFFICIAL MAP OF THE CITY OF COALINGA,
RECORDED IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY
RECORDS.
PARCEL 2:
LOTS 26 AND 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED FEBRUARY 14, 1905 IN BOOK 3 AT
PAGE 14 RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION OF LOT 27 DESCRIBED AS FOLLOWS: BEGINNING
AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2
INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS, TO A POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
LOTS 26 AND 27 IN BLOCK 13 OF THE CITY OF COALINGA, ACCORDING TO THE MAP THEREOF RECORDED
FEBRUARY 20, 1918 IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE OF RECORD OF SURVEYS, FRESNO COUNTY
RECORDS.
EXCEPTING THEREFROM THAT PORTION OF LOT 27 DESCRIBED AS FOLLOWS: BEGINNING
AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2
INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS TO POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
PARCEL 3:
LOTS 28 TO 32, INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE COUNTY OF
FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED FEBRUARY 14, 1905 IN
BOOK 3 AT PAGE 14 RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THE NORTHWESTERLY 94.80 FEET THEREOF.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
B-1
LOTS 28 TO 32, INCLUSIVE, IN BLOCK 13 OF THE CITY OF COALINGA, ACCORDING TO THE MAP THEREOF
RECORDED FEBRUARY 20, 1918 IN BOOK 10 AT PAGES 3 TO 8, INCLUSIVE OF RECORD OF SURVEYS,
FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THE NORTHWESTERLY 94.80 FEET THEREOF.
PARCEL 4:
THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOTS 28 TO 32, INCLUSIVE,
IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF COALINGA, COUNTY OF FRESNO,
STATE OF CALIFORNIA, AS PER CORRECTED MAP THEREOF RECORDED IN BOOK 3 AT PAGE 14 OF
RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOTS 28 TO 32, INCLUSIVE,
IN BLOCK 13 OF CITY OF COALINGA, AS PER MAP RECORDED IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE, OF
RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
PARCEL 5:
THAT PORTION OF LOT 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, AS PER CORRECTED MAP RECORDED IN BOOK
3 AT PAGE 14 OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY
CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID
BLOCK 13; THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO
THE SOUTHERLY CORNER OF THE NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT
ANGLES SOUTHWESTERLY 7-1/2 INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS, TO A
POINT WHICH BEARS SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING;
THENCE NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
SAID PROPERTY IS ALSO DESCRIBED AS:
THAT PORTION OF LOT 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 10 AT
PAGES 3 TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 94.78 FEET OF THE NORTHWESTERLY
94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY LINE
OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE NORTHWESTERLY 94.80 FEET OF SAID
LOT 28, THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2 INCHES; THENCE NORTHWESTERLY 49.78
FEET, MORE OR LESS, TO A POINT WHICH BEARS SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM
THE POINT OF BEGINNING; THENCE NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
PARCEL 6:
LOTS 1 THROUGH 6 INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE CORRECTED MAP
THEREOF RECORDED IN BOOK 3 PAGE 14 OF RECORD OF SURVEYS, AND ACCORDING TO THE OFFICIAL
MAP OF THE CITY OF COALINGA, RECORDED IN BOOK 10 PAGES 3 TO 8 INCLUSIVE, OF RECORD OF
SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
B-2
For APN/Parcel ID(s): 072-105-25 and 072-105-05
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF COALINGA, COUNTY OF FRESNO,
STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
TRACT B:
LOTS 24 AND 25, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, ACCORDING TO THE
CORRECTED MAP THEREOF RECORDED IN BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, ALSO
ACCORDING TO THE OFFICIAL MAP OF THE CITY OF COALINGA, RECORDED IN BOOK 10 AT PAGES 3 TO 8
INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
B-3
EXHIBIT C
PRELIMINARY TITLE REPORT
C-1
Fidelity National Title Company'
PRELIMINARY REPORT
In response to the application for a policy of title insurance referenced herein, Fidelity National Title Company
hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a policy or policies of title
insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which
may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an exception herein or
not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations or Conditions of said
policy forms.
The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks of said policy or
policies are set forth in Attachment One. The policy to be issued may contain an arbitration clause. When the
Amount of Insurance is less than that set forth in the arbitration clause, all arbitrable matters shall be arbitrated at
the option of either the Company or the Insured as the exclusive remedy of the parties. Limitations on Covered
Risks applicable to the CLTA and ALTA Homeowner's Policies of Title Insurance which establish a Deductible
Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Attachment One. Copies
of the policy forms should be read. They are available from the office which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the
issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed
prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested.
The policy(ies) of title insurance to be issued hereunder will be policy(ies) of Fidelity National Title Insurance
Company, a Florida corporation.
Please read the exceptions shown or referred to herein and the exceptions and exclusions set forth in
Attachment One of this report carefully. The exceptions and exclusions are meant to provide you with
notice of matters which are not covered under the terms of the title insurance policy and should be
carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition of title
and may not list all liens, defects and encumbrances affecting title to the land.
Fidelity National Title Insurance Company
By:
Michael J. Nolan, President
Countersigned By: ` " �, Attest:
SEAL
C/ Marjorie Nemzura, Secretary
Authorized Officer or Agent
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 1 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Visit Us on our Website: www.fntic.com
Fidelity National Title Company'
ISSUING OFFICE: 2540 West Shaw Lane, Suite 112, Fresno, CA 93711
FOR SETTLEMENT INQUIRIES, CONTACT:
Fidelity National Title Company
7475 North Palm Avenue, #107 • Fresno, CA 93711
(559)431-8050 • FAX(559)261-8960
Another Prompt Delivery From Fidelity National Title Company Title Department
Where Local Experience And Expertise Make A Difference
PRELIMINARY REPORT
Amendment A
Title Officer: Marc Wisneski Escrow Officer: Bernadette Watson
Email: marc.wisneski@titlegroup.fntg.com Email: Bernadette.Watson@fnf.com
Title No.: FFOM-2012301490-MW Escrow No.: FFOM-2012301490 -BW
TO:County of Fresno
Attn: Chris Jones
PROPERTY ADDRESS(ES): 311 and 353 Coalinga Plaza, Coalinga, CA
150 West Durian, Coalinga, CA
EFFECTIVE DATE: April 8, 2024 at 07:30 AM
The form of policy or policies of title insurance contemplated by this report is:
CLTA Standard Coverage Policy 1990 (04-08-14)
ALTA Loan Policy 2021
1. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED
BY THIS REPORT IS:
A Fee
2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
McMahan-Kays, LLC., a California Limited Liability Company
3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS:
SEE EXHIBIT "A"ATTACHED HERETO AND MADE A PART HEREOF
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 2 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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EXHIBIT "A"
Legal Description
For APN/Parcel ID(s): 072-105-25 and 072-105-05
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF COALINGA, COUNTY OF
FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
TRACT A:
PARCEL 1:
THE NORTHWESTERLY 45.02 FEET OF LOTS 28 THROUGH 32 INCLUSIVE, IN BLOCK 13 OF THE TOWN
(NOW CITY) OF COALINGA, ACCORDING TO THE CORRECTED MAP THEREOF RECORDED IN BOOK 3 AT
PAGE 14 OF RECORD OF SURVEYS, ALSO ACCORDING TO THE OFFICIAL MAP OF THE CITY OF
COALINGA, RECORDED IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO
COUNTY RECORDS.
PARCEL 2:
LOTS 26 AND 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED FEBRUARY 14, 1905 IN BOOK 3
AT PAGE 14 RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION OF LOT 27 DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2
INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS, TO A POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
LOTS 26 AND 27 IN BLOCK 13 OF THE CITY OF COALINGA, ACCORDING TO THE MAP THEREOF
RECORDED FEBRUARY 20, 1918 IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE OF RECORD OF SURVEYS,
FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION OF LOT 27 DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2
INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS TO POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
PARCEL 3:
LOTS 28 TO 32, INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE COUNTY OF
FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED FEBRUARY 14, 1905
IN BOOK 3 AT PAGE 14 RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THE NORTHWESTERLY 94.80 FEET THEREOF.
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 3 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
EXHIBIT "A"
Legal Description
(continued)
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
LOTS 28 TO 32, INCLUSIVE, IN BLOCK 13 OF THE CITY OF COALINGA, ACCORDING TO THE MAP
THEREOF RECORDED FEBRUARY 20, 1918 IN BOOK 10 AT PAGES 3 TO 8, INCLUSIVE OF RECORD OF
SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THE NORTHWESTERLY 94.80 FEET THEREOF.
PARCEL 4:
THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOTS 28 TO 32,
INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF COALINGA,
COUNTY OF FRESNO, STATE OF CALIFORNIA, AS PER CORRECTED MAP THEREOF RECORDED IN
BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOTS 28 TO 32,
INCLUSIVE, IN BLOCK 13 OF CITY OF COALINGA, AS PER MAP RECORDED IN BOOK 10 AT PAGES 3 TO 8
INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
PARCEL 5:
THAT PORTION OF LOT 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, AS PER CORRECTED MAP RECORDED IN
BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE
NORTHWESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80
FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY LINE OF
SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE NORTHWESTERLY 94.80 FEET OF SAID
LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2 INCHES; THENCE NORTHWESTERLY 49.78
FEET MORE OR LESS, TO A POINT WHICH BEARS SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES
FROM THE POINT OF BEGINNING; THENCE NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
SAID PROPERTY IS ALSO DESCRIBED AS:
THAT PORTION OF LOT 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 10 AT
PAGES 3 TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 94.78 FEET OF THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28, THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-1/2
INCHES; THENCE NORTHWESTERLY 49.78 FEET, MORE OR LESS, TO A POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
PARCEL 6:
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 4 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
EXHIBIT "A"
Legal Description
(continued)
LOTS 1 THROUGH 6 INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE CORRECTED MAP
THEREOF RECORDED IN BOOK 3 PAGE 14 OF RECORD OF SURVEYS, AND ACCORDING TO THE
OFFICIAL MAP OF THE CITY OF COALINGA, RECORDED IN BOOK 10 PAGES 3 TO 8 INCLUSIVE, OF
RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
For APN/Parcel ID(s): 072-105-23
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF COALINGA, COUNTY OF
FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
TRACT B:
LOTS 24 AND 25, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, ACCORDING TO THE
CORRECTED MAP THEREOF RECORDED IN BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, ALSO
ACCORDING TO THE OFFICIAL MAP OF THE CITY OF COALINGA, RECORDED IN BOOK 10 AT PAGES 3
TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 5 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
AT THE DATE HEREOF, EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND
EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS:
1. Property taxes, which are a lien not yet due and payable, including any assessments collected with taxes
to be levied for the fiscal year 2024-2025.
2. Property taxes, including any personal property taxes and any assessments collected with taxes are as
follows:
Code Area: 002-003
Tax Identification No.: 072-105-05
Fiscal Year: 2023-2024
1st Installment: $797.59 Paid
2nd Installment: $797.59 Open
Exemption: $0.00
Land: $127,782.00
Improvements: $0.00
Personal Property: $0.00
Affects: Tract A
3. Property taxes, including any personal property taxes and any assessments collected with taxes are as
follows:
Code Area: 002-003
Tax Identification No.: 072-105-25
Fiscal Year: 2023-2024
1st Installment: $4,022.72 Paid
2nd Installment: $4,022.72 Open
Exemption: $0.00
Land: $134,881.00
Improvements: $513,868.00
Personal Property: $0.00
Affects: Tract A
4. Property taxes, including any personal property taxes and any assessments collected with taxes are as
follows:
Code Area: 002-003
Tax Identification No.: 072-105-23
Fiscal Year: 2023-2024
1st Installment: $358.50 Paid
2nd Installment: $358.50 Open
Exemption: $0.00
Land: $42,586.00
Improvements: $14,187.00
Personal Property: $0.00
Affects: Tract B
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 6 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
EXCEPTIONS
(continued)
5. Prior to close of escrow, please contact the Tax Collector's Office to confirm all amounts owing, including
current fiscal year taxes, supplemental taxes, escaped assessments and any delinquencies.
6. The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the
provisions of Chapter 3.5 (commencing with Section 75)or Part 2, Chapter 3, Articles 3 and 4,
respectively, of the Revenue and Taxation Code of the State of California as a result of the transfer of title
to the vestee named in Schedule A or as a result of changes in ownership or new construction occurring
prior to Date of Policy.
7. Easement(s)for the purpose(s)shown below and rights incidental thereto, as granted in a document:
Granted to: City of Coalinga
Purpose: Water and gas service lines
Recording Date: April 29, 1943
Recording No.: Book 2081 Page 362, of Official Records
Affects: the Northeasterly 5 feet of Lot 5
8. A notice that said Land is included within a project area of the Redevelopment Agency shown below, and
that proceedings for the redevelopment of said project have been instituted under the Redevelopment
Law(such redevelopment to proceed only after the adoption of the redevelopment plan) as disclosed by a
document
Recording Date: September 20, 1983
Recording No.: 83086883, of Official Records
Redevelopment Agency: The Coalinga Redevelopment Project
9. Easement(s)for the purpose(s) shown below and rights incidental thereto, as granted in a document:
Granted to: Pacific Gas and Electric Company, a California Corporation
Purpose: Public Utilities
Recording Date: June 7, 1985
Recording No.: 85056342, of Official Records
Affects: the Northwesterly 45.02 feet of Lots 28 through 32
The exact location and extent of said easement is not disclosed of record.
10. Easement(s)for the purpose(s)shown below and rights incidental thereto, as granted in a document:
Granted to: Coainga Aerie#1872 Fraternal Order of Eagles
Purpose: Development mineral use and parking spaces
Recording Date: October 10, 1985
Recording No.: 85102352, of Official Records
Affects: Tract B
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 7 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
EXCEPTIONS
(continued)
11.
12. Any lien or right to a lien for services, labor, material or equipment unless such lien is shown by the Public
Records at Date of Policy.
13. Water rights, claims or title to water,whether or not disclosed by the public records.
14. Any rights of the parties in possession of a portion of, or all of, said Land, which rights are not disclosed by
the public records.
The Company will require,for review, a full and complete copy of any unrecorded agreement, contract,
license and/or lease, together with all supplements, assignments and amendments thereto, before issuing
any policy of title insurance without excepting this item from coverage.
The Company reserves the right to except additional items and/or make additional requirements after
reviewing said documents.
15. Any easements not disclosed by the public records as to matters affecting title to real property,whether or
not said easements are visible and apparent.
16. Any lien or right to a lien for services, labor or material not shown by the Public Records.
17. Discrepancies, conflicts in boundary lines,shortage in area, encroachments, or any other matters which a
correct survey would disclose and which are not shown by the public records.
18. Matters which may be disclosed by an inspection and/or by a correct ALTA/NSPS Land Title Survey of
said Land that is satisfactory to the Company, and/or by inquiry of the parties in possession thereof.
CLTA Preliminary Report Fonn-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 8 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
EXCEPTIONS
(continued)
19. The Company will require that an Owner's Affidavit be completed by the party(s) named below before the
issuance of any policy of title insurance.
Party(ies): McMahan-Kays, LLC., a California Limited Liability Company
The Company reserves the right to add additional items or make further requirements after review of the
requested Affidavit.
20. The Company will require the following documents for review prior to the issuance of any title insurance
predicated upon a conveyance or encumbrance from the entity named below.
Limited Liability Company: McMahan-Kays, LLC., a California Limited Liability Company
a. A copy of its operating agreement, if any, and any and all amendments, supplements and/or
modifications thereto, certified by the appropriate manager or member.
b. If a domestic Limited Liability Company, a copy of its Articles of Organization and all amendment
thereto with the appropriate filing stamps.
c. If the Limited Liability Company is member-managed a full and complete current list of members
certified by the appropriate manager or member.
d. A current dated certificate of good standing from the proper governmental authority of the state in
which the entity was created
e. If less than all members, or managers, as appropriate, will be executing the closing documents,
furnish evidence of the authority of those signing.
f) If Limited Liability Company is a Single Member Entity, a Statement of Information for the Single
Member will be required.
g) Each member and manager of the LLC without an Operating Agreement must execute in the
presence of a notary public the Certificate of California LLC (Without an Operating Agreement)
Status and Authority form
END OF EXCEPTIONS
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 9 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
NOTES
Notice: Please be aware that due to the conflict between federal and state laws concerning the
cultivation, distribution, manufacture or sale of marijuana, the Company is not able to close or insure
any transaction involving Land that is associated with these activities.
Note 1. Note: The charge for a policy of title insurance, when issued through this title order, will be based on
the Basic Title Insurance Rate.
Note 2. Note: The name(s) of the proposed insured(s)furnished with this application for title insurance is/are:
Name(s)furnished: County of Fresno
If these name(s)are incorrect, incomplete or misspelled, please notify the Company.
Note 3. Note: The Company is not aware of any matters which would cause it to decline to attach CLTA
Endorsement Form 116 indicating that there is located on said Land Commercial Property, known as
311 Coalinga Plaza, Coalinga, CA, to an Extended Coverage Loan Policy.
Note 4. Note: There are NO conveyances affecting said Land recorded within 24 months of the date of this
report.
Note 5. The application for title insurance was placed by reference to only a street address or tax identification
number. The proposed Insured must confirm that the legal description in this report covers the
parcel(s) of Land requested to be insured. If the legal description is incorrect, the proposed Insured
must notify the Company and/or the settlement company in order to prevent errors and to be certain
that the legal description for the intended parcel(s)of Land will appear on any documents to be
recorded in connection with this transaction and on the policy of title insurance.
Note 6. Note: If a county recorder, title insurance company, escrow company, real estate broker, real estate
agent or association provides a copy of a declaration, governing document or deed to any person,
California law requires that the document provided shall include a statement regarding any unlawful
restrictions. Said statement is to be in at least 14-point bold face type and may be stamped on the first
page of any document provided or included as a cover page attached to the requested document.
Should a party to this transaction request a copy of any document reported herein that fits this
category, the statement is to be included in the manner described.
Note 7. Note: Any documents being executed in conjunction with this transaction must be signed in the
presence of an authorized Company employee, an authorized employee of a Company agent, an
authorized employee of the insured lender, or by using Bancsery or other Company-approved
third-party service. If the above requirement cannot be met, please call the Company at the number
provided in this report.
Note 8. Pursuant to Government Code Section 27388.1, as amended and effective as of 1-1-2018, a
Documentary Transfer Tax(DTT)Affidavit may be required to be completed and submitted with each
document when DTT is being paid or when an exemption is being claimed from paying the tax. If a
governmental agency is a party to the document, the form will not be required. DTT Affidavits may be
available at a Tax Assessor-County Clerk-Recorder.
Note 9. Due to the special requirements of SB 50 (California Public Resources Code Section 8560 et seq.), any
transaction that includes the conveyance of title by an agency of the United States must be approved in
advance by the Company's State Counsel, Regional Counsel, or one of their designees.
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 10 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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Title No.: FFOM-2012301490-MW
Amendment: A
NOTES
(continued)
Note 10. The following Exclusion(s) are added to preliminary reports, commitments and will be included as an
endorsement in the following policies:
A. 2006 ALTA Owner's Policy(06-17-06).
6. Defects, liens, encumbrances, adverse claims, notices, or other matters not
appearing in the Public Records but that would be disclosed by an examination
of any records maintained by or on behalf of a Tribe or on behalf of its members.
B. 2006 ALTA Loan Policy(06-17-06)
8. Defects, liens, encumbrances, adverse claims, notices, or other matters not
appearing in the Public Records but that would be disclosed by an examination
of any records maintained by or on behalf of a Tribe or on behalf of its members.
9. Any claim of invalidity, unenforceability, or lack of priority of the lien of the
Insured Mortgage based on the application of a Tribe's law resulting from the failure
of the Insured Mortgage to specify State law as the governing law with respect to
the lien of the Insured Mortgage.
C. ALTA Homeowner's Policy of Title Insurance (12-02-13) and CLTA Homeowner's Policy of Title
Insurance (12-02-13).
10. Defects, liens, encumbrances, adverse claims, notices, or other matters not
appearing in the Public Records but that would be disclosed by an examination
of any records maintained by or on behalf of a Tribe or on behalf of its members.
D. ALTA Expanded Coverage Residential Loan Policy-Assessments Priority(04-02-15).
12. Defects, liens, encumbrances, adverse claims, notices, or other matters not
appearing in the Public Records but that would be disclosed by an examination
of any records maintained by or on behalf of a Tribe or on behalf of its members.
13. Any claim of invalidity, unenforceability, or lack of priority of the lien of the
Insured Mortgage based on the application of a Tribe's law resulting from the failure
of the Insured Mortgage to specify State law as the governing law with respect to
the lien of the Insured Mortgage.
E. CLTA Standard Coverage Policy 1990 (11-09-18).
7. Defects, liens, encumbrances, adverse claims, notices, or other matters not
appearing in the public records but that would be disclosed by an examination
of any records maintained by or on behalf of a tribe or on behalf of its members.
8. Any claim of invalidity, unenforceability, or lack of priority of the lien of the insured
mortgage based on the application of a tribe's law resulting from the failure of the
insured mortgage to specify state law as the governing law with respect to
the lien of the insured mortgage.
END OF NOTES
CLTA Preliminary Report Form-Modified(11.17.06) Printed: 04.16.24 @ 08:46 AM by CL
SCA0002402.doc/Updated: 08.09.23 11 CA-FT-0910-0051-SPS-1-24-FFOM-2012301490
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EXHIBIT D
FORM OF ESTOPPEL CERTIFICATE
TENANT ESTOPPEL CERTIFICATE
To McMahan-Kays, LLC:
The County of Fresno hereby certifies as follows as of 2024:
1. The County of Fresno is the Tenant under that certain Lease Agreement dated
2024 (the "Lease") by and between McMahan-Kays, LLC ("Landlord") and County
of Fresno ("Tenant"), pursuant to which Tenant leases real property at 311 Coalinga Plaza,
Coalinga, California 93210, which includes a building containing approximately 21,130 square
feet of rentable office space ("Building"), together with related improvements, and an adjacent
paved parking lot at 353 Coalinga Plaza, Coalinga, California, 93210 and 150 W Durian Ave,
Coalinga, California 93210, that contains forty (40) paved parking stalls, six (6) of which are
paved Accessible Stalls ("Parking Area"), and associated landscaping, as described in this
Section 1 (the Building and the Parking Area shall be referred to collectively as the "Premises").
2. The Lease has not been modified, changed, altered, supplemented, or amended in
any respect.
3. A true, correct, and complete copy of the Lease is attached hereto as Exhibit 1.
4. The Lease is in full force and effect on the date hereof. The Lease represents the
entire agreement between Landlord and Tenant with respect to the Premises.
5. Except as provided in the Lease, to the best of Tenant's knowledge, Tenant is not
entitled to, and has made no agreement with Landlord concerning, partial rent, rebate of rent
payments, credit or offset or reduction in rent. Tenant has not made any agreement with Landlord
or its agents or employees concerning free rent.
6. The Lease term began on 12024(the "Commencement Date')
and the termination date is 20_. Tenant has accepted possession of, and
currently occupies the entire Premises. Tenant has not sublet all or a portion of the Premises to
any sublessee and has not assigned, transferred, or encumbered any of its rights or interests
under the Lease.
D-1
7. The current fixed monthly rent payable under the Lease is $ . This amount is
due on the 1st of each month during the current, year of the Lease, and is currently paid
through , 20_. No such rent (excluding security deposits) has been paid more than
one (1) month in advance of its due date.
8. Tenant's security deposit is $0.00.
9. To the best of Tenant's knowledge, no event has occurred and no condition exists
that constitutes, or that with the giving of notice or the lapse of time or both, would constitute, a
default by Tenant or, to the best knowledge of Tenant, Landlord under the Lease.
10. The address for notices to be sent to Tenant is as set forth in the Lease.
11. Tenant is the owner and holder of all right, title and interest in the leasehold estate
created by the Lease.
12. Tenant acknowledges that Landlord directs that all payments of Basic Rent and any
Additional Rent payable by Tenant to Landlord under the Lease be payable thereunder, when,
and as due, to Landlord at the following address:
McMahan-Kays LLC
614 Corte Campanero
Camarillo, CA 93010
13. The undersigned is duly authorized to execute this Certificate on behalf of Tenant.
Dated: 202
TENANT:
THE COUNTY OF FRESNO
By:
Name: Robert W. Bash
Title: Director of Internal Services/Chief Information
Officer
D-2
EXHIBIT 1
[Complete Copy of Lease]
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EXHIBIT E
FORM OF MEMORANDUM OF LEASE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
County of Fresno
Director of Internal
Services/ Chief Information FOR RECORDER'S USE ONLY
Officer
EXEMPT FROM RECORDING FEES PURSUANT TO GOV'T. CODE SECTIONS 27383 AND
27388.1(a)(2)(D)(AB 110, SB 2) AND DOCUMENTARY TRANSFER TAX PURSUANT TO REVENUE
AND TAXATION CODE SECTION 11922.
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE ("Memorandum") is made and entered into this_day of , 2024,
by and between the County of Fresno, a political subdivision of the State of California ("County"),
whose address as of the date hereof is 333 W. Pontiac Way, Clovis, California 93612, and McMahan-
Kays, LLC, c/o Douglas Kays ("Lessor"), whose address is 614 Corte Campanero, Camarillo, CA
93010.Lessor represents that it is the sole fee owner of that certain improved real property located in
Fresno County, State of California, and having a street address 311 Coalinga Plaza, Coalinga, CA
93210 and 353 Coalinga Plaza, Coalinga, CA 93210 and 150 West Durian Avenue, Coalinga, CA
93210 ("Real Property");
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A. Lessor and Lessee entered into a certain Lease Agreement of the
same date as this Memorandum of Lease ("Lease Agreement"), under
which Lessor has agreed to lease the Premises (as defined in the Lease
Agreement)located on and constituting a portion of the Real Property to the
County, and the County has leased such Premises from the Lessor;
B. The term of the Lease Agreement is ten (10) years, commencing
on . Lessee shall have the option to purchase the Real
Property on or after the completion of the tenth (101h) year of the term,
provided Lessee is still occupying the Premises and current on all
obligations under the Lease.
C. Pursuant to the terms and conditions of the Lease Agreement, this
Memorandum shall be recorded in the Official Records of the Fresno
County Recorder with respect to the Real Property for the purpose of
memorializing the existence of the Lease Agreement, the terms and
conditions of which inure to the benefit of, and bind the Lessor, the County,
and their respective successors and assigns.
This Memorandum of Lease does not constitute the Lease, and is only an abbreviated
form containing a summary of only a few of the terms and conditions of the Lease. In the
event there is any inconsistency between this Memorandum of Lease and the Lease, the
terms of the Lease shall prevail over this Memorandum of Lease. Any third-party
interested in obtaining information about the Lease Agreement may contact the parties at
the above-referenced addresses.
IN WITNESS WHEREOF, this Memorandum has been executed as of the day and year
first above written.
LESSOR: LESSEE:
McMAHAN-KAYS, LLC COUNTY OF FRESNO
By: By:
Douglas B. Kays, Managing Member Robert W. Bash, Director of Internal
Services/Chief Information Officer
[Notary Attestation-Attached] [Notary Attestation-Attached]
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CALIFORNIA NOTARY ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, (insert name
and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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CALIFORNIA NOTARY ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, (insert name
and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT F
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 to 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), herein.
Mail the completed form to: County of Fresno
Attn: Lease Services (L-335)
Internal Services Department
333 W. Pontiac Way
Clovis, CA 93611
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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:
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EXHIBIT G
FORM OF SALE AND PURCHASE
AGREEMENT AND ESCROW
INSTRUCTIONS
THIS SALE AND PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
("Agreement") is made effective this day of , 2024 ("Effective
Date"), by and between the COUNTY OF FRESNO, a political subdivision of the State of
California ("Buyer"), and McMahan-Kays, LLC, c/o Douglas Kays, ("Seller"). Seller and Buyer
are sometimes collectively referred to herein as the "Parties" and singularly as a "Party."
RECITALS:
This Agreement is made and entered into with respect to the following facts and circumstances:
A. Seller is the sole owner of fee title of that certain real property and
improvements located at the street address of 311 Coalinga Plaza, Coalinga,
CA 93210 and 353 Coalinga Plaza, Coalinga, CA 93210 , County of Fresno,
State of California, (APN 072-105-25, and APN 072-105-05), and 150 West
Durian Avenue, Coalinga, CA 93210 (APN 072-105-23) which includes one
two-story building with a basement, totaling 21,130 square feet, together with
all exterior common areas, including 40 paved parking stalls, associated
landscaping and any and all other improvements to such real property and all
other transferable personal property in which Seller may have any interest
that is affixed thereto (collectively, "Improvements"), at the time of the Closing
Date (as defined in Section 6.05 hereof), all as more particularly described in
Exhibit 'A" attached and incorporated by this reference (collectively, the
"Real Property").
B. Buyer desires to purchase the Real Property from Seller, and Seller
desires to sell the Real Property to Buyer, pursuant to the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of their mutual covenants herein contained, and
for other valuable consideration, the sufficiency and receipt of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
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ARTICLE I
AGREEMENT TO PURCHASE THE REAL PROPERTY
1.01 The Real Property. Subject to all terms, covenants, conditions, and provisions
of this Agreement, and for the consideration herein set forth, Seller agrees to
sell the Real Property to Buyer, and Buyer agrees to buy the Real Property from
Seller on the Closing Date (as defined in Section 6.05 hereof).
It is hereby acknowledged by the parties that Seller shall not convey to Buyer
claims relating to any real property tax refunds or rebates for periods accruing
prior to the Closing, any and all tax deductions available by reason of the sale
contemplated herein, and any existing insurance claims, all of which claims shall
be reserved by Seller.
1.02 Purchase Price. Provided Lessee/Buyer has made all Rent and Additional
Rent payments required under the L e a s e, the "Purchase Price" shall be two
hundred, forty thousand ($240,000.00)for the Real Property in "AS-IS"
condition under Section 2.05 hereof. Said Purchase Price does not reflect or
include any payoff by Buyer of any current deed of trust(s) on the Real
Property.
1.03 Buyer's Deposit. The Buyer shall deposit into Escrow with Escrow Holder (as
defined in Section 6.01 hereof) a good faith refundable deposit of
$100,000.00 ("Buyer's Deposit"). The Buyer's Deposit shall be held in an
interest-bearing account for the benefit of the Buyer. The Buyer's Deposit,
together with interest thereon, shall be applied to the purchase price of the Real
Property at the close of Escrow (as defined in Section 6.01 hereof). In the event
Buyer terminates this Agreement for the purchase of the Real Property prior to
the expiration of Buyer's Due Diligence Period (as defined in Section 2.02
hereof), the entire Buyer's Deposit, plus accrued interest, shall be refunded to
Buyer. If, within Sixty (6) days after the expiration of the Due Diligence Period,
the close of Escrow hereunder does not occur solely because of Buyer's material
breach or default, the entire Buyer's deposit, plus accrued interest, shall be
disbursed to and retained by Seller as liquidated damages.
1.04 Payment of the Purchase Price. The Purchase Price for the Real Property shall
be paid by Buyer to Seller as follows:
Upon execution of this Agreement, Buyer shall deposit Buyer's Deposit into
Escrow. Buyer shall deposit into Escrow with Escrow Holder at least three (3)
business days before the Closing Date (as defined in Section 6.05 hereof),
immediately available cash funds equal to the difference between (a), (b) and
(c) immediately below:
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(a) Buyer's Deposit, including any interest on the Buyer's Deposit, plus
any credit that Seller shall be required to give to Buyer under
Section 7(h) of the Lease (as defined in Section 7.03 hereof); and
(b) The Purchase Price, plus Buyer's share of closing costs pursuant to
this Agreement, less any amount for Property Taxes and Charges
(defined in Section 6.04(e), herein) paid by Seller that may be
credited to Buyer under Section 6.04(e), herein.
If this Agreement does not close because of default by buyer, and seller is not otherwise in
default, then seller shall be entitled to the deposit and all interest thereon (if any) as liquidated
damages. Seller shall have no right to additional damages and seller waives all right to an
action for specific performance of this Agreement. The parties agree that if buyer defaults and
seller is not in default, seller's actual damages would be difficult or impossible to determine
and the amount of the deposit and all interest thereon (if any) is the best estimate of the
damages seller would suffer.
The parties witness their agreement to this liquidated damages provision by initialing here:
(BUYER'S INITIALS)
(SELLER'S INITIALS)
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ARTICLE II
POSSESSION, PHYSICAL INSPECTION,AND
CONDITION OF THE REAL PROPERTY
2.01 Possession. Subject to Buyer paying the Purchase Price, and otherwise
complying with the terms and conditions of this Agreement, which Buyer is
required to comply with up to and on the Closing Date, Buyer shall have the
exclusive right to own and possess the Real Property on and at all times after the
Closing Date subject only to the Permitted Exceptions (as defined in Section
3.01 hereof).
2.02 Inspection of the Real Property. Buyer, and Buyer's agents, employees, and
representatives (collectively "Buyer's Agents") acknowledge that Buyer
commenced its inspection of the Real Property prior to Buyer's execution of this
Agreement. Buyer shall have until , 2034 ("Due
Diligence Period") to perform and complete all remaining due diligence
regarding the Real Property, including: review of matters of title, inspection of
the physical condition of the Real Property, obtaining an acceptable appraisal of
the property, obtaining an acceptable Phase I and Phase II Environmental Site
Assessment, and performing any other inspections, reviewing any agreements
relating to the Real Property, conducting such tests upon the Real Property, and
each portion thereof, as Buyer deems necessary or advisable provided that
such testing shall not in any way cause any damage or destruction or diminution
of value to the Real Property, or any portion thereof, and conducting other such
due diligence as Buyer determines appropriate. At any time during the Due
Diligence Period, at Buyer's sole discretion, Buyer shall have the right to
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terminate this Agreement without cause, and to cancel said Escrow with no
further obligation or offset. Upon Buyer's termination of this Agreement and
cancellation of Escrow, the Buyer's Deposit, plus any accrued interest thereon,
shall be immediately refunded to Buyer (less Buyer's share, herein, of any
required fees paid to Escrow Holder).
2.03 Physical Condition of the Property. Without making any representations or
warranties as to the physical condition of the Real Property, Seller shall not
damage or cause the physical condition of the Real Property to deteriorate or
change (normal wear and tear excepted) after the Effective Date of the
Purchase Agreement without the prior written consent of Buyer.
2.04 Plans and Specifications. If Seller has not already done so, within ten (10)
business days of the Effective Date of this Purchase Agreement, Seller shall
deliver to Buyer a copy of all plans and specifications, and records for the
Improvements (collectively, "Plans"), if any, provided however, if Seller does not
possess any such Plans, Seller shall give written confirmation thereof to Buyer
and Escrow Agent within such period. Within ten (10) business days after receipt
of the Plans, if any, from Seller, Buyer shall review and approve or disapprove
the Plans by written statement sent to Seller.
2.05 "As-is" purchase. Subject only to those representations and warranties of seller
expressly set forth in section 4.01 hereof, buyer shall take title to the real property,
in its present physical condition, and on an "as is" and "where is" basis, with all
faults, defects and deficiencies, whether known or unknown, it being understood
that seller is not making any representations or warranties whatsoever to buyer as
to the physical condition, including without limitation, habitability, merchantability, or
fitness of the real property, or any portion thereof, for any particular use or purpose
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by buyer, whether or not such proposed use or purpose has been communicated to
seller or is desired by seller, nor is seller making any representation or warranty
whatsoever as to the presence, absence or proximity on, under, in, or near the real
property of any hazardous, toxic, carcinogenic or otherwise harmful substances, or
seismic faults or flood hazards, nor is seller making any representation or warranty
whatsoever as to whether or not such property complies or does not comply with
any laws, regulations, ordinances, related to the condition, uses or occupancy
thereof. Seller shall not be liable for any loss, damage (including consequential
damage)or diminution of value of any kind or nature caused to the real property,
directly or indirectly, whether or not such loss, damage (including consequential
damage) or diminution of value was discovered before or after the closing date.
Buyer acknowledges that buyer has specifically read and understood, and agrees to all
of the provisions of this section 2.05:
(BUYER'S INITIALS)
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ARTICLE III
CONDITION OF TITLE TO THE REAL PROPERTY
Condition of Title to the Real Property. Seller shall convey to the Buyer fee title
to the Real Property, subject only to (i) the terms and conditions of this
Agreement, and (ii) the following exceptions ("Permitted Exceptions"):
(a) The easements and rights-of-way for public roads, public utilities and
underground pipelines that are of public record.
(b) The lien for property taxes, assessments, fees, and charges that are
assessed but not yet delinquent, provided that all such taxes,
assessments, fees, and charges accrued as of the Closing Date shall
be apportioned to, and borne by, Seller.
(c) The exceptions to title reflected on a Preliminary Report that has been
prepared by Escrow Holder, dated as of April 18, 2023,and delivered to
Buyer, pursuant to subsection 3.02(a) hereof, and except for certain
redactions made to such Preliminary Report as reflected therein, Buyer
accepts pursuant to the terms of such subsection 3.02(a).
(d) All matters created by or on behalf of Buyer.
3.02 Title Insurance.
1) Buyer obtained a Preliminary Report prior to Buyer's execution of this Agreement, and Seller has provided
Buyer with a copy of that certain Preliminary Report, as Title No. FFOM-2012301490-MW, dated April 18,
2023, 7:30 AM. Buyer and Seller agree that Seller, at its sole cost and expense, shall cure certain defects in
the title to the Real Property, prior to the close of escrow. Such Preliminary Report, is incorporated by this
reference, as Exhibit "C" and Buyer accepts the remaining permitted exceptions that are shown on the
Preliminary Report, Exhibit "C."
2) At the Closing Date, and as a condition to Buyer's obligation to purchase the Real Property, Escrow Holder
shall issue and deliver to Buyer its standard coverage ALTA Owner's Policy of Title Insurance insuring title to
the real Property in Buyer in the condition set forth in the Preliminary Report, Exhibit "C" (subject to any cure
in the title to the Real Property, as required to be made by Seller, at its sole cost and expense, as provided
herein), and with liability in the amount of the Purchase Price ("Title Policy"). Buyer shall bear the cost of the
ALTA policy premium over and above the cost of a standard CLTA Owner's policy, including the cost of an
ALTA survey necessary to issue the ALTA Extended Owner's policy.
(a) Buyer shall cause Escrow Holder to issue a Final Title Report, with only
Permitted Exceptions approved by Buyer, dated as of the Closing Date.
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ARTICLE IV
COVENANTS, WARRANTIES, AND REPRESENTATIONS
4.01 Covenants, Warranties and Representations of Seller. Seller hereby makes
the following covenants, representations, and warranties, and acknowledges
that Buyer's execution of this Agreement has been made, and Buyer's
acquisition of the Real Property will be made in material reliance by Buyer on
these covenants, representations, and warranties:
(a) Authority. Seller holds sole fee title ownership in the Real Property. As to
Seller, no authorization, approval, filing, consent, qualification,
registration, or other order of the State of California or authority or agency
thereof, or other state or federal governmental authority or agency, is
required for the valid authorization, execution, delivery, and performance
of this Agreement. Further, Seller covenants, represents, and warrants
that Seller is duly authorized to execute this Agreement on behalf of
Seller, with respect to Seller's sale of the Real Property to Buyer, and
Seller shall evidence such consent on the Grant Deed. The person(s)
executing this Agreement on behalf of Seller is authorized to bind Seller
to the terms and conditions of this Agreement.
(b) No Violation. Neither this Agreement, nor anything provided to be done
hereunder, violates or will violate any contract, agreement, or instrument
whatsoever, including without limitation any laws, regulations, or policies
relating to any financing, grant, or award agreement or instrument to
which Seller is a party, bound, or obligated thereto.
(c) Governmental Violations. To the best of Seller's knowledge, Seller has
no knowledge of any written notice of any pending, threatened, or
unresolved violations of County, State, or Federal building, zoning, fire, or
health codes or ordinances, or any other governmental law, regulation,
rule or policy affecting Seller and concerning the Real Property; provided
however, that Buyer acknowledges there was a Phase I Environmental
Study completed by Buyer on December 28, 2022.
(d) Eminent Domain. To the best of Seller's knowledge, Seller has no
knowledge of any pending or threatened proceedings in eminent domain
or otherwise that would affect the Real Property.
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(e) Litigation. To the best of Seller's knowledge, after having conducted a
reasonably diligent investigation, Seller has no knowledge of any
actions, suits, claims, legal proceedings pending or threatened against
Seller involving or affecting the sale of the Real Property to Buyer, at law
or in equity, before any court, administrative forum, or governmental
agency.
(f) Encumbrances. Seller has not entered into any agreement with any
third parties regarding the sale, lease, management, repair,
improvement, or any other matter affecting the Real Property that
would be binding on Buyer or the Real Property after the Closing Date
of this Agreement.
(g) Performance. Seller shall timely perform and comply with all of
Seller's covenants and agreements contained herein, and shall
satisfy all conditions contained herein that Seller is required to
perform, comply with, or satisfy under this Agreement.
(h) Known Inaccurate Representations. If Buyer becomes aware that any
of the representations contained in this Section 4.01 are not true and
correct as of the Closing Date ("Known Inaccurate Representations"),
then Buyer may, at its option, (i) waive such misrepresentations and
close this transaction, or(ii) unless Seller, at its sole cost and expense,
cures such misrepresentation to Buyer's reasonable satisfaction prior to
the scheduled Closing Date, terminate this Agreement by written notice
thereof to Seller and to Escrow Holder, in which event the Buyer's
Deposit plus accumulated interest shall be returned to Buyer. Buyer
hereby acknowledges and agrees that, upon the Closing of Escrow,
any claim of Buyer relating to any Known Inaccurate Representations
shall be automatically waived in full by Buyer.
(i) Person By Which Knowledge is Measured. For purposes of Section
4.01(a)-(h), (i) where "the best of Seller's knowledge" is referenced, it
shall mean the present knowledge of the chief executive officer of
Seller.
4.02 Covenants, Warranties and Representations of Buyer. Buyer hereby makes the
following covenants, representations, and warranties, and acknowledges that
Seller's execution of this Agreement has been made and Seller's sale of the
Real Property will be made in material reliance by Seller on these covenants,
representations, and warranties:
(a) Authority. Buyer has the full power, authority, and legal capacity to enter
into, and perform Buyer's obligations under this Agreement, and to
purchase the Real Property as provided herein, without the
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need for obtaining the consent or approval of any other person, court, or
governmental agency, body, or subdivision. The person(s) executing this
Agreement on behalf of Buyer is authorized to bind Buyer to the terms
and conditions of this Agreement.
(b) Litigation. To the best of Buyer's knowledge, after having conducted a
reasonably diligent investigation, Buyer has no knowledge of any
actions, suits, claims, legal proceedings pending or threatened in writing
against Buyer involving the purchase of the Real Property from Seller, at
law or in equity, before any court, administrative forum, or governmental
agency.
(c) No Prospective Violations. To the best of Buyer's knowledge, Buyer has
no knowledge that the execution and delivery of this Agreement violates
any contract, agreement or instrument to which Buyer is a party or
bound.
(d) Performance. Buyer shall timely perform and comply with all covenants
and agreements herein, and shall satisfy all conditions that Buyer is
required to perform, comply with, or satisfy under this Agreement.
(e) For purposes of Section 4.02(a)-(d), where knowledge of Buyer is
referenced, it shall mean the present knowledge of Buyer's authorized
representative who executes this Agreement on behalf of Buyer.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to Seller's Obligation to Perform. Seller's obligation to
perform as set forth herein is hereby expressly conditioned on satisfaction of
each and every one of the following conditions precedent:
(a) Buyer shall have timely and fully performed each of the acts to be
performed by it hereunder, including without limitation, depositing the
Purchase Price, and Buyer's share of the Closing Costs (as defined in
Section 6.04 hereof) into Escrow (as defined in Section 6.01 hereof)
with Escrow Holder prior to Buyer's respective deadlines provided in
Section 1.04 and Section 6.02(b) hereof.
(b) Each of Buyer's representations and warranties set forth in Section 4.02
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hereof, shall be true at the time of executing this Agreement, and as of
the Closing Date, as if affirmatively made at that time.
(c) Complied with and completed the Term and all conditions of the Lease
between the Parties to the Subject Premises.
The foregoing conditions are solely for the benefit of Seller, any or all of
which may be waived in writing by Seller in Seller's sole discretion.
5.02 Conditions Precedent to Buyer's Obligations to Perform. Buyer's obligation to
perform as set forth herein is expressly conditioned on the satisfaction of each
and every one of the following conditions precedent:
(a) Seller shall have timely and fully performed every act to be performed by
it hereunder, including without limitation, deposit into Escrow with Escrow
Holder the Grant Deed, as required by Section 6.02(a) hereof.
(b) Each of the representations and warranties of Seller contained in Section
4.01 hereof, and in any provision herein, shall be true at the time of
executing this Agreement, and as of the Closing Date, as if affirmatively
made at that time, except as and to the extent any untruth or discrepancy
is caused by any act or omission of Buyer or any person or entity claiming
through or under Buyer.
(c) Escrow Holder shall be irrevocably committed to issue the Title Policy
as set forth in Section 3.02(b) hereof, in the condition described in
Sections 3.01 and 3.02 hereof, at least two (2)days prior to the
recording of the Grant Deed.
(d) Buyer did not terminate Escrow, in its sole discretion, prior to the
expiration of the Due Diligence Period, as provided in Section 2.02
hereof.
5.03 Failure or Waiver of Conditions Precedent. Seller or Buyer may elect, at any time
or times prior to the Closing Date, to waive in writing the benefit of any of their
respective conditions set forth in Sections 5.01 and 5.02 hereof, as applicable. In
any event, the Parties' consent as provided in this Section 5.03 up to the Closing
Date shall waive any remaining unfulfilled conditions up to the Closing Date,
provided however, such waiver shall not be deemed to waive any subsequently
discovered breach of any representation, warranty, or covenant made by either
Party to this Agreement.
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ARTICLE VI
ESCROW
6.01 Establishment of Escrow. Upon the execution of this Agreement, the Parties shall
promptly open an escrow ("Escrow")with Fidelity National Title Company, 7475
N. Palm Ave, Suite 107, Fresno, CA 93711, (559) 431-8050, or such other title
company that is mutually agreeable to the Parties if such title company is not
available or is replaced ("Escrow Holder") to provide for Seller's conveyance of
the Real Property to Buyer, as provided herein. Prior to the Closing Date, a
duplicate of this fully- executed Agreement (or Counterparts thereof) shall be
deposited with Escrow Holder, and shall constitute escrow instructions to Escrow
Holder concerning this transaction. Escrow Holder shall notify Buyer and Seller, in
writing, of the date of"Opening of Escrow."
6.02 Deposits into Escrow. The Parties shall make the following deposits into Escrow
with Escrow Holder:
(a) Seller's Deposits. Seller shall deposit into Escrow with Escrow Holder
two (2) business days prior to the Closing Date: (i) an executed and
acknowledged original Grant Deed in the form attached as Exhibit "B";
(ii) as necessary, Seller's share of the Closing Costs (as that term is
defined in section 6.04 hereof); (iii) all plans, specifications, and
engineering calculations for the Real Property in Seller's possession
and control, as well as a list of all maintenance contractors, including
their contact information, used for the Real Property, and (iv) the keys,
alarm codes and/or other instruments to enable access and possession
of the Real Property by Buyer to the extent that such items are not in the
possession of Buyer..
i. On or before the Closing Date, any mortgage or deed of trust or similar debt instrument relating to the
Real Property shall be cured by Seller's removal, at its sole cost and expense, of such title defect from the
title of the Real Property, prior to the Close of Escrow, and the written instrument, in recordable form,
evidencing the release, termination, and/or reconveyance of the deed of trust or similar debt instrument shall
be so deposited into Escrow. Seller shall secure for and deliver to Lessee ,on or before the Close of Escrow,
a true and complete copy of the written verification to be provided by the Beneficiary or its successor or
assign to the escrow agent, that the Wachovia Bank Deed of Trust has been released and reconveyed by
the Beneficiary, or its successor and assign, to or concurrent with the Close of Escrow, as represented in
that certain Release of Obligation Under Deed of Trust, dated September 1, 2022, and recorded in the Office
of the Fresno County Recorder on September 6, 2022, recorded instrument No. 2022-01 1 1 449.
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(b) Buyer's Deposits. Buyer shall deposit the following into Escrow with
Escrow Holder, prior to their respective deadlines provided herein:
i. A Preliminary Change in Ownership Report; and
ii. Buyer's share of the Closing Costs (as that term is defined in Section
6.04 hereof), at the same time that Buyer is required to deposit the
funds for the Purchase Price into Escrow with Escrow Holder,
pursuant to Section 1.03 hereof.
(c) Title Report (Buyer's Deposit). Buyer shall cause the Escrow Holder to
deposit the Final Title Report, dated as of the Closing Date, into Escrow,
according to the requirements of this Agreement.
6.03 Title Insurance. At the Closing Date, Escrow Holder shall issue, effective as of
that date, the Title Policy as set forth in Section 3.02 hereof.
6.04 Costs and Expenses. The Parties agree that all of the Closing costs
(collectively, the "Closing Costs") shall be borne by Seller and Buyer as
follows:
(a) Seller shall bear the base cost of the CLTA Preliminary Title
Report.
(b) Buyer shall pay the premium costs for an ALTA policy and any
endorsements that Buyer elects, in its discretion. Buyer shall pay the
costs of any survey obtained by Buyer.
(c) Any recording fees, transfer taxes, and document preparation fees shall
be paid 50% by Seller and 50% by Buyer, except those recording fees,
transfer taxes, and document preparation fees for which Buyer is
exempt.
(d) Escrow fees, and any other costs necessary to achieve a successful
closing of Escrow, including the cost of the Final Title Report, shall be
paid 50% by Seller and 50% by Buyer.
(e) All property taxes, assessments, fees, and charges (collectively,
"Property Taxes and Charges") accrued as of the Closing Date shall
be paid current by the Seller and shall be prorated as of the Closing
Date. Each Party shall bear its own legal, Broker, and accounting fees
and costs.
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6.5 Closing Date. Unless otherwise shortened or extended by the Parties in
writing, the Close of Escrow shall be 30 days from the date that the Parties
have executed this Agreement, provided that if the last day is not a Buyer
business day, such days shall be extended to the next Buyer business day
immediately following such last day. ("Closing Date"). The Closing Date shall
not occur prior to the date of expiration or termination of the Lease.
(check the Closing Date)
6.06 Procedure for Closing of Escrow. Escrow Holder shall close the Escrow by
doing all of the following on the Closing Date:
(a) Fully pay from funds deposited by Buyer and Seller, the Closing
Costs to Escrow Holder;
(b) After payment of the Closing Costs to Escrow Holder, pay the
balance of funds deposited by Buyer to Seller.
(c) Record the Grant Deed in the Official records of Fresno County, return
the recorded Grant Deed to Buyer, and provide conformed copies of
such recorded document thereof to Seller;
(d) Deliver a copy of Buyer's and Seller's closing statements for the
Escrow to the respective Parties, subject to Section, 6.04 hereof; and
(f) Deliver to Buyer the original and two (2) copies of the Title Policy in the
form set forth in subsection 3.02 (b) hereof, at the Closing of Escrow.
6.07 Inability to Close Escrow. In the event that Escrow Holder is unable to close the
Escrow pursuant to Section 2.02 hereof, this Escrow shall terminate. In the event
of such termination, Escrow Holder shall return to each Party any money or
documents deposited by the Parties and terminate the Escrow; provided
however, that any cancellation charges imposed by Escrow Holder shall be paid
by Buyer.
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ARTICLE VII
MISCELLANEOUS
7.01 Survival and Indemnity. Notwithstanding the Closing of Escrow, delivery of
instruments, conveyances of the Real Property, and payment of consideration
therefor, the Parties agree that the respective representations, warranties,
covenants, indemnities, and agreements made by each such Party pursuant to
this Agreement shall survive the Closing Date, and each Party agrees to
indemnify, defend, and hold the other harmless from and against any and all
claims, demands, losses, obligations, damages, liabilities, causes of action,
costs, and expenses (including, without limitation, attorney's, paralegals' and
other professionals'fees and costs) arising out of or in connection with a breach
by the indemnifying Party of any such representation, warranty, covenant, or
agreement; provided, however, that the foregoing obligations shall survive the
Closing of escrow for a period of one year following the Closing Date.
7.02 Brokers. The Parties acknowledge that no brokers are due any fees and/or
commissions under this Agreement. Buyer and Seller each represent and
warrant to the other that they have not had any dealings with any person, firm,
broker, or finder in connection with the negotiation of this Agreement and/or
consummation of the purchase and sale contemplated herein, and no broker or
other person, firm or entity is/are entitled to any commission or finder's fee in
connection with this transaction as the result of any dealings or acts of such
Party. Buyer and Seller do hereby agree to indemnify, defend, protect, and hold
the other harmless from and against any costs, expenses or liability for
compensation, commission or charges that may be claimed by any broker, finder,
or other similar party by reason of any dealings or act of the indemnifying Party.
7.03 Prorations: Any amounts paid to Seller in advance by Buyer for real property
taxes and assessments, and property operation expenses and insurance
premiums, pursuant to Section 7 of the Lease, as well as any credits provided in
the Lease, shall be prorated as of the Close of Escrow, and refunded to Buyer
into Escrow.
7.04 Notices. All notices under this Agreement shall be in writing, and be either
personally served, sent by (i) United States Postal Service, with postage prepaid,
or (ii)sent by a nationally recognized overnight courier service, and addressed to
the respective Parties as follows:
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To Buyer: County of Fresno
Internal Services Department 333
Pontiac Way
Clovis, CA 93612
Attn: Director of Internal
Services/Chief Information Officer
Telephone: (559) 600-6200
To Seller: Managing Member
McMahan-Kays, LLC
614 Corte Campanero
Camarillo, CA 93010
or to such person or at such other place as either Party may from time
to time designate by written notice to the other Party.
Notice given in the foregoing manner shall be deemed sufficiently given
for all purposes hereunder on the date such notice was (i) personally
delivered, deposited and postmarked with the United States Postal
Service, or (ii) delivered by a nationally recognized overnight courier
service, and such Party shall otherwise comply with this Section 7.04
concerning the giving of notice in such manner, provided further that, in
any event, notices of changes of address, or termination of this
Agreement under Section 2.02 hereof, shall not be effective until actual
receipt. For all claims arising out of or related to this Agreement, nothing
in this section establishes, waives, or modifies any claims presentation
requirements or procedures provided by law, including but not limited to
the Government Claims Act (Division 3.6 of Title 1 of the Government
Code, beginning with section 810).
7.05 Notices given hereunder shall not be amendments or modifications to this
Agreement.
7.06 Entire Agreement. This Agreement, including all exhibits hereto, and all related
documents referred to in this Agreement or in the related documents, and the
rights and obligations of the Parties hereto, constitutes the entire agreement
between Buyer and Seller with respect to the subject matter hereof, and
supersedes all other Agreement negotiations, proposals, commitments, oral
statements, writings, advertisements, publications, and understandings of any
nature, unless expressly included in this Agreement.
7.07 Amendment. No provisions of this Agreement may be amended or modified in
any manner except by an agreement in writing by duly authorized
representatives of both Parties.
7.08 Successors. The terms, covenants, and conditions of this Agreement shall be
binding upon, and shall inure to the benefit of, the heirs, executors,
administrators, and assignees of the respective Parties.
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7.09 Assignment.
(a) Neither Party may assign this Agreement, or transfer any of its rights or
obligations under this Agreement, or delegate any of its obligations
under this Agreement, without the prior written consent of the other
Party.
(b) Any such assignment, transfer, or attempted assignment, transfer or
attempted transfer, delegation or attempted delegation (in any such
event whether voluntary or by operation of law), and any conveyance or
attempted conveyance of, grant of rights in or attempted grant of rights
in, transfer of or attempted transfer (in any such event (s) whether
voluntary or by operation of law) of the Real Property, or any portion
thereof, or title thereto, or estate, ownership, or interest or right therein
(by way of example, but not limited to, a security interest, lien,
encumbrance or deed of trust) by Seller (or anyone claiming by or
through Seller), without such consent ) shall be null and void.
7.10 Governing Law. This Agreement, including all exhibits hereto, and the rights and
obligations of the Parties hereto, shall be governed in all respects, including
validity, interpretation, and effect, by the laws of the State of California. For
purposes of venue, the performance of this Agreement shall be deemed to be in
Fresno County, California. In the event of any litigation between the Parties
arising out of or related to this Agreement, venue for such litigation shall only be
Fresno County, California.
7.10 Headings. The subject headings of the paragraphs of this Agreement are
included for purposes of convenience only, and shall not affect the
construction or interpretation of any of the provisions herein.
7.11 Counterparts. This Agreement may be executed by the Parties in different
counterparts, all of which together shall constitute one agreement, even though
all Parties may not have signed the same document.
7.12 Time. Time is of the essence of this Agreement.
7.13 No Third-Party Beneficiaries. Notwithstanding anything stated to the contrary
herein, there shall be no intended third-party beneficiaries of this Agreement.
7.14 Partial Invalidity. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force without being impaired or
G-17
invalidated in any way, unless it would be unreasonable to do so in light of the
object of this Agreement as a whole.
7.15 Additional Documents. Subject to the terms and conditions of this Agreement,
the Parties promptly shall execute and deliver any and all additional documents,
instruments, and notices, and shall do any and all other acts and things,
reasonably necessary in connection with the performance of their respective
obligations under this Agreement and to carry out the provisions of this
Agreement, and the consummation of the transactions referenced herein.
7.16 Titles. The section titles and headings contained in this Lease are inserted as a
matter of convenience and for ease of reference only, and shall be disregarded
for all other purposes, including the construction or enforcement of this
Agreement or any of its provisions.
7.17 Lease Not Terminated. Notwithstanding any provision or rule of law to the
contrary, Seller and Buyer hereby acknowledge, confirm, agree, and covenant
that the Lease shall not terminate upon the execution of this Agreement, the
release of contingencies hereunder, or the expiration of the Due Diligence
Period, and the
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Lease shall continue in full force and effect through and including the "Expiration
Date" set forth in the Lease.
IN WITNESS WHEREOF, this Memorandum has been executed as of
the day and year first above written.
LESSOR: LESSEE:
MCMAHAN-KAYS, LLC COUNTY OF FRESNO
By: By:
Douglas B. Kays, Managing Member
Robert W. Bash, Director of Internal
Services/Chief Information Officer
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1
2
EXHIBIT H
3
ESTIMATED COST STATEMENT —ADDITIONAL RENT
4
5 Estimated Annual Cost
6 Property Tax $ 10,357.62
7 Property Insurance $ 9,096.00
8 Maintenance/Repair $ 74,479.39
9 Maintenance of paved parking $ 6,557.62
10 Utilities PG&E Paid by Lessee
11 Pest Control Paid by Lessee
12 Fire Monitoring Paid by Lessee
13 City Utilities, water, sewer & trash Paid by Lessee
14
15 Sub Total $ 100,490
16 Management Fee— 3% $ 3,014.72
17
18 Annual Total $ 103,505.35
19
20 -END-
21
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25
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COUNTY OF FRESNO H-1
EXHIBIT I
FORM OF SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT
Recording Requested By,
And After Recording, Return
To:
[Bank]
SUBORDINATION, NON-DISTURBANCE,
ATTORNMENT AND ESTOPPEL
AGREEMENT (DEED OF TRUST)
THIS AGREEMENT is entered into as of , 202_, by and among
COUNTY OF FRESNO, a political subdivision of the State of California ("Tenant"),
MCMAHAN-KAYS, LLC, a California limited liability company ("Landlord"), and
("Bank")
RECITALS
A. Landlord hereby informs Tenant that Bank or its predecessor in interest has
extended credit or may hereafter extend credit to Landlord, secured, in whole or in part, by a
deed of trust (the "Deed of Trust") covering that certain real property situated in Fresno County,
with an address as more particularly described on Exhibit A, attached hereto and incorporated
herein by this reference (the "Real Property").
B. As of the effective date of this Agreement, Tenant leases the Real Property, and
has an Option to purchase the Real Property, including the Premises (defined herein), pursuant
to a lease entered into between Landlord and Tenant, dated as of , 2024 (as such
may have been amended, modified, restated, or otherwise assigned, transferred or sub-let, the
"Lease"). Landlord hereby informs Tenant that it is a condition of Bank's agreement with
Landlord to extend or continue credit to Landlord, secured by the Real Property, that the
security of the Deed of Trust be and at all times remain a lien or charge on the Real Property
prior and superior to the rights of Tenant under the Lease, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1-1
1. SUBORDINATION.
(a) Subordination of Lease. The Deed of Trust and any and all extensions, renewals,
modifications or replacements thereof shall be and at all times remain a lien or charge on the Real
Property prior and superior to the Lease, subject to the terms and conditions set forth in this
Agreement. Tenant intentionally and unconditionally subordinates the priority and superiority of
the Lease and Tenant's right and interest to the Real Property thereunder, including without
limitation, all rights under any option(s) to purchase or right(s) of first refusal with respect to the
Real Property, to the lien or charge of the Deed of Trust, and any and all extensions, renewals,
modifications or replacements thereof, subject to the terms and conditions set forth in this
Agreement.
(b) Reliance. Tenant acknowledges that Bank, subject to Section 1(a) hereof, in
extending credit or continuing to extend credit to Landlord secured by the Real Property, is
doing so in material reliance on this Agreement. Landlord acknowledges that Tenant is
entering into this Agreement with Landlord, and is doing so in material reliance on the
following representation made by Landlord for the benefit of Tenant: (1) there is no legal
proceeding pending or threatened against Landlord that, individually or in the aggregate,
directly or indirectly, would be reasonably likely to have a material adverse effect on
Landlord's ability to repay the loan secured by the Deed of Trust, (2) Landlord has not failed
to timely pay any material financial obligation in the last five (5) years of the date of this
Agreement, and (3) during the past five (5) years, Landlord, including any member of
Landlord, has not been the subject of any bankruptcy petition filed by or against Landlord,
including any member of Landlord.
(c) Acknowledgments of Tenant. Tenant acknowledges that it has and will continue
to obtain such information with respect to any credit extended by Bank to Landlord, and all loan
documents executed in connection therewith, as Tenant deems necessary in order to grant or
provide this subordination. Tenant further agrees that Bank is under no obligation or duty to, nor
has Bank represented that it has or will, oversee the application of the proceeds of any such
credit by any person or entity, and any application or use of any such proceeds for purposes
other than those for which they were intended shall not defeat this subordination.
(d) Entire Attornment Agreement. This Agreement constitutes the whole and only
agreement among the parties hereto with regard to the subject matter hereof with respect to the
Lease, any applicable option(s) to purchase or right(s) of first refusal, and subordination thereof
to the lien or charge of the Deed of Trust; there are no agreements (written or oral) outside or
separate from this Agreement with respect to the subject matter hereof; and all prior
negotiations with respect thereto, if any, are merged into this Agreement. This Agreement shall
supersede, but only insofar as would affect the priority between the Deed of Trust and the
Lease, any prior agreements as to such subordination, non-disturbance, attornment and
estoppel with respect to the lien of a deed of trust or mortgage affecting all or any portion of the
1-2
Real Property.
2. LEASE. Tenant hereby covenants and agrees that, so long as the Deed of Trust
remains in force and effect:
(a) No Modification, Termination or Cancellation. Without Bank's prior written
consent, which consent shall not be unreasonably withheld or delayed, Tenant shall not: (1)
consent to any modification of the Lease that would (i) reduce the term of the Lease, (ii) reduce
the rent payable or change the due dates thereunder, (iii) change any notice or cure period set
forth therein or (iv) materially increase the obligations or responsibilities of Landlord thereunder;
nor (2) consent to any voluntary termination or cancellation of the Lease; provided however, that
the foregoing shall not prevent Tenant from terminating the Lease as a result of a default by
Landlord thereunder that is not cured within such time periods after notice, as may be
applicable thereto under the terms of the Lease and this Agreement, or prevent Tenant from
purchasing, subject to the terms of this Agreement, the Real Property, including the Premises,
as further set forth in Section 6(c) hereof.
(b) Notice of Default. Tenant shall notify Bank in writing concurrently with any notice
given to Landlord of any breach of or default by Landlord under the Lease or right of Tenant to
terminate the Lease ("Tenant's Notice to Bank"). Tenant agrees that Bank shall have the right
(but not the obligation) to cure any breach or default specified in a Tenant's Notice to Bank
within the time periods set forth in this Section 2(b), and Tenant shall not declare a default of the
Lease, only as to Bank, if Bank cures such breach or default within thirty (30) days after the
expiration of the time period provided in the Lease for the cure thereof by Landlord; provided
however, that if such breach or default cannot with diligence be cured by Bank within such thirty
(30) day period, the commencement of action by Bank within such thirty (30) day period to
remedy the same shall be deemed sufficient so long as Bank pursues such cure with diligence,
provided however, the total time allowed for such cure by Bank shall not exceed sixty (60) days
after the date that Tenant has provided to Bank the Tenant's Notice to Bank. In the event
Bank's possession of the Real Property is necessary to effect such cure, then the total time
allowed for such cure by Bank instead shall not exceed one hundred twenty (120) days after the
date that Tenant has provided to Bank the Tenant's Notice to Bank, provided that (a) Bank
shall, promptly after receiving Tenant's Notice to Bank, initiate and diligently pursue all such
remedies as are available to Bank under the Deed of Trust so as gain possession of the Real
Property, (b) upon gaining possession of the Real Property, Bank shall have promptly
commenced and continued to remedy such act, omission, or default or cause the same to be
remedied, and (c) if the Bank has not cured any such uncured act, omission, or default within
such one hundred twenty day (120) period, Tenant shall have all rights and remedies available
to Tenant pursuant to Sections 23(e), 24, and/or 25(c) of the Lease, provided however, for any
notice that is required thereunder, Tenant shall only be required to give Landlord or Bank ten
(10) days' notice that Tenant is exercising its right or remedy thereunder.
1-3
(c) No Advance Rents. Tenant shall not make any payments or prepayments of rent
more than one (1) month in advance of the time when the same become due under the Lease,
provided however, the parties to this Agreement acknowledge and agree that Tenant is
obligated under Section 6(e) of the Lease to make monthly advances to Landlord for the costs
or expenses related to anticipated parking lot maintenance, and the amounts thereof paid by
Tenant to Landlord, or Bank or any other transferee of the Real Property, pursuant to Section 3
hereof, as a landlord under the Lease and this Agreement, shall be fully credited to Tenant
under the Lease and this Agreement (the "Parking Lot Maintenance Advances").
(d) Assignment of Rents. Upon receipt by Tenant of written demand from Bank,
which shall include copy of the same that Bank has given to Landlord, that Bank has elected to
terminate the license granted to Landlord to collect rents from Tenant under the Lease, as
provided in the Deed of Trust, and directing Tenant to make payment thereof to Bank, Tenant
shall, for any rents due and payable thirty (30) days thereafter, comply with such direction to
pay, and shall not be required to determine whether Landlord is in default under any obligations
to Bank, or to honor any conflicting demand from Landlord. Bank and Landlord acknowledge
and agree that Tenant shall be entitled to rely solely upon the written demand, with copy of the
same that Bank has been given to Landlord, given by Bank referred to herein. Landlord, by
executing this Agreement, acknowledges and agrees that Tenant shall be entitled to full credit
under the Lease for any rents paid to Bank in accordance with the provisions hereof to the
same extent as if such rents were paid directly to Landlord.
3. ATTORNMENT. If Bank or any other transferee of the Real Property acquires
Landlord's right, title and interest in and to the Real Property pursuant to a foreclosure of the
Deed of Trust or a transfer of the Real Property in lieu thereof, or in any other manner whereby
Bank or such transferee succeeds to the interest of Landlord under the Lease, Tenant agrees
as follows for the benefit of Bank or such transferee, ten (10) days after Tenant's receipt of
written notice of Bank's or any other transferee's of the Real Property acquisition of Landlord's
right, title and interest in and to the Real Property:
(a) Payment of Rent. Tenant shall pay to Bank or such transferee all rents due and
payable thereafter pursuant to the terms of the Lease for the remaining term thereof.
(b) Continuation of Performance. Tenant shall be bound to Bank or such transferee
in accordance with all of the terms of the Lease for the remaining term thereof, and Tenant
hereby attorns to Bank or such transferee as its landlord, such attornment to be effective and
self-operative without the execution of any further instrument immediately upon Bank or such
transferee succeeding to Landlord's interest in the Lease and giving written notice thereof to
Tenant.
(c) No Offset or Lender Liability; Acts and Omissions of Landlord. Neither Bank nor
such transferee shall be liable for, or subject to, any offsets or defenses that Tenant may have
by reason of any act or omission of Landlord as the prior landlord under the Lease, nor for the
return of any sums which Tenant may have paid to Landlord as the prior landlord under the
Lease as security deposits, advance rentals (except for Parking Lot Maintenance Advances
1-4
under Section 2(c), hereof) or otherwise, except to the extent that such sums are actually
delivered by Landlord to Bank or such transferee, except that Tenant shall be entitled to
exercise all rights and remedies provided to Tenant under the Lease with respect to continuing
defaults thereunder resulting from the acts or omissions of Landlord, and/or Bank or its
transferee following a foreclosure, and arising after Bank, or its transferee has received
Tenant's Notice to Bank with respect to such defaults and has not cured the same under
Section 2(b), hereof. The foregoing shall not relieve Bank or such transferee from performing
the obligations of a landlord under the Lease arising once Bank or such transferee acquires
Landlord's right, title and/or interest in and to the Real Property. In no event shall Bank nor any
such transferee be liable for, or subject to, any offsets or defenses with respect to the return of
any sums that Tenant may have paid to Landlord as the prior landlord under the Lease as
security deposits, advance rentals or otherwise, except to the extent that such sums are
actually delivered by Landlord to Bank or such transferee, provided however, the provisions of
this Section 3(c) shall be subject to Parking Lot Maintenance Advances paid by Tenant under
Section 2(c), hereof.
(d) Subsequent Transfer. If Bank or such transferee, by succeeding to Landlord's
interest under the Lease, becomes obligated to perform the covenants of a lessor thereunder,
then, upon any further transfer by Bank or such transferee of its interest as a lessor under the
Lease, all of such obligations shall terminate as to Bank or such transferee, but shall thereupon
be assumed by each successor transferee.
4. NON-DISTURBANCE.
(a) Dispute. Any dispute between or among Bank and Landlord as to the existence of a breach
of, or default in the performance of, any obligation by Bank and Landlord respectively, under the
terms and conditions of the Deed of Trust and/or the loan secured thereby, or by Landlord under
the Lease, or by Bank or Landlord, respectively, under any other agreement between or among
them, the extent or nature of such breach or default, or Bank's exercise of any right or remedy
against Landlord, including exercise of power of sale (including trustee's sale and foreclosure),
judicial foreclosure, obtaining a deed in lieu of foreclosure, or otherwise, or obtaining possession
of the Real Property under the terms and conditions of the Deed of Trust, or otherwise succeeding
to the interests of Landlord in the Lease, shall be dealt with and adjusted solely between Bank
and Landlord, as applicable; and the County of Fresno, including its officers, agents, and
employees, shall not be named or joined in any such dispute, or other proceedings to enforce the
Deed of Trust, the loan, or other agreements, unless such naming or joinder of the County of
Fresno, including its officers, agents, and employees, shall County of Fresno, including its officers,
agents, and employees, shall be legally required; provided however, such joinder or naming of the
County of Fresno, including its officers, agents, and employees, shall, so long as the County of
Fresno is not then in default under the Lease, in no way whatsoever terminate, extinguish, disturb,
diminish, or otherwise adversely affect Tenant's rights and remedies under this Agreement or the
Lease. The provisions of this Section 4(a) shall survive the termination of this Agreement.
(b) Foreclosure. In the event of a foreclosure of the Deed of Trust, or a transfer of the Real
Property in lieu thereof or in any other manner whereby Bank or such transferee succeeds to
the interest of Landlord under the Lease, so long as there shall then exist no breach, default or
1-5
event of default by Tenant under the Lease which has continued to exist for such period of time
(after notice, if any, required by the Lease) as would entitle Landlord to terminate the Lease:
(a) the Lease, including leasehold interest of Tenant and any right thereunder of any
subtenants of Tenant, shall not be terminated, disturbed, extinguished, diminished, or
otherwise adversely affected by reason of such foreclosure or transfer of the Real Property in
lieu thereof or in any other manner; (b) other than as set forth herein, none of Tenant's rights
under the Lease, or the rights thereunder of any subtenants of Tenant, shall be adversely
affected by reason of any default under the Deed of Trust, and the Lease shall continue in full
force and effect; (c) Bank and its transferee shall recognize and accept Tenant as the tenant
under the Lease, subject to the terms and conditions of the Lease as modified by this
Agreement; (d) Bank, and its transferee, as landlord under the Lease, shall have all the rights
and all the obligations of the Landlord under the Lease and shall not split the ownership
interest in the Real Property, including the Premises, or the Lease such that such interest rests
with more than one party at any time; and (e) Bank will not join Tenant as a party defendant in
any action or foreclosure proceeding unless such joinder is required by law to foreclose the
Deed of Trust, then only for such purpose and not for the purpose of terminating the Lease.
Tenant, Landlord, and Bank agree that Tenant's option to purchase the Real Property provided
in the Lease, shall be, subject to the terms and provisions of this Agreement, binding on the
Bank, and its successors-in-interest, including any transferee who succeeds to the interest of
Landlord under the Lease
5. ESTOPPEL. Tenant acknowledges, represents, and certifies to Bank as follows:
(a) Lease Effective. The Lease has been duly executed and delivered by Tenant and, subject to
the terms and conditions thereof, the Lease is in full force and effect, the obligations of Tenant
thereunder are valid and binding, and there have been no amendments, modifications, or
additions to the Lease (written or oral), other than those expressly included in the Lease definition
set forth above. The Lease constitutes the entire agreement between Landlord and Tenant with
respect to the Real Property.
(b)No Default. As of the date hereof, and to the best of Tenant's knowledge, (i) there exists no
breach of or default under the Lease, nor any condition, act or event that with the giving of
notice or the passage of time, or both, would constitute such a breach or default, and (ii) there
are no existing claims, defenses or offsets against rental due or to become due under the
terms of the Lease.
(c) No Prepaid Rent. No deposits or prepayments of rent have been made by Tenant in
connection with the Lease, except as follows: Parking Lot Maintenance Advances in
accordance with the terms of the Lease and as described herein.
6.MISCELLANEOUS
(a) Remedies Cumulative. All remedies provided herein are cumulative, not
exclusive, and shall be in addition to any and all other rights and remedies provided by law.
(b) Notices. The persons and their addresses having authority to give and
receive notices under this Agreement include the following:
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Bank:
Tenant: COUNTY OF FRESNO
333 W. Pontiac Way
Clovis, CA 93611
Landlord: McMAHAN-KAYS, LLC
C/O Douglas B. Kays, Managing Member
614 Corte Campanero
Camarillo, CA 93010
All notices, requests and demands that any party is required or may desire to give to any other
party under any provision of this Agreement must be in writing delivered to each party at the
address set forth herein, or to such other address as any party may designate by written notice
to all other parties. All notices between the Tenant, the Landlord, and the Bank, or any
combination thereof, provided for or permitted under this Agreement must be in writing and
delivered either by personal service, by first-class United States mail, or by an overnight
commercial courier service. A notice delivered by personal service is effective upon service to
the recipient. A notice delivered by first-class United States mail is effective three (3) business
days of the recipient after deposit in the United States mail, postage prepaid, addressed to the
recipient. A notice delivered by an overnight commercial courier service is effective one (1)
business day of the recipient after deposit with the overnight commercial courier service,
delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the
recipient. For all claims arising out of or related to this Agreement, nothing in this section
establishes, waives, or modifies any claims presentation requirements or procedures required
by applicable law.
(c) Purchase Option. Bank and Landlord agree that, pursuant to the terms of the Lease, Tenant
has the right to purchase the Real Property, including the Premises, any date upon or after the
completion of the tenth (101") year of the Lease term ("Purchase Option"). To that end, pursuant
to the Lease as a condition thereto, Landlord shall fully pay off, including discharging all
obligations due and owing under, the Deed of Trust and all extensions, renewals, modifications
or replacements thereof, all of which are a lien or charge on the Real Property as provided in
Section 1(a) hereof, and remove the Deed of Trust and all extensions, renewals, modifications
or replacements thereof from the title of the Real Property, including causing Bank, following
payment in full of the obligations secured thereby, to release and reconvey the Deed of Trust
and all extensions, renewals, modifications or replacements thereof, all of which pay off and
removal shall be completed prior to or concurrent with the close of escrow in connection with
the Tenant's exercise of the Purchase Option. Notwithstanding Section 1(a) hereof, all parties
expressly agree that this Purchase Option is binding on the Bank and its successors-in-interest,
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including any transferee of the Real Property that acquires Landlord's right, title and interest in
and to the Real Property pursuant to a foreclosure of the Deed of Trust or a transfer of the Real
Property in lieu thereof or otherwise, pursuant to the terms of the Lease, and nothing contained
herein shall defeat Tenant's rights of the Purchase Option under the Lease.
(d) At the request of any party hereto, each other party shall execute, acknowledge, and deliver
such other documents and/or instruments as may be reasonably required by the requesting
party in order to carry out the purpose of this Agreement, provided that no such document or
instrument shall modify the rights and obligations of the parties set forth herein or under the
Lease.
(a) (e) Successors, Assigns; Governing Law. This Agreement shall be binding upon and inure
to the benefit of the heirs, executors, legal representatives, successors, assigns and other
transferees of the parties hereto, and shall be interpreted and construed in accordance with
and governed by the laws of the State of California. Venue for any action arising out of or
relating to this Lease shall be in Fresno County, California.
(f) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control. However, Tenant is not a party to and is not
bound by the Deed of Trust.
(a) (g) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute and be
construed as one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have executed this Agreement as of the date first written above, and as applicable, with the
intention that it constitutes an instrument under seal.
TENANT: LANDLORD: McMAHAN-KAYS,LLC
COUNTY OF FRESNO By:
By: Title:
Title: Address:
Address: 333 Pontiac Way,
Clovis, CA 93612
BANK:
By:
Address:
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TENANT:
CALIFORNIA NOTARY ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, (insert name and
title of the officer), personally appeared , who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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BAN K:
CALIFORNIA NOTARY ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, (insert name and
title of the officer), personally appeared , who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
1-10
LANDLORD:
CALIFORNIA NOTARY ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, (insert name and
title of the officer), personally appeared , who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
I-11
EXHIBIT 1 TO
SUBORDINATION, NON-DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
Legal Description of Property:
For APN/Parcel ID(s): 072-105-25 and 072-105-05
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF COALINGA, COUNTY OF
FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
TRACT A:
PARCEL 1:
THE NORTHWESTERLY 45.02 FEET OF LOTS 28 THROUGH 32 INCLUSIVE, IN BLOCK 13 OF THE
TOWN (NOW CITY)OF COALINGA, ACCORDING TO THE CORRECTED MAP THEREOF RECORDED IN
BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, ALSO ACCORDING TO THE OFFICIAL MAP OF THE
CITY OF COALINGA, RECORDED IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE, OF RECORD OF
SURVEYS, FRESNO COUNTY RECORDS.
PARCEL 2:
LOTS 26 AND 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE COUNTY OF
FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED FEBRUARY 14,
1905 IN BOOK 3 AT PAGE 14 RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION OF LOT 27 DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF
THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-
1/2 INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS, TO A POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
LOTS 26 AND 27 IN BLOCK 13 OF THE CITY OF COALINGA, ACCORDING TO THE MAP THEREOF
RECORDED FEBRUARY 20, 1918 IN BOOK 10 AT PAGES 3 TO 8 INCLUSIVE OF RECORD OF
SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION OF LOT 27 DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF
THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-
1/2 INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS TO POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
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PARCEL 3:
LOTS 28 TO 32, INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE COUNTY
OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED FEBRUARY
14, 1905 IN BOOK 3 AT PAGE 14 RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THE NORTHWESTERLY 94.80 FEET
THEREOF. SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
LOTS 28 TO 32, INCLUSIVE, IN BLOCK 13 OF THE CITY OF COALINGA, ACCORDING TO THE MAP
THEREOF RECORDED FEBRUARY 20, 1918 IN BOOK 10 AT PAGES 3 TO 8, INCLUSIVE OF RECORD
OF SURVEYS, FRESNO COUNTY RECORDS.
EXCEPTING THEREFROM THE NORTHWESTERLY 94.80 FEET THEREOF.
PARCEL 4:
THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOTS 28 TO 32,
INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF COALINGA,
COUNTY OF FRESNO, STATE OF CALIFORNIA, AS PER CORRECTED MAP THEREOF RECORDED IN
BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
SAID PROPERTY IS ALSO DESCRIBED AS FOLLOWS:
THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY 94.80 FEET OF LOTS 28 TO 32,
INCLUSIVE, IN BLOCK 13 OF CITY OF COALINGA, AS PER MAP RECORDED IN BOOK 10 AT PAGES 3
TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
PARCEL 5:
THAT PORTION OF LOT 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA,AS PER CORRECTED MAP RECORDED
IN BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE
NORTHWESTERLY CORNER OF THE SOUTHEASTERLY 49.78 FEET OF THE NORTHWESTERLY
94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28; THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-
1/2 INCHES; THENCE NORTHWESTERLY 49.78 FEET MORE OR LESS, TO A POINT WHICH BEARS
SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
SAID PROPERTY IS ALSO DESCRIBED AS:
THAT PORTION OF LOT 27 IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY
OF COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA,AS PER MAP RECORDED IN BOOK
10 AT PAGES 3 TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY CORNER OF THE SOUTHEASTERLY 94.78 FEET OF THE
NORTHWESTERLY 94.80 FEET OF LOT 28 IN SAID BLOCK 13; THENCE SOUTHEASTERLY ALONG
THE SOUTHWESTERLY LINE OF SAID LOT 28, 49.78 FEET TO THE SOUTHERLY CORNER OF THE
NORTHWESTERLY 94.80 FEET OF SAID LOT 28, THENCE AT RIGHT ANGLES SOUTHWESTERLY 7-
1/2 INCHES; THENCE NORTHWESTERLY 49.78 FEET, MORE OR LESS, TO A POINT WHICH BEARS
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SOUTHWESTERLY AT RIGHT ANGLES 6 INCHES FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY 6 INCHES TO THE POINT OF BEGINNING.
PARCEL 6:
LOTS 1 THROUGH 6 INCLUSIVE, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, IN THE CITY OF
COALINGA, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE CORRECTED MAP
THEREOF RECORDED IN BOOK 3 PAGE 14 OF RECORD OF SURVEYS, AND ACCORDING TO THE
OFFICIAL MAP OF THE CITY OF COALINGA, RECORDED IN BOOK 10 PAGES 3 TO 8 INCLUSIVE, OF
RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
For APN/Parcel ID(s): 072-105-25 and 072-105-05
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF COALINGA, COUNTY OF
FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
TRACT B:
LOTS 24 AND 25, IN BLOCK 13 OF THE TOWN (NOW CITY) OF COALINGA, ACCORDING TO THE
CORRECTED MAP THEREOF RECORDED IN BOOK 3 AT PAGE 14 OF RECORD OF SURVEYS, ALSO
ACCORDING TO THE OFFICIAL MAP OF THE CITY OF COALINGA, RECORDED IN BOOK 10 AT
PAGES 3 TO 8 INCLUSIVE, OF RECORD OF SURVEYS, FRESNO COUNTY RECORDS.
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