HomeMy WebLinkAboutA-10-335 VMC LEASE AMENDMENT-III.pdfFL-078-3rdAmendment
FCHIGSA
THIRD AMENDMENT TO LEASE
Valley Medical Center
AGREEMENT NO. 10-335
This Third Amendment to Lease for a portion of the Valley Medical Center
("Third Amendment") is made and entered into this ;>;l nc\ day of ~'"\!L , 2010
("Execution Date of this Third Amendment") by and between the COUNTY OF
FRESNO, a political subdivision of the State of California ("Landlord"), and FRESNO
COMMUNJTY HOSPITAL AND MEDICAL CENTER, a California nonprofit public
benefit corporation ("Tenant"), collectively referred to herein as the "Parties" with
reference to the following facts and objectives:
RECITALS
A. The Parties concurrently entered into that certain Master Agreement, Operating
and Funding Agreement, Equipment Lease, Purchase of Services Agreement, and
the VMC Lease (collectively defined in Section 1.28 of the Master Agreement as
the "Transaction Documents," all of which are dated as of August 27, 1996
("Execution Date")) in consideration of the execution of each of the other
documents, and all of such documents, including amendments thereto as set forth
hereinafter, represent a single integrated transaction between the Parties.
B. Capitalized terms utilized but not defined herein have the meanings set forth in
the Transaction Documents.
C. The VMC Lease (County lease number FL-078; "Lease") has been for Landlord's
leasing to Tenant of the Valley Medica] Center Facility, the Campus Clinics, and
certain other land and improvements, collectively defined in Section 1.9 of the
Lease as the "Leased Property."
D. The Parties entered into that certain first Amendment to Transaction Documents,
dated as of June 23, 1998 ("First Amendment to Transaction Documents").
E. Pursuant to Article 3 of the Lease, Tenant extended the term of the Lease to
October 6, 2004.
F. The parties entered into that certain First Amendment to Lease for the VMC
Lease, dated as of October l, 2003, which further extended the term ofthe Lease
untill2:01 AM on January I, 2009, and provided for other terms and conditions
therein.
G. The Parties entered into that certain Second Amendment to Transaction
Documents, dated as of June 2, 2006.
H. The Parties entered into that certain Third Amendment to Transaction Documents,
dated as of June 26, 2007.
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I. The parties entered into that certain Second Amendment to Lease for the VMC
Lease, dated as of December 9, 2008, which further extended the term of the
Lease untill2:01 A.M. on January 1, 2010, and provided for other terms and
conditions therein, including Tenant's month-to-month tenancy of the Leased
Property during the "Permitted Holdover Period" therein.
J. Tenant has requested to discontinue its occupancy of the Leased Property
effective June 30, 2010, with the exception of the Children's Clinic (Building No.
331), 4460 E. Huntington, Fresno, CA 93702, which Tenant currently occupies
under the Lease and which Tenant wishes to continue to occupy upon the terms
and conditions provided herein. Landlord is agreeable to granting such
occupancy by Tenant of the Leased Property which is limited to the Children's
Clinic, and extending the term of the Lease only for the Children's Clinic, and to
such other provisions, upon the terms and conditions provided herein. The Parties
now wish to further amend the Lease as hereinafter set forth to provide for such
further extension and such further terms and conditions with respect to the
Children's Clinic.
AMENDMENT
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INCONSIDERATION of the foregoing Recitals, which are hereby incorporated
herein by reference, and in further consideration of the mutual covenants contained
herein and of other good and valuable consideration the sufficiency and receipt of which
are hereby acknowledged, the Parties hereby further amend the Lease as follows:
1. Article 1 Definitions, Section 1. 9 Leased Property, is deleted in its entirety and
replaced with the following:
"1.9 Leased Property the buildings and improvements at the location
commonly known as the Children~s Clinic, 4460 E. Huntington, Fresno, CA 93702
(Building No. 331), including thirty-four (34) surface parking stalls in the parking lot that
is in the eastern portion of the Leased Property ("Parking Lot"), leased to the Tenant
pursuant to this Lease, as well as the real property upon which such buildings and
improvements are situated and all fixtures in the building and improvements, as described
in Attachment "A" to this Third Amendment to Lease, which is attached hereto and
incorporated herein by this reference. Any references in this Lease to any real property,
building, or improvements that do not come within the foregoing definition shall be
disregarded for purposes of this Lease."
2. DescriQtion. Section 2.1 is deleted in its entirety and replaced with the
following:
"2.1 Subject to the terms and conditions contained herein, Landlord hereby
leases the Leased Property to Tenant, and Tenant hereby leases the Leased Property from
Landlord. Landlord hereby also grants to Tenant the non-exclusive right to use the public
and private driveways of the Campus solely for pedestrian and vehicular ingress and
egress to the Leased Property."
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3. Article 3 of the Lease is deleted in its entirety and replaced with the
following:
"3.1 The further extended term of this Lease shall be for one (1) year
commencing upon 12:01 :Ol A.M. on Juty 1, 2010 ("Effective Date of this Third
Amendment") and expiring at 12:01 A.M. on July 1, 2011 ("Fourth Extended Term"),
unless this Lease is earlier terminated under the terms of this Lease. Thereafter, this
Lease shall be a month-to-month tenancy under the "Third Amendment Permitted
Holdover Period" (defined in Section 25.5, herein). In no event shall the term of this
Lease, including the Third Amendment Permitted Holdover Period, extend beyond 12:01
A.M. on July 1, 2017. All references elsewhere in this Lease to the Lease term, for the
period that this Third Amendment is in effect, shall mean the Fourth Extended Term.
Nothing contained in this Lease expressly or impliedly grants Tenant a subsequent
extension or a renewal of the term of this Lease, or the right to holding over for any
period of time (except for the Third Amendment Permitted Holdover Period provided in
section herein), nor shall any Lease provisions referring to Tenant's holding over,
whether authorized herein or unauthorized, constitute a waiver of any rights or remedies
of Landlord provided in this Lease or at Law or in equity.
3.2 So long as Tenant is not in default of the Transaction Documents, Tenant,
not later than January I. 2017, may request of Landlord in writing, and Landlord may in
its absolute discretion consider, a further extension to the term of this Lease that is
subsequent to the Third Amendment Permitted Holdover Period. If the Parties desire to
subsequently extend the term of this Lease, such extension sha11 only be valid and
enforceable if it is made by the Parties in writing pursuant to Section 27.7 of this Lease
prior to the expiration of the Third Amendment Permitted Holdover Period. Any
extension of the term of this Lease may only be made in compliance with the
requirements of this Section 3.2. Nothing contained in this Lease expressly or impliedly
grants Tenant a subsequent extension or a renewal ofthe term of this Lease, or the right
to holding over for any period of time (except for the Third Amendment Permitted
Holdover Period provided in Section 25.5, herein), nor shall any Lease provisions
referring to Tenant's ability to request an extension of this Lease as provided herein, or to
Tenant's holding over, whether authorized herein or unauthorized, constitute a waiver of
any rights or remedies of Landlord provided in this Lease or at Law or in equity.
3.3 Any reference in this Lease to any period of renewal or extension after the
Third Extended Term, or to any holding over period after the Third Extended Term, or
any variations thereof to include any period after the Third Extended Term shall mean
"the Fourth Extended Term, the Third Amendment Permitted Holdover Period, or any
month of any other holding over thereafter by Tenant, respectively." The provisions of
this Article 3 shall apply to the Fourth Extended Term, the Third Amendment Permitted
Holdover Period, and any other holding over period thereafter, respectively,
notwithstanding anything contained in the contrary in this Lease concerning the term of
this Lease."
4. Rent. Section 5.1 of the Lease is deleted in its entirety and replaced with the
following:
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"5.1 For purposes of this section 5.1, the parties agree that the square footage
of the Children's Clinic (Building No. 331 ), 4460 E. Huntington, Fresno, CA 93702, in
Table l of Exhibit "A" occupying the Leased Property is assumed to be ten thousand
(1 0,000) square feet, provided however, the base monthly rent, below, is calculated
without regard to Tenant's actual occupancy or any abandonment of any or all of the
Leased Property. The base monthly rent for the Leased Property during the Fourth
Extended Term, and the Third Amendment Permitted Holdover Period, respectively,
shall be payable in advance of occupancy for each month as follows: Effective July 1,
2010, the monthly rent shall be Seven Thousand Five Hundred Dollars ($7,500.00) per
month during the term of this Lease, and the Third Amendment Permitted Holdover
Period.
5.1.1 Although Landlord does not grant Tenant any right to holding over
after the Third Amendment Permitted Holdover Period, the base monthly rent for the
Leased Property during any month of such unauthorized holding over shall be payable in
advance of such month in the amount of Seven Thousand Five Hundred Dollars
($7,500.00) per month.
5.1.2 Notwithstanding section 5.2, herein, if Tenant abandons any
portion of the Leased Property during the Fourth Extended Term, there shall not be any
reduction or modification in, or proration of, the amount of rent payable for such period,
nor shall there be any change in the due date of any such rent payment.
5.1.3 Notwithstanding section 5.2, herein, if Tenant abandons any
portion of the Leased Property during the Third Amendment Permitted Holdover Period,
or during any month of any other holding over thereafter by Tenant, there shall not be
any reduction or modification in, or proration of, the amount of rent payable for any
month during either such period, respectively, nor shall there be any change in the due
date of any such rent payment, respectively.
5.1.4 Tenant's obligation to pay rent to Landlord is absolute and
unconditionaL All rent hereunder shall be payable only in legal tender of the United
States, without abatement, deduction or offset."
5. Rent. Section 5.5 of the Lease is deleted in its entirety and replaced with the
fo1lowing:
"5.5 The rent provided in this Lease shall be in addition to all other payments
to be made by Tenant as provided herein. It is the purpose and intent of Landlord and
Tenant that, except as otherwise provided in Article 8, herein, the rent provided herein
shall be absolutely net to Landlord so that this Lease shall yield net to Landlord the base
rent specified in this Lease in each month during the Fourth Extended Term, the Third
Amendment Permitted Holdover Period, or any month of any other holding over
thereafter by Tenant, respectively, that rent is due and, Landlord shall have no obligation
or liability whatsoever to pay any amounts in connection with the ownership, operation
and/or management of the Leased Property or any part thereof, whether for real and
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personal property taxes, or insurance premiums of any kind, or, maintenance or repair of
any kind (except as otherwise provided in Article 8, herein), or license fees. Excluding
encumbrances for which Landlord is liable and, except as otherwise provided in Article
8, herein, all costs and expenses including, without limitation, taxes, assessments,
insurance premiums, herein, license fees and obligations of every kind and nature
whatsoever relating to the use and/or management of the Leased Property by Tenant
which may accrue during the Fourth Extended Term, the Third Amendment Permitted
Holdover Period, or any month of any other holding over thereafter by Tenant shall be
paid by Tenant, and Landlord shaH be indemnified, defended, and held harmless by
Tenant from and against all such obligations required to be paid or performed by
Tenant."
6. Use. Section 7.1 is deleted in its entirety and replaced with the following:
"7.1 Tenant shall use the Leased Property for a children's clinic and related
health care activities and administrative functions, and for no other use without
Landlord's prior written consent."
7. Section 7.2.2 is deleted in its entirety and replaced with the following:
"7.2.2 At Tenant's sole cost and expense, Tenant shall cause Tenant's use and
occupancy of the Leased Property to conform to the requirements and provisions of all
applicable laws, rules, regulations and ordinances concerning the use or occupancy of the
Leased Property during the term hereof."
8. Sections 7.2.2.1, including subsections 7.2.2.1.1 through 7.2.2.1 .6 of the
Lease are deleted.
9. Maintenance, Structural Alterations. Article 8 of the Lease is deleted in its
entirety and replaced with the following:
"8.1 Tenant shall be solely responsible at its sole cost and expense for the
following:
8.1.1 Day-to-day routine maintenance of the Leased Property, such as
janitorial service, pest control, any necessary painting of the building or improvements at
the Leased Property, replacing worn light bulbs and tubes, and any minor repairs or
replacements of any part ofthe building and improvements at the Leased Property, all of
which shall be reasonably necessary in order to keep the Leaded Property neat, clean, and
orderly for Tenant's permitted use herein.
8.1.2 Repairing or replacing any damaged condition to the Leased
Property caused by Tenant's, or its guests' or invitees' use of the Leased Property, or by
any act of vandalism.
8.1.3 Maintaining the landscaping of the Leased Property, and cleaning
the Parking Lot and all outdoor walkways at the Leased Property.
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8.1.4 Providing security service to ensure the safety and security of
Tenant's employees, guests, and invitees who use or visit the Leased Property.
Tenant waives all rights under any laws which may provide for Tenant's right to make
repairs and deduct the expenses of such repairs from rent.
8.2 Tenant shall have the right to install in the building at the Leased Property
any and all equipment and fixtures which Tenant desires to install therein and which are
necessary or convenient to Tenant's use of the Leased Property as permitted herein,
without the consent of Landlord. Tenant shall be solely responsible at its sole cost and
expense for maintaining all such equipment and fixtures, and for causing all such
equipment and fixtures to comply with any federal, state or local laws or regulations. All
such equipment and fixtures shall remain Tenant's property, and may be removed by
Tenant at the expiration of this Lease, provided that Tenant shall be responsible for any
damage that Tenant causes to the Leased Property due to such removaL
8.3 Except for Tenant's obligations in section 8.1., herein (including,
subsections 8.1.1 through and including 8.1.4, herein), and in section 8.2, herein,
Landlord shall be solely responsible at its sole cost and expense for maintaining the
building and improvements at the Leased Property, including the structural (e.g., building
walls) and nonstructural (e.g., building roof, electrical, mechanical, and plumbing
systems) parts thereof, for any capital improvements (e.g., seismic retrofitting) or capital
repairs to the building or improvements at the Leased Property, and repairing any holes
or cracks in, or resealing, the Parking Lot, and for causing the Leased Property to comply
with any federal, state or local laws or regulations.
8.4 Although not required by this Lease, if Landlord desires that any alteration
or improvement be made to the Leased Property, such alteration or improvement may be
made by Landlord at the Landlord's cost and expense, provided however, nothing
contained herein shall be construed, either expressly or impliedly, to impose any
obligation on Landlord to undertake any maintenance, repair, replacement, alteration or
improvement of the Leased Property.
8.5 Tenant shall indemnify, protect, defend, and hold harmless Landlord, its
officers, agents, and employees from and against any and all damages, liabilities,
judgments, costs, expenses, claims, liens, charges, penalties and attorneys' fees and costs
resulting from any failure by Tenant to perform its obligations under section 8.1 herein
(including subsections 8.1.1 through and including 8.1.4 herein), and under section 8.2,
herein."
10. Utilities and Services. Article ll ofthe Lease is deleted in its entirety and
replaced with the foUowing:
"11.1 At all times during the Fourth Extended Term, the Third Amendment
Permitted Holdover Period, or any month of any other holding over thereafter by Tenant,
respectively, Tenant shall make aU arrangements for, and prior to delinquency pay for, all
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utilities and services furnished to the Leased Property or used by it, including, without
limitation, natural gas, electricity, water, telephone, water, and garbage collection and
sewer services (collectively, "Utilities"), and for aU connection charges and deposits
required by any of said Utilities. Landlord shall not be liable for any interruption in the
provision of any such Utilities services to the Leased Property. Tenant also shall be solely
responsible at its sole cost and expense to pay the costs of (i) any and all rates, fees, and
charges imposed by such providers of Utilities, and increases in rates for Utilities,
including, but not limited to charges, fees, surcharges, and any similar amounts payable
by customers, and (ii) any and all delinquency or other late charges, fees, and penalties
that may be imposed for Tenant failing to fully and timely pay all or any portion of the
Utilities furnished to or used by the Leased Property. Tenant shall pay all such amounts
directly to the relevant providers of the Utilities."
11. Licensing. Article 24 of the Lease is deleted in its entirety and replaced with the
fol1owing:
"Except to the extent that the Leased Property is not in compliance with
applicable laws on the Effective Date, Tenant shall maintain at ail times during the
Fourth Extended Tenn, the Third Amendment Permitted Holdover Period, or any month
of any other holding over thereafter by Tenant, respectively, all governmental licenses,
penn its and authorizations necessary for the establishment and operation of the Leased
Property in the City of Fresno, Fresno County, State of California for its uses permitted
herein, and shall cause the Leased Property, including its uses, to qualify and comply
with all applicable laws and regulations as they may from time to time exist."
Surrender of Premises; Ho1ding Over. Section 25.1 of the Lease is deleted in its
entirety and replaced with the following:
"25.1 On the earlier to occur of the expiration or earlier tennination of the
Fourth Extended Tenn, or the Third Amendment Pennitted Holdover Period,
respectively, Tenant shall surrender to Landlord the Leased Property in the condition
which exists on the Effective Date of the Third Amendment, subject to ordinary wear and
tear occurring during the tenn hereof, and all of Tenant's improvements and alterations
thereto in the condition which existed on the date such Tenanfs improvements and
alterations were completed (subject to ordinary wear and tear occurring during the tenn
hereof)."
13. Surrender of Premises; Holding Over. Section 25.5 of the Lease is deleted in its
entirety and replaced with the following:
"25.5 The Parties agree that, provided that Tenant is not then in default of this
Lease, and provided further that this Lease is not earlier tenninated or extended under the
tenns of this Lease, if Tenant remains in possession of the Leased Property after
expiration of the Fourth Extended Tenn, (i) Tenant's occupancy of the Leased Property
shall be a month-to-month tenancy at the base rent provided in section 5.1, herein, (ii)
such month-to-month tenancy of the Leased Property shall otherwise continue to be on
all of the same tenns and conditions of this Lease, (iii) subject to the immediately
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following subdivision (iv), Landlord's permission of such month-to-month tenancy of the
Leased Property shall in any event expire at 12:01 A.M. on July 1, 2017 (collectively, all
such permitted month-to-months tenancies of the Leased Property are the "Third
Amendment Permitted Holdover Period"), and any possession of the Leased Property, or
any portion thereof, by Tenant, thereafter shall be without Landlord's consent, and
thereupon shall be deemed to be an unlawful detainer of the Leased Property by Tenant,
and shall be governed by section 25.3, herein, and any applicable Laws, and (iv) either
Party may terminate such month-to-month tenancy of the Leased Property upon giving at
least thirty (30) days' advance written notice thereof to the other Party, provided that
such termination of such month-to-month tenancy of the Leased Property shall be as of
12:0 l A.M. on the day immediately foUowing the last month permitted herein of such
tenancy (By way of example, and not as a limitation, if Tenant properly gives such notice
to Landlord on July 15, 2011, Tenant shall be obligated to pay the full amount of rent as
provided herein for all of July 2011 and for all of August 2011, and such month-to-month
tenancy ofTenant shall terminate as of 12:01 A.M. on September 1, 2011). No such
notice of termination of such month-to-month tenancy, or any abandonment of any
portion of the Leased Property, by Tenant shall result in any reduction or modification in,
or proration of, the amount of rent payable by Tenant to Landlord hereunder during the
Third Amendment Permitted Holdover Period, nor shall there be any change in the due
date of any such rent, respectively. Nor shall any such abandonment otherwise affect the
Parties' respective rights and obligations under this Lease during the Fourth Extended
Term, or the Third Amendment Permitted Holdover Period. Without limiting any of
Landlord's rights or remedies provided in this Lease or at Law or in equity~ if there is any
holding over of the Leased Property, or any portion thereof, by Tenant that is not
expressly authorized in writing by Landlord~ then all ofthe same terms and conditions of
this Lease~ including Tenant's obligations to pay rent to Landlord, and to pay any other
amounts, upon all of the same terms and conditions of this Lease, shall continue to apply
to such unauthorized holding over by Tenant, except that Tenant's holding over of the
Leased Property, or any portion thereof, shall be deemed to be an unlawful detainer of the
Leased Property by Ten ant."
14.
entirety.
Either or both of the Parties may record this Third Amendment in the Office of
the County Recorder. The Parties shall cause their respective signatures on this Third
Amendment to be notarized to facilitate recordation thereof. This Third Amendment
shall not affect any portion of the Lease prior to the Effective Date of this Third
Amendment. This Third Amendment shall become valid and enforceable against the
Parties, according to its terms and conditions, upon its approval and execution by the
Parties, and the approval and execution of the guarantees by Tenant's guarantors in favor
of Landlord, as provided hereinbelow. Each party represents and warrants to the other
party that each person executing this Third Amendment is duly authorized by the party on
whose behalf such execution is made, and that such person's authority has not been
terminated or revoked at the time of such execution.
Except as otherwise modified by this Third Amendment, the Lease, as previously
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amended, shall continue in full force and effect according to all of its same terms and
conditions.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the day and year first hereinabove written.
FRESNO COMMUNITY HOSPlT ALAND
MEDICAL CENTER
By ________ ~~--~----------
. , Chief Executive Officer
Date ____ c,....;:(z==-~._,_/..J-'l-.:;;;.() ___ _
9
COUNTY OF FRESNO
hairman
of Supervisors
Date ____ eo--'~f-C'~~...o..:h=D::......_ ___ _
ATTEST: Bernice E. Seidel, Clerk to
Board of Supervisors
REVIEWED AND RECOMMENDED
FOR APPROVAL:
7:~
County Administrative Officer
APPROVED AS TO ACCOUNTING
FORM: Vicki Crow, C.P.A,
Auditor-Controller/Treasurer-Tax
Collector
By QL, i_ (4££ ~ lz.
APPROVED AS TO LEGAL FORM:
Kevin B. Briggs, County Counsel
Fund:
Sublcass:
Org:
Account:
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