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HomeMy WebLinkAbout2020.04.01 Clarion Pointe.pdf -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEASE AGREEMENT THIS LEASE AGREEMENT (“Lease”) is made and entered into this 26th day of March, 2020 (“Effective Date”), by and between Kush Hospitality, Inc., located at 4061 N. Blackstone, Fresno, CA 93726, (“LESSOR”), and the COUNTY OF FRESNO, a political subdivision of the State of California, 333 W. Pontiac Way, Clovis, CA 93612 (“LESSEE”). LESSOR and LESSEE may be referred to in this Lease individually as a “Party” or collectively at times as the “Parties”. This Lease is entered into pursuant to, among other authorities, the Governor’s State of Local Emergency Proclamation dated March 4, 2020 and the Proclamation of Local Health Emergency, in response to COVID-19, is entered into at the direction of the Director of Public Health of Fresno County, and is directly related to that emergency and necessary for the preservation of public health and safety. W I T N E S S E T H: WHEREAS, LESSOR owns that certain property commonly known as Clarion Pointe Fresno near Yosemite hotel, located at 4061 N. Blackstone Avenue, Fresno, California 93726, which contains hotel rooms available for rent; WHEREAS, on March 4, 2020, the Governor proclaimed a State of Emergency in the State of California, on March 14, 2020, the County Health Officer Issued a Declaration of Local Health Emergency, and subsequent orders, and on March 17, 2020, the County of Fresno issued a Proclamation of Local Emergency, all in response to COVID-19, and as necessary for the preservation of public health and safety; WHEREAS, LESSEE and LESSOR desire to provide a safe and secure environment in order to offer temporary shelter and services to those experiencing homelessness in the County of Fresno, and those suspected or confirmed to have the COVID-19 virus; and WHEREAS, LESSEE and LESSOR desire to enter into a short-term Lease of the Premises, as defined herein, to allow LESSEE to provide temporary shelter for individuals experiencing homelessness and suspected or confirmed to have the COVID-19 virus, in order to support the LESSEE’s efforts to mitigate the impact of the COVID-19 pandemic. -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: 1.PREMISES – LESSOR hereby leases to LESSEE certain guest rooms (with one or two beds in each guest room), at the real property commonly known as Clarion Pointe Fresno near Yosemite hotel, at the location commonly known as 4061 N. Blackstone Ave., Fresno, CA 93726, which is a Hotel/Motel (the “Building”), together with surrounding common area parking and common areas (collectively, the “Premises”), as depicted on Attachment “A”, which is attached and incorporated by this reference . LESSEE shall have access to and use of the common areas, including the parking lot and the outdoor areas, and the Premises 24 hours per day, 7 days per week, with no exceptions. 2.PARKING – Parking spaces shall be unobstructed and completely accessible for LESSEE’s use. LESSEE shall be entitled to use at least 5 parking spaces at the Premises, on a first-come, first-served, where-available basis. Notwithstanding, LESSOR shall reserve the 5 parking spaces indicated on Exhibit A for LESSEE’s exclusive use. LESSOR shall deploy signage and other means to reserve said spaces for LESSEE’s use. 3. ALLOWED USES – LESSEE covenants and agrees to use the Premises to house and care for individuals experiencing homelessness, and who are suspected or confirmed to have been infected with the COVID-19 virus, or persons who must be isolated or quarantined because they are at risk of such infection, among others (“Allowed Uses”). LESSOR acknowledges that rapidly-evolving public health issues may warrant the shelter or treatment of other populations at the Premises, in which case the LESSEE shall make a request to expand the Allowed Uses in writing, and LESSOR will not unreasonably withhold its consent. 4.TERM – The term of this Lease shall commence on the Effective Date, and shall continue month-to-month, with such rights of termination as set forth in Section 6. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5.RENT - LESSEE shall pay to LESSOR on a weekly basis rent (“Rent”) according to the schedule described as follows: Room Rental Daily Rate Schedule Number of Rooms Rented Rental Rate 1 – 10 rooms $55.00 plus taxes Minimum of 11 rooms, up to 29 rooms $50.00 plus taxes 30 rooms or more $45.00 plus taxes A.Upon the commencement of the term of this Lease, LESSEE shall pay rent in the sum of $8,739.50 (10 rooms for a 14-day period) for the first 14 days of the term (March 26, 2020, through and including April 9, 2020. B.Thereafter, LESSEE shall pay rent in arrears at the end of each ensuing week, with the first such payment for the week ending April 11, 2020. Rent shall be paid to LESSOR at the address specified in Section 26, or to such other address as LESSOR may designate by a notice in writing. 6.TERMINATION - LESSEE may terminate this Lease at any time by giving written notice to LESSOR at least 14 days prior to the date when such termination shall become effective. If LESSEE fails to move out within the notice period, and remains in the Premises, additional rent shall be paid and prorated on a 30-day month, based on the actual number of days LESSEE occupies the Premises following the effective date of termination. After the initial term, LESSOR may terminate this Lease by giving written notice to LESSEE at least 14 days prior to the date when such termination shall become effective. 7.CONDITION OF PREMISES UPON TERMINATION – Upon the termination of this Lease for any reason, LESSEE shall vacate the Premises and deliver it to LESSOR in good order and condition, damage by the elements, fire, earthquake, falling objects and ordinary wear and tear excepted. Immediately prior to vacating the Premises, -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LESSEE shall clean the Premises in conformity with the then-current health and safety protocols established by public health officials. Upon vacating the Premises, LESSEE and LESSOR shall conduct a walkthrough of the Premises to determine if there is any damage attributable to the LESSEE that must be repaired. Accordingly, if LESSOR makes any repairs to the Premises for damages caused by LESSEE, LESSEE shall reimburse LESSOR for the actual costs of the repairs on submission of appropriate documentation, including receipts. 8.SECURITY – LESSEE shall provide security at the Premises for the areas occupied by LESSEE during the term of this Lease. 9.SERVICES, UTILITIES and SUPPLIES – LESSOR, at LESSOR’s sole cost and expense during the term of this Lease, shall furnish the following services, utilities, and supplies to the Premises, and the common areas: (a) sewer, trash disposal and water service, including both hot and cold water to the lavatories; (b) elevator (if any) service; (c)electricity and/or gas as necessary to provide power for heating, ventilating and air conditioning, and electrical or gas service as needed for LESSEE’s operations. In the event LESSOR fails to furnish any of the above services or utilities in a satisfactory manner, LESSEE may furnish the same at its own cost, and, in addition to any other remedy LESSEE may have, may deduct the amount thereof, including LESSEE’s administrative costs, from the Rent that may then be, or thereafter become, due hereunder. LESSEE shall contract with a provider for cleaning services between occupants. LESSOR shall provide general cleaning services as requested by LESSEE. 10.REPAIR AND MAINTENANCE – During the term of this Lease, LESSEE shall maintain the Premises in good repair. Notwithstanding the foregoing, LESSOR shall maintain the foundation, walls, roof, Building exterior including doors and glass, floors, floor coverings, parking lot, parking lot lighting, pest and bird control, encased electrical system, encased plumbing, water and sewage disposal systems, and HVAC system, and shall provide all maintenance and repair required to be performed in -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 connection therewith. LESSOR shall have no responsibility for maintenance which may be required by reason of sole neglect or misconduct of LESSEE, its agents, servants, employees, contractors, or patrons. In the event of any failure of any building system or element in the Premises that is a LESSOR responsibility pursuant to the terms of this Lease, LESSEE shall not be liable for any loss or damage arising out of or relating to any death, bodily injury, or property damage resulting from such failure, except as to any loss or damage as may arise from the sole negligence of LESSEE. 11.HVAC MAINTENANCE – The parties agree that Maintenance and operation of Premises HVAC and utilities is critical. Because of the need to maintain certain temperature, air, negative and/or forced air, and other conditions in the alternative care site care spaces, LESSOR shall cause and maintain HVAC, utility, and related services at levels and in specifications set by LESSEE, based on existing Premises equipment and facility capability. LESSOR shall be responsible, at no separate charge to LESSEE, for all related equipment, scheduling, coordination, and costs. 12.QUIET POSSESSION – LESSOR agrees that LESSEE, while keeping and performing the covenants herein contained, shall at all times during the existence of this Lease peaceably and quietly have, hold, and enjoy the Premises without suit, trouble or hindrance from LESSOR or any person claiming under LESSOR. 13.DESTRUCTION OF PREMISES – If the Premises or any portion of the Premises should be destroyed by any cause, or declared unsafe or unfit for occupancy by any authorized public authority for any reason, either wholly or in such a degree as to materially impair LESSEE’s use of the Premises, then all Rent due under the terms of this Lease shall cease as of the date of such destruction or declaration. If LESSOR makes the necessary repairs within 180 days, rendering the Premises as suitable and serviceable as they existed the day LESSEE occupancy commenced, no right of termination by LESSEE shall exist. If repairs are not made within 180 days, ordinary wear and tear excepted, LESSEE may terminate this Lease effective on the 180th day -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 after said destruction by mailing written notice to LESSOR of LESSEE’s intention to terminate. If, during a period of partial destruction, LESSEE desires to continue occupancy, Rent shall be abated in the same ratio as the portion of the Premises rendered unfit for occupancy. If the partial destruction of the Premises is not repaired within 180 days, LESSEE shall have the option to terminate this Lease or remain in possession at the reduced rent. 14.CONDEMNATION – If a public authority under the power of eminent domain should take the whole of the Premises, then the term of this Lease shall cease on the day of possession by said public authority. If a part only of the Premises should be taken under eminent domain, LESSEE shall have the right to either terminate this Lease, or to continue in possession of the remainder of the Premises. If LESSEE remains in possession, all of the terms hereof shall continue in effect, with rents payable being reduced proportionately for the balance of the term of this Lease. If such taking under the power of eminent domain occurs, those payments attributable to the leasehold interest of LESSEE shall belong to LESSEE, and those payments attributable to the reversionary interest of LESSOR shall belong to LESSOR. 15.TAXES AND ASSESSMENTS – LESSOR shall pay all ad valorem taxes, other taxes and assessments levied against the Premises covered by this Lease. 16.INSURANCE - Without limiting LESSEE’s right to obtain indemnification from LESSOR or any third parties, LESSOR, at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the Lease: A.Commercial General Liability – Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). This policy shall be issued on a per occurrence basis. LESSEE may require specific coverages, including completed operations, products liability, contractual liability, Explosion-Collapse- -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. B.Worker's Compensation – A policy of Worker's Compensation insurance as may be required by the California Labor Code. C.Fire Insurance – Fire and extended coverage insurance on the Premises shall be the sole responsibility of LESSOR. LESSOR hereby waives its right to recover from LESSEE, its officers, agents, and employees any amounts paid by the policy of worker’s compensation insurance required by this Agreement. LESSOR is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but LESSOR’s waiver of subrogation under this paragraph is effective whether or not LESSOR obtains such an endorsement. Within Thirty (30) days from the date LESSOR signs and executes this Agreement, LESSOR shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the LESSEE, (Kush Hospitality Inc., Jay Patel, 4061 N. Blackstone Ave., Fresno, CA 93726), stating that such insurance coverage have been obtained and are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies; that such Commercial General Liability insurance names the County of Fresno, its officers, agents and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self insurance, maintained by LESSEE, its officers, agents and employees, shall be excess only and not contributing with insurance provided under LESSOR's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty (30) days advance, written notice given to LESSEE. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the event LESSOR fails to keep in effect at all times insurance coverage as herein provided, LESSEE may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. All policies shall be issued by admitted insurers licensed to do business in the State of California, and such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII or better. 17. HOLD HARMLESS – LESSOR will indemnify, defend, and hold LESSEE harmless from and against any and all liabilities, claims, demands, actions, proceedings, costs, expenses or damages of any kind or nature (collectively, “Claims”) in any manner directly or indirectly caused, occasioned or contributed to by reason of the negligence, whether active or passive, of LESSOR or anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of LESSOR’S obligations pursuant to this Lease. LESSEE will indemnify, defend, and hold LESSOR harmless from and against any Claims in any manner directly or indirectly caused, occasioned or contributed to by reason of the negligence, whether active or passive, of LESSEE or anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of this Lease or any Claims otherwise arising in connection with LESSEE’S use and occupancy of the Premises. 18. HAZARDOUS SUBSTANCES – LESSEE agrees that it will comply with all applicable laws existing during the term of this Lease pertaining to the use, storage, transportation and disposal of any hazardous substance, as that term is defined in such applicable law. 19. EMERGENCY-RELATED ALTERNATIVE CARE SITE - The parties agree that to the fullest extent possible and consistent with the designation and use of the Premises as a health emergency-related alternative care site, the Premises and the subject building constitute a mass care center, first aid station, temporary hospital annex, and a necessary facility for mitigating the effects of the COVID-19 local emergency, local -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 health emergency, and State of California state of emergency, and as such should be entitled to the fullest protections and immunities available under applicable law, including California Civil Code section 1714.5. 20.NONDISCRIMINATION – During the term of this Lease, LESSOR shall comply with all applicable laws and regulations regarding the Premises, the services to be rendered, and performance under this Lease. LESSOR shall not deny benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age, sex, or any other protected or prohibited basis. LESSOR shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. 21.ASSIGNMENT – LESSEE shall have the ability to assign this Lease after approval from Lessor. 22.TIME OF ESSENCE; BINDING UPON SUCCESSORS – Time is of the essence of this Lease, and the terms and provisions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective parties hereto. 23.WAIVER – A waiver by either party of any default or breach by the other party in the performance of any of the covenants, terms or conditions of this Lease shall not constitute or be deemed a waiver of any subsequent or other default or breach. 24.PARTIAL INVALIDITY – If any term, covenant, condition or provision of this Lease is found by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. The parties acknowledge that as between LESSOR and LESSEE, each is responsible for any Claims arising from the acts or omissions of its own employees -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and invitees and notwithstanding anything to the contrary in this Section 24, each Party hereby waives any claim for or right to consequential or punitive damages. 25. INDEPENDENT CONTRACTOR – In performance of the work, duties and obligations assumed by LESSOR under this Lease, if any, it is mutually understood and agreed that LESSOR, including any and all of the LESSOR'S officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venture, partner, or associate of the LESSEE. Furthermore, LESSEE shall have no right to control or supervise or direct the manner or method by which LESSOR shall perform its work and function; provided, LESSOR shall satisfy and comply with its obligations as set forth herein. LESSOR and LESSEE shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, LESSOR shall have absolutely no right to employment rights and benefits available to LESSEE’S employees. LESSOR shall be solely liable and responsible for providing to, or on behalf of, its employees all legally required employee benefits. In addition, LESSOR shall be solely responsible and save LESSEE harmless from all matters relating to payment of LESSOR’S employees, including compliance with Social Security withholding and all other law and regulations governing such matters. It is acknowledged that during the term of this Lease, LESSOR may be providing services to others unrelated to the LESSEE or to this Lease. 26. NOTICES – The persons and their addresses having authority to give and receive notices under this Lease include the following: LESSEE: LESSOR: County of Fresno Kush Hospitality Inc County Administrative Officer (CAO) Jay Patel 2281 Tulare Street, Suite 304 4061 N. Blackstone Ave. Hall of Records Fresno, CA 93726 Fresno, CA 93721 -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with copies to: County of Fresno Director of Internal Services 333 W. Pontiac Way Clovis, CA 93612 (559) 600-6200 All notices between the LESSEE and the LESSOR provided for or permitted under this Lease must be in writing and delivered either by personal service, by first- class United States mail, by an overnight commercial courier service, or by telephonic facsimile transmission. 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 LESSEE business days 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 LESSEE business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is completed outside of LESSEE business hours, then such delivery shall be deemed to be effective at the next beginning of a LESSEE business day), provided that the sender maintains a machine record of the completed transmission. For all claims arising out of or related to this Lease, 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). 27. COUNTERPARTS – This Lease may be executed in one or more counterparts (which may be facsimile or .pdf e-mail counterparts followed by originals), each of which will be deemed an original, and all, taken together, will constitute one and the same instrument. -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. GOVERNING LAW – Venue for any action arising out of or relating to this Lease shall be in Fresno County, California. This Lease shall be governed by the laws of the State of California. 29. AUDITS AND INSPECTIONS – LESSOR shall at any time during business hours, and as often as the LESSEE may deem necessary, make available to the LESSEE for examination all of its records and data with respect to the matters covered by this Agreement. The LESSOR shall, upon request by the LESSEE, permit the LESSEE to audit and inspect all of such records and data necessary to ensure LESSOR compliance with the terms of this Agreement. If this Agreement exceeds ten thousand dollars ($10,000.00), LESSOR shall be subject to the examination and audit of the California State Auditor for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 30. AUTHORITY – Each individual executing this Lease on behalf of LESSOR represents and warrants that such individual(s) are duly authorized to execute and deliver this Lease on behalf of Kush Hospitality Inc., and that this Lease is binding upon Kush Hospitality Inc. in accordance with its terms. 31. ENTIRE AGREEMENT – This Lease constitutes the entire Lease between the LESSOR and LESSEE with respect to the subject matter hereof, and supersedes all prior leases, negotiations, proposals, commitments, writings, advertisements, publications, and understandings of any nature whatsoever unless expressly referenced in this Lease. /// /// /// /// 1 IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first 2 hereinabove written. LESSOR: 3 4 5 6 7 8 9 Kush Hospitality Inc. ::?rayPatel, Owner 10 11 12 13 14 15 16 FOR ACCOUNTING USE ONLY: 17 FUND: 18 SUBCLASS: ORG NO: 19 ACT NO: 20 21 22 23 24 25 26 27 28 0001 10000 LESSEE: COUNTY OF FRESNO By:------------­ Jean Rousseau -13- County Administrative Officer County of Fresno 56107300 7870 -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENT “A” Site Map *The Premises was previously called “Knights Inn Fresno.” The map above does not reflect the new name, Clarion Pointe.