HomeMy WebLinkAboutAgreement A-15-528 with East Shaw Ave Properties.pdfL -306Vets0ffice
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Agreement No. 15-528
1 LEASE AGREEMENT
2 THIS LEASE AGREEMENT (hereinafter "LEASE" or "Lease") is made and entered into
3 this 1~4t-day of (jCkNJ€K , 2015, by and between EAST SHAW AVENUE PROPERTIES,
4 LLC., 450 N. Roxbury Drive, Suite 1050, Beverly Hills, California 90210 (hereinafter "LESSOR" or
5 "Landlord"), and the COUNTY OF FRESNO, a political subdivision of the State of California, 2220
6 Tulare Street, 21st Floor, Room 2101, Fresno, CA 93721-2106 (hereinafter "LESSEE" or
7 "Tenant").
8 1. LEASED PREMISES -LESSOR hereby leases to LESSEE office space of
9 approximately 3,438 square feet in Suite 105 (the "Premises") within that certain office building
10 located at 1320 E. Shaw, Fresno, CA 93710 (the "Building"). LESSOR reserves the right to use
11 (and the Premises does not include) the roof and exterior walls of the Premises, and the area
12 beneath, adjacent to and above the Premises, together with the right (but not necessarily the
13 obligation) to install, use, maintain, repair and replace equipment machinery, pipes, conduits and
14 wiring through the Premises, which serve other parts of the Building, in a manner and in locations
15 which do not unreasonably interfere with LESSEE's use of the Premises.
16 Commencing on the CommencementDate (as defined below), Lessee shall have the right
17 to permit the daily parking of passenger vehicles by its employees and visitors in the parking
18 facility designated by Lessor at no additional charge subject to all rules and regulations which are
19 prescribed from time to time for the orderly operation and use of the parking facility, including any
20 sticker or other identification system established by Landlord and Tenant not being in default
21 under this Lease.
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COUNTY OF FRESNO
Fresno, California
2. TERM
a. Term. The term of this LEASE shall be five (5) years (the "Term") commencing
on the date LESSEE first takes occupancy of the Premises (hereinafter "CommencementDate").
The Commencement Date shall be fixed as the first day of the month that immediately follows the
date the written acknowledgement is signed by LESSOR and the County of Fresno's Director of
Internal Services specifying that LESSOR has substantially completed the Tenant Improvements
provided for in Section 7 herein and a building occupancy permit, if necessary, has been issued
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by the local governing agency. It is understood by the parties herein that LESSEE’S occupancy of
the Premises shall commence only after said written acknowledgement is executed. Should
LESSEE, without LESSOR’s written consent, hold over after expiration (or earlier termination) of
this LEASE, LESSEE shall, at LESSOR’s option, become either a tenant at sufferance or a
month-to-month tenant upon each and all of the terms herein provided as may be applicable to
such a tenancy and any such holding over shall not constitute an extension of this LEASE.
During such holding over, LESSEE shall pay in advance, monthly, Basic Rental (as defined
below) at a rate equal to 150% of the rate in effect for the last month of the Term of this LEASE in
addition to, and not in lieu of, all other payments required to be made by LESSEE hereunder.
Except as otherwise expressly consented to by Lessor in writing, nothing contained herein shall
be construed as consent by LESSOR to any holding over of the Premises by LESSEE, and
LESSOR expressly reserves the right to require LESSEE to surrender possession of the
Premises to LESSOR as provided in this LEASE upon the expiration or earlier termination of the
Term.
b. Non-Funding Termination. This LEASE is contingent on the allocation of funds by a
governmental agency for this Lease. Notwithstanding any provision to the contrary in this LEASE,
should the funds for this Lease not be allocated by LESSEE’s Board of Supervisors, then thi s
LEASE may be terminated by LESSEE giving at least ninety (90) days’ prior written notice thereof
to LESSOR. LESSEE shall pay to LESSOR, within forty-five (45) days after the LEASE
termination date, any Unpaid Basic Rental Due, unamortized Tenant Improvements and
unamortized realtor commissions due LESSOR (the “Termination Payment”). Notwithstanding
any provision to the contrary in this LEASE, “Unpaid Basic Rental Due” shall be strictly limited to
and shall not exceed the Basic Rental that would be due and payable under this Lease, during
LESSEE’s then-current fiscal year, up to and including the LEASE termination date as said date is
provided in LESSEE’s 90-days prior written notice herein. In the event the LEASE termination
date occurs other than on the first day or last day of a calendar month, the “Unpaid Basic Rental
Due” for such month shall be prorated for such month. “Unpaid Basic Rental Due” as defined
herein shall constitute LESSEE’s final and entire Basic Rental payment obligation in the event of
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LESSEE’s termination of this Lease under this Paragraph. LESSEE’s exercise of its rights under
this Paragraph shall not be an Event of Default, and to that end, under no circumstances
whatsoever shall acceleration of Basic Rental payments occur in the event of LESSEE’s
termination of this Lease under this Paragraph. All amortization shall be calculated on a straight
line basis over 60 months subject to an interest rate of 10%. Payment of the Termination
Payment is an express condition subsequent to LESSEE’s right to terminate this LEASE as set
forth in this Paragraph.
3. RENT – LESSEE shall pay basic rent on or before the first of each month for the
Premises (“Basic Rental”) beginning on the Commencement Date and according to the payment
schedule shown below. “Year One” LEASE Period shall be defined as the 12-month period
beginning on the Commencement Date and ending on the day before the 12-month anniversary
of the Commencement Date. Each succeeding LEASE Period (“Year Two”, etc.) shall follow the
same aforementioned definition as applied to that LEASE Period.
LEASE Periods Rent/SF Rent/Month
Year One $ 1.35 $ 4,641.30
Year Two $ 1.38 $ 4,744.44
Year Three $ 1.41 $ 4,847.58
Year Four $ 1.44 $ 4,950.72
Year Five $ 1.47 $ 5,053.86
LESSEE agrees to pay to LESSOR during the Term, at LESSOR’s office or to such other person
or at such other place as directed from time to time by written notice to LESSEE from LESSOR,
the monthly and annual sums as set forth in herein, payable in advance, on or before the first day
of each calendar month, without any prior demand, abatement, setoff or deduction (except as
otherwise expressly set forth in this Lease), and in the event this LEASE commences or the date
of expiration of this LEASE occurs other than on the first day or last day of a calendar month, the
rent for such month shall be prorated. Any and all amounts due and payable by LESSEE
pursuant to this LEASE (other than Basic Rental) shall be deemed “Additional Rent” and
LESSOR shall be entitled to exercise the same rights and remedies upon default in these
payments as LESSOR is entitled to exercise with respect to defaults in monthly Basic Rental
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payments. Basic Rental and Additional Rental are sometimes herein collectively referred to as
“Rental” or “”Rent.”
4. BUILDING OPERATING COSTS/COMMON AREA/UTILITIES – LESSOR shall be
responsible for the building operating expenses, including real property taxes, building fire and
structural insurance, property management, common area maintenance and repairs, janitorial
service as shown on Exhibit “A”, incorporated herein by this reference, and all utilities (gas,
electricity, water, sewer, and trash removal). Notwithstanding anything herein to the contrary,
LESSEE shall be responsible for its data, telephone and computer network systems. Further
notwithstanding anything herein to the contrary, LESSEE shall pay, prior to delinquency, all taxes
assessed against or levied upon trade fixtures, furnishings, equipment and all other personal
property of LESSEE located in the Premises. In the event any or all of LESSEE’s trade fixtures,
furnishings, equipment and other personal property shall be assessed and taxed with property of
LESSOR, LESSEE shall pay to LESSOR, within ten (10) days after delivery to LESSEE by
LESSOR of a written statement setting forth such amount, the amount of such taxes applicable to
LESSEE’s property.
5. USE - LESSEE shall use the Premises for general office use by the Department of
Social Services (Veterans Services) or any other County department or authorized agent.
LESSEE shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances,
governmental regulations or requirements now in force or which may hereafter be in force relating
to the use or occupancy of the Premises. LESSEE shall not do or permit to be done anything
which would invalidate or increase the cost of any fire and extended coverage insurance policy
covering the Building and the property located therein.
Subject to the “LESSOR’s Work” (as defined in Section 7. IMPROVEMENTS TO THE
PREMISES and ALTERATIONS), LESSEE hereby agrees that the Premises shall be taken “as
is”, “with all faults”, “without any representations or warranties”, and LESSEE hereby agrees and
warrants that it has investigated and inspected the condition of the Premises and the suitability of
same for LESSEE’s purposes, and LESSEE does hereby waive and disclaim any objection to,
cause of action based upon, or claim that its obligations hereunder should be reduced or limited
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because of the condition of the Premises or the Building or the suitability of same for LESSEE’s
purposes. LESSEE acknowledges that neither LESSOR nor any agent nor any employee of
LESSOR has made any representation or warranty with respect to the Premises or the Building or
with respect to the suitability of either for the conduct of LESSEE’s business and LESSEE
expressly warrants and represents that LESSEE has relied solely on its own investigation and
inspection of the Premises and the Building in its decision to enter into this LEASE and let the
Premises in the above-described condition. The taking of possession of the Premises by
LESSEE shall conclusively establish that the Premises and the Building were at such time in
satisfactory condition. LESSEE hereby waives subsection 1 of Section 1932 and Sections 1941
and 1942 of the Civil Code of California or any successor provision of law.
6. MAINTENANCE AND BUILDING SERVICES.
a. LESSOR shall (i) maintain the structural portions of the Building,
and (ii) maintain and repair the basic mechanical, electrical, life safety,
plumbing, sprinkler systems and heating, ventilating and air-conditioning
systems that provide these service(s) to the Premises (provided, however, that
LESSEE shall be responsible to repair and maintain such systems that
exclusive serve the Premises and are a package unit or separate system
throughout the Premises).
b. Except as expressly provided as LESSOR’s obligation in Section
6.a. above, LESSEE shall keep the Premises in good condition and repair. All
damage or injury to the Premises or the Building resulting from the act or
negligence of LESSEE, its employees, agents or visitors, guests, invitees or
licensees, or by the use of the Premises (other than normal wear and tear
from LESSEE’s use of the Premises as provided in Section 5. USE), shall be
promptly repaired by LESSEE at its sole cost and expense, to the satisfaction
of LESSOR; provided, however, that damage to Building as a result of
casualty or for any repairs that may impact the mechanical, electrical,
plumbing, heating, ventilation or air-conditioning systems of the Building,
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LESSOR shall have the right (but not the obligation) to select the contractor
and oversee all such repairs. LESSOR may make any necessary repairs
which are not promptly made by LESSEE in accordance with this Lease: (1)
LESSEE’s receipt of written notice from LESSOR, and (2) the reasonable
opportunity of LESSEE to make said repair within 30 days from receipt of said
written notice, and, LESSOR may thereupon charge LESSEE for the cost of
the reasonable repairs, which cost shall be paid by LESSEE within 30 days
from invoice from LESSOR. LESSEE waives all rights to make repairs at the
expense of LESSOR, or to deduct the cost thereof from Rent.
c. LESSOR agrees to furnish to the Premises from 8:00 a.m. to 6:00
p.m. Mondays through Fridays, excepting local and national holidays including
Christmas Day, Thanksgiving Day, Labor Day, Memorial Day, New Year’s Day
and July 4th, air conditioning and heat in such quantities as is reasonably
necessary for the comfortable occupancy of the Premises. In addition,
LESSOR shall provide electric current for normal lighting and normal office
machines, elevator service and water on the same floor as the Premises for
lavatory and drinking purposes in such reasonable quantities as is reasonably
necessary for general office use and in compliance with applicable codes.
Janitorial and maintenance services shall be furnished five (5) days per week,
excepting local and national holidays. LESSEE shall comply with all Rules
and Regulations which LESSOR may establish for the proper functioning and
protection of the common area air conditioning, heating, elevator, electrical,
intrabuilding cabling and wiring and plumbing systems. A copy of the Rules
and Regulations is attached hereto as Exhibit “B” and incorporated herein by
this reference. LESSOR may comply with mandatory or voluntary controls or
guidelines promulgated by any government entity relating to the use or
conservation of energy, water, gas, light, or electricity or the reduction of
automobile or other emissions without creating any liability of LESSOR to
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LESSEE under this LEASE as long as compliance with voluntary controls or
guidelines does not interfere with LESSEE’s permitted use of the Premises
under this LEASE. LESSEE agrees to pay for all utilities and other services
utilized by LESSEE and any additional building services furnished to LESSEE
that exceed what is normally required for office use as stated in this paragraph
and which are not uniformly furnished to all tenants of the Building, at the rate
generally charged by LESSOR to tenants of the Building for such utilities or
services. LESSEE shall cooperate with LESSOR’s voluntary energy
conservation measures provided such energy conservation measures,
including LESSOR’s actions to convert the Building to a “Green Building”, do
not interfere with LESSEE’s reasonable use of the Premises. Notwithstanding
anything herein to the contrary, LESSEE shall fully cooperate with LESSOR
with any government mandated energy regulations.
d. LESSEE will not, without the prior reasonable written consent of
LESSOR, use any apparatus or device in the Premises which will in any way
unreasonably increase the amount of electricity or water usually furnished or
supplied for use of the Premises as general office space; nor connect any
apparatus, machine or device with water pipes or electric current (except
through existing electrical outlets and pipe connections in the Premises), for
the purpose of using electric current or water. LESSEE agrees that LESSOR
shall be the sole and exclusive representative with respect to, and shall
maintain exclusive control over, the reception, utilization and distribution of
electrical power, regardless of point or means of origin, use or generation.
LESSEE shall not have the right to contract directly with any provider of
electrical power or services.
e. If LESSEE requires heating, ventilation and/or air conditioning
during times other than the times provided in subsection (c) above, LESSEE
shall give LESSOR such advance notice as LESSOR shall reasonably require
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and LESSOR shall bill LESSEE monthly at the then current rate for such after-
hours use (subject to increase from time to time). LESSOR may impose a
reasonable charge for any utilities or services utilized by LESSEE in excess of
the amount or type that LESSOR reasonably determines is typical for general
office use.
f. As an exception to events that may occur in Section 9 herein, in the
event building systems such as air conditioning and heating units, restroom
fixtures are not draining properly, water intrusion or leaks or other events that
cause immediate material impact to the occupancy of the Premises by
LESSEE, LESSOR shall respond within twenty four (24) hours after written
notice by LESSEE to LESSOR to make repairs and replace equipment to
restore the systems to full working order. LESSOR covenants that the
Premises shall be maintained in a condition commensurate to other similar
office buildings in the Fresno, CA area.
g. Notwithstanding anything herein to the contrary, but subject to
LESSOR’s obligation to cure its breach of its covenant to maintain the
Premises as stated in this subsection “g.”, LESSOR shall not be liable for, and
there shall be no rent abatement as a result of, any stoppage, reduction or
interruption of any such services caused by governmental rules, regulations or
ordinances, riot, strike, labor disputes, breakdowns, accidents, necessary
repairs or other cause. Further notwithstanding anything herein to the
contrary, but subject to LESSOR’s obligation to cure its breach of its covenant
to maintain the Premises as stated in this subsection “g.”, (i) such failure,
delay, or diminution shall not be considered to constitute an eviction or a
disturbance of LESSEE’s use and possession of the Premises and (ii)
LESSOR shall not be liable under any circumstances for a loss of or injury to
property or for injury to or interference with LESSEE’s business, including loss
of profits through, in connection with, or incidental to a failure to furnish any of
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the utilities or services hereunder.
LESSOR’s obligation to cure its breach of its covenant to maintain the
Premises. In the event LESSOR breaches its obligation to maintain the
Premises as herein provided, LESSEE shall give written notice to LESSOR
after discovery of such breach. LESSOR shall then have thirty (30) days from
the date of notice to cure its breach, provided, however, that if the item of
maintenance is of such a nature that it requires more than thirty (30) days to
complete, then LESSOR shall have such additional time as is necessary to
complete such maintenance as long as LESSOR commences work on such
maintenance within said thirty (30) day period and diligently prosecutes such
maintenance to completion. Subject to the foregoing, if the period for cure
expires and if LESSOR has failed to cure, then LESSEE shall have the right,
but not the obligation, to immediately cure LESSOR'S breach without providing
notice thereof and seek reimbursement from LESSOR for the reasonable and
actual verifiable costs incurred by LESSEE in curing such breach. LESSOR
shall reimburse LESSEE for such costs within thirty (30) days after LESSOR’S
receipt of a written demand therefor which shall be accompanied by invoices
evidencing such costs incurred. If LESSOR fails to so reimburse LESSEE
within such 30-day period, then LESSEE shall have the right to offset the cost
of such cure from LESSEE'S future Bas ic Rental obligations but in no event
shall such offset exceed fifty percent (50%) of the Basic Rental owed each
month (unless such higher percentage is necessary to fully reimburse
LESSEE prior to the expiration or sooner termination of the Term). LESSEE'S
decision to cure LESSOR'S breach shall not constitute a waiver of any rights
or remedies that LESSEE may have arising from this LEASE or by operation
of law.
7. IMPROVEMENTS TO THE PREMISES and ALTERATIONS
a. LESSOR’S WORK. Upon execution of this LEASE by all parties,
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LESSOR shall construct improvements (“LESSOR’s Work” or “Tenant Improvements”) as shown
on Exhibit “C,” attached hereto and by this reference incorporated herein, using Building-standard
materials, paint, color and supplies. Any modifications to the drawings, plans and specifications
for Improvements must be approved in writing by LESSOR and by LESSEE through the Director
of Social Services. LESSEE shall approve or disapprove any modifications submitted by
LESSOR within five (5) business days. LESSEE shall be deemed to have approved any
modifications submitted by LESSOR if LESSEE fails to respond within such five (5) business
days' period. In addition, LESSOR shall make improvements to parking stalls adjacent to the
Premises to comply with ADA requirements. LESSOR, at his sole cost and expense, shall
provide all Building-standard labor, material and equipment for the completion of the LESSOR’S
Work in accordance with the approved plans and specifications. Any changes or additions by
LESSEE to the plan attached to the LEASE as Exhibit “C,” incorporated herein by this reference,
must be approved by LESSOR and all costs resulting from such changes or additions shall be
paid by LESSEE to LESSOR as follows: prior to commencement of construction of each such
change or addition, LESSEE shall pay to LESSOR the costs of each such change or addition as
estimated by LESSOR and approved by LESSEE. As soon as the final accounting can be
prepared and submitted to LESSEE, LESSEE shall pay within 30 days of LESSOR’s demand
therefor any unpaid balance of the actual aggregate costs with respect to any such changes or
additions. LESSOR’s Work shall be deemed “substantially complete” if only “punch list” items
which do not materially interfere with LESSEE’s business operations remain to be done to the
LESSOR Work. LESSEE shall also be responsible for any additional cost and expense, if any,
incurred by LESSOR due to any LESSEE caused delays including any delays in responding to
LESSOR’S request for information or approval. LESSOR may enter the Premises after
substantial completion in a manner that does not interfere with LESSEE’s operations in order to
complete punch list items without affecting LESSEE’s obligations under the LEASE.
b. ALTERATIONS. LESSEE shall make no alterations, installations,
changes or additions in or to the Premises or the Building (collectively, “Alterations”). Alterations
shall not include moveable office furniture, office furnishings and office equipment.
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c. LESSEE shall keep the Premises and the Building free from any
mechanics’ liens, vendors liens or any other liens arising out of any work performed, materials
furnished or obligations incurred by LESSEE, and LESSEE agrees to defend, indemnify and hold
LESSOR harmless from and against any such lien or claim or action thereon, together with costs
of suit and reasonable attorneys’ fees and costs incurred by LESSOR in connection with any such
claim or action. All expenses (including reasonable attorneys’ fees) incurred by LESSOR in
connection with any such liens shall be considered Additional Rental under this LEASE and be
immediately due and payable by LESSEE.
8. COMPLIANCE WITH ALL LAWS – As to the Premises, LESSOR acknowledges public
funds are used for payments made by LESSEE under this LEASE and for “public work” project(s)
LESSOR shall comply with, and shall ensure compliance by all contractors and subcontractors
with, all applicable laws and regulations, including the payment of prevailing wages pursuant to
Section 1770 et.seq. of the Labor Code.
9. INDEPENDENT CONTRACTOR - In performance of the work, duties and obligations
assumed by LESSOR under this LEASE, it is mutually understood and agreed that LESSOR,
including any and all of the LESSOR'S officers, agents, and employees will at all times be acting and
performing as an independent contractor, and shall act in an independent capacity and not as an
officer, agent, servant, employee, joint venturer, partner, or associate of the LESSEE. Furthermore,
LESSEE shall have no right to control or supervise or direct the manner or method by which
LESSOR shall perform its work and function. However, LESSEE shall retain the right to administer
this LEASE so as to verify that LESSOR is performing its obligations in accordance with the terms
and conditions thereof.
LESSOR and LESSEE shall comply with all applicable provisions of law and the rules and
regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof.
Because of its status as an independent contractor, LESSOR shall have absolutely no
right to employment rights and benefits available to LESSEE 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
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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.
10. DEFAULT
a. EVENT OF DEFAULT Each of the following acts or omissions of LESSEE
or of any guarantor of LESSEE’s performance hereunder, or occurrences,
shall constitute an “Event of Default:
i. Failure or refusal to pay Basic Rental, Additional Rent or any other
amount to be paid by LESSEE to LESSOR hereunder within ten (10)
calendar days after notice that the same is due or payable hereunder;
said ten (10) day period shall be in lieu of, and not in addition to, the
notice requirements of Section 1161 of the California Code of Civil
Procedure or any similar or successor law;
ii. Except as set forth in items (i) above and (v) and (vi) below, failure
to perform or observe any other covenant or condition of this LEASE
(including items iii and iv below) to be performed or observed within
thirty (30) days following written notice to LESSEE of such failure.
Such thirty (30) day notice shall be in lieu of, and not in addition to, any
required under Section 1161 of the California Code of Civil Procedure
or any similar or successor law;
iii. Abandonment or vacating or failure to accept tender of possession
of the Premises or any significant portion thereof;
iv. The taking in execution or by similar process or law (other than by
eminent domain) of the estate hereby created;
v. The filing by LESSEE in any court pursuant to any statute of a
petition in bankruptcy or insolvency or for reorganization or
arrangement for the appointment of a receiver of all or a portion of
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LESSEE’s property; the filing against LESSEE of any such petition, or
the commencement of a proceeding for the appointment of a trustee,
receiver or liquidator for LESSEE or of any of the property of either, or
a proceeding by any governmental authority for the dissolution or
liquidation of LESSEE if such proceeding shall not be dismissed or
trusteeship discontinued within thirty (30) days after commencement of
such proceeding or the appointment of such trustee or receiver; or the
making by LESSEE or any guarantor hereunder of an assignment for
the benefit of creditors. LESSEE hereby stipulates to the lifting of the
automatic stay in effect and relief from such stay for LESSOR in the
event LESSEE files a petition under the United States Bankruptcy
laws, for the purpose of LESSOR pursuing its rights and remedies
against LESSEE and/or a guarantor of this LEASE;
vi. LESSEE’s failure to cause to be released any mechanics liens filed
against the Premises or the Building within twenty (20) days after the
date the same shall have been filed or recorded; or
vii. Each Event of Default shall be deemed by the parties hereto to be
material.
b. REMEDIES
i. Upon the occurrence of an Event of Default, LESSOR may
exercise all of its remedies as may be permitted by law, including but
not limited to the remedy provided by Section 1951.4 of the California
Civil Code (lessor may continue lease in effect after lessee’s breach
and abandonment and recover rent as it becomes due, if lessee has
right to sublet or assign, subject only to reasonable limitations), and
including without limitation, terminating this LEASE, reentering the
Premises and removing all persons and property therefrom, which
property may be stored by LESSOR at a warehouse or elsewhere at
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the risk, expense and for the account of LESSEE. Additionally, upon
the occurrence of an Event of Default, at LESSOR’s election, such
other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time by applicable law. The term “rent” as used
in this Section 10 shall be deemed to mean Basic Rental as defined
herein. .
ii. Nothing in this Section 10 shall be deemed to affect LESSOR’s
right to indemnification for liability or liabilities arising prior to the
termination of this LEASE for personal injuries or property damage
under the indemnification clause or clauses contained in this LEASE.
iii. Notwithstanding anything to the contrary set forth herein,
LESSOR’s re-entry to perform acts of maintenance or preservation of
or in connection with efforts to relet the Premises or any portion
thereof, or the appointment of a receiver upon LESSOR’s initiative to
protect LESSOR’s interest under this LEASE shall not terminate
LESSEE’s right to possession of the Premises or any portion thereof
and, until LESSOR does elect to terminate this LEASE, this LEASE
shall continue in full force and effect and LESSOR may enforce all of
LESSOR’s rights and remedies hereunder including, without limitation,
the remedy described in California Civil Code Section 1951.4 (lessor
may continue lease in effect after lessee’s breach and abandonment
and recover rent as it becomes due, if lessee has the right to sublet or
assign, subject only to reasonable limitations). Accordingly, if
LESSOR does not elect to terminate this LEASE on account of any
default by LESSEE, LESSOR may, from time to time, without
terminating this LEASE, enforce all of its rights and remedies under
this LEASE, including the right to recover all rent as it becomes due.
iv. All rights, powers and remedies of LESSOR hereunder and under
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any other agreement now or hereafter in force between LESSOR and
LESSEE shall be cumulative and not alternative and shall be in
addition to all rights, powers and remedies given to LESSOR by law,
and the exercise of one or more rights or remedies shall not impair
LESSOR’s right to exercise any other right or remedy.
v. Intentionally Deleted.
vi. Whether or not LESSOR elects to terminate this LEASE on
account of any default by LESSEE, as set forth in this Section 10,
c. LESSOR shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
LESSEE and affecting the Premises or may, in LESSOR's sole discretion,
succeed to LESSEE’s interest in such subleases, licenses, concessions or
arrangements. In the event of LESSOR’s election to succeed to LESSEE’s
interest in any such subleases, licenses, concessions or arrangements,
LESSEE shall, as of the date of notice by LESSOR of such election, have no
further right to or interest in the rent or other consideration receivable
thereunder.
d. LESSOR DEFAULT.
i. LESSOR shall not be in default under this LEASE unless LESSOR
fails to perform obligations required of LESSOR within thirty (30) days
after written notice is delivered by LESSEE to LESSOR and to the
holder of any mortgages or deeds of trust (collectively, “Lender”)
covering the Premises whose name and address shall have
theretofore been furnished to LESSEE in writing, specifying the
obligation which LESSOR has failed to perform; provided, however,
that if the nature of LESSOR’s obligation is such that more than thirty
(30) days are required for performance, then LESSOR shall not be in
default if LESSOR or Lender commences performance within such
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thirty (30) day period and thereafter diligently prosecutes the same to
completion.
ii. Subject to Section 6. MAINTENANCE AND BUILDING SERVICES
herein, in the event of any default, breach or violation of LESSEE’s
rights under this LEASE by LESSOR, LESSEE’s remedies shall be an
action for specific performance or action for actual damages.
11. DESTRUCTION OR DAMAGE FROM CASUALTY - If the Premises are damaged or
destroyed as a result of fire, earthquake, act of God, or any other identifiable event of a sudden,
unexpected, or unusual nature (hereinafter "Casualty"), then LESSOR shall either promptly and
diligently repair the damage at its own cost, or terminate this LEASE as hereinafter provided.
A. LESSOR'S Election to Repair: If LESSOR elects to repair the Casualty
damage to the Premises, then it shall within sixty (60) days after the date of
Casualty provide written notice (hereinafter "Notice of Repair") to LESSEE
indicating the anticipated time required to repair. To the extent that the
appropriate insurance proceeds are available, LESSOR shall bear the cost of
all repairs to the Premises, including the cost to repair any alterations or
fixtures installed or attached thereto by LESSEE. Such repairs shall restore
the Premises to substantially the same condition as that existing at the time of
Casualty; such repairs shall also be made in compliance with all applicable
state and local building codes. LESSOR shall not be liable to LESSEE for
compensation for any loss of business, or any inconvenience or annoyance
arising from repair of the Premises as a result of the Casualty except for rent
reduction as hereinafter provided. LESSEE shall be responsible at its sole
cost and expense for the replacement of its personal property.
B. LESSOR'S Election to Terminate Due to Casualty: LESSOR may only elect to
terminate the LEASE due to Casualty if: the Premises have been destroyed or
substantially destroyed by said Casualty; and the estimated time to repair the
Premises exceeds ninety (90) days from the date of the Casualty. LESSOR
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shall provide LESSEE with written notice of its election to terminate within sixty
(60) days after the date of Casualty, specifying a termination date not less
than thirty (30) days from the date of said notice.
C. Rent Reduction Due to Casualty: In the event of Casualty, LESSEE'S
obligation to pay the Rent shall be reduced beginning on the date of the
Casualty. Such reduction shall be proportional to the damage caused to the
Premises by the Casualty as mutually determined by LESSEE and LESSOR.
If LESSOR elects to repair the Premises pursuant to the terms of this LEASE,
then the Rent reduction shall continue until the date of substantial completion
of repair.
D. LESSEE'S Election to Terminate Due to Casualty: If LESSEE does not
receive a Notice of Repair from LESSOR within sixty (60) days after the
Casualty, or if the anticipated period of repair contained in the Notice of Repair
exceeds one hundred eighty (180) days, or if LESSOR notifies LESSEE in the
Notice of Repair that there will be insufficient insurance proceeds received
from Property Insurance Policy to complete the required repairs and LESSOR
will not agree to pay for any uninsured repairs, then LESSEE may elect to
terminate this LEASE. LESSEE shall provide LESSOR with written notice of
its election to terminate this LEASE, specifying a termination date not less
than thirty (30) days from the date of said notice. In such case, LESSEE shall
have the right to demand that LESSOR refund any monies which were paid to
LESSOR pursuant to the LEASE but which were not earned by LESSOR by
consequence of the Casualty. Upon receipt of such demand, LESSOR shall
promptly refund all such monies.
13. MUTUAL INDEMNITY AND HOLD HARMLESS .
A. LESSEE shall indemnify, defend and hold LESSOR, its representatives, subsidiaries,
partners, parental and other affiliates and their respective members, shareholders, officers,
directors, employees, agents and contractors (collectively, “LESSOR Parties”) harmless from any
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and all claims, liabilities, damages, expenses and losses (including without limitation court costs
and reasonable attorneys’ fees) incurred in connection with or arising fro m LESSEE’s use of the
Premises or the Building or from the conduct of its business or from any act, omission, work or
thing which may be permitted or suffered by LESSEE in or about the Premises or the Building and
shall further indemnify, defend and hold LESSOR and the LESSOR Parties harmless from and
against any and all claims, liabilities, damages, expenses and losses arising from any breach or
default in the performance of any obligation on LESSEE’s part to be performed under this LEASE
or arising from any negligence or willful misconduct of LESSEE or any of its agents, contractors,
employees or invitees, patrons, customers or members in or about the Building and from any and
all costs, attorneys’ fees and costs, expenses and liabilities incurred in the defense of any claim or
any action or proceeding brought thereon, including negotiations in connection therewith.
LESSEE hereby assumes all risk of damage to property or injury to persons in or about the
Premises from any cause, and LESSEE hereby waives all claims in respect thereof against
LESSOR and the LESSOR Parties, excepting where the damage is caused solely by the gross
negligence or willful misconduct of LESSOR or the LESSOR Parties.
B. LESSOR shall indemnify, defend and hold LESSEE, its representatives, subsidiaries,
partners, parental and other affiliates and their respective officers, directors, employees, agents
and contractors (collectively, “LESSEE Parties”) harmless from any and all claims, liabilities,
damages, expenses, actions, proceedings and losses (including without limitation court costs and
reasonable attorneys’ fees) that are 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, or that are incurred in connection
with or arising from any breach or default in the performance of any obligation on LESSOR’s part
to be performed under this LEASE.
C. Notwithstanding anything to the contrary set forth in this LEASE, LESSOR and the
LESSOR Parties shall not be liable for injury to LESSEE’s business, or loss of income, loss of
opportunity or loss of goodwill therefrom, or any consequential, punitive, special or exemplary
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damages, however occurring (including, without limitation, from any failure or interruption of
services or utilities or as a result of LESSOR’s negligence). Subject to subsection B. immediately
above, without limiting the foregoing, except in connection with damage or injury resulting from
the gross negligence or willful misconduct of LESSOR or the LESSOR Parties, LESSOR and the
LESSOR Parties shall not be liable for damage that may be sustained by the person, goods,
wares, merchandise or property of LESSEE, its employees, invitees, customers, agents, or
contractors, or any other person in, on or about the Premises directly or indirectly caused by or
resulting from any cause whatsoever, including but not limited to fire, steam, electricity, gas,
water, or rain which may leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning, light fixtures, or mechanical or electrical systems, or from intrabuilding cabling or
wiring, whether such damage or injury results from conditions arising upon the Premises or upon
other portions of the Building or from other sources or places and regardless of whether the
cause of such damage or injury or the means of repairing the same is inaccessible to LESSEE.
LESSOR and the LESSOR Parties shall not be liable to LESSEE for any damages arising from
any willful or negligent action or inaction of any other tenant of the Building.
D. 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 and invitees and
notwithstanding anything to the contrary in this Section 13, each Party hereby waives any claim
for or right to consequential or punitive damages.
14. INSURANCE
A. LESSEE’s Insurance.
(i) LESSEE, shall at all times during the Term of this LEASE, and at its
own cost and expense, procure and continue in force the following insurance coverage: (i)
Commercial General Liability Insurance, written on an occurrence basis, with a combined single
limit for bodily injury and property damages of not less than Two Million Dollars ($2,000,000.00)
per occurrence and Three Million Dollars ($3,000,000.00) in the annual aggregate, including
products liability coverage if applicable, and personal injury coverage, covering the insuring
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provisions of this LEASE and the performance of LESSEE of the indemnity and exemption of
LESSOR from liability agreements set forth in Article 13 hereof; (ii) a policy of standard fire,
extended coverage and special extended coverage insurance (all risks); (iii) Worker’s
Compensation coverage as required by law; and (iv) business interruption, loss of income and
extra expense insurance covering any failure or interruption of LESSEE’s business equipment
(including, without limitation, telecommunications equipment) and covering all other perils, failures
or interruptions sufficient to cover a period of interruption of not less than twelve (12) months.
LESSEE shall carry and maintain during the entire Term (including any option periods, if
applicable), at LESSEE’s sole cost and expense, increased amounts of the insurance required to
be carried by LESSEE pursuant to this Article 14 and such other reasonable types of insurance
coverage and in such reasonable amounts covering the Premises and LESSEE’s operations
therein, as may be reasonably required by LESSOR.
(ii) The Commercial General Liability Insurance policy shall name
LESSOR, the LESSOR Parties, LESSOR’s property manager, LESSOR’s lender(s) and such
other persons or firms as LESSOR specifies from time to time, as additional insureds with an
appropriate endorsement to the policy(s ). LESSEE shall furnish to LESSOR, from the insurance
companies, or cause the insurance companies to furnish, certificates of coverage. The
deductible under each such policy shall be reasonably acceptable to LESSOR. No such policy
shall be cancelable or subject to reduction of coverage or other modification or cancellation
except after thirty (30) days prior written notice to LESSOR by the insurer. All such policies shall
be endorsed to agree that LESSEE’s policy is primary and that any insurance carried by LESSOR
is excess and not contributing with any LESSEE insurance requirement hereunder. LESSEE
shall, at least twenty (20) days prior to the expiration of such policies, furnish LESSOR with
renewals or binders. LESSEE agrees that if LESSEE does not take out and maintain such
insurance or furnish LESSOR with renewals or binders in a timely manner, LESSOR may (but
shall not be required to) procure said insurance on LESSEE’s behalf and charge LESSEE the
cost thereof, which amount shall be payable by LESSEE upon demand with interest from the date
such sums are expended. LESSEE shall have the right to provide such insurance coverage
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pursuant to blanket policies obtained by LESSEE, provided such blanket policies expressly afford
coverage to the Premises and to LESSEE as required by this LEASE
B. Lessor’s Insurance. LESSOR shall procure and maintain at all times during the Term
of this LEASE, a policy or policies of insurance covering loss or damage to the Building in the
amount of the full replacement costs without deduction for depreciation thereof, providing
protection against all perils included within the classification of fire and extended coverage,
vandalism coverage and malicious mischief, sprinkler leakage, water damage, and special
extended coverage on the building. Additionally, LESSOR may carry: (i) Bodily Injury and
Property Damage Liability Insurance and/or Excess Liability Coverage Insurance; and (ii)
Earthquake and/or Flood Damage Insurance; and (iii) Rental Income Insurance; and (iv) any
other forms of insurance LESSOR may deem appropriate or any lender may require.
15. SURRENDER OF POSSESSION - Upon the expiration or termination of this LEASE,
LESSEE will surrender Premises to LESSOR in good order and condition, less reasonable wear
and tear, less the effects of any Casualty as herein defined. LESSEE shall also remove or cause
to be removed from the Premises all debris and rubbish, all furniture, equipment, business and
trade fixtures, free-standing cabinet work, moveable partitioning, telephone and data cabling and
other articles of personal property in the Premises (except to the extent LESSOR elects by notice
to LESSEE to exercise its option to have any subleases or subtenancies assigned to it) and
LESSEE shall repair all damage to the Premises or the Building resulting from the removal of
such items from the Premises.
16. FIXTURES - LESSOR agrees that any equipment, fixtures or apparatus installed in
or on the Premises by LESSEE, at LESSEE’s sole cost and expense shall continue to be the
property of LESSEE and may be removed by LESSEE at any time. LESSEE shall pay for the
repair of any damage caused by the removal of fixtures. Any fixtures not removed after LESSEE
surrenders possession shall become the property of LESSOR.
17. RIGHT OF ENTRY - LESSOR, or its representative(s), upon twenty-four (24) hour
notice (or with no notice in the case of an emergency), shall have the right to enter the Premises
at reasonable times to: (a) clean the Premises; (b) examine or inspect the Premises; (c) show the
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same to prospective tenants, lenders or purchasers of the Building; (d) serving or posting and
keeping posted thereon notices as provided by law; (e) to make any alterations, repairs or
improvements to the Premises; and (f) for any other reasonable purpose. LESSOR shall use its
commercially reasonable efforts not to interfere with or interrupt the normal business of LESSEE.
In the event of an emergency, LESSOR may enter the Premises at any time without giving prior
notice to LESSEE.
18. AMENDMENT - This LEASE may be amended in writing by the mutual consent
of the parties without in any way affecting the remainder.
19. NON-ASSIGNMENT - LESSEE shall not assign or transfer its rights or obligations
under this LEASE, or sub-lease said Premises or any portion thereof, without the prior written
reasonable consent of the LESSOR. Any assignment of this LEASE by LESSEE or subletting of
the Premises (or any portion thereof) without LESSOR’s express written approval shall be null
and void ab initio.
20. 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.
21. NOTICES - All notices to be given under this LEASE by either Party to the other
Party shall be in writing, and given by any one of the following methods:
(i) Personal delivery to the applicable address as set for below; or
(ii) Sent by certified United States mail, first class postage prepaid,
with return receipt requested, to the applicable addresses as set forth below, in which case
such notice shall be deemed given three (3) business days if LESSOR is the recipient, or
three (3) days if LESSEE is the recipient, after such deposit and postmark with the United
States Postal Service; or
(iii) Sent by a reputable overnight commercial courier, in which case
such notice shall be deemed given one (1) business day if LESSOR is the recipient, or one (1)
day if LESSEE is the recipient, after such deposit with that courier to the applicable addresses
as set forth below.
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The addresses and telephone numbers of the Parties for purposes of giving receiving
notices under this LEASE are as follows:
LESSEE: LESSOR:
County of Fresno STARPOINT
Robert W. Bash (L-306) Attn: Evan Farahnik
Director of Internal Services 450 N. Roxbury Drive, Suite 1050
2220 Tulare Street, 21st Floor,
Room 2101
Beverly Hills, California 90210
(310) 247-0550
Fresno, CA 93721-2120
(559) 600-1715
With a copy to:
StarPoint Towers
Attn: Susie McInnerney
1322 E. Shaw Avenue, Suite 120
Fresno, CA 93710
(559) 490-3622
Provided however, such notices may be given to such person or at such other place as
either of the Parties may from time to time designate by giving written notice to the other Party,
and provided further however, in any event notices of changes of address or termination of this
LEASE shall not be effective until actual delivery of such notice. Notices given hereunder shall
not be amendments or modifications to this LEASE.
22. SECURITY – LESSOR has on-site security from 1:00 p.m. to 6:00 a.m. Mondays
through Fridays and 4:00 p.m. to 6:00 a.m. on weekends. Notwithstanding anything in this
LEASE to the contrary, LESSEE acknowledges that LESSOR’s election whether or not to provide
any type of mechanical surveillance or security personnel whatsoever in the Building is solely
within LESSOR’s discretion; LESSOR and the LESSOR Parties shall have no liability in
connection with the provision, or lack, of such services, and LESSEE hereby agrees to hold
LESSOR and the LESSOR Parties harmless with regard to any such potential claim.
23. SIGNAGE - LESSEE shall conform to sign criteria standards as established by
LESSOR, as well as the City of Fresno’s signing regulations. LESSEE shall be permitted signage
on the building fascia above its entrance and on the entry door, along with a section of the small
monument sign fronting on Shaw Avenue. LESSOR shall have the right to approve any signing
requested by LESSEE. LESSEE shall be responsible cost for all signs including their installation,
maintenance and removal. LESSEE shall also be responsible for the repair of any damage
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caused due to the removal of the signs.
24. DISCLOSURE OF SELF DEALING TRANSACTIONS – This provision is only
applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation) or if
during the term of this LEASE, the LESSOR changes its status to operate as a corporation.
Members of LESSOR’S Board of Directors shall disclose any self-dealing transactions that
they are a party to while LESSOR is providing goods or performing services under this LEASE. A
self-dealing transaction shall mean a transaction to which the LESSOR is a party and in which
one or more of its directors has a material financial interest. Members of the Board of Directors
shall disclose any self-dealing transactions that they are a party to by completing and signing a
Self-Dealing Transaction Disclosure Form Exhibit “D”, attached hereto and by this reference
incorporated herein, and submitting it to the County of Fresno prior to commencing with the self-
dealing transaction or immediately thereafter.
25. LIABILITY OF LESSOR. Notwithstanding anything in this LEASE to the contrary and
after Lessor’s insurance proceeds have been exhausted, any remedy of LESSEE for the
collection of a judgment (or other judicial process) requiring the payment of money by LESSOR in
the event of any default by LESSOR hereunder or any claim, cause of action or obligation,
contractual, statutory or otherwise by LESSEE against LESSOR or the LESSOR Parties
concerning, arising out of or relating to any matter relating to this LEASE and all of the covenants
and conditions or any obligations, contractual, statutory, or otherwise set forth herein, shall be
limited solely and exclusively to an amount which is equal to the interest of LESSOR in and to the
Building and in and to the real property upon which the Building is sited. No other property or
assets of LESSOR or any LESSOR Party shall be subject to levy, execution or other enforcement
procedure for the satisfaction of LESSEE’s remedies under or with respect to this LEASE,
LESSOR’s obligations to LESSEE, whether contractual, statutory or otherwise, the relationship of
LESSOR and LESSEE hereunder, or LESSEE’s use or occupancy of the Premises.
26. AUTHORITY - Each individual executing this LEASE on behalf of LESSOR
represents and warrants that that individual is duly authorized to execute and deliver this LEASE
on behalf of EAST SHAW AVENUE PROPERTIES, LLC and that this LEASE is binding upon
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EAST SHAW AVENUE PROPERTIES, LLC in accordance with its terms. The terms of this
LEASE are intended by the parties as a final expression of their agreement with respect to such
terms as are included in this LEASE and may not be contradicted by evidence of any prior or
contemporaneous agreement, arrangement, understanding or negotiation (whether oral or
written).
27. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
and ESTOPPEL.
a. At LESSOR’S option, this Lease shall be subordinated to any ground lease,
mortgage or deed of trust which is now or shall hereafter be placed upon the Premises;
provided, however, if the lessor under any such lease or the holder or holders of any such
mortgage or deed of trust shall advise LESSOR that they desire or require this LEASE to be
prior and superior thereto, upon written request of LESSOR to LESSEE, LESSEE agrees to
promptly execute, acknowledge and deliver any and all commercially reasonable documents
or instruments which LESSOR or such lessor, holder or holders deem necessary or desirable
for purposes thereof. Within thirty (30) days after LESSOR’S request, LESSEE agrees to
execute and deliver any instrument which may be necessary to further effect the subordination
of the Lease to any such mortgage or deed of trust; provided, however, that such instrument
of subordination shall provide, or the mortgagee or beneficiary of such mortgage or deed of
trust otherwise shall agree in writing in recordable form delivered to LESSEE, that the
mortgagee or beneficiary, including their successors and assigns, recognize LEESSE’s
leasehold interest under this Lease and shall not disturb LESSEE’s leasehold rights that so
long as LESSEE is not in default under this Lease, foreclosure of any such mortgage or deed
of trust or sale pursuant to exercise of any power of sale thereunder, or deed given in lieu
thereof, shall not affect this Lease but such foreclosure or sale, or deed given in lieu thereof,
shall be made subject to this Lease which shall continue in full force and effect, binding on
LESSEE, as lessee, and the transferee, as lessor. LESSEE shall attorn to the transferee as if
said transferee was LESSOR under this Lease. LESSEE acknowledges and agrees that the
form and substance of the subordination, non-disturbance and attornment agreement
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attached hereto as EXHIBIT “E” and incorporated herein by this reference, is substantially
acceptable to LESSEE. Within 90 days following the date of this LEASE, LESSOR shall use
its commercially reasonable efforts to obtain from its existing lender or mortgagee or
beneficiary of the mortgage or deed of trust encumbering the Premises to execute and deliver
to LESSEE a subordination, non-disturbance and attornment agreement (“SNDA”) acceptable
to LESSEE and in substantially the same form and substance as the SNDA attached hereto
as EXHIBIT “E” and incorporated herein by this reference. Notwithstanding anything in this
LEASE to the contrary, (a) the terms and conditions of this LEASE shall remain valid and in
full force and effect and (b) LESSOR shall not be in default under this LEASE, if LESSOR is
unable to deliver the SNDA referenced in the immediately preceding sentence.
b. LESSEE shall, at any time and from time to time, upon not less than thirty
(30) days’ prior written notice from LESSOR, execute, acknowledge and deliver to LESSOR a
statement in writing (the “Estoppel Certificate”) certifying the following information (but not limited
to the following information in the event further information is requested by LESSOR): (i) that this
LEASE is unmodified and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this LEASE, as modified, is in full force and effect); (ii) the dates to
which the rental and other charges are paid in advance, if any; (iii) the amount of LESSEE’s
security deposit, if any; and (iv) acknowledging that there are not, to LESSEE’s knowledge, any
uncured defaults on the part of LESSOR hereunder, and no events or conditions then in
existence which, with the passage of time or notice or both, would constitute a default on the part
of LESSOR hereunder, or specifying such defaults, events or conditions, if any are claimed. It is
expressly understood and agreed that any such statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the Building or the real property on which the
Building is located.
c. The parties to this LEASE acknowledge that the County of Fresno’s Chief
Administrative Officer (CAO), or his/her designee, has been given authority by LESSEE to
execute on behalf of LESSEE, after appropriate legal review, any and all documents or
instruments under this Section 27.
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28. CALIFORNIA DISCLOSURES.
a. Certified Access Specialist (CASp) Inspection. LESSOR states that the
Premises have not undergone an inspection by a Certified Access Specialist (CASp). See also
Senate Bill No. 1186, California Civil Code §1938 and §55.53, as amended or supplemented from
time to time.
b. California Health and Safety Code. By entering into this LEASE, LESSEE
acknowledges that this paragraph constitutes notice from LESSOR pursuant to California Health
and Safety Code §25249.6 et seq., as amended or supplemented from time to time, that portions
of the Building contain chemicals known to the State of California to cause cancer and birth
defects or other reproductive harm.
29. HAZARDOUS MATERIALS
(a) LESSEE shall not cause or permit any Hazardous Material (as defined
herein below) to be brought, kept or used in or about the Building by LESSEE, its agents,
employees, contractors, or invitees, other than Universal Waste (as defined below) on the
Premises with respect to which LESSEE is a Generator (as defined below) or Producer (as
defined in) below). LESSEE shall be responsible, at its sole expense, for disposing of or causing
to be disposed of all Universal Waste in accordance with Chapter 23 of Title 22 of the California
Code of Regulations. LESSEE indemnifies LESSOR and the LESSOR Parties from and against
any breach by LESSEE of the obligations stated in the preceding two sentences, and agrees to
defend and hold LESSOR and the LESSOR Parties harmless from and against any and all
claims, judgments, damages, penalties, fines, costs, liabilities, or losses (including, without
limitation, diminution in value of the Building, damages for the loss or restriction or use of rentable
or usable space or of any amenity of the Building, damages arising from any adverse impact or
marketing of space in the Building, and sums paid in settlement of claims, attorneys’ fees and
costs, consultant fees, and expert fees) which arise during or after the Term of this LEASE as a
result of such breach. LESSOR shall also have the right, by written notice to LESSEE, to directly
undertake any such mitigation efforts with regard to Hazardous Materials in or about the Building
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due to LESSEE’s breach of its obligations pursuant to this Section 29(a), and to charge LESSEE,
as Additional Rent, for the costs thereof.
(b) As used herein, the term “Hazardous Material” means any hazardous or
toxic substance, material, or waste which is or becomes regulated by any local governmental
authority, the State of California or the United States Government. The term “Hazardous Material”
includes, without limitation, any material or substance which is (i) defined as “Hazardous Waste,”
“Extremely Hazardous Waste,” or “Restricted Hazardous Waste” under Sections 25115, 25117 or
25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division
20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “Hazardous Substance” under
Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-
Presley-Tanner Hazardous Substance Account Act), (iii) defined as a “Hazardous Material,”
“Hazardous Substance,” or “Hazardous Waste” under Section 25501 of the California Health and
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) defined as a “Hazardous Substance” under Section 25281 of the California Health
and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v)
petroleum products, (vi) ACMs, (vii) regulated by Section 26100 et seq. of the California Health
and Safety Code, Division 20, Chapter 18 (Toxic Mold Protection Act of 2001), (viii) listed under
Article 9 or defined as hazardous or extremely hazardous pursuant to Article 11 of Title 22 of the
California Administrative Code, Division 4, Chapter 20, (ix) designated as a “Hazardous
Substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
§ 1317), (x) defined as a “Hazardous Waste” pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), or (xi) defined as a
“Hazardous Substance” pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601), (xii) any pollutant,
contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, within the
meaning of any other applicable federal, state, or local law, regulation, ordinance, or requirement
(including consent decrees and administrative orders imposing liability or standards of conduct
concerning any hazardous, dangerous, or toxic waste, substance, or material, now or hereafter in
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effect); or (xiii) polychlorinated biphenyls and substances or compounds containing
polychlorinated biphenyls.
(c) As used herein, the term “Laws” means any applicable federal, state or
local law, ordinance, or regulation relating to any Hazardous Material affecting the Building,
including, without limitation, the laws, ordinances, and regulations referred to above.
(d) As used herein, the term “Universal Waste” means any substance defined
as Universal Waste pursuant to Section 66273.9 of Title 22 of the California Code of Regulations.
(e) As used herein, the term “Generator” or “Producer” of Universal Waste is
defined pursuant to Section 66273.9 of Title 22 of the California Code of Regulations.
30. NO WAIVER. No waiver by Landlord of any provision of this LEASE shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. No provision of this LEASE may be waived by Landlord, except
by an instrument in writing executed by Landlord. Landlord’s consent to or approval of any act by
Tenant requiring Landlord’s consent or approval shall not be deemed to render unnecessary t he
obtaining of Landlord’s consent to or approval of any subsequent act of Tenant, whether or not
similar to the act so consented to or approved. No act or thing done by Landlord or Landlord’s
agents during the Term of this LEASE shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid unless in writing and signed
by Landlord. Except when LESSOR and LESSEE agree otherwise by written agreement, t he
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this LEASE, other than the
failure of Tenant to pay the particular rent so accepted, regardless of Landlord’s knowledge of
such preceding breach at the time of acceptance of such rent. Any payment by Tenant or receipt
by Landlord of an amount less than the total amount then due hereunder shall be deemed to be in
partial payment only thereof and not a waiver of the balance due or an accord and satisfaction,
notwithstanding any statement or endorsement to the contrary on any check or any other
instrument delivered concurrently therewith or in reference thereto. Accordingly, Landlord may
accept any such amount and negotiate any such check without prejudice to Landlord’s right to
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recover all balances due and owing and to pursue its other rights against Tenant under this
LEASE, regardless of whether Landlord makes any notation on such instrument of payment or
otherwise notifies Tenant that such acceptance or negotiation is without prejudice to Landlord’s
rights.
31. TRANSFER OF LANDLORD’S INTEREST . - In the event of any transfer or
termination of Landlord’s interest in the Premises or the Building by sale, assignment, transfer,
foreclosure, deed-in-lieu of foreclosure or otherwise whether voluntary or involuntary, Landlord
shall be automatically relieved of any and all obligations and liabilities on the part of Landlord from
and after the date of such transfer or termination, including furthermore without limitation, the
obligation of Landlord under Article 4 and California Civil Code 1950.7 above to return the
Security Deposit, provided said Security Deposit is transferred to said transferee. Tenant agrees
to attorn to the transferee upon any such transfer and to recognize such transferee as the lessor
under this LEASE and Tenant shall, within thirty (30) days after request, execute such further
instruments or assurances as such transferee may reasonably deem necessary to evidence or
confirm such attornment.
32. BROKERS. In connection with this LEASE, Tenant warrants and represents that it
has had dealings only with Colliers International (Beau Plumlee and Bobby Fena) and that it
knows of no other person or entity who is or might be entitled to a commission, finder’s fee or
other like payment in connection herewith and does hereby indemnify and agree to hold Landlord,
its agents, members, partners, representatives, officers, affiliates, shareholders, employees,
successors and assigns harmless from and against any and all loss, liability and expenses that
Landlord may incur should such warranty and representation prove incorrect, inaccurate or false
33. INABILITY TO PERFORM - This LEASE and the obligations of Tenant hereunder
shall not be affected or impaired because Landlord is unable to fulfill any of its obligations
hereunder or is delayed in doing so, if such inability or delay is caused by reason of any
prevention, delay, stoppage due to strikes, lockouts, acts of God, inability to obtain services, labo r
or materials or reasonable substitutes for those items; government actions or inactions; civil
commotions; acts of terrorism, riots; war; enemy or hostile government action; judicial orders; fire
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or other casualty; delay; failure or interruption of any utility services; or any other cause previously,
or at such time, beyond the reasonable control or anticipation of Landlord (collectively, a “Force
Majeure”) and Landlord’s obligations under this LEASE shall be forgiven and suspended by any
such Force Majeure. Tenant’s obligation to pay Rental, however, is not excused by this Section
33.
34. ENTIRE LEASE - This LEASE constitutes the entire LEASE between the
LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior leases,
negotiations, proposals, commitments, writings, advertisements, publications, and understandings
of any nature whatsoever unless expressly referenced in this LEASE. This LEASE shall be
binding on and inure to the benefit of LESSOR'S heirs, successors and assigns.
[Signature page follows immediately]
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COUNTY OF FRESNO
Fresno, California
Celanl -306Vets0ffice
StarPoint/DSS/561 0
EXECUTED as of the date first herein written.
LESSEE:
COUNTY OF FRESNO
ATTEST: BERNICE E. SEIDEL, CLERK
BOARD OF SUPERVISORS
By~,;~
Deputy
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBOR~, COUNTY COUNSEL
By L£_ ;?( ::;;
Deputy
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A.
AUDITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
By{}RA(~
Services/Chief Information Officer
Fund 0001
Subclass 10000
Org No. 5610
Acct No. 7340
L -306Property/EastFresno/DSS/561 0
32
LESSOR:
EAST SHAW AVENUE R ERTIES, LLC
rtt-Be-lsiAt.are limited liabili co pany
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EXHIBIT “A”
JANITORIAL SCHEDULE
5 days per week – Mondays – Fridays
• Vacuum/sweep suite. Spot mop hard surface floors to remove soil and spillage.
• Dust and clean cleared surfaces of desks, telephones, vinyl, plastic or leather covered
chairs, tables filing cabinets, counter tops and other office furniture.
• Remove smudges on glass partitions, door/door jambs, light switches, desks and counters.
• Empty all trash cans.
• Breakroom: empty trash, clean sink, wipe tables and counter tops clean and dust mop and
spot mop floors.
• Leave office and furniture in neat and orderly fashion n ot disturbing work in progress.
• Nightly services do not include recycle programs or office shredders.
Weekly services
• Spot clean small (silver-dollar size) water-soluble spots such as coffee and soft drinks from
the carpets.
• Dust chair rungs, wheel-bases, low moldings, sills, picture frames and partition tops.
Quarter service
• Dust ceiling vents and mini blinds.
Any additional work requested to be done by janitorial company will be at the sole cost and
expense of the Tenant.
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EXHIBIT “B”
RULES AND REGULATIONS
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EXHIBIT “C”
Landlord’s Tenant Improvement Work
Landlord shall perform at its sole cost and expense and in a workmanlike manner the
following one time interior improvement:
• Remodel office to building standard to resemble attached floor plan, Exhibit “C-1”,
attached hereto and incorporated herein by reference.
• Partitions: Construct building standard ceiling height drywall partitions as shown in
orange on attached floor plan.
• Doors & Jambs: Install (6) building standard doors and jambs as shown in blue on
attached floor plan.
• Existing lower cabinet with plumbing in break room shall remain. Existing countertop
will be replaced with new Formica counter top.
• Carpet & Base: Building standard carpet and base to be installed throughout
Premises, except for break room and server room. Carpet and base shall be selected from
samples provided by Landlord. LESSEE and LESSOR acknowledge that LESSEE desires to
have LESSOR install a higher quality carpet, to be selected upon LESSOR and LESSEE’s
mutual agreement, in the Premises and installed at time of LESSOR’S WORK in Section 7.a.
of this Lease, and LESSEE shall pay to LESSOR the actual cost the of the carpet in an
amount not to exceed $15,000, and LESSEE shall pay to LESSOR for the carpet in one lump
sum within forty-five (45) days after receipt of LESSOR’s invoice.
• VCT & Base: Building standard VCT and base to be installed in break room and
server room. VCT and base shall be selected from samples provided by Landlord.
• Paint: All walls, doors and door jambs shall be painted with building standard paint.
Paint color shall be selected from samples provided by Landlord.
• Telephone & Electrical: Provide (1) 15 amp electrical outlet, (12) new duplex electrical
outlets and (3) telephone boxes with pull wire as shown on attached floor plan, Exhibit “C-1”.
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EXHIBIT “C-1”
IMPROVEMENT PLAN
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EXHIBIT “D”
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).
Mail the completed form to: County of Fresno
Attn: Lease Services (L-306)
Internal Services Department
2220 Tulare Street, Suite 2100, Room 2101
Fresno, CA 93721-2106
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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:
Exhibit “E”
L-306
EXHIBIT “E”
FORM SNDA
RAIT PARTNERSHIP, L.P.
and
___________________________________
(Tenant)
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
Date: _______________
Premises: _____________
UPON RECORDATION
RETURN TO:
[Law firm c/o Escrow Agent]
Attention:
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT (the “Agreement”) is made as of [funding date] by and between RAIT
PARTNERSHIP, L.P., a Delaware limited partnership, having an address at c/o RAIT Financial
Trust, Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, PA 19104-2870 (“Lender”) and
[_____________________], having an address at [__________________________] (“Tenant”).
RECITALS:
A. Tenant is the holder of a leasehold estate in a portion of the property known as
[___________________], located at [______________________________], as more particularly
described on Schedule A (the “Property”) under and pursuant to the provisions of a certain lease
dated [________________], 20[___] between [__________________________], as landlord
(“Landlord”) and Tenant or its predecessor in interest, as tenant (as amended through the date
hereof, the “Lease”);
B. The Property is or is to be encumbered by one or more mortgages, deeds of trust,
deeds to secure debt or similar security agreements (collectively, the “Security Instrument”)
from Landlord, or its successor in interest; and
C. Tenant has agreed to subordinate the Lease to the Security Instrument and to the
lien thereof and Lender has agreed to grant non-disturbance to Tenant under the Lease on the
terms and conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Subordination. The Lease shall be subject and subordinate in all respects to
the lien and terms of the Security Instrument, to any and all advances to be made thereunder
and to all renewals, modifications, consolidations, replacements and extensions thereof.
2. Nondisturbance. So long as Tenant pays all rents and other charges as
specified in the Lease and is not otherwise in default (beyond applicable notice and cure
periods) of any of its obligations and covenants pursuant to the Lease, Lender agrees for
itself and its successors in interest and for any other person acquiring title to the Property
through a foreclosure (an “Acquiring Party”), that Tenant’s possession of the premises as
described in the Lease will not be disturbed during the term of the Lease, as said term may
be extended pursuant to the terms of the Lease or as said premises may be expanded as
specified in the Lease, by reason of a foreclosure. For purposes of this agreement, a
“foreclosure” shall include (but not be limited to) a sheriff’s or trustee’s sale under the
power of sale contained in the Security Instrument, the termination of any superior lease of
the Property and any other transfer of the Landlord’s interest in the Property under peril of
foreclosure, including, without limitation to the generality of the foregoing, an assignment or
sale in lieu of foreclosure.
3. Attornment. Tenant agrees to attorn to, accept and recognize any Acquiring
Party as the landlord under the Lease pursuant to the provisions expressly set forth therein
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for the then remaining balance of the term of the Lease, and any extensions thereof as made
pursuant to the Lease. The foregoing provision shall be self-operative and shall not require
the execution of any further instrument or agreement by Tenant as a condition to its
effectiveness. Tenant agrees, however, to execute and deliver, at any time and from time to
time, upon the request of the Lender or any Acquiring Party any reasonable instrument
which may be necessary or appropriate to evidence such attornment.
4. No Liability. Notwithstanding anything to the contrary contained herein or in
the Lease, it is specifically understood and agreed that neither the Lender, any receiver nor
any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default of any prior
landlord (other than to cure defaults of a continuing nature with respect to the
maintenance or repair of the demised premises or the Property); provided, however,
that any Acquiring Party shall be liable and responsible for the performance of all
covenants and obligations of landlord under the Lease accruing from and after the
date that it takes title to the Property; or
(b) except as set forth in (a), above, liable for any failure of any prior
landlord to construct any improvements or liable for any defects (latent, patent or
otherwise) in the design, workmanship, materials, construction or otherwise with
respect to construction at the demised premises;
(c) subject to any offsets, credits, claims or defenses which Tenant
might have against any prior landlord; or
(d) bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1) month in
advance to any prior landlord; or
(e) be liable to Tenant hereunder or under the terms of the Lease
beyond its interest in the Property; or
(f) liable or responsible for or with respect to the retention,
application and or/return to the Tenant of any security deposit paid to Borrower or
any prior Landlord, unless and until Lender or such Acquiring Party has actually
received for its own account as landlord the full amount of such security deposit.
(g) bound by any amendment, modification, termination or surrender
of the Lease made without the consent of Lender.
Notwithstanding the foregoing, Tenant reserves its rights to any and all claims or causes of
action against such prior landlord for prior losses or damages and against the successor landlord
for all losses or damages arising from and after the date that such successor landlord takes title to
the Property.
5. Rent. Tenant has notice that the Lease and the rents and all other sums due
thereunder have been assigned to Lender as security for the loan secured by the Security
Instrument. In the event Lender notifies Tenant of the occurrence of a default under the
Security Instrument and demands that Tenant pay its rents and all other sums due or to
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become due under the Lease directly to Lender, Tenant shall honor such demand and pay its
rent and all other sums due under the Lease directly to Lender or as otherwise authorized in
writing by Lender. Landlord hereby irrevocably authorizes Tenant to make the foregoing
payments to Lender upon such notice and demand.
6. Lender to Receive Notices. Tenant shall notify Lender of any default by
Landlord under the Lease which would entitle Tenant to cancel the Lease, and agrees that,
notwithstanding any provisions of the Lease to the contrary, no notice of cancellation
thereof shall be effective unless Lender shall have received notice of default giving rise to
such cancellation and shall have failed within sixty (60) days after receipt of such notice to
cure such default, or if such default cannot be cured within sixty (60) days, shall have failed
within sixty (60) days after receipt of such notice to commence and thereafter diligently
pursue any action necessary to cure such default. All notices hereunder shall be given in the
manner prescribed in Section 7 below.
7. NOTICES. All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person with receipt
acknowledged by the recipient thereof, (ii) one (1) Business Day (hereinafter defined) after
having been deposited for overnight delivery with any reputable overnight courier service,
or (iii) three (3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the U.S. Postal Service and sent by registered or certified
mail, postage prepaid, return receipt requested, addressed to the receiving party at its
address set forth above, and:
if to Tenant, to
the attention of: ___________________________; and
if to Lender:
to the attention of: RAIT Partnership, L.P.
its successors and/or assigns
c/o RAIT Financial Trust
Cira Centre
2929 Arch Street, 17th Floor
Philadelphia, PA 19104-2870
Attention: Jamie Reyle, Esq., Vice President – Corporate
Counsel
or addressed as such party may from time to time designate by written notice to the other parties.
For purposes of this Paragraph 7, the term “Business Day” shall mean any day other than
Saturday, Sunday or any other day on which banks are required or authorized to close in
Philadelphia, Pennsylvania.
Either party by notice to the other may designate additional or different addresses for
subsequent notices or communications.
8. Successors. The obligations and rights of the parties pursuant to this
Agreement shall bind and inure to the benefit of the successors, assigns, heirs and legal
representatives of the respective parties, including, without limitation, trustees, credit
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enhancers, servicers or purchasers of securities in connection with a securitization of all or
any part of the loan made by Lender to Landlord. In addition, Tenant acknowledges that all
references herein to Landlord shall mean the owner of the landlord’s interest in the Lease,
even if said owner shall be different than the Landlord named in the Recitals.
9. Duplicate Originals; Counterparts. This Agreement may be executed in any
number of duplicate originals and each duplicate original shall be deemed to be an original.
This Agreement may be executed in several counterparts, each of which counterparts shall
be deemed an original instrument and all of which together shall constitute a single
Agreement. The failure of any party hereto to execute this Agreement, or any counterpart
hereof, shall not relieve the other signatories from their obligations hereunder.
IN WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as of
the date first above written.
LENDER:
RAIT PARTNERSHIP, L.P., a Delaware
limited partnership
By: RAIT General, Inc., a Maryland
corporation
By: ___________________________________
Name:
Title:
TENANT:
[ ______________________________________ ]
By: ___________________________________
Name:
Title:
LANDLORD:
The undersigned as the Landlord named in the
Recitals or as successor thereto hereby accepts
and agrees to be bound by the provisions of
Paragraph 5 hereof.
[_______________________________], a
[________________________________]
By:
_______________________________
Name:
Title:
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NOTE TO PREPARER: SCHEDULE A (PROPERTY
DESCRIPTION) AND ACKNOWLEDGEMENTS (LENDER,
TENANT AND LANDLORD) MUST BE ATTACHED