HomeMy WebLinkAbout2020_11_03 A-20-446 DSS VSO LEASE ALL SIGNED.pdf1
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("LEASE" or "Lease") is made and entered into this ____
day of November, 2020, by and between MILL AVENUE PROPERTIES, LLC, MILL AVENUE
PROPERTIES, II, LLC, MILL AVENUE PROPERTIES III, LLC, AND MILL AVENUE
PROPERTIES, IV, LLC, each a Delaware limited liability company (collectively, “LESSOR”) .,
450 N Roxbury Drive, Ste 1050, Beverly Hills, California 90210-4235 ("LESSOR"), and the
COUNTY OF FRESNO, a political subdivision of the State of California, 333 W Pontiac Way,
Clovis, CA 93612-5613 ("LESSEE").
1.LEASED PREMISES – LESSOR hereby leases to LESSEE office space
consisting of approximately 3,438 square feet in Suite 105 (the "Premises") within that certain
office building located at 1320 E Shaw, Fresno, CA 93710 (the "Building"), together with
common area parking. LESSOR reserves the right to use (and the Premises does not include)
the roof and exterior walls of the Premises, and the area beneath, adjacent to, and above the
Premises, together with the right (but not necessarily the obligation) to install, use, maintain,
repair, and replace equipment machinery, pipes, conduits and wiring through the Premises,
which serve other parts of the Building, in a manner and in locations which do not unreasonably
interfere with LESSEE's use of the Premises.
LESSEE shall have the right to free daily parking of passenger vehicles by its employees
and visitors in the parking facility designated by LESSOR at no additional charge to LESSEE,
subject to all rules and regulations which are prescribed from time to time for the orderly
operation and use of the parking facility, including any sticker or other identification system
established by LESSOR.
2.TERM
a.Term. The term of this LEASE shall be three (3) years (the "Initial Term"),
commencing on December 1, 2020 (“Effective Date”), with an option for 2 additional 1-
year extensions (“Extended Term”). Should LESSEE, without LESSOR’s written
consent, hold over after expiration (or earlier termination) of this LEASE, LESSEE shall,
Agreement No. 20-446
3rd
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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.Termination. Either party may terminate this Lease art any time and for
any reason, provided, however, that the terminating Party must give the other Party
ninety (90) days’ notice of such termination. LESSEE may terminate under direction of
the County Administrative Officer, the Director of Internal Services, or by a designee of
their appointment.
c.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 this 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 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
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
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“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 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. Payment of the Termination Payment is an express condition subsequent to
LESSEE’s right to terminate this LEASE, as set forth in this Section.
3.RENT – LESSEE shall pay basic rent on or before the first of each month for the
Premises (“Basic Rental”) beginning on the Effective Date, and according to the payment
schedule shown below. “Year One” LEASE Period shall be defined as the 12-month period
beginning on the Effective Date, and ending on the day before the 12-month anniversary of the
Effective Date. Each succeeding LEASE Period (“Year Two”, etc.) shall follow the same
aforementioned definition, as applied to that LEASE Period. A three-percent (3%) escalation in
rent shall be applied to each successive year of the Lease, including any additional years for the
Extended Term.
LEASE Periods RENT/SF Rent/Month
Year One
Year Two
Year Three
Year Four (+1)
Year Five (+1)_
$
$
$
$
$
1.67
1.72
1.78
1.82
1.88
$
$
$
$
$
5,741.46
5,913.36
6,119.64
6,257.16
6,463.44
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
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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.
4.BUILDING OPERATING COSTS/COMMON AREA/UTILITIES – LESSOR shall
be responsible for all Building operating expenses, including real property taxes, Building fire
and structural insurance, property management costs, common area maintenance and repairs,
janitorial service as shown on Exhibit “A”, incorporated 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. 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 only 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 LESSEE 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.
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 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
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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.
6.MAINTENANCE AND BUILDING SERVICES.
a.LESSOR shall be responsible for the structural condition of the Premises,
and for all exterior and interior maintenance, including but not limited to air conditioning
and heating (it shall be the responsibility of LESSOR to change filters of units when
required), roof, plumbing systems, electrical systems, landscaping, pest and bird control,
fencing, lighting, common areas, parking lot lighting, and parking lot. LESSOR
covenants that the Premises shall be maintained in substantially the same condition as
that existing at the commencement of this LEASE, and agrees that the Building will
always be maintained in a condition that is acceptable for LESSEE’s intended use of 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), shall
be promptly repaired by LESSEE at its sole cost and expense, to the satisfaction of
LESSOR. LESSOR may make any necessary repairs which are not promptly made by
LESSEE as required by this Lease following: (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. 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.
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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 electricity 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.
LESSOR shall furnish janitorial and maintenance services to the Premises 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
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 section, 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
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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 electricity 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, and LESSOR shall
bill LESSEE monthly at the then current-rate set by the local electric utility for such
afterhours use (subject to increase from time to time).
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
Section 6, LESSOR shall not be liable for, and there shall be no rent abatement as a
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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 the utilities or services hereunder.
h.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 Basic Rental obligations. LESSEE'S
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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.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, or office
equipment.
b.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 Rent 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 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
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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 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.With the exception of rental offsets as described in Section 6(h),
herein, 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
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(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 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.
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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 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
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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
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.
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
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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 thirty (30) day period and
thereafter diligently prosecutes the same to completion.
ii.Subject to Section 6 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 ("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 ("Notice of Repair") to LESSEE
indicating the anticipated time required to repair. LESSOR shall bear the
cost of all repairs to the Premises, including the cost to repair any
alterations or fixtures installed or attached thereto by LESSEE. Such
repairs shall restore the Premises to substantially the same condition as
that existing at the 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
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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 ( 50% of the Premises destroyed) by
said Casualty; and the estimated time to repair the Premises exceeds
ninety (90) days from the date of the Casualty. LESSOR 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 without penalty.
LESSEE shall provide LESSOR with written notice of its election to
terminate this LEASE, specifying a termination date not less than thirty
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(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.
12.NO ACCELERATION OF FUTURE RENT OR OTHER PAYMENTS/AMOUNTS
Notwithstanding anything to the contrary contained in this LEASE, or any right or remedy of
which LESSOR may otherwise avail itself pursuant to applicable law, any right of LESSOR to
recover any Rent as provided in this LEASE shall be without acceleration of any future rent
before it is due and payable hereunder. LESSOR hereby expressly waives its right to accelerate
rent in the event of a termination or default of this LEASE, pursuant to California Civil Code
section 1951.2.
13.MUTUAL INDEMNITY AND HOLD HARMLESS.
A.LESSOR agrees to indemnify, save, hold harmless, and at LESSEE
request, defend the LESSEE, its officers, agents, and employees from any
and all costs and expenses (including attorney’s fees and costs), damages,
liabilities, claims, and losses occurring or resulting to LEESEE in connection
with the performance, or failure to perform, by LESSOR, its officers, agents,
or employees under this Agreement, and from any and all costs and
expenses (including attorney’s fees and costs), damages, liabilities, claims,
and losses occurring or resulting to any person, firm, or corporation who
may be injured or damaged by the performance, or failure to perform, of
LESSOR, its officers, agents, or employees under this Agreement.
B. LESSEE agrees to indemnify, save, hold harmless, and at LESSOR
request, defend the LESSOR, its officers, agents, and employees from
any and all costs and expenses (including attorney’s fees and costs),
damages, liabilities, claims, and losses occurring or resulting to LESSOR
in connection with the performance, or failure to perform, by LESSEE, its
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officers, agents, or employees under this Agreement, and from any and
all costs and expenses (including attorney’s fees and costs), damages,
liabilities, claims, and losses occurring or resulting to any person, firm, or
corporation who may be injured or damaged by the performance, or
failure to perform, of LESSEE its officers, agents, or employees under this
Agreement.
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
damages. 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.LESSOR shall, at its sole expense, maintain in full force and effect during the
term of this LEASE the following policies of insurance:
i.Commercial General Liability insurance - Limits of not less than
Two Million Dollars ($2,000,000) per occurrence and an annual
aggregate limit of not less than Four Million Dollars ($4,000,000).
This policy shall be issued on an occurrence basis annually
renewing, following form, and be primary to all other collectible
insurance; and
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ii.Fire insurance and extended coverage - LESSOR shall add
LESSEE as an additional loss payee.
iii.Worker's Compensation - A policy of Worker's Compensation
insurance as may be required by the California Labor Code.
B.Additional Requirements Relating to Insurance: CONTRACTOR shall obtain
endorsements to the Commercial General Liability insurance naming 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. Such coverage for additional insured shall
apply as primary insurance and any other insurance, or self-insurance,
maintained by COUNTY, its officers, agents and employees shall be excess
only and not contributing with insurance provided under CONTRACTOR's
policies herein. This insurance shall not be cancelled or changed without a
minimum of thirty (30) days advance written notice given to COUNTY.
CONTRACTOR hereby waives its right to recover from COUNTY, its
officers, agents, and employees any amounts paid by the policy of worker’s
compensation insurance required by this Agreement. CONTRACTOR is
solely responsible to obtain any endorsement to such policy that may be
necessary to accomplish such waiver of subrogation, but CONTRACTOR’s
waiver of subrogation under this paragraph is effective whether or not
CONTRACTOR obtains such an endorsement.
Within Thirty (30) days from the date CONTRACTOR signs and executes
this Agreement, CONTRACTOR shall provide certificates of insurance and
endorsement as stated above for all of the foregoing policies, as required
herein, to the County of Fresno, (Name and Address of the official who will
administer this contract), 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
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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
COUNTY, its officers, agents and employees, shall be excess only and not
contributing with insurance provided under CONTRACTOR'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 COUNTY.
In the event CONTRACTOR fails to keep in effect at all times insurance
coverage as herein provided, the COUNTY 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 FSC VII or better.
C.LESSEE shall maintain during the term of this LEASE the following policies of
insurance, which coverages may be provided in whole or in part through one
or more programs of self-insurance:
i.Commercial General liability insurance with limits of not less than
Two Million Dollars ($2,000,000) per occurrence and an annual
aggregate of not less than Four Million Dollars ($4,000,000). This
policy shall be issued on an occurrence basis.
ii.All-Risk property insurance covering the personal property of
LESSEE in the amount of the full replacement cost thereof.
iii.Workers’ Compensation in amounts required by the California
labor code.
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iv.Vehicle Liability for owned and non-owned or hired and unlicensed
vehicles – minimum of $1,000,000 per occurrence combined
single limit ($5,000,000 for trucks larger than one ton) for vehicles
owned, operated, rented to, borrowed or leased by LESSEE and
driven on the Premises. This policy may be obtained as part of the
General Liability policy.
Upon execution of this LEASE, LESSEE shall provide LESSOR with
certificates of insurance with proper endorsements naming LESSOR as the
additional insured with respect to each policy, other than the workers’
compensation insurance policy, and provide a waiver of subrogation against
the LESSOR in connection with any claim or damage covered by such
policies. Each policy is to be written by an admitted insurer licensed to do
business in California and with an A.M. Best rating of A FSC VII or better.
Excess or Umbrella coverage may be insured by non-admitted insurers but
still be A.M. Best FSC VII or better.
15.AUDITS AND INSPECTIONS – The LESSOR shall at any time during business
hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for
examination all of its records and data with respect to the matters covered by this Agreement.
The LESSOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all
of such records and data necessary to ensure LESSOR'S 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 Auditor General for a period of three (3) years after final
payment under contract (Government Code Section 8546.7).
16.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,
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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.
17.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.
18.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 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.
19.AMENDMENT – This LEASE may be amended in writing by the mutual consent
of the parties without in any way affecting the remainder.
20.NON-ASSIGNMENT – Neither Party shall 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 other party. Any such assignment of this LEASE by a
party or subletting of the Premises (or any portion thereof) without LESSOR’s express written
approval shall be null and void ab initio.
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21.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.
22.NOTICES – The persons and their addresses having authority to give and
receive notices under this LEASE include the following:
LESSEE:
County of Fresno
Director of Internal Services/CIO
333 W Pontiac Way
Clovis, CA 93612
(559)600-6200
LESSOR:
STARPOINT
Attn: Michael Farahnik
450 N. Roxbury Drive, Suite 1050
Beverly Hills, California 90210
(310)247-0550
With a copy to:
StarPoint Towers
Attn: Susie McInnerney
1322 E. Shaw Ave
Fresno, CA 93710
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
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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).
23.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.
24.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 caused due to the removal of the signs.
25.DISCLOSURE OF SELF-DEALING TRANSACTIONS – This provision is only
applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation) or
if during the term of this LEASE, the LESSOR changes its status to operate as a corporation.
Members of LESSOR’S Board of Directors shall disclose any self-dealing transactions
that they are a party to while LESSOR is providing goods or performing services under this
LEASE. A self-dealing transaction shall mean a transaction to which the LESSOR is a party and
in which one or more of its directors has a material financial interest. Members of the Board of
Directors shall disclose any self-dealing transactions that they are a party to by completing and
signing a Self-Dealing Transaction Disclosure Form Exhibit “C”, attached hereto and by this
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reference incorporated herein, and submitting it to the County of Fresno prior to commencing
with the self-dealing transaction or immediately thereafter.
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 MILL AVENUE PROPERTIES, LLC, and that this LEASE is binding upon
MILL 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.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.
28.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
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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 due to LESSEE’s breach of its
obligations pursuant to this Section 28(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,
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(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 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.
29.NO WAIVER – No waiver by LESSOR of any provision of this LEASE shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach by LESSEE
of the same or any other provision. No provision of this LEASE may be waived by LESSOR,
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except by an instrument in writing executed by LESSOR. LESSOR’s consent to or approval of
any act by LESSEE requiring LESSOR’s consent or approval shall not be deemed to render
unnecessary the obtaining of LESSOR’s consent to or approval of any subsequent act of
LESSEE, whether or not similar to the act so consented to or approved. No act or thing done by
LESSOR or LESSOR’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 LESSOR. Except when LESSOR and LESSEE agree otherwise
by written agreement, the subsequent acceptance of rent hereunder by LESSOR shall not be
deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition
of this LEASE, other than the failure of LESSEE to pay the particular rent so accepted,
regardless of LESSOR’s knowledge of such preceding breach at the time of acceptance of such
rent. Any payment by LESSEE or receipt by LESSOR 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, LESSOR may accept any such amount and negotiate any such
check without prejudice to LESSOR’s right to recover all balances due and owing and to pursue
its other rights against LESSEE under this LEASE, regardless of whether LESSOR makes any
notation on such instrument of payment or otherwise notifies LESSEE that such acceptance or
negotiation is without prejudice to LESSOR’s rights.
30.TRANSFER OF LESSOR’S INTEREST – In the event of any transfer or
termination of LESSOR’s interest in the Premises or the Building by sale, assignment, transfer,
foreclosure, deed-in-lieu of foreclosure or otherwise whether voluntary or involuntary, LESSOR
shall be automatically relieved of any and all obligations and liabilities on the part of LESSOR
from and after the date of such transfer or termination, including furthermore without limitation,
the obligation of LESSOR under Article 4 and California Civil Code 1950.7. . LESSEE agrees to
attorn to the transferee upon any such transfer, and to recognize such transferee as the lessor
under this LEASE, and LESSEE shall, within thirty (30) days after request, execute such further
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instruments or assurances as such transferee may reasonably deem necessary to evidence or
confirm such attornment.
31.INABILITY TO PERFORM – This LEASE and the obligations of LESSEE
hereunder shall not be affected or impaired because LESSOR 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,
labor 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 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 LESSOR
(collectively, a “Force Majeure”) and LESSOR’s obligations under this LEASE shall be forgiven
and suspended by any such Force Majeure. LESSEE’s obligation to pay Rental, however, is not
excused by this Section 31.
32.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.
33.BROKERS – LESSOR and LESSEE warrant that they have had no dealings with
any broker or agent in connection with this Lease, and LESSOR and LESSEE covenant to pay,
hold harmless and indemnify each other from and against any and all cost, expense or liability
for any compensation, commissions and charges claimed by any other broker or agent utilized
by the indemnitor with respect to this Lease or the negotiation thereof.
[Signatures to follow]
1 IN WITNESS WHEREOF, the parties hereto have executed this LEASE as of the
2 Effective Date.
3 LESSOR:
4 MILL AVENUE PROPERTIES, LLC,
a Delaware limited liability company
5By:~ •
6 Name~l-<-
7 Title: ~
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12 MILL AVENUE PROPERTIES Ill, LLC,
a Delaware limited liability company
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16 MILL AVENUE PROPERTIES, IV, LLC,
a Delaware limited liability company
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LESSEE:
COUNTY OF FRESNO
Ernest Buddy Mendes,
Chairman of the Board of Supervisors of the
County of Fresno
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
By :
FOR ACCOUNTING USE ONLY:
ORG No.: 7110
Account No.: 7340
FUND: 0001
SUBCLASS: 10000
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30
Exhibit B
31
RULES AND REGULATIONS
1.No sign, advertisement or notice shall be displayed, printed or affixed on or to the
Premises or to the outside or inside of the Project or so as to be visible from outside the Premises or
Project without Landlord's prior written consent. Landlord shall have the right to remove any non-
approved sign, advertisement or notice, without notice to and at the expense of Tenant, and Landlord
shall not be liable in damages for such removal. All approved signs or lettering on doors and walls
shall be printed, painted, affixed or inscribed at the expense of Tenant by Landlord or by a person
selected by Landlord and in a manner and style acceptable to Landlord.
2. Tenant shall not obtain for use on the Premises ice, waxing, cleaning, interior glass
polishing, rubbish removal, towel or other similar services, or accept barbering or bootblackening, or
coffee cart services, milk, soft drinks or other like services on the Premises, except from persons
authorized by Landlord and at the hours and under regulations fixed by Landlord. No vending
machines or machines of any description shall be installed, maintained or operated upon the Premises
without Landlord's prior written consent.
3.The sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be
obstructed by Tenant or used for any purpose other than for ingress and egress from Tenant's
Premises. Under no circumstances is trash to be stored in the corridors. Notice must be given to
Landlord for any large deliveries. Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Project only at times and in the manner designated by Landlord,
and always at Tenant's sole responsibility and risk. Landlord may impose reasonable charges for use
of freight elevators after or before normal business hours. All damage done to the Project by moving
or maintaining such furniture, freight or articles shall be repaired by Landlord at Tenant's expense.
Tenant shall not take or permit to be taken in or out of entrances or passenger elevators of the
Project, any item normally taken, or which Landlord otherwise reasonably requires to be taken, in or
out through service doors or on freight elevators. Tenant shall move all supplies, furniture and
equipment as soon as received directly to the Premises, and shall move all waste that is at any time
being taken from the Premises directly to the areas designated for disposal.
4.Toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for
any purpose other than for which they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein.
5. Tenant shall not overload the floor of the Premises or mark, drive nails, screw or drill
into the partitions, ceilings or floor or in any way deface the Premises. Tenant shall not place typed,
handwritten or computer generated signs in the corridors or any other common areas. Should there be
a need for signage additional to the Project standard tenant placard, a written request shall be made to
Landlord to obtain approval prior to any installation. All costs for said signage shall be Tenant's
responsibility.
6. In no event shall Tenant place a load upon any floor of the Premises or portion of any
such flooring exceeding the floor load per square foot of area for which such floor is designed to
carry and which is allowed by law, or any machinery or equipment which shall cause excessive
vibration to the Premises or noticeable vibration to any other part of the Project. Prior to bringing any
heavy safes, vaults, large computers or similarly heavy equipment into the Project, Tenant shall
inform Landlord in writing of the dimensions and weights thereof and shall obtain Landlord's consent
thereto. Such consent shall not constitute a representation or warranty by Landlord that the safe, vault
Exhibit B
32
or other equipment complies, with regard to distribution of weight and/or vibration, with the
provisions of this Rule 6 nor relieve Tenant from responsibility for the consequences of such
noncompliance, and any such safe, vault or other equipment which Landlord determines to constitute
a danger of damage to the Project or a nuisance to other tenants, either alone or in combination with
other heavy and/or vibrating objects and equipment, shall be promptly removed by Tenant, at
Tenant's cost, upon Landlord's written notice of such determination and demand for removal thereof.
7. Tenant shall not use or keep in the Premises or Project any kerosene, gasoline or
inflammable, explosive or combustible fluid or material, or use any method of heating or air-
conditioning other than that supplied by Landlord.
8. Tenant shall not lay linoleum, tile, carpet or other similar floor covering so that the
same shall be affixed to the floor of the Premises in any manner except as approved by Landlord.
9. Tenant shall not install or use any blinds, shades, awnings or screens in connection
with any window or door of the Premises and shall not use any drape or window covering facing any
exterior glass surface other than the standard drapes, blinds or other window covering established by
Landlord.
10. Tenant shall cooperate with Landlord in obtaining maximum effectiveness of the
cooling system by closing window coverings when the sun's rays fall directly on windows of the
Premises. Tenant shall not obstruct, alter, or in any way impair the efficient operation of Landlord's
heating, ventilating and air-conditioning system. Tenant shall not tamper with or change the setting
of any thermostats or control valves.
11. The Premises shall not be used for manufacturing or for the storage of merchandise
except as such storage may be incidental to the permitted use of the Premises. Tenant shall not,
without Landlord's prior written consent, occupy or permit any portion of the Premises to be
occupied or used for the manufacture or sale of liquor or tobacco in any form, or a barber or
manicure shop, or as an employment bureau. The Premises shall not be used for lodging or sleeping
or for any improper, objectionable or immoral purpose. No auction shall be conducted on the
Premises.
12. Tenant shall not make, or permit to be made, any unseemly or disturbing noises, or
disturb or interfere with occupants of Project or neighboring buildings or premises or those having
business with it by the use of any musical instrument, radio, phonographs or unusual noise, or in any
other way.
13. No bicycles, vehicles or animals of any kind shall be brought into or kept in or about
the Premises, and no cooking shall be done or permitted by any tenant in the Premises, except that
the preparation of coffee, tea, hot chocolate and similar items for tenants, their employees and
visitors shall be permitted. No tenant shall cause or permit any unusual or objectionable odors to be
produced in or permeate from or throughout the Premises. The foregoing notwithstanding, Tenant
shall have the right to use a microwave and to heat microwavable items typically heated in an office.
No hot plates, toasters, toaster ovens or similar open element cooking apparatus shall be permitted in
the Premises.
Exhibit B
33
14. The sashes, sash doors, skylights, windows and doors that reflect or admit light and
air into the halls, passageways or other public places in the Project shall not be covered or obstructed
by any tenant, nor shall any bottles, parcels or other articles be placed on the window sills.
15. No additional locks or bolts of any kind shall be placed upon any of the doors or
windows by any tenant, nor shall any changes be made in existing locks or the mechanisms thereof
unless Landlord is first notified thereof, gives written approval, and is furnished a key therefor. Each
tenant must, upon the termination of his tenancy, give to Landlord all keys and key cards of stores,
offices, or toilets or toilet rooms, either furnished to, or otherwise procured by, such tenant, and in
the event of the loss of any keys so furnished, such tenant shall pay Landlord the cost of replacing the
same or of changing the lock or locks opened by such lost key if Landlord shall deem it necessary to
make such change. If more than two keys for one lock are desired, Landlord will provide them upon
payment therefor by Tenant. Tenant shall not key or re-key any locks. All locks shall be keyed by
Landlord's locksmith only.
16. Landlord shall have the right to prohibit any advertising by any tenant which, in
Landlord's opinion, tends to impair the reputation of the Project or its desirability as an office
building and upon written notice from Landlord any tenant shall refrain from and discontinue such
advertising.
17. Landlord reserves the right to control access to the Project by all persons after
reasonable hours of generally recognized business days and at all hours on Sundays and legal
holidays and may at all times control access to the equipment areas of the Project outside the
Premises. Each tenant shall be responsible for all persons for whom it requests after-hours access and
shall be liable to Landlord for all acts of such persons. Landlord shall have the right from time to
time to establish reasonable rules and charges pertaining to freight elevator usage, including the
allocation and reservation of such usage for tenants' initial move-in to their premises, and final
departure therefrom. Landlord may also establish from time to time reasonable rules and charges for
accessing the equipment areas of the Project, including the risers, rooftops and telephone closets.
18. Any person employed by any tenant to do janitorial work shall, while in the Project
and outside of the Premises, be subject to and under the control and direction of the Office of the
Project or its designated representative such as security personnel (but not as an agent or servant of
Landlord, and the Tenant shall be responsible for all acts of such persons).
19. All doors opening on to public corridors shall be kept closed, except when being used
for ingress and egress. Tenant shall cooperate and comply with any reasonable safety or security
programs, including fire drills and air raid drills, and the appointment of "fire wardens" developed by
Landlord for the Project, or required by law. Before leaving the Premises unattended, Tenant shall
close and securely lock all doors or other means of entry to the Premises and shut off all lights and
water faucets in the Premises.
20. The requirements of tenants will be attended to only upon application to the Office of
the Project.
21. Canvassing, soliciting and peddling in the Project are prohibited and each tenant shall
cooperate to prevent the same.
Exhibit B
34
22. All office equipment of any electrical or mechanical nature shall be placed by tenants
in the Premises in settings approved by Landlord, to absorb or prevent any vibration, noise or
annoyance.
23.No air-conditioning unit or other similar apparatus shall be installed or used by any
tenant without the prior written consent of Landlord. Tenant shall pay the cost of all electricity used
for air-conditioning in the Premises if such electrical consumption exceeds nominal office
requirements, regardless of whether additional apparatus is installed pursuant to the preceding
sentence.
24. There shall not be used in any space, or in the public halls of the Project, either by
any tenant or others, any hand trucks except those equipped with rubber tires and side guards.
25. All electrical ceiling fixtures hung in offices or spaces along the perimeter of the
Project must be fluorescent and/or of a quality, type, design and bulb color approved by Landlord.
Tenant shall not permit the -consumption in the Premises of more than 2½ watts per net usable
square foot in the Premises in respect of office lighting nor shall Tenant permit the consumption in
the Premises of more than 1½ watts per net usable square foot of space in the Premises in respect of
the power outlets therein, at any one time. In the event that such limits are exceeded, Landlord shall
have the right to require Tenant to remove lighting fixtures and equipment and/or to charge Tenant
for the cost of the additional electricity consumed.
26. Parking.
(a)Project parking facility hours shall be determined by Landlord from time to
time by Landlord.
(b) Automobiles must be parked entirely within the stall lines on the floor.
(c)All directional signs and arrows must be observed.
(d) The speed limit shall be 5 miles per hour.
(e)Parking is prohibited in areas not striped for parking.
(f) Parking cards or any other device or form of identification supplied by
Landlord (or its operator) shall remain the property of Landlord (or its operator). Such parking
identification device must be displayed as requested and may not be mutilated in any manner. The
serial number of the parking identification device may not be obliterated. Devices are not transferable
or assignable and any device in the possession of an unauthorized holder will be void. There will be a
replacement charge to the Tenant or person designated by Tenant of Twenty-Five and 00/100 Dollars
($25.00) for loss of any parking card. There shall be a security deposit of Twenty-Five and 00/100
Dollars ($25.00) due at issuance for each card key issued to Tenant.
(g) Tenant shall have the right to permit the daily parking of passenger vehicles
by its employees and visitors in the Project parking facility at no additional charge or parking fee to
Tenant during the Term of the Lease.
(h) Tenant may validate visitor parking by such method or methods as the
Landlord may approve, at the validation rate from time to time generally applicable to visitor
parking, if applicable.
(i)Landlord (and its operator) may refuse to permit any person who violates the
within rules to park in the Project parking facility, and any violation of the rules shall subject the
automobile to removal from the Project parking facility at the parker's expense. In either of said
events, Landlord (or its operator) shall refund a prorata portion of the current monthly parking rate
Exhibit B
35
and the sticker or any other form ,of identification supplied by Landlord (or its operator) will be
returned to Landlord (or its operator).
(j) Project parking facility managers or attendants are not authorized to make or
allow any exceptions to these Rules and Regulations.
(k) All responsibility for any loss or damage to automobiles or any personal
property therein is assumed by the parker.
(l) Loss or theft of parking identification devices from automobiles must be
reported to the Project parking facility manager immediately, and a lost or stolen report must be filed
by the parker at that time.
(m) The parking facilities are for the sole purpose of parking one automobile per
space. Washing, waxing, cleaning or servicing of any vehicles by the parker or his agents is
prohibited.
(n) Landlord (and its operator) reserves the right to refuse the issuance of
monthly stickers or other parking identification devices to any Tenant and/or its employees who
refuse to comply with the above Rules and Regulations and all City, State or Federal ordinances,
laws or agreements.
(o) Tenant agrees to acquaint all employees with these Rules and Regulations.
(p) No vehicle shall be stored in the Project parking facility for a period of more
than one (1) week.
27. The Project is a non-smoking Project. Smoking or carrying lighted cigars or
cigarettes in the Premises or the Project, including the elevators in the Project, is prohibited.
28. Tenant shall not, without Landlord's prior written consent (which consent may be granted
or withheld in Landlord's absolute discretion), allow any employee or agent to carry any type of gun
or other firearm in or about any of the Premises, building or Project.
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Exhibit C
36
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).
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Exhibit C
37
(1) Company Board Member Information:
Date:
(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: