HomeMy WebLinkAboutReso 120-12 Fire Dept Fire & Admin Use RESOLUTION NO. 120 - 12
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING FACILITY USE AGREEMENTS FOR ALAMEDA COUNTY FIRE
DEPARTMENT'S ADMINISTRATIVE OFFICES AND MAINTENANCE FACILITY
WHEREAS, since July 1, 1997, ACFD has provided fire and emergency response
services within the City pursuant to a separate written agreement; and
WHEREAS, City and ACFD are entering into a separate written agreement pursuant to
which ACFD will continue to provide fire and emergency response services within the City for
another twenty years; and
WHEREAS, pursuant to the separate service agreement, ACFD already maintains an
office in the Dublin Civic Center (or such other location as may be designated by the City) to
provide fire prevention services; and
WHEREAS, ACFD has a need for office space for its general administration, as well as
temporary and permanent facility maintenance space for the maintenance, repair and testing of
vehicles and apparatus;
WHEREAS, ACFD and City desire to enter into separate agreements to provide ACFD
with the use of a Temporary Maintenance Facility and a Permanent Maintenance Facility, and
ACFD Administrative Offices within available City-owned facilities; and
WHEREAS, City desires to allow ACFD to use such facility space if ACFD pays rent
based on the Total Project Costs included in the facility use agreements; and
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Facility Use Agreement for ACFD's Administrative Offices, attached hereto
as Exhibit A and a Facility Use Agreement for the ACFD Maintenance Facility, attached hereto
as Exhibit B.
BE IT FURTHER RESOLVED that the City Council of the City of Dublin hereby:
1. Authorizes the City Manager to execute the Agreements substantially in the form
provided to the City Council with such modifications as may be approved by the City
Manager in consultation with the City Attorney.
2. Authorizes the City Manager to execute, deliver, and record, as applicable, the
documents appended to the Agreements as exhibits, substantially in the forms
provided to the City Council, with such modifications as may be approved by the City
Manager in consultation with the City Attorney.
3. Directs the City Manager to negotiate future Memorandums ("Memorandum") that will
describe the respective rights and responsibilities of City and ACFD pursuant to the
Agreements, and authorizes the City Manager to execute such Memorandums in form
approved by the City Manager in consultation with the City Attorney.
4. Authorizes the City Manager to execute and deliver such other documents and to take
such other actions as necessary to carry out the intent of this Resolution.
Page 1 of 2
PASSED, APPROVED AND ADOPTED this 19th day of June, 2012, by the following
vote:
AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
Mayor
ATTEST: / c6
av9 City Clerk
Reso No. 120-12,Adopted 6-19-12, Item 8.6 Page 2 of 2
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OFFICE FACILITY USE AGREEMENT
(6363 Clark Avenue)
This Office Facility Use Agreement (this "Agreement") is entered into effective
as of July 1, 2012 (the "Effective Date") by and between the CITY OF DUBLIN, a
municipal corporation ("City"), and ALAMEDA COUNTY FIRE DISTRICT, a
dependent fire district formed under the Firc Protection District Law of 1961 (Health and
Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of
Directors ("ACFD"). City and ACFD are hereinafter referred to collectively as the
"Parties."
RECITALS
WHEREAS, since July 1, 1997, ACFD has provided fire and emergency
response services within the City pursuant to a separate written agreement; and
WHEREAS, City and ACFD are entering into a separate written agreement
pursuant to which ACFD will continue to provide fire and emergency response services
within the City for another twenty years; and
WHEREAS, pursuant to those separate service agreements ACFD already
maintains an office in the Dublin Civic Center (or such other location as may be
designated by the City) to provide fire prevention services; and
WHEREAS, ACFD and City have entered into a separate agreement pursuant to
which ACFD will have the use of a Temporary Maintenance Facility and a Permanent
Maintenance Facility for the maintenance, repair and testing of vehicles and apparatus;
and
WHEREAS, ACFD has a need for office space for its general administration; and
WHEREAS, City owns available office space that will be suitable for use by
ACFD if certain improvements are made, (the "Premises," as defined below); and
WHEREAS, City desires to allow ACFD to use such office space if ACFD pays
for the Total Project Costs (as defined below); and
WHEREAS, ACFD is willing to pay the Total Project Costs for use of the office
space.
NOW THEREFORE, the City and ACFD agree as follows:
ARTICLE I
BASIC PROVISIONS
1.1 City's mailing address: City of Dublin, 100 Civic Plaza, Dublin, CA 94568.
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OFFICE FACILITY USE AGREEMENT
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1.2 City's contact: Joni Pattillo, City Manager. Telephone: (925) 833-6650.
1.3 ACFD's mailing address: 835 East 14th Street, Suite 200, San Leandro CA
94577, with a copy to ACFD at the Premises. ACFD's mailing address will be
the Premises address beginning 10 days after the Commencement Date.
1.4 ACFD's contact: Deputy Chief of Administration, currently Chief Demetrious
N. Shaffer. Telephone: (510) 618-3490.
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1.5 Premises address: 6363 Clark Avenue, Suite , Dublin, CA 94568.
1.6 Premises Square Footage and Location:
The Premises are located on the_f first floor of the Building in the area shown in
Exhibit A-1.
Rentable Square Footage: approximately 14,000 square feet. The actual
rentable square footage will be specified in the Memorandum Confirming
Commencement Date and Total Project Costs.
1.7 Commencement Date: the date upon which City delivers possession of the
Premises to ACFD, anticipated to be January 1, 2014. The specific date will be
identified in the Memorandum Confirming Commencement Date and Total
Project Costs (attadhed hereto as Exhibit A-2) which will be completed and
executed by the Parties when a definitive date and Total Project Costs are
determined.
1 .8 Term: Five (5) years.
• 1.9 Expiration Date: The last day of the month in which the fifth (5th) anniversary
of the Commencement Date occurs.
1.10 Option(s) to Extend Term: Five (5) options to extend the Term, for a period of
one (1) year each. See Section 3.5.
1.11 Base Rent: As Base Rent for use of the Premises, ACFD will pay the City the
following sums:
Year Monthly Annual Base Rent Per
Base Rent Base Rent Rentable Square Foot
Per Month
$17,596 $211,156 $1.26
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• 2 $18,124 $217,490 $1.29
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OFFICE FACILITY USE AGREEMENT
3 $18,668 $224,015 $1.33
4 $19,228 $230,735 $1.37
5 $19,805 $237,658 $1.41
The Base Rent specified in this Section 1.11 is an estimate based upon an
anticipated Total Project Cost equal to $3,519,261. The specific formula for
determination of the Base Rent is sct forth in the attached Exhibit C-2. The Total
Project Cost is subject to change as the following line items are estimated
amounts and subject to change based on actual costs:
Demolition and Prep
Improvements
If the actual amounts of the above line items are different than that identified in
Exhibit C-2; the Base Rent is subject to modification if the actual Total Project
Cost differs from such estimate. When the actual Total Project Cost is
determined, the Base Rent shall be calculated based thereon, and shall be
specified in the Memorandum Confirming Commencement Date and Total
Project Costs. Base Rent shall increase at the rate of 3% each year during the
initial Term.
1.12 ACFD's Share of Expenses: Twenty-five and one half percent (25.5%). See
Section 4.5.2. ACFD's share of expenses is an estimate based upon the estimated
square footage of the Premises. ACFD's actual share of expenses shall be
specified in the Memorandum Confirming Commencement Date and Total
Project Costs when the square footage of the Premises is determined.
1.13 Security Deposit: None
1.14 Permitted Uses: General office and training purposes only in accordance
with Applicable Laws.
1.15 Parking: Parking spaces are unmarked and available for use by ACFD and the
public on a first come first served basis. There is no reserved parking.
ARTICLE II
DEFINITIONS
Definitions. As used in.this Agreement, the following terms shall have.the definitions set
forth below. Additional terms are defined in the remainder of the Agreement.
1904321.4 3
OFFICE FACILITY USE AGREEMENT
"ACFD Improvements" is defined in Exhibit C.
"ACFD Parties" is defined in Section 6.1.
"ACFD's Share" is defined in Section 4.5.2.
"Additional Rent" means any and all sums other than Base Rent which ACFD
is or becomes obligated to pay to City under this Agreement (whether or not specifically
called "Additional Rent" in this Agreement).
• "Alterations" means any alterations, decorations, modifications, additions or
improvements made in, on, about, under or contiguous to the Premises by or for the
benefit of ACFD (other than the ACFD hnprovements) including but not limited to,
telecommunications and/or. data cabling, lighting, HVAC and electrical. fixtures, pipes
and conduits, partitions, cabinetwork and carpeting.
"Applicable Laws" is defined in Section 5.4.
"Base Rent" means for each year during the Term of this Agreement, the
monthly amount payable per rentable square foot of the Premises set forth in Section
1.11.
"Building" means the office building located at 6363 Clark Avenue, Dublin,
California.
"Claims" is defined in Section 6.3.
"Commencement Date" is the date set forth in Section 1.7 and/or specified in
the Memorandum referenced in Section 1.7.
"Common Area" means all areas and facilities located on the Land or in the
Building, excluding the Premises and all other portions of the Building that are leased (or
that will be leased) to other tenants or occupied by City. The Common Area includes,
but is not limited to, parking areas, access and perimeter roads, sidewalks, landscaped
areas and similar areas and facilities.
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"Environmental Laws" is defined in Section 6.6.
"Hazardous Material" is defined in Section 6.5.
"Indemnitees" is defined in Section 8.2.
• "Memorandum" means.the Memorandum Confirming Commencement Date and
Total Project Costs to be executed by the Parties substantially in the form attached hereto
as Exhibit A-2. and which shall specify the Commencement Date, square.footage of the
Premises, the Base Rent and ACFD's Share.
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1904321.4 4
OFFICE FACILITY USE AGREEMENT
"Operating Expenses" is defined in Section 4.5.3.
"Premises" means the premises shown on Exhibit A-1 consisting of
approximately 14,000 square feet of rentable space on the first floor of the Building.
"Project" means demolition and construction work necessary to prepare the
Premises for ACFD's occupancy pursuant to this Agreement.
"Real Property" means collectively, (i) the Building; (ii) the parcel of real
property on which the Building is situated (the "Land"); and (iii) the other improvements
on the Land, including, without limitation, a parking lot, driveways, lighting and
landscaping. However, the metal building and adjacent parking located on the east side
of building is specifically excluded.
"Real Property Taxes" is defined in Section 4.6.
"Rent" means Base Rent and Additional Rent, collectively.
"Rules and Regulations" means the Rules and Regulations set forth in Exhibit B
attached hereto as such may be modified or amended from time to time by City.
"Term" means the period of time during which ACFD shall be permitted to use
the Premises as set forth in Section 1.8, as such may be extended pursuant to the terms
hereof.
"Total Project Cost" means City's cost to complete the Project, including
without limitation, base building cost, demolition and preparation, improvements within
the Premises ("ACED Improvements"), and a six percent (6%) return on cost, all as
more particularly described in Section 17.2 and Exhibits C and C-2 to this Agreement.
ARTICLE III
PREMISES AND TERM
3.1 Use of Premises. Subject to and upon the term's and conditions set forth
herein, City hereby agrees to allow ACFD the use of the Premises, and ACFD hereby
agrees to use the Premises in accordance with the terms of this Agreement. ACFD
acknowledges that City has made no representation or warranty regarding the condition
of the Preniises, the Building or the Real Property except as specifically stated in this
Agreement.
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3.1.1 Appurtenant Rights. ACFD is granted the right during the Term to
the nonexclusive use of the main lobby of the Building, common corridors and hallways,
stairwells, elevators, and public restrooms located in the Building. City has sole
discretion to determine the manner in which the public and common areas are maintained
1904321.4 5
OFFICE FACILITY USE AGREEMENT
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and operated, and the use of such areas shall be subject to the Rules and Regulations. City
shall allow public access during regular business hours.
3.2 Term and Commencement. The Term shall commence on the
Commencement Date, and unless sooner terminated as provided herein, the Term shall
be for the period set forth in Section 1.8 as the same may be extended in accordance with
the exercise of any option or options to extend the Term granted herein.
3.3 Delay in Delivery of Premises. If City fails to deliver possession of the
Premises to ACFD on or before the anticipated Commencement Date set forth in Section
1.7, City shall not be subject to any liability for its failure to do so. This failure shall not
affect the validity of this Agreement or the obligations of ACFD hereunder, but the Term
shall commence on the date upon which City delivers possession of the Premises to
ACFD.
3.4 Early Access. ACFD shall not occupy the Premises prior to the
Commencement Date except with the express prior written consent of City. Provided
that (i) this Agreement has been executed by ACFD and City, and (ii) ACFD, if
requested, has provided to City proof of insurance coverage for all insurance that ACFD
is required to maintain under this Agreement, ACFD shall be permitted access to the
Premises prior to the Commencement Date for the purpose of installing ACED's furniture
and equipment. If ACFD is provided access to the Premises prior to the Commencement
Date, all of the terms and provisions of this Agreement shall apply to ACFD's use of the
Premises except for the requirement for the payment of Rent, and ACFD shall abide by
all of such terms and provisions.
3.5 Option to Extend Term. City grants ACFD five (5) options to extend the
Term ("Extension Options"), each for a period of one (1) year (each an "Extension
Term"), subject to the conditions set forth in this Section 3.5. ACFD shall have no other
rights to extend the Term. Tf ACFD enters into a separate agreement with City for use of
- office space in the Building; ACFD may terminate this agreement with thirty (30) days
notice.
3.5.1 Extension Option Conditions. Each Extension Option may be
exercised only by written notice delivered by ACFD to City no later than one (1) month
prior to the expiration of the Term (as extended pursuant to the previous exercise of one
or more Extension Options), and only if as of the date of delivery of the notice, ACED is
not in default-under this Agreement. If ACFD properly exercises an Extension Option
and is not then in default, the Term shall be extended for the applicable Extension Term.
ACED's failure to exercise an Extension Option in accordance with this Section shall
constitute ACFD's election to terminate this Agreement at the end of the Term (as
extended pursuant to the previous exercise of one or more Extension Options), and City's
acceptance of any Rent subsequent to the expiration of the Term (as extended pursuant to
the previous exercise of one or more Extension Options) shall not constitute a waiver by
City of the requirement that ACFD timely exercise the Extension Option(s).by delivery
of notice pursuant to this Section.
1904321.4 6
OFFICE FACILITY USE AGREEMENT
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3.5.2 Extension Term Rent. The Base Rent payable by ACFD during
each Extension Term shall be the amount of Base Rent in effect during the last month of
the initial Term, increased by 3% each year that the Term is extended.
3.5.3 Amendment to Agreement. If ACED timely exercises an Extension
Option, City and ACFD shall, within thirty (30) days after the Extension Term rent is
determined, execute an amendment to this Agreement extending the Term on the terms
and conditions set forth in Section 3.5, unless the Alameda County Board of Directors is
on recess, and then at the first meeting thereafter.
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3.6 Right of First Offer.
3.6.1 Proposal to Use Available Space. Subject to Section 3.6.2, and
provided ACFD is not in default under this Agreement beyond any applicable notice and
cure, periods, whenever City determines that any part of the Building (the "Available
Space") is available for lease or use by other parties, ACED shall have a right of first
offer as set forth herein. Provided ACFD has given City written notice of ACFD's
interest in using the Available Space, City shall not, within ninety (90) days after receipt
of such notice, enter into or commit to enter into any lease or other agreement for use of
the Available Space without first proposing to ACFD a rent and other terms for the
Available Space. The Base Rent for the Available Space shall be the Fair Market Rental
Value as determined by City in accordance with Section 3.6.5 below (or otherwise agreed
upon in writing by the Parties); provided, however, the Base Rent for the Available Space
per rentable square foot shall not be less than the Base Rent per rentable square foot
payable by ACFD for the Premises initially used and occupied by ACFD hereunder, as
the same is adjusted from time to time hereunder. If ACFD's governing board does not
approve the terms of such proposal within forty five (45) days after City's delivery
thereof, or does not approve execution of an appropriate amendment to this Agreement
reflecting such acceptance within forty five (45) days after City's delivery thereof, City
shall be free to lease such space to any other person or entity.
3.6.2 Termination of Right. ACFD's rights under this Section 3.6 shall
expire on the date ACFD fails to continuously pay rent for and ACFD personally
occupies the Premises. Solely for purposes of Section 3.6. Available Space shall not
include: (i) space that is subject to a lease, use agreement, or similar agreement that is in
effect as of the Effective Date of this Agreement, including renewals or extensions of
such agreements, (ii) space that is subject to a sublease, assignment or assignment back
right exercisable by the City or by the tenant or other party to any agreement in effect as
of the Effective Date, or (iii) space that is the subject of an option to expand or a right of
first offer or similar right pursuant to an agreement that is in effect as of the Effective
Date of this Agreement, or which is hereafter granted without violation of ACFD's rights
under this Section 3.6.
3.6.3 Same Terms and Conditions. As of the .date that City delivers
actual possession to ACFD of any Available Space, such Available Space shall become
part-of the Premises, and, except as otherwise provided in this Section 3.6, shall be used
190432L4 7
OFFICE FACILITY USE AGREEMENT
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and occupied by ACFD upon the same terms and conditions as apply to the Premises
pursuant to this Agreement, unless otherwise agreed to in writing.
3.6.4 Personal Right. ACFD's right to use and occupy Available Space
as set forth in this Section 3.6 may not be assigned, transferred or conveyed to any party
without the prior written consent of City.
3.6.5 Detennination of Fair Market Rental Value. For purposes of this -.
Section "Fair Market Rental Value" shall be the amount that a willing, comparable,
new (i.e., non-renewal), non-equity tenant would pay, and that a willing landlord of a
comparable space in the vicinity of the Building would accept at arms' length.
Appropriate consideration shall be given: (i) the annual rental rate per rentable square
foot; (ii) the definition of rentable square feet for purposes of comparing the rate; (Hi)
location and quality of the Building; (iv) the financial condition (e.g., creditworthiness)
of the tenant; (v) escalation (including type, base year and stop) and abatement provisions
(if any) reflecting free rent and/or no rent during the period of construction; (vi)
brokerage commissions, if any, (vii) length of the lease term; (viii) size of the Premises;
(ix) building standard work letter and/or tenant improvement allowance, if any; provided,
however, the Fair Market Rental Value shall not include any tenant improvements or any
alterations made by ACED at ACFD's expense; (x) condition of space; (xi) lease
takeover / assumptions; (xiii) moving expenses and other concessions (if any); (xii)
extent of services to be provided; (xiii) distinctions between "gross" and "net" leases;
(xiv) base year figures or expense stops (if any) for escalation purposes for both operating
costs and ad valorem / real estate taxes; (xv) the time the particular rental rate under
consideration becomes or is to become effective; (xvi) applicable caps (if any) on the
amount of real estate taxes and assessments passed through to tenants;_ and (xvii) other
generally applicable conditions of tenancy for the space in question.
3.6.6 Arbitration. If City and ACFD are not able to mutually agree upon
the Fair Market Rental Value or otherwise agree upon the Base Rent payable for the
Available Space within forty-five (45) days following the date upon which City delivers
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notice to ACFD regarding the availability of the Available Space (the "Agreement
Deadline"), the Fair Market Rental Value will be determined by "baseball arbitration" in
accordance with this Subsection 3.6.6. City and ACFD shall each make a separate
determination of Fair Market Rental Value and notify the other Party within fifteen (15)
days following after the Agreement Deadline. If either Party fails to make a
determination of the Fair Market Rental Value within the fifteen (15) day period, that
failure shall be conclusively deemed to be that Party's approval of the Fair Market Rental
Value submitted within such period by the other Party. If both Parties timely make
determinations of Fair Market Rental Value, such determinations shall be submitted to an
arbitrator. The determination of the arbitrator shall be limited to the sole issue of
determining which of the Party's -determinations is closest to the actual Fair Market
Rental Value as determined by the arbitrator, taking into consideration the requirements
of Section 3.6.5. The arbitrator must be a licensed real estate broker who has been active
• in the leasing of commercial properties in the greater Dublin area over the immediately
prior five-year period. If the Parties are unable to agree upon an arbitrator, then each
Party shall appoint one arbitrator within fifteen (15) days following the Agreement
1904321.4 8
OFFICE FACILITY USE AGREEMENT
Deadline and shall notify the other Party of such appointment. Within ten (10) days
following the appointment of the second arbitrator, the two arbitrators so selected shall
agree upon and appoint a third appraiser who shall have the qualifications specified in
this paragraph and shall notify the Parties of such appointment. Within 30 days
following the appointment of the third arbitrator, the three arbitrators shall decide
whether to use City's or ACFD's determination of Fair Market Rental Value and shall
notify the parties of their decision. The decision of the majority of the arbitrators shall be
binding. If either Party fails to appoint an arbitrator within fifteen (15) days following
the Agreement Deadline, then the arbitrator timely appointed shall reach a decision and
shall notify City and ACFD of such decision within thirty (30) days after such arbitrator's
appointment. The decision of such arbitrator shall be binding on City and ACFD. The
cost of the arbitration shall be paid by the losing Party.
3.7 Relocation within Building. City will be making improvements to the
Building, including office space that ACFD desires to occupy and that City desires
ACFD to occupy (the "New Space"). The Parties shall enter into a Work Letter for the
New Space, which will be attached to this Agreement as Exhibit C-3. The Work Letter
and any further amendments to the Work Letter, can be executed by the ACFD Chief
and by the City Manager. If, prior to the termination of this Agreement, the New Space is
completed, the Parties shall amend this Agreement so that ACFD may immediately
occupy the New Space. The New Space shall be in a location that is acceptable to
ACED. The New Space shall be the same square footage as the Premises, unless agreed
to in writing by ACFD and City. All of the terms and provisions of this Agreement shall
apply to the New Space with equal force and effect. ACFD agrees to relocate to such
New Space within twenty (20) days following receipt of notice from City that the New
Space is available for ACFD's occupancy, and all work has been completed in
accordance with the Work Letter for the New Space. Moving expenses shall be paid by
ACED. The New Space shall include improvements comparable to those in the Premises
and as set out in Exhibit C.-3
3.8 No Representations. ACFD acknowledges that neither City nor any of
City's agents has made any representation or warranty as to the suitability or fitness of
the Premises for the conduct of ACFD's business, and that neither City nor any of City's
agents has agreed to undertake any alterations or additions or to construct any
improvements to the Premises except as expressly provided in this Agreement.
ARTICLE IV
RENT, OPERATING EXPENSES, TAXES AND SECURITY DEPOSIT
4.1 Monthly Rent. From and after the Commencement Date, ACED shall pay
to City for each calendar month of the Term, the monthly Base Rent set forth in Section
1.11 as the same may be adjusted upon ACFD's exercise of any Extension Option as
provided in Section 3.5.2. Each monthly installment of Base Rent shall be due and
payable to City in lawful money of the United States, in advance, on the first (1st) day of
each calendar month during the Term, without abatement, deduction, claim or offset
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OFFICE FACILITY USE AGREEMENT
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(unless the Parties mutually agree to allow an abatement, deduction, claim or offset), and
without prior notice, invoice or demand, at City's address set forth in Section 1.1 or such
other place as City may designate from time to time. ACFD's payment of Base Rent for
the first month of the Term shall be delivered to City on the Commencement Date. •
4.2 Prorations. Monthly installments for any fractional calendar month at the
beginning or end of the Term shall be prorated based on the number of days in such
month.
4.3 Additional Rent. All Additional Rent, including without limitation,
ACFD's Share of Operating Expenses and ACFD's Share of Real Property Taxes shall be
due and payable to City in lawful money of the United States without abatement,
deduction, claim or offset, unless the Parties mutually agree otherwise, within thirty (30) _
days of receipt of City's invoice or statement for same (or if this Agreement provides
• another time for the payment of certain items of Additional Rent, then at such other time)
at City's address set forth in Section L1 or such other place as City may designate from
time to time.
4.4 Late Charge. ACFD acknowledges that the late payment of Rent will
cause City to incur administrative costs and other damages, the exact amount of which
would be impracticable or extremely difficult to ascertain. City and ACED agree that if
City does not receive any such payment within ten (10) calendar days after such payment
is due, ACFD shall pay to City as Additional Rent an amount equal to five percent (5%)
of the overdue amount as a late charge for each month or partial month that such amount
remains unpaid. The Parties acknowledge that this late charge represents a fair and
reasonable estimate of the costs that City will incur by reason of the late payment by
ACFD. Acceptance of any late Rent and late charge therefore shall not prevent City from
exercising any of the other rights and remedies available to City for any other Event of
Default under this Agreement.
4.5 Common Area Charges. Operating Expenses, and Taxes.
4.5.1 ACFD to Pay ACFD's Share of Operating Expenses. ACFD shall
pay to City ACFD's Share (as defined in Section 4.5.2) of Operating Expenses as
follows: on the Commencement Date (or as soon thereafter as is reasonably practicable)
and thereafter prior to the commencement of each calendar year during the Term, City
shall give ACFD a written estimate of ACFD's Share of Operating Expenses for the
ensuing calendar year. Commencing on the Commencement Date, and continuing
thereafter throughout the Term, ACFD shall pay, as an item of Additional Rent, such
estimated amount in equal monthly installments, in•advance, on or before the first day of
each calendar month. If City has not furnished its written estimate by the time set forth
above, ACFD shall pay monthly installments of Operating Expenses at the rate
established for the prior calendar year, if any; provided that when the new estimate is
delivered to ACFD, as applicable, ACFD shall at the next monthly payment date pay City
any accrued deficiency based on the new estimate, or City shall credit any accrued
overpayment based on such estimate toward ACFD's next installment payment
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1904321.4 10
OFFICE FACILITY USE AGREEMENT
hereunder. Within a reasonable period of time after the end of each calendar year during
the Term (but in no event more than 180 days after the end of each year), City shall
furnish ACFD a statement ("Annual Statement") showing in reasonable detail ACFD's
Share of the actual Operating Expenses incurred for the period in question; provided,
however, with respect to the calendar year during which this Agreement expires or sooner
terminates, City may, at its election, provide ACFD with an Annual Statement prior to
the end of such year based on estimated Operating Expenses, as determined by City. If
ACFD's estimated payments are less than ACFD's Share of actual Operating Expenses as
shown by the applicable Annual Statement, ACFD shall pay the difference to City within
thirty (30) days following delivery of the Annual Statement. If ACFD shall have
overpaid City, City shall credit such overpayment toward ACFD's next installment
payment hereunder, or if no installment payment is due, shall refund the amount to
ACFD within thirty (30) days When the Annual Statement is furnished to ACFD for the
calendar year in which this Agreement expires or sooner terminates: (i) ACFD shall,
even if this Agreement has expired or terminated, pay to City within thirty (30) days after
notice, any additional sum payable by ACFD in excess of the estimate previously
provided, and (ii) City shall rebate any overpayment to ACFD within thirty (30) days
following delivery of the Annual Statement. If City determines at any time that the
estimate of ACFD's Share of Operating Expenses for the current year is or will become
inadequate to meet ACFD's Share of all such Operating Expense for any reason, City
may, at its election, determine the approximate amount of such inadequacy and issue a
supplemental estimate, and ACED shall pay any increase as reflected by such
supplemental estimate.
City shall keep or cause to be kept separate and complete books covering
all Operating Expenses and showing the method of calculating ACFD's Share of
Operating Expenses, and shall preserve for at least twelve (12) months after the close of
each year all material documents evidencing such Operating Expenses for that year. For
a period of 180 days following ACFD's receipt of an Annual Statement, ACFD, at its
sole cost and expense, through a representative designated by ACED and reasonably
approved by City, shall have the right upon written notice to City, during reasonable
business hours at City's offices, to examine and/or audit the hooks and documents
evidencing such costs and expenses for the period covered by the applicable Annual
Statement, provided that ACFD is not then in default under this Agreement.
Any delay or failure by City in delivering any estimate or statement
pursuant to this Section shall not constitute a waiver of its right to require ACFD to pay
ACFD's Share of Operating Expenses, pursuant hereto. In the event that the Building is
not at least ninety-five percent (95%) occupied during any year during the Term, City
shall make an appropriate adjustment of the variable components of Operating Expenses
for such year, as reasonably determined by City using sound accounting and management
principles, to determine the amount of Operating Expenses that would have been incurred
had the Building been ninety-five percent (95%) occupied during such year. This amount
shall be considered to have been the amount of Operating Expenses for that year. For
purposes of this Section "variable components" include only those Operating Expense
components that are affected by variations in occupancy levels.
1904321.4 11
OFFICE FACILITY USE AGREEMENT
•
4.5.2 Definition of ACFD's Share. The term "ACFD's Share" means
that portion of an Operating Expense or Real Property Tax determined by multiplying the
cost of such item by a fraction, the numerator of which is the Rentable Square Footage
and the denominator of which is the total square footage of the floor area to be charged
with such Operating Expense or Real Property Tax. ACED acknowledges that the
Premises are pail of a Building of approximately 55,000 square feet that has or will have
other occupants, including City. ACFD's Share of various Operating Expenses shall be
determined as a function of the Building square footage, and ACED's Share of Operating
Expenses for all items related to Common Areas shall not exceed the percentage of the
Building represented by the Premises, regardless of whether or not the Building is fully
occupied. As of the Commencement Date, ACED's Share of the Building is estimated
to be 25.5%.
4.5.3 Definition of Operating Expenses. The term "Operating
Expenses" means all costs and expenses incurred by City or City's agents in connection
with the ownership, maintenance, repair, management and operation of the Real Property,
including, but not limited to the following: repair and maintenance of the roof,
foundation and exterior walls of the Building; periodic painting of the Building; periodic
cleaning of the exterior windows of the Building; landscaping services; outside pest
control; operation, maintenance and repair of elevators (if any), utility systems, HVAC
systems; mechanical and electrical systems and sanitary and storm drain systems through
maintenance contracts or otherwise; maintenance services, repairs to and replacement of
asphalt paving, bumpers, striping, light bulbs, light standards, monument and directional
signs and lighting systems, perimeter walls, retaining walls, sidewalks, planters,
landscaping and sprinkler system in planting areas; any and all assessments levied against
the Building and/or the Land; water, electrical and other utility services not supplied
directly to a tenant or Building occupant; removal of trash, rubbish and other refuse;
cleaning and replacement of signs, including relamping and repairs; repair, operation and
maintenance of the Common Area including but not limited to payment of all electrical,
water and other utility charges or fees for services furnished to the Common Area;
obtaining and maintaining liability, property damage and other forms of insurance which
City may or is required to maintain in connection with the Building or the Real Property
(including the payment of any deductibles thereunder); costs incurred in connection with
compliance with any laws or changes in laws applicable to the Building or the Real
Property, including without limitation any laws or changes in laws regarding 1-Iazardous
Material and/or repair of Common Area improvements, equipment and supplies;
employment of such personnel as City may deem reasonably necessary if any to direct
parking and police the Common Area and facilities; the cost of any capital improvements
(other than improvements for specific tenants or other occupants ) made by or on behalf
of City to the Building or the Common Area, to the extent of the amortized amount
thereof over the useful life of such capital improvements calculated at a market cost of
funds, all as determined by City, for each year of useful life during the Term;
depreciation of machinery and equipment used in connection with the maintenance and
operation of the Common Area; employment of personnel in connection with any of the
foregoing, including payment for unemployment insurance, workers' compensation
1904321.4 12 •
OFFICE FACILITY USE AGREEMENT
insurance and other reasonable costs associated with such personnel; the cost of
bookkeeping, accounting and auditing and legal services provided in connection with any
of the foregoing; the cost of any environmental consultant or other services used in
connection with City's monitoring of the Real Property with respect to Hazardous
Material; the cost of any tax, insurance or other consultant utilized in connection with the
Real Property; and any other items reasonably necessary from time to time to properly
repair, replace, maintain and operate the Building and the Real Property. Operating
Expenses shall also include a management fee consistent with comparable projects in the
City of Dublin to cover City's management, overhead and administrative expenses or
City's payment of professional management fees. If City elects to perform any
maintenance or repair in conjunction with properties other than the Building, and if a
common maintenance contractor is hired for such purposes, the contract amount allocable
to the Building as reasonably determined by City, shall be added to and deemed a part of
Operating Expenses hereunder.
4.5.4 Exclusions From Operative Expenses. Despite any other provision of
Section 4.5.3, Operating Expenses shall not include: (a) depreciation, interest, or
amortization on mortgages or ground lease payments; (b) legal fees incurred in
negotiating and enforcing leases or occupancy agreements; (c) real estate brokers' leasing
commissions; (d) improvements and alterations made for the benefit of a specific tenant;
(e) the cost of providing any service directly to and paid directly by any tenant or other
occupant; (f) any costs expressly excluded from Operating Expenses elsewhere in this
Agreement; (g) costs of capital improvements, except as otherwise stated herein; and (h)
costs of any items for which City receives reimbursement from insurance proceeds or a
third party. Insurance proceeds shall be excluded from Operating Expenses in the year in
which they are received, except that any deductible amount under any insurance policy
shall be included within Operating Expenses.
4.6 Taxes. Both Parties are governmental entities and exempt from payment
of most taxes; however for the purpose of this Agreement, the term "Real Property
Taxes" means any form of tax, assessment, charge, license, fee, rent tax, levy, penalty (if
a result of ACFD's delinquency), real property or other tax (other than City's net income
or franchise taxes), now or hereafter imposed with respect to the Building:or the Real
Property or any part thereof (including any Alterations), this Agreement or any Rent
payable under this Agreement by any authority having the direct or indirect power to tax,
or by any city, county, state or federal government or any improvement district or other
district or division thereof, whether such tax or any portion thereof (i) is determined by
the area of the Building or the Real Property, or any part thereof or the Rent payable
under this Agreement by ACFD, including, but not limited to any gross income or excise
tax levied by any of the foregoing authorities with respect to receipt of Rent due under
this Agreement, (ii) is levied or assessed in lieu of, in substitution for, or in addition to,
existing or additional taxes with respect to the Building or the Real Property or any part
thereof whether or not now customary or within the contemplation of City or ACFD, or
(iii) is based upon any legal or equitable interest of City in the Building or the Real
Property or any part thereof. ACFD and City intend that all Real Property Taxes,
including without limitation all new and increased assessments, taxes; possessory interest
1904321A 13
OFFICE FACILITY USE AGREEMENT
taxes charged or levied in place of real property taxes, fees, levies, and charges and all
similar assessments, taxes, fees, levies and charges shall be included within the definition
of"Real Property Taxes" for purposes of this Agreement.
4.6.1 Apportionment of Taxes. If the Building is assessed as part of a
larger parcel, then City shall equitably apportion the Real Property Taxes and reasonably
determine the Real Property Taxes attributable to the Building. If other buildings exist
on the assessed parcel, the Real Property Taxes apportioned to the Building shall be
based upon the ratio of the square footage of the Building to the square footage of all
•
buildings on the assessed parcel.
4.6.2 Tax on Improvements. Notwithstanding anything to the contrary
set forth in this Agreement, ACFD shall pay prior to delinquency any and all taxes, fees
and charges which are levied or assessed against City or ACFD: (a) upon ACFD's
equipment, furniture, fixtures, improvements and other personal property located in the
Premises, (b) by virtue of any alterations or leasehold improvements made to the
Premises by ACFD, and (c) upon this transaction or any document to which ACFD is a
party creating or transferring an interest or an estate in the Premises. City shall promptly
notify ACFD of any tax, fee, or charge. If any such tax, fee or charge is paid by City,
ACFD shall reimburse City for City's payment upon demand.
4.7 Intentionally omitted.
ARTICLE V
• USE OF PREMISES
5.1 Permitted Use. The Premises shall be used solely for the purposes set forth
in Section 1.14 and for no other purpose without the written consent of City, which may -
he granted or withheld in City's sole discretion. ACFD shall not do or suffer or permit
anything to be done in or about the Premises, the Building or the Real Property, nor bring
or keep anything therein that would in any way subject•City to any liability, increase the
premium rate of or affect any fire, casualty, rent or other insurance relating to the Real
Property or any of the contents of the Building, or cause a cancellation of, or give rise to
any defense by the insurer to any claim under, or conflict with, any policies for such
insurance. If any act or omission of ACFD results in any such increase in premium rates,
ACFD shall pay to City upon demand the amount of such increase.
5.2 Signage. ACFD shall obtain the prior approval of the City, which approval
may be withheld in City's reasonable discretion before placing any sign or symbol on
doors or windows or elsewhere in or about the Premises so as to be visible from the
public areas or exterior of the Building, or upon' any other part of the Building or Real
Property, including building directories. Any signs-or symbols which have been placed
without City's approval may be removed by City. Upon expiration or termination of this
Agreement, all signs installed by ACFD shall be removed and any damage resulting
1904321.4 - 14
•
OFFICE FACILITY USE AGREEMENT
therefrom shall be promptly repaired by ACFD, or such removal and repair may be done
by City and the cost charged to ACFD as Rent. ACFD shall be provided signage in the
lobby of the Building as a part of the Building directory.
5.3 Rules and Regulations. ACFD shall comply with the rules attached hereto
as Exhibit B, and any amendments or additions thereto promulgated by City from time to
time for the safety, care and cleanliness of the Premises, Building and Real Property (the
"Rules and Regulations") except as stated in Section 5.3.1. ACFD shall not use or
permit any person to use the Premises for any purpose that is contrary to the Rules and
Regulations, that violates any Applicable Law, that constitutes waste or nuisance, or that
would unreasonably annoy or interfere with other occupants of the Building or The
occupants of buildings adjacent to the Building. City shall not be responsible to ACFD
for the nonperformance or noncompliance by any other occupant of the Building of or
with any of the Rules and Regulations. In the event of any conflict between the
provisions of this Agreement and the provisions of the Rules and Regulations, the
provisions of this Agreement shall control.
5.3.1 Notwithstanding any contrary provision of the Rules and
Regulations as such may be amended from time to time, ACFD may use the Premises and
Building as follows:
a. ACFD may have access to the Premises 24 hours a day every day of
the year.
b. ACFD may install and shall have control of all electrical devices
installed or used in the Premises, including those that have
transmissions.
c. City shall allow any other exemptions from Rules and Regulations
consistent with use of space by a public safety agency and guidelines
or requirements of Homeland Security or similar agencies.
5.4 Compliance with Laws. ACFD shall procure and maintain all
governmental approvals, licenses and permits required for the proper and lawful conduct
of ACFD's permitted use of the Premises. ACFD shall throughout the Term comply with
and shall not use the Premises, the Building or the Real Property, or suffer or permit
anything to be clone in or about the same which would in any way conflict with any of the
following (collectively"Applicable Laws"): (i) the provisions of all recorded covenants,
conditions and restrictions applicable to the Building or the Real Property, or (ii) any
federal, state, county, local or other governmental agency rules, regulations, statutes,
ordinances, orders, standards, requirements or laws now in-force or hereafter enacted,
promulgated or issued which are applicable to the Real Property, Premises, the Building,
or the use or occupancy thereof, including without limitation building, zoning, and fire
codes and regulations.
1904321.4 15
OFFICE FACILITY USE AGREEMENT
5.5 Repairs and Replacements. ACFD shall repair and maintain the Premises,
including the ACFD Improvements, fixtures and furnishings in an order and condition in
compliance with Applicable Laws, and ACFD shall, at ACFD's sole expense promptly
make all repairs, replacements, alterations, or improvements necessary to comply with all
Applicable Laws to the extent that such Applicable Laws are triggered by or relate to (i)
ACFD's particular use of the Premises, (ii) the ACFD Improvements, or (iii) any -
alterations located in the Premises. City shall, at City's sole expense, promptly make all
repairs, replacements, alterations, or improvements necessary to comply with all
Applicable Laws to the extent that such Applicable Laws relate to the base Building.
ARTICLE VI
ENVIRONMENTAL MATTERS
6.1 Use of Hazardous Materials. ACFD shall not cause or permit any
Hazardous Material to be generated, brought onto, used, stored, or disposed of in or about
the Premises, the Building or the Real Property by ACFD or ACFD's agents, employees,
contractors: subtenants or invitees (collectively "ACFD Parties"), except for limited
quantities of standard office and janitorial supplies. At ACFD's sole cost and expense,
ACFD shall use, store and dispose of all such Hazardous Materials in strict compliance
with all Environmental Laws, and shall in all other respects comply with all
Environmental Laws.
6.2 Notice of Release or Investigation. If during the Term of this Agreement
(including any extensions), either Party becomes aware of (a) any actual or threatened
release of any Hazardous Material in, on, under, or about the Premises, the Building or
the Real Property, or (b) any inquiry, investigation, proceeding, or claim by any
government agency or other person regarding the presence of Hazardous Material in, on,
under, or about the Premises, the Building, or the Real Property, that Party shall give the
other Party written notice of the release or investigation within five (5) days after learning
of it and shall simultaneously furnish to the other Party copies of any claims, notices of
violation, reports, or other writings received by the Party that concern the release or
investigation.
6.3 Indemnification. City and ACFD (each an "Indemnifying Party") shall
defend (with counsel reasonably acceptable to the other Party), indemnify and hold
harmless the other Party and its elected and appointed officers, officials, employees,
agents and representatives (collectively, "Indemnified Parties") from and against any
and all liabilities, losses, damages, fines, deficiencies, penalties, claims, demands, suits,
• actions, causes of action, legal or administrative proceedings, judgments, costs and
expenses (including without limitation reasonable attorneys' fees and expenses, court
costs, expert witness fees and post judgment collection costs) (all of the foregoing,
collectively "Claims") resulting or arising from or in connection with any release of any
Hazardous Material in or about the Premises, the Building or the Real Property or any
other violation of any Environmental Law by the indemnifying Party or its agents,
1904321.4 16
OFFICE FACILITY USE AGREEMENT
assignees, sublessees, contractors, or invitees. This indemnification includes: (i) losses
attributable to diminution in the value of the Premises or the Building, (ii) loss or
restriction of use of rentable space in the Building, (iii) adverse effect on the marketing of
any space in the Building; and (iv) all other liabilities, obligations, penalties, fines,
claims, actions (including remedial or enforcement actions of any kind and administrative
or judicial proceedings, orders, or judgments), damages (including consequential and
punitive damages), and costs (including attorney, consultant, and expert fees and
expenses) resulting from the release or violation. T_ he indemnity provided in this Section
shall not extend to Claims to the extent the same are caused by the gross negligence or
willful misconduct of the Indemnified Parties. The provisions of this Section shall
survive the expiration or termination of this Agreement.
6.4 Remediation Obligations. If the presence of any Hazardous Material brought
onto the Premises or the Building by either Party or its employees, agents, contractors, or
invitees results in contamination of the Premises, the Building or the Real Property, that
Party shall promptly take all necessary actions to remove or remediate such Hazardous
Materials, whether or not they are present at concentrations exceeding state or federal
maximum concentration or action levels, or any governmental agency has issued a
cleanup order, at that Party's sole expense, to return the Premises and the Building to the
condition that existed before the introduction of such Hazardous Material. ACED shall
first obtain City's approval of the proposed removal or remedial action. This provision
does not limit the indemnification obligation set forth in Section 6.3.
6.5 Definition of Hazardous Material. As used in this Agreement,- the term
"Hazardous Material" means any hazardous or toxic substance, material, or waste at
any concentration that is or becomes regulated by the United States, the State of
California, or any government authority having jurisdiction over the Building. Hazardous
Material includes: (a) any "hazardous substance," as that term is defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) (42 United States Code sections 9601-9675); (b) "hazardous waste," as that
term is defined in the Resource Conservation and Recovery Act of 1976 (RCRA) (42
United States Code sections 6901-6992k); (c) 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); (d)• petroleum products; (e) radioactive material, including any
source, special nuclear, or byproduct material as defined in 42 United States Code
sections 2011-2297g-4; (f) asbestos in any form or condition; and (g) polychlorinated
bipbenyls (PCBs) and substances or compounds containing PCBs.
6.6 Definition of Environmental Laws. As used in this Agreement, the term
"Environmental Laws" means all federal, state and local laws, ordinances, regulations,
rules orders and directives pertaining to Hazardous Materials, including without
limitation, the laws, statutes, and regulations cited in the preceding Section 6.5, as any of
the foregoing may be amended from time to time.
1904321.4 17
OFFICE FACILITY USE AGREEMENT
ARTICLE VII
UTILITIES AND SERVICES
7.1 Building Services. City shall supply the Utility Services and the
Maintenance Services described below- in accordance with the terms and conditions set
forth in tins Article. The Utility Services and the Maintenance Services are collectively
referred to as the "Building Services." Except as otherwise specifically provided herein,
the cost of all Utility Services and Maintenance Services shall be included within the
definition of Operating Expenses and shall be paid by ACFD in the manner set forth in
Section 4.5.
7.1.1 Utility Services. City shall furnish the utility services listed in this
Section ("Utility Services") except to the extent that ACED has separately contracted for
the provision of such services. During the hours from 8:00 a.m. to 6:00 p.m., Monday
through Friday, excluding federal and state holidays ("Building Standard Hours"), City
shall supply: (i) electricity for Building lighting and power suitable for use of the
Premises for ordinary general office purposes; (ii) air conditioning and heating as
required in City's reasonable judgment for the comfortable use and occupancy of the
Premises for ordinary general office purposes; and (iii) water for drinking and lavatory
purposes. City may at its option require ACFD to pay as Additional Rent the cost as
reasonably determined by City incurred in connection with any extraordinary usage of
utilities. In addition, City may install separate meter(s) for the Premises, and ACED
thereafter shall pay all charges of the metered service. If such utilities and services
(including without limitation, HVAC service) are requested by ACED during times other
than the Building Standard Hours, City may invoice ACFD for the actual costs incurred
and ACED shall pay City's charges for the actual costs of such utilities and services on
demand as Additional Rent. Such charges shall be based on City's actual costs together
with such reasonable administration charges as City may impose in connection therewith,
with after-hours HVAC services being charged on a per-hour basis at the hourly rate
established by City from time to time for the Building (which hourly rate may be based
on the cost of utilities, wear and tear on the HVAC systems and City's administration).
ACFD shall cooperate with any present or future government conservation requirements
and with any reasonable conservation practices established by City.
7.1.2 Maintenance Services. City shall provide all of the following
(collectively, "Maintenance Services"): (i) maintenance of all exterior areas of the
Building and the Real Property, including without limitation, lighting and landscaping;
(ii) cleaning, painting, maintenance and repair of the Building exterior, (iii) maintenance
and repair of the Building mechanical, electrical, HVAC and plumbing equipment and
systems and the Building structural components including the roof, foundation, floors and
walls, (iv) maintenance of all public and common areas of the Building and the Real
Property including parking lots, walkways, driveways, fences, utility systems, fire •
sprinklers, lobbies, stairs, elevators, corridors, restrooms, windows; (v) supply of public
area lamp replacement, (vi) provision of exterior window washing with reasonable
1904321.4 18
OFFICE FACILITY USE AGREEMENT
frequency, but in no event less than two times per year; and (vii) provision of janitorial
services to the common areas ("Janitorial Services"). ACFD shall be responsible for
janitorial service to the Premises and interior window cleaning. ACFD may elect to
contract with City's janitorial service company.
7? Interruption of Services. ACFD agrees that City shall not be liable for
damages, by abatement of Rent or otherwise, for failure to furnish or delay in furnishing
any Building Service (including telephone and telecommunication services) or for
diminution in the quality or quantity of any service when the failure, delay, or diminution
is entirely or partially caused by: (a) breakage, repairs, replacements, or improvements;
(b) strike, lockout, or other labor trouble; (c) inability to secure electricity, gas, water, or
other fuel at the Building after reasonable effort to do so; (d) accident or casualty; (e) act
or default of ACFD or other parties; or (f) any other cause beyond City's reasonable
control. Such failure, delay, or diminution shall not be considered to constitute an
eviction or a disturbance of ACFD's use and possession of the Premises or relieve ACFD
from paying Rent or performing any of its obligations under this Agreement. Without
limiting the generality of the foregoing, City shall not be liable under any circumstances
for a loss of or injury to property or for injury to or interference with ACFD's business,
including loss of profits through, in connection with, or incidental to a failure to furnish
any of the utilities or services described in this Article VII. City 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 without
creating any liability of City to ACFD under this Agreement as long as compliance with
voluntary controls or guidelines does not materially and unreasonably interfere with
ACFD's use of the Premises. City shall promptly repair any items in the Common Areas
that are necessary for use of the Premises.
7.3 ACFD's Maintenance and Repair Obligations. ACFD shall, at all time
during the Term of this Agreement, at ACFD's sole expense, keep the Premises
(including all ACFD Improvements, Alterations, fixtures and furnishings) in good order,
repair and condition at all times during the Term. Subject to City's prior approval and
within any reasonable period specified by City, ACFD shall, at ACFD's sole expense,
promptly and adequately repair all damage to the Premises and replace or repair all
damaged or .broken fixtures and other leasehold improvements. If ACFD fails to
maintain or keep the Premises in good repair or if such failure results in a nuisance or
health or safety risk, at City shall promptly notify ACFD and allow a reasonable time to
conduct the maintenance or repair. If ACFD does not conduct the maintenance or repair,
City may perform any such required maintenance and repairs, and within thirty (30) days
after receipt of City's invoice therefor, ACFD shall pay City's costs incurred in
connection with such repairs, plus a percentage of such costs sufficient to reimburse City
for all overhead, general conditions, fees and other costs and expenses in connection
therewith.
7.4 Intentionally omitted.
1904321.4 19
OFFICE FACILITY USE AGREEMENT
7.5 Compliance with Applicable Laws. City and ACFD shall each comply
with (and shall cause their respective employees, agents and contractors to comply with)
all Applicable Laws, including without limitation all Environmental Laws, whenever
either party undertakes any work of construction, alteration or improvement in the
Premises or the Building.
ARTICLE VIII
ALTERATIONS AND ADDITIONS
•
8.1 Alterations and Improvements. ACFD may not make any improvements,
alterations, additions or changes to the Premises ("Alterations") exceeding Five
Thousand Dollars ($5,000) in cost without the prior written approval of City. All
Alterations shall be done at ACFD's expense, in a good and workmanlike manner
conforming in quality and design with the Premises existing as of the Commencement
Date, by ACED, Alameda County GSA, or by licensed contractors, in conformity with
plans approved by City, and in compliance with all Applicable Laws. ACFD shall obtain
all necessary governmental approvals and permits for such Alterations. ACFD shall give
City not less than ten (10) business days' notice prior to the commencement of
construction so that City may post a notice of nonresponsibility on the Premises.
Notwithstanding any other provisions in this Agreement, unless City otherwise agrees in
writing, ACFD shall remove, prior to expiration of the Term and at ACFD's sole cost and
expense, any and all wires, cables and related telecommunications devices installed by or
on behalf of ACED, and City may at its option by written notice to ACFD, require that
ACFD, upon the expiration or sooner termination of this Agreement, at ACFD's expense,
remove any or all other Alterations and return the Premises to its condition as of the
Commencement Date, normal wear and tear excepted. In no event shall any Alteration
(i) affect the exterior of the Building, (ii) affect any of the structural portions of the
Building, including without limitation, the roof, (iii) require any change to the basic floor
plan of the Premise or any change to the structural or mechanical components of the
Premises, (iv) diminish the value of the Premises, (v) result in an increase in the demand
for utilities or services that City is required to provide, (vi) cause an increase in the
premiums for hazard or liability insurance carried by City, or (vii) overload the floor load
capacity or unduly burden the plumbing, heating, ventilation, air conditioning, electrical
or other basic systems that serve the Building.
•
ARTICLE IX
• INSURANCE AND INDEMNITY
9.1 Indemnity. To the fullest extent permitted by law, ACED shall, defend
(with counsel reasonably acceptable to City), indemnify and hold the Indemnitees
harmless from and against any and all Claims (including without limitation, Claims for or
• relating to loss of or damage to property, injury or death of any person, and economic •
losses and consequential or resulting damage of any kind), including any-Claim directly
•
1904321.4 20
OFFICE FACILITY USE AGREEMENT
•
or indirectly arising from or in connection with or in any way attributable to: (i) the use
or occupancy, or manner of use or occupancy of the Premises or the Real Property by
ACFD or the ACFD Parties, (ii) any act, error, omission or negligence of ACFD Parties
or any invitee, guest or licensee of ACFD in, on or about the Premises or the Real
Property, (iii) any Alterations, activity, work, or thing done, omitted, permitted, allowed
or suffered by ACFD or ACED Parties in, at, or about the Premises, or the Real Property,
or (iv) any breach or default in performance of any obligation on ACFD's part in the
performance of any covenant or agreement to be performed by ACFD under this
Agreement, except to the extent caused by the negligence or willful misconduct of City •
or the Indemnitees. This indemnification does not extend to Claims arising out of
Common Areas unless such Claims arise from the negligence or intentional actions of
ACFD or the ACFD Parties.
To the fullest extent permitted by law, City shall defend (with counsel reasonably
acceptable to ACFD), indemnify and hold ACFD and its elected and appointed officers,
officials, employees, representative and agents harmless from and against any and all
Claims (including without limitation, Claims for or relating to loss of or damage to
property, injury or death of any person, and economic losses and consequential or
resulting damage of any kind), arising from or in connection with or in any way
attributable to: (i) any act, error, omission or negligence of City or any, invitee guest,
licensee, employee, agent or contractor of City in, on or about the Building or the Real
Property, (iii) any activity, work, or thing done, omitted, permitted, allowed or suffered
by the City or any invitee guest, licensee, employee, agent, or contractor of City in, at, or
about the Building or the Real Property, or (iv) any breach or default in performance of
any obligation on the part of City in the performance of any covenant or agreement to be
performed by City under this Agreement, except to the extent caused by the negligence or
willful conduct of ACFD or the ACFD Parties.
The provisions of this Section shall not be construed or interpreted as in any way
restricting, limiting or modifying the insurance obligations of the Parties under this
Agreement and are independent of such obligations. Compliance with the insurance
requirements set forth in this Agreement shall not in any way restrict, limit or modify the
respective indemnification obligations of the Parties hereunder. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
9.2 ACFD's Insurance. ACFD shall, at its sole expense, procure and maintain
throughout the Term (plus such earlier and later periods as ACED may be in occupancy
of the Premises) all of the following:
(a) Commercial general liability insurance including contractual
liability coverage, written on an "occurrence" policy form, covering bodily injury,
property damage and personal injury arising out of or relating (directly or indirectly) to •
ACFD's operations, conduct, assumed liabilities, or use or occupancy of the Premises,
the Building or the Real Property naming the Indemnitees as additional insureds, with
• minimum coverage in the amount of One Million Dollars ($1,000,000) per occurrence
1904321.4 21
OFFICE FACILITY USE AGREEMENT
•
combined single limit for bodily injury and property damage and Two Million Dollars
($2,000,000) in the aggregate;
(b) Property insurance protecting ACFD against loss or damage by fire
and such other risks as are insurable under then available standard forms of "all risk"
insurance policies, covering ACFD's personal property and trade fixtures in or about the
Premises or the Real Property, and any improvements and/or Alterations in the Premises,
in an amount not less than one hundred percent (100%) of their actual replacement cost
or highest insurable value;
(c) Workers' compensation insurance in at least the statutory amounts;
• and
(d) Comprehensive automobile liability insurance with a minimum
coverage of one million dollars ($1,000,000) per occurrence, combined single limit.
The foregoing policies shall protect ACFD as an additional named
insured, and City and the other Indemnitees as additional insureds, and if subject to
deductibles shall provide for deductible amounts not in excess of those approved in
advance in writing by City in its reasonable discretion. City reserves the right to increase
the foregoing amount of required liability coverage from time to time (but not more often
than once each calendar year) to adequately protect Indemnitees and to require that
ACFD cause any of its contractors, vendors or-other parties conducting activities in or
about or occupying the Premises to obtain and maintain insurance as determined by City
and as to which the Indemnitees shall be additional insureds.
9.3 Excess Coverage Liability Policy. Nothing in this Article IX
shall prevent ACFD from obtaining insurance of the kind and in the amounts provided for
under this Section under an excess coverage liability insurance policy covering other
properties as well as the Premises; provided, however, that any such policy of excess
. coverage liability insurance (i) shall specify those amounts of the total insurance
allocated to the Premises, which amounts shall not be less than the amounts required by
Section 9.2, (ii) such amounts so specified shall be sufficient to prevent any one of the
insureds from becoming a co-insurer within the terms of the applicable policy, and (iii)
shall, as to the Premises, otherwise comply with the requirements of this Article as to
endorsements and coverage.
•
9.4. Policy Form. ACFD maintains its insurance through the County of
Alameda, which is self insured. Other than ACFD's workers' compensation insurance,
all coverage shall (i) provide that no act or omission of ACFD shall affect or limit the
obligations of the insurer with respect to any other insured; (ii) include all waiver of
subrogation rights endorsements necessary to effect the provisions of Section 9.6: and •
(iii) provide that the coverage shall be primary, and that City, although an additional
insured, shall nevertheless be entitled to recovery for any damage to City or the other
Indemnitees by reason of acts or omission of ACFD, and that any coverage carried by
City shall be noncontributory with respect to coverage carried by ACFD. If requested,
190432 L4 22
OFFICE FACILITY USE AGREEMENT
proof of coverage shall be delivered to City by ACED on or before the Commencement
Date. City may at any time, and from time to time, inspect and /or copy any and all .
insurance coverage required by this Agreement.
9.5 Insurance of ACFD's Contractors and Agents. In addition to any other
insurance requirements, ACFD expressly agrees that none of its agents, contractors,
workmen, mechanics, suppliers or invitees performing construction or repair work in the
Premises shall commence such work unless and until each of them shall furnish ACFD
(and City if requested) with satisfactory evidence of insurance coverage, financial
responsibility and appropriate written releases of mechanic's or materialmen's lien, or
stop notice claims, as necessary.
9.6 Waiver of Subrogation. ACFD and City each agree to waive, and as
applicable shall cause the insurance companies issuing their respective property (first
party) insurance, to waive any subrogation rights that each Party and such companies
may have against ACFD or City, respectively, as long as the insurance is not invalidated
by the waiver. If the waivers of subrogation are contained in their respective insurance
policies, City and ACFD waive any right that either may have against the other on
account of any loss or damage to their respective property to the extent that the loss or
damage is insured under their respective insurance policies.
9.7 City's Insurance. City shall maintain throughout the Term liability
insurance and property damage insurance comparable to or exceeding the coverage and
amounts of insurance carried by reasonably prudent municipal/government owners of
comparable buildings, and workers' compensation coverage as required by law.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.1 City's Consent Required. ACFD shall not assign, mortgage, pledge,
encumber or otherwise transfer this Agreement. Except as set forth in this Section,
ACFD shall not permit all or any part of the Premises to be used or occupied for any
purpose by anyone other than ACED without the prior written consent of City, which
City will not unreasonably withhold. Except as set forth in this section, any assignment
or agreement permitting any third party to use or occupy the Premises without City's
prior written consent shall, at City's option, be void and shall constitute ah Event of
Default entitling City to terminate this Agreement and to exercise all other remedies
available to City under this Agreement and at law.
10.2 No Release of Obligations. The consent by City to an assignment or
agreement for use by others shall not relieve ACED or any assignee from the requirement
of obtaining City's express prior written consent to any other or further assignment or
agreement for use by another occupant. No occupant may assign its rights or allow
others to use the Premises, without City's prior written consent, which consent may be
1904321.4 23
OFFICE FACILITY USE AGREEMENT
not be unreasonably withheld. Neither an assignment nor the collection of rent by City
from any person other than ACFD shall be deemed a waiver of any of the provisions of
this Article or release-ACFD from its obligations to comply with this Agreement, and
ACFD shall remain fully and primarily liable for all of ACFD's obligations under this
Agreement.
10.3 Recapture. As material consideration for the execution of this Agreement
by City, ACFD hereby agrees that whenever it delivers notice to City that it desires
approval of a use agreement or assignment which covers the entirety of the Premises,
City shall have the right to review the terms and conditions of such proposed use
agreement or assignment and shall have a right for a period of fifteen (15) business days,
to cancel this Agreement, and enter into a direct agreement with any prospective user or
assignee. Such fifteen (15) day period shall commence upon ACFD's delivery to City of
written notice of the terns of the proposed assignment or use agreement and financial
statements for the proposed assignee or user. If City exercises its right to cancel this
Agreement, ACFD shall surrender possession of all of the Premises not later than the date
on which the proposed use agreement or assignment term would commence.
•
10.4 Proceeds of Third Party Use Agreement or Assignment. If ACFD enters
into any assignment or use agreement permitting a third party to use or occupy the
Premises; City shall be entitled to receive as Additional Rent hereunder, one hundred
percent (100%) of any consideration paid by the assignee or user for the use of
occupancy of the Premises in excess of the amount of Base Rent attributable to the
space that is the subject of the use or occupancy agreement, except that ACFD may
recapture on an amortized basis over the term of the use agreement or assignment, any
brokerage commission paid by ACFD iri connection with the agreement or assignment
(not to exceed the amount of commissions typically paid in the market at the time of such
agreement or assignment) and reasonable marketing costs paid by ACFD in connection
with the use agreement or assignment.
ARTICLE XI
DAMAGE AND DESTRUCTION
11.1 Repair and Restoration: Termination Rights. If all or part of the Premises is
damaged by fire or other casualty, or if the Building is so damaged that access to or use
and occupancy of the Premises is materially impaired, within forty-five (45) days of the
date of the damage, City shall notify ACFD of the estimated time, in City's reasonable
judgment, required for repair or restoration ("Repair Period"). If the estimated time is
180 days or less, City shall proceed promptly and diligently to repair or restore the
Premises or the portion of the Building necessary for ACFD's occupancy, and this
Agreement shall remain in effect, except that for the time unusable, ACFD shall receive a
Rent abatement for that part of the Premises rendered unusable in the conduct of ACFD's
business.
1 904321.4 24
OFFICE FACILITY USE AGREEMENT
If the estimated time for repair or restoration is in excess of 180 days from the
date of the casualty, City, at its option exercised by written notice to ACFD within sixty
(60) days after the date of the casualty, shall either (a) commence to repair the damage, in
which case this Agreement shall continue in full force and effect, or (b) terminate this
Agreement as of the date specified by City in the notice, which date shall be not less than
thirty (30) nor more than sixty (60) days after the date such notice is given, and this
Agreement shall terminate on the date specified in the notice. If the time estimated for
repair is more than one year and City does not give notice terminating this Agreement,
then within thirty (30) days after ACFD receives City's notice providing a Repair Period, •
ACFD may give notice to City terminating this Agreement as of the date specified in
ACFD's termination notice, which date shall not be before the date of such notice or
more than thirty (30) days after the date of ACFD's termination notice.
If the time estimated for repair is less than one year, or is more than one year and
ACFD does not exercise its foregoing termination rights, and in either case City fails to
repair the daniage by the date that is the later to occur of(i) one year from the date of the
damage, or (ii) ninety (90) days after the end of the Repair Period, then ACFD may give
notice to City, within ten (10) business days after the end of the Repair Period
terminating this Agreement as of the date specified in ACFD's notice, which date shall
not be earlier than 45 days after the date of ACFD's termination notice nor more than 60
days after City's receipt of ACFD's termination notice; provided however, if City repairs
the damage for which it is responsible within 45 days after receipt of ACFD's termination
notice, City may elect to nullify ACFD's termination notice (and thereupon this
Agreement shall continue in full force and effect) by City's notice of such repair and
election given to ACFD on or prior to the expiration of such 45-day period.
11.2 Damage Near End of Term. Notwithstanding anything to the contrary set
• forth in this Article, if the Premises or the Building are damaged during the last twelve
(12) months of the Term, City and ACFD shall each have the option to terminate this
Agreement by giving written notice to the other of the exercise of that option within
thirty (30) days after the damage or destruction, and this Agreement shall terminate as of
the date specified in such notice which shall be not before the date of such notice nor
more than 30 days after the date of such notice.
11.3 Rent Apportionment. If City or ACFD elects to terminate this Agreement
under this Article XI, ACFD shall pay Rent, prorated on a per diem basis and paid up to
the date of the casualty. If the Premises are wholly untenantable and this Agreement is
not terminated, Rent shall abate on a per diem basis from the date of the casualty or
default until the Premises are ready for occupancy by ACFD or the default is cured. If
part of the Premises are untenantable, Rent shall be prorated on a per diem basis and
abated in proportion to the portion of the Premises which is unusable until the damaged
part is ready for ACFD's occupancy. Notwithstanding the foregoing, if any damage was
caused by the gross negligence or willful misconduct of ACFD, its employees or agents,
then, in such event, ACFD agrees that Rent shall not abate or be diminished.
1904321.4 25
OFFICE FACILITY USE AGREEMENT
•
11.4 Waiver of Statutory Provisions. The provisions of this Agreement, including
those in this Article XI, constitute an express agreement between City and ACFD that
applies in the event of any damage to the Premises, Building, or Real Property. ACFD,
therefore, fully waives the provisions of any statute or regulation, including California
Civil Code sections 1932(2) and 1933(4), relating to any rights or obligations concerning
any such casualty.
11.5 Daniage Caused by ACFD or ACFD Parties. Notwithstanding any
contrary provision of this Article XI, ACFD shall be solely responsible for the repair of
any damage to the Premises or the Building resulting from the negligence, willful action
or failure to act by ACFD or ACFD Parties, and such repairs shall be undertaken at
ACFD's sole expense.
ARTICLE XII
CONDEMNATION
12.1 Total Taking - Termination. If title to the Premises or so much thereof is
taken through the exercise of any government power (by legal proceedings or otherwise)
by any public or quasi-public authority or by any other party having the right of eminent
domain, or by a voluntary sale or transfer either under threat of exercise of eminent
domain or while legal proceedings for eminent domain are pending so that reconstruction
of the Premises will not result in the Premises being reasonably suitable for ACFD's
continued occupancy for the uses and purposes permitted by this Agreement, this
Agreement shall terminate as of the date possession of the Premises or part thereof is so
taken.
12.2 Partial Taking. If any part of the Premises is taken through the exercise of
eminent domain (or is voluntarily conveyed under the threat thereof) and the remaining
part is reasonably suitable for ACFD's continued occupancy for the uses and purposes
permitted by this Agreement, this Agreement shall as to the part so taken terminate as of
the date that possession of such part of the Premises is taken and the Rent shall be
reduced in the same proportion that the floor area of the portion of the Premises taken
- (less any addition thereto by reason of any reconstruction) bears to the original floor area
of the Premises as reasonably determined by City or City's architect. City shall, at its
own cost and expense, make all necessary repairs or alterations to the Premises so as to
make the portion of the Premises not taken a complete unit.
12.3 No Apportionment of Award. All condemnation awards and similar
payments shall be paid and belong to City, except for any amounts awarded or paid
specifically to ACFD for improvements in the Premises, removal and reinstallation of
ACFD's trade fixtures and personal property, ACFD's moving costs and ACFD's
goodwill. It is expressly understood and agreed by ACFD that except as otherwise stated
in this Section, City shall be entitled to the entire award for any partial or total taking of _
the Property.
190432 L4 • 26
OFFICE FACILITY USE AGREEMENT
12.4 Temporary Taking. No temporary taking of the Premises (which shall
mean a taking of all or any part of the Premises for 60 days or less) shall terminate this
Agreement or give ACFD any right to any abatement of Rent. ACFD may agree to a
temporary taking of a longer period of time. Any award made to ACFD by reason of such
temporary taking shall belong entirely to ACFD, and City shall not be entitled to share
therein.
ARTICLE XIII
SUBORDINATION AND ESTOPPEL
•
13.1 Estoppel Certificate. From time to time and within thirty (30) days after
request by City, ACFD shall execute and deliver a certificate to any proposed lender or
purchaser, or to City, certifying, with any appropriate exceptions, (a) that this Agreement
is in full force and effect without modification except as noted, (b) the amount, if any, of
prepaid rent and deposits paid by ACFD to City (and not returned to ACED), (c) the
nature and kind of concessions, rental or otherwise, if any,which ACFD has received or
is entitled to receive, (d) that City has performed all of its obligations due to be
performed under this Agreement and that there are no defenses, counterclaims,
deductions or offsets outstanding or other excuses for ACFD's performance under this
Agreement as of such date, and (e) any other fact reasonably requested by City or such
proposed lender or purchaser.
13.2 Subordination and Attornment. ACFD agrees that this Agreement is
subject and subordinate to (i) the lien of any mortgage, deed of trust or other
encumbrance of the Building or the Real Property, (ii) all present and future ground or
underlying leases of the Building or Real Property now or hereafter in force against the
Building or Real Property, and (iii) all renewals, extensions, modifications,
consolidations, and replacements of the items described in clauses (i) and (ii).
13.3 Subordination Agreement. The subordination described in this Article XIII
is self-operative, and no further instrument of subordination shall be required to make it
effective. To confirm this subordination, however, ACED shall, within thirty (30) days,
after City's request (unless the Alameda County Board of Directors is on recess, and then
at the first meeting thereafter), execute any further instruments or assurances in
recordable form that City reasonably considers necessary to evidence or confirm the
subordination of this Agreement to any-such encumbrances or underlying leases.
ARTICLE XIV
SURRENDER OF PREMISES; HOLDING OVER
14.1 Surrender of Premises. On expiration of this Agreement, ACED shall
surrender the Premises in the same condition as when the Term commenced, ordinary
wear and tear excepted. Except for furniture, equipment and trade fixtures (other than
1904321.4 27
OFFICE FACILITY USE AGREEMENT
those which are affixed to the Premises so that they cannot be removed without material
damage to the Premises) all alterations, additions or improvements, whether temporary or
permanent in character, made in or upon the Premises, either by City or ACED, shall be
City's property and at the expiration or earlier termination of the Agreement shall remain
on the Premises without compensation to ACFD; provided that, upon reasonable written
request of City, ACFD shall, at its expense and without delay, remove any alterations,
additions or improvements (including, without limitation, all telecommunications
equipment and cabling, and all alterations and improvements made by ACFD after the
Commencement Date) made to the Premises by ACFD and designated by City to be
removed, and shall repair any damage to the Premises or the Building caused by such
removal. If ACED fails to complete such removal or to repair the Premises, City may
complete such removal and repair, and ACFD shall reimburse City therefor. If ACED
fails to remove such property as required under this Agreement, City may dispose of such
property in its sole discretion without any liability to ACFD, and further may charge the
cost of any such disposition to ACFD.
14.2 Hold Over Occupancy. If ACFD remains in possession of the Premises
after the expiration or earlier termination of this Agreement with City's written consent,
ACFD shall be deemed, at City's option, to occupy the Premises on a month-to-month
basis. During such occupancy (and prior to any termination by City), ACED agrees to
• pay City, monthly in advance, an amount equal to the greater of(i) the then fair market
rental (as reasonably determined by City) for the Premises, or (ii) 103% of Base Rent
which would become due the last month of the Term (as such may have been extended
pursuant to the exercise of one or more Extension Options, together with all other
amounts payable by ACFD to City under this Agreement. •
If after written notice to ACED that City does not consent to ACED continuing to
occupy the Premises and ACFD remains in possession of the Premises after the
expiration or earlier termination of this Agreement, ACFD's continued possession shall
be on the basis of a tenancy at sufferance and ACED shall pay Rent during the holdover
period in an amount equal to the greater of (i) one hundred fifty percent (150%) of the
then fair market rental (as reasonably determined by City) for the Premises, or (ii) two
hundred percent (200%) of all Base Rent which would become due the last month of the
Term, together with all other amounts payable by ACED to City.
ARTICLE XV
CITY'S RESERVED RIGHTS.
•
15.1 Rights Reserved to City. Without notice and without liability to ACED,
and without effecting an eviction or disturbance of ACFD's use or possession, City shall
have the right to (i) grant utility easements or other easements in, or subdivide or make
other changes in the legal status of the Land, the Building or the Real Property as City
shall deem appropriate in its sole discretion, provided such changes do not substantially
interfere with ACFD's use of the Premises for the Permitted Use; (ii) enter the Premises
at reasonable times and with reasonable advance notice (and at any time in the event of
1904321.4 2 8
• OFFICE FACILITY USE AGREEMENT
•
an emergency), to inspect (including inspections by prospective lenders for or buyers of
the Real Property), or repair the Premises or the Building and to perform any acts related
to the safety, protection, reletting, sale or improvement of the Premises or the Building;
(iii) add to or take away from the Real Property any building or portion thereof, in which
event (if applicable to this Agreement) the square footage of the Building and ACFD's
Share shall be adjusted accordingly; (iv) install and maintain signs on and in the Building
and the Real Property; and (v) make such rules and regulations as, in the reasonable
judgment of City, May be needed from time to time for the safety of the Building
occupants, the care and cleanliness of the Premises, the Building and the Real Property
and the preservation of good order therein. City shall at all times retain a key with which
to unlock all of the doors in the Premises, except ACFD's vaults and safes. If an
emergency necessitates immediate access to the Premises, City may use whatever force is
necessary to enter the Premises and any such entry to the Premises shall not constitute a
forcible or unlawful entry into the Premises, a detainer of the Premises or an eviction of
ACFD from the Premises or any portion thereof If such entrance is necessary,City shall
first contact ACFD Chief or designee, who shall be available 24 hours a day all days of
the year.
ARTICLE XVI
DEFAULT AND REMEDIES
16.1 ACFD's Default. It shall be an "Event of Default" hereunder if ACFD
shall:
(a) fail to pay when due any monthly installment of Rent(or, if applicable
under this Agreement, ACFD's Share of Operating Expenses), or fail to pay any
other amount owed by ACFD to City under this Agreement as and when due and
such failure continues for thirty (30) days following written notice thereof to
ACFD by City;
(b) fail to provide any certificate, instrument or assurance as required
pursuant to Article IX if the failure continues for fifteen (15) days after written
notice of the failure from City to ACFD;
(c) make a general assignment for the benefit of its creditors or file a
petition for bankruptcy or other reorganization, liquidation, dissolution or similar
relief;
(d) have a proceeding filed against ACFD seeking any relief mentioned in
(c) above which is not discharged within sixty (60) days thereafter;
(e) have a trustee, receiver or liquidator appointed for ACED or a
substantial part of its property;
190432L4 29
OFFICE FACILITY USE AGREEMENT
(0 abandon or vacate the Premises for more than three (3) consecutive
months;
•
(g) assign this Agreement or allow use of any portion of the Premises in
violation of Article X; or
O
(h) fail to comply with any other provision of this Agreement in the
manner required hereunder and such failure continues for thirty (30) days after
written notice thereof to ACFD by City (or if the noncompliance cannot by its
nature be cured within the 30-day period, if ACFD fails to commence to cure such
noncompliance within the 30-day period and thereafter diligently prosecute such
cure to completion).
16.2 Remedies on Default. Upon the occurrence of an Event of Default, City shall
have the right to pursue any one or more of the following remedies in addition to any
other remedies now or later available to City at law or in equity. These remedies are not
exclusive but instead are cumulative.
(a) Continue Agreement. City may continue this Agreement in full force
and effect. In such case, so long as City does not terminate ACFD's right to
possession, the Agreement will continue in effect and City shall have the right to
collect Rent when due, and may undertake efforts to relet the Premises, or any
part of them, to third parties for ACFD's account. Reletting can be for a period
shorter or longer than the remaining term of this Agreement. ACED shall pay to
City the Rent due under this Agreement on the date the Rent is due, less the Rent
City receives from any reletting. No act by City allowed by this Section shall
terminate this Agreement unless City terminates ACFD's right to possession.
After an Event of Default and for as long as City does not terminate ACED's right
to possession of the Premises, if ACFD obtains City's consent, ACFD shall have
the right to assign or sublet its interest in this Agreement, but ACED shall not be
released from liability.
(b) Terminate Agreement. City may terminate the Agreement and ACFD's
right to possession of the Premises at any time following an Event of Default.
Acts of maintenance, efforts to relet the Premises or the appointment of a receiver
on City's initiative to protect City's interest under this Agreement shall not
constitute a termination of ACFD's right to possession. On termination, City shall
have the right to recover from ACFD all of the following:
(i) The worth at the time of the award, of any unpaid Rent that had
been earned at the time of termination of this Agreement;
(ii) The worth, at the time of the award, of the amount by which
the unpaid Rent that would have been earned after the date of termination
1904321.4 30
OFFICE FACILITY USE AGREEMENT
of this Agreement until the time of the award exceeds the amount of the
unpaid Rent that ACFD proves could have been reasonably avoided;
(iii) The worth at the time of the award of the amount by which the
unpaid Rent for the balance of the Term after the time of the award
exceeds the amount of unpaid Rent that ACFD proves could have been
reasonably avoided;
(iv) Any other amount necessary to compensate City for all
detriment proximately caused by ACFD's failure to perform obligations
under this Agreement, including, without limitation, brokerage
commissions, advertising expenses, expenses of remodeling the Premises
for a new tenant, and any special concessions made to obtain a new tenant;
and
(v) Any other amounts, in addition to or in lieu of those listed
above that may be permitted by law.
"The worth, at the time of the award" as used in clauses (i) and (ii) of this
Paragraph (b) is to be computed by allowing interest at the maximum rate allowed
by law at that time, or if there is no such maximum, at a rate of ten percent (10%)
per annum. "The worth, at the time of the award," as referred to in clause (iii) of
this Paragraph (b) is to be computed by discounting the amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of the award plus
one percent(1%). -
16.3 City's Default. City's failure to perform any of its obligations under this
Agreement shall constitute a City Event of Default hereunder if the failure continues for
thirty (30) days after written notice of the failure from ACFD to City. If the required
performance cannot be completed within thirty (30) days, City's failure to perform shall
not constitute a City Event of Default if City undertakes to cure the failure within such
thirty- (30) day period and diligently and continuously attempts to complete the cure as
soon as reasonably possible.
ARTICLE XVII
COMPLETION OF THE PROJECT; PARKING
17.1 Parking. City hereby grants to ACFD a nonexclusive license and right, in
common with City and all persons conducting business in the Building and their
respective customers, guests, licensees, invitees, employees and agents, to use the parking
area located on the Real Property for vehicular parking, such nonexclusive right to be
appurtenant to ACFD's interest created by this Agreement. The nonexclusive license and
1904321.4 31
OFFICE FACILITY USE AGREEMENT
right granted pursuant to this Section shall be subject to the Rules and Regulations.
ACED may park vehicles overnight. ACED shall not permit or allow any vehicles that _
belong to or are controlled by ACFD or ACED's employees, suppliers, shippers, .
customers or invitees to be loaded, unloaded, or parked in areas other than those
designated by City for such activities. ACFD and City will make arrangements for
designating parking required for ACFD use in connection with its use of the Premises
pursuant to this Agreement.
17.2 Project Completion. • The obligations of City and ACED, with respect to
preparation of the Premises for occupancy and completion of the Project are set forth in
the Work Letter attached hereto as Exhibit C. as it may be amended prior to signature.
The Work Letter and any further amendments to the Work Letter, can be executed by the
ACED Chief and by the City Manager. It is acknowledged and agreed that all
improvements installed by City pursuant to this Agreement are and shall be the property
of City from and after their installation. -
ARTICLE XVIII
•
MISCELLANEOUS
•
18.1 No Waiver. No receipt and retention by City of any payment tendered by
ACFD in connection with this Agreement shall constitute an accord and satisfaction, or a
compromise or other settlement, notwithstanding any accompanying statement,
instruction or other assertion to the contrary unless City expressly agrees to an accord and
• satisfaction, or a compromise or other settlement, in a separate writing duly executed by
City. City will be entitled to treat any such payments as being received on account of any
item or items of Rent, interest, expense or damage due in connection herewith, in such
amounts and in such order as City may determine at its sole option. Failure of any party
to exercise any right in one or more instance shall not be construed as a waiver of the
right to strict performance or as an amendment to or modification of this Agreement.
Any waiver of any condition or provision set forth in this Agreement shall not be deemed
a waiver of any subsequent breach of such condition or provision or of any other
condition or provision, nor shall any such waiver be deemed a continuing waiver.
18.2 Severability. The Parties intend this Agreement to be legally valid and
enforceable in accordance with all of its terms to the fullest extent permitted by law. If an
arbitrator or a court of competent jurisdiction holds any provision hereof to be invalid or
unenforceable in whole or in part for any reason, the validity and enforceability of the
remaining clauses, or portions of them, shall not be affected unless an essential purpose
of this Agreement would be defeated by loss of the invalid or unenforceable provision. •
18.3 Governing Law: Construction. This Agreement shall be construed
according to the laws of the State of California without regard to principles of conflict of
laws. The parties acknowledge. that this Agreement is the product of negotiation and
1904321.4 32
OFFICE FACILITY USE AGREEMENT
compromise on the part of both parties, and agree that the provisions hereof shall be
construed in accordance with their fair meaning and not in accordance with any rule
providing for interpretation against the party who causes the uncertainty to exist or
against the drafter. The captions used for the Sections and Articles of this Agreement
have been inserted for convenience only and shall not be used to alter or interpret the
content of this Agreement.
18.4 Binding Effect; Survival. The covenants, conditions, warranties and
agreements contained in this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. The representations and
warranties of City and ACFD and the indemnification obligations of City and ACFD set
forth herein shall survive the expiration or termination of this Agreement as shall all other
provisions hereof which are intended to survive such expiration or termination.
18.5 Time. Time is of the essence of each provision of this Agreement.
18.6 Entire Agreement; Amendments. This Agreement and Exhibits A through
C-3 attached hereto and incorporated herein by this reference, constitutes the final,
complete, and exclusive statement of the terms of the agreement between City and ACFD
pertaining to ACFD's use and occupancy of space in the Building and supersedes all
prior and contemporaneous understandings or agreements of the Parties with respect
thereto. This Agreement may not be amended or modified except in a writing signed by
both parties.
18.7 Notices. All notices delivered pursuant to this Agreement shall be in
writing and delivered to City or ACFD at the applicable address designated in Section 1.1
or to such other address as may hereafter be designated by either party by written notice
delivered to the other party in accordance with this Section. Such notices shall be
effective on the earlier to occur of actual receipt or: (i) if mailed, three (3) days after
posting at a United States post office, (ii) upon receipt if mailed by certified mail with
return receipt requested, and (iii) upon delivery if delivered by overnight delivery service
and delivery is confirmed by the delivery service.
18.8 Force Majeure. Except as otherwise provided in this Agreement, the time
for performance of an obligation other than the payment of money under this Agreement
shall be extended for the period during which a party is prevented from performing due to
Unavoidable Delay. "Unavoidable delay" shall mean any and all delay beyond the
applicable party's reasonable control, including without limitation, delays caused by the
other party; governmental restrictions, regulations, controls, preemptions or delays;
orders of civil, military or naval authorities; strikes, labor disputes, lock-outs, shortages
of labor or materials or reasonable substitutes therefore; Acts of God; fire, earthquake,
floods, explosions or other casualties; extreme weather conditions or other actions of the
elements; enemy action, civil commotion, riot or insurrection.
18.9 Attorneys' Fees: Prejudgment Interest. If the services of an attorney are
required by any party to secure the performance hereof or otherwise upon the breach or
1 90432 I.4 3 3
OFFICE FACILITY USE AGREEMENT
•
default of the other party, or if any judicial remedy or arbitration is necessary to enforce
or interpret any provision of this Agreement, or if the services of an attorney are required
upon the bankruptcy of a party to this Agreement to compel or object to assumption or
rejection of this Agreement, seek relief from the automatic stay or object to an action to
recover a preference or fraudulent transfer, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, expert witnesses fees, post judgment collection costs,
and other expenses, in addition to any other relief to which such party may be entitled.
•
18.10 Authority. Each party warrants and represents that it has full authority to
enter into this Agreement, that this Agreement constitutes a binding obligation of such
• party, and that the individual(s) signing on behalf of such party are duly authorized to
bind such party hereto.
18.11 Approvals. Whenever the consent or approval of City is required
hereunder, such consent or approval may be granted or withheld by the City Manager or
his or her designee, unless the City Manager determines in his or her discretion that such
matter shall be referred to City's governing body for consideration.
18.12 Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which together shall constitute one and the
same instrument. The signature page of any counterpart may be detached therefrom
without impairing the legal effect of the signature(s) thereon provided such signature
page is attached to any other counterpart identical thereto except having additional
signature pages executed by any other party. This Agreement shall take effect when
signed by all parties hereto and all parties have written notice of the signature of all the
remaining parties.
18.13 Brokers. ACFD and City each represent and warrant to the other that
except as stated in this Section, no broker or agent is entitled to a broker's commission or
finder's fee in connection with the execution of this Agreement or the consummation of
the transaction contemplated hereby, and each party agrees to defend and indemnify the - -
other party against any loss, expense or liability incurred by the other party as a result of
a breach of such representation and warranty. The provisions of this Section shall
survive the expiration or earlier termination of the Agreement. City shall pay a
consulting fee to Colliers International in accordance with a separate agreement.
18.14 Submission of Agreement. Submission of this document for examination
or signature by the Parties does not constitute an option or offer to allow ACFD to use or
occupy the Premises on the terms in this document or a reservation of the Premises in
favor of ACFD. This Agreement is not effective until executed and delivered by both
City and ACED.
18.15 Non-Agency. It is not the intention of City or ACFD to create hereby a
relationship of principal and agent, and under no circumstances shall ACFD be
considered the agent of City, nor City the agent of ACED.
1904321.4 34
OFFICE FACILITY USE AGREEMENT
SIGNATURES ON FOLLOWING PAGE.
1904321.4 3 5
OFFICE FACILITY USE AGREEMENT
•
NOW THEREFORE, City and ACFD have executed this Office Facility Use
Agreement as of the date first written above.
ACFD CITY
ALAMEDA COUNTY FIRE DEPARTMENT, CITY OF DUBLIN,
a public agency a municipal corporation
By: By:
Print Name:
Its: City Manager
Title:
Attest:
City Clerk
Approved as to Form:
City Attorney
1904321.4 36
OFFICE FACILITY USE AGREEMENT
Exhibit A-1
DIAGRAM OF PREMISES
This exhibit to be updated in with Memorandum Confirming Commencement Date and
Total Project Costs
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• 1904321.4 37
OFFICE FACILITY USE AGREEMENT
Exhibit A-2
Memorandum Confirming Commencement Date and Total Project Costs
For
OFFICE FACILITY USE AGREEMENT
(6363 Clark Ave)
This Memorandum Confirming Commencement Date and Total Project Costs, entered
into as of , 20 ("Effective Date") supplements that certain Office
Facility Use Agreement ("Agreement") entered into effective as of July 1, 2012 by and
between the CITY OF DUBLIN, a municipal corporation ("City"), and ALAMEDA
COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection
District Law of 1961 (Health and Safety Code Sections 13801 el seq.) and governed by
the Alameda County Board of Directors ("ACED"). Capitalized terms used without
definition herein shall have the meanings ascribed to such terms in the Agreement.
City and ACFD hereby agree as follows:
1. Commencement Date: The Commencement Date as defined in the Agreement
shall be: . 20 -
2. Base Rent: As Base Rent for use of the Premises, ACFD will pay the City as
follows:
Year Monthly Annual Base Rent Per
Base Rent Base Rent Rentable Square Foot
Per Month
1 $ $ $
3 $ $ $
4 $ $ $
5 $ $ $
3. ACFD's Share of Expenses: ACFD's Share shall be: percent
( %).
1904321.4 38
OFFICE FACILITY USE AGREEMENT
•
•
4. Rentable Square Footage: The rentable square footage of the Premises is
square feet.
5. In the event of conflict between the terms of this Memorandum and the terms of
the Agreement, the terms of this Memorandum shall prevail.
IN WITNESS WHEREOF, City and ACFD have executed this Memorandum
Confirming Commencement Date and Total Project Costs as of the date first written
above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT CITY OF DUBLIN
By: By:
•
Print Name: Its: City Manager
Title: Attest:
City Clerk
•
Approved as to Form: Approved as to Form:
Donna R. Ziegler, County Counsel
By: City Attorney
Deputy County Counsel
1904321.4 39
OFFICE FACILITY USE AGREEMENT
Exhibit B
General Building
RULES AND REGULATIONS
Except as otherwise provided in any provision of the Agreement, the following
Rules and Regulations shall apply:
1. Wherever the word "Occupant" or "Occupants" is used in this Exhibit, it
is understood and agreed that such terms mean an individual or entity occupying any part
of the Building pursuant to a lease, use agreement, or similar instrument, and shall also
mean an Occupant's associates, employees, agents and any other person entering the
Building or Premises under the express or implied invitation of Occupants. Occupants
shall cooperate with City to assure compliance by all such parties with rules and
regulations
2. The sidewalks, entrances, halls, corridors, elevators and stairways of the
Building and Real Property shall not be obstructed or used as a waiting or lounging place
by Occupants, or their agents, employees, invitees, licensees or visitors. All entrance
doors leading from any Premises to the hallways are to be kept closed at all times.
3. City reserves the right to refuse admittance to the Building between the
hours of 6:00 p.m. and 8:00 a.m. Monday through Friday and on Saturday, Sunday and
holidays to any person not producing both a key to the Premises and/or a pass issued by
City. In case of invasion, riot, or other commotion, City also reserves the right to prevent
access to the Building during the continuance of same.
4. City will furnish each Occupant with two keys to each door lock on the
Premises, and City may make a reasonable charge for any additional keys and access
cards requested by any Occupant. No Occupant shall have any keys made for the
Premises; nor shall any Occupant alter any lock, or install new or additional locks or bolts
on any door without the prior written approval of City. In the event of such alteration or
installation approved by City, the Occupant making such alteration shall supply City with
a key for any such lock or bolt. Each Occupant, upon the expiration or termination of its
tenancy, shall deliver to City all keys and access cards in any such Occupant's possession
for all locks and bolts in the Building.
5. No Occupant shall cause any unnecessary labor by reason of such
Occupant's carelessness or indifference in the preservation of good order and cleanliness
of the Premises. Occupants will use reasonable efforts to see that (i) the windows are
closed, (ii) the doors are securely locked, and (iii) all water faucets and other utilities are
shut off(so as to prevent waste or damage) each day before leaving the Premises. In the
event Occupants must dispose of crates, boxes, etc., which will not fit into office waste
paper baskets, it will be the responsibility of Occupants to dispose of same. In no event
shall Occupants set such items -in public hallways or other areas of the Building or the
Real Property excepting the Premises, for disposal.
190432 L4 40
OFFICE FACILITY USE AGREEMENT
6. City reserves the right to reasonably prescribe the date, time, method and
conditions that any personal property, equipment, trade fixtures, merchandise and other
similar items shall be delivered to or removed from the Building. No iron safe or other
heavy or bulky object shall be delivered to or removed from the Building, except by
experienced movers or riggers approved in writing by City. All damage done to the
Building by the delivery or removal of such items, or by reason of their presence in the
Building, shall be paid to City, immediately upon demand, by the Occupant by, through,
or under whom such damage was done. There shall not be used in any space, or in the
public halls of the Building, either by Occupants or by jobbers or others, in the delivery
or receipt of merchandise, any hand trucks, except those equipped with rubber tires.
7. The walls, partitions, skylights, windows, doors and transoms that reflect
or admit light into passageways or into any other part of the Building shall not be covered
or obstructed by any of the Occupants.
8. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall not
be used for any purposes other than for those for which they were constructed or
installed, and no sweepings, rubbish, chemicals, or other unsuitable substances shall be
thrown or placed therein. The expense of any breakage, stoppage or damage resulting
from violation(s) of this rule shall be borne by the Occupant by whom, or by whose
agents, employees, invitees, licensees or visitors, such breakage, stoppage or damage
shall have been caused.
9. No sign, name, placard, advertisement or notice visible from the exterior
of the Premises, shall be inscribed, painted or affixed by the Occupants on any part of the
Building or Real Property without the prior written approval of City, which approval may
be withheld in City's reasonable discretion. All signs or letterings on doors, or otherwise
approved by City shall be inscribed, painted or affixed at the sole cost and expense of the
Occupant, by a person approved by City. A directory containing the names of all
Occupants in the Building shall be provided by City at an appropriate place on the first
floor of the Building.
10. No signaling, telegraphic or telephonic instruments or devices, or other
wires, instruments or devices, shall be installed in connection with any Premises without
the prior written approval of City. Such installations, and the boring or cutting for wires,
shall be made at the sole cost and expense of the Occupants and under control and
direction of City. City retains, in all cases, the right to require (i) the installation and use
of such electrical protecting devices that prevent the transmission of excessive currents of
electricity into or through the Building, (ii) the changing of wires and of their installation
and arrangement underground or otherwise as City may direct, and (iii) compliance on
the part of all using or seeking access to such wires with such rules as City may establish
relating thereto. All such wires used by Occupants must be clearly tagged at the
distribution boards and junction boxes and elsewhere in the Building, with (i) the number
of the Premises to which said wires lead, (ii) the purpose for which said wires are used,
and (iii) the name of the company operating same.
1904321.4 41
OFFICE FACILITY USE AGREEMENT
11. Occupants, their agents and employees, shall not without the consent of
City (a) go on the roof of the Building, (b) use any additional method of heating or air
conditioning in the Premises, (c) sweep or throw any dirt or other substance from the
Premises into any of the halls, corridors, elevators, or stairways of the Building, (d) bring
in or keep in or about the Premises any vehicles or animals of any kind (except guide
dogs for the disabled), (e) install any radio or television antenna or any other device or
•
item on the roof, exterior walls, windows or window sills of the Building, except that
Occupants shall have access to Building common television antennae, (f) place objects
against glass partitions, doors or windows which would be unsightly from the interior
common area or the exterior of the Building, (g) use any Premises: for lodging or
sleeping or for any manufacturing, storage or sale of merchandise or property of any kind
except for sale of food and beverages.in conjunction with the Permitted Use; and (h)
cause or permit unusual or objectionable odor to be produced or permeate from the
Premises, including, without limitation, duplicating or printing equipment fumes.
Occupant, its agents, and employees, invitees, licensees, or visitors shall not permit the
operation of any musical or sound producing instruments or device which may be heard
outside Premises, or which may emit electrical waves which will impair radio or
television broadcast or reception from or into the Building.
12. Occupants shall not store or use in the Premises any (a) ether, naphtha,
phosphorous, benzol, gasoline, benzene, petroleum, crude or refined earth or coal oils,
kerosene or camphene, (b) any other flammable, combustible, explosive or illuminating
fluid, gas or material of any kind, and (c) any other fluid, gas or material of any kind
having an offensive odor, without the prior written consent of City.
13. No canvassing, soliciting, distribution of hand bills or other written
material, or peddling shall be permitted in the Building or the Real Property, and
Occupants shall reasonably cooperate with City in prevention and elimination of same.
14. Occupants shall give City prompt notice of all accidents to or defects in air
conditioning equipment, plumbing, electrical facilities or any part of appurtenances of
Premises.
15. If any Premises becomes infested with vermin, the Occupant, at its sole
cost and expense, shall cause its premises to be exterminated from time to time to the
satisfaction of the City and shall employ such exterminators as shall be approved by City,
except in the event such infestation is due to City's negligence or willful misconduct.
16. No curtains, blinds, shades, screens, awnings or other coverings or
projections of any nature shall be attached to or hung in, or used in connection with any
door, window or wall of the premises of the Building without the prior written consent of
the City.
17. City shall have the right to prohibit any advertising by Occupants which,
• in City's opinion, tends to impair the reputation of City or of the Building, or its
1904321.4 42
OFFICE FACILITY USE AGREEMENT
desirability as an office building for existing or prospective Occupants who require the
highest standards of integrity and respectability, and upon written notice from City,
Occupants shall refrain from or discontinue such advertising.
18. City reserves the right to make reasonable amendments, modifications and
additions to the rules and regulations heretofore set forth, and to make additional
reasonable rules and regulations, as in City's reasonable judgment may from time to time
be needed for the safety, care, cleanliness and preservation of good order of the Building;
provided that the same shall be non-discriminatory and applied consistently to all
Occupants in the Building.
19. Occupants shall not do anything in the Premises, or bring or keep anything
therein, which will in any way increase or tend to increase the risk of Occupants or rate of
insurance, or which shall conflict with the regulations of the Fire Department or the fire
safety code or with any insurance policy on the Building or any part thereof, or with any
. rules or ordinances established by any governmental authority with jurisdiction over the
Building.
20. Occupant requests shall be delivered to the property manager designated
by City.
21. City shall have the right, exercisable without notice and without liability to
Occupants, to change the name and the street address of the Building. City will pay for all
reasonable costs incurred by Occupants as a result of changing the street address of the
Building unless the change is requested by an authorized governmental agency.
22. No Occupant shall obtain for use upon the Premises ice, drinking water,
towel or other similar service or accept barbering or bootblacking services on the
Premises, except from persons authorized by City and at the hours and under regulations
fixed by City. Notwithstanding the foregoing, Occupants shall have the right to provide
bottled water, coffee and similar service of its choice.
•
1904321.4 43
OFFICE FACILITY USE AGREEMENT
Exhibit C
WORK LETTER
THIS WORK LETTER ("Work Letter") supplements that certain Office Facility
Use Agreement ("Agreement") entered into effective as of July 1, 2012 by and between
the CITY OF DUBLIN, a municipal corporation ("City"), and ALAMEDA COUNTY
FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law
of 1961 (Health and Safety Code Sections 13801 el seq.) and governed by the Alameda
County Board of Directors ("ACFD"). All capitalized terms not defined herein shall
have the same meanings as set forth in the Agreement.
1. Base Building Work. City and ACFD acknowledge and agree that the
Building shell and core (collectively the "Base Building Work") have been completed or
shall be completed by City and that Base Rent shall be calculated based upon the
inclusion of a percentage of the cost of the Base Building Work being completed on that
portion of the Building being used by ACFD pursuant to the Agreement and other costs
as set forth in Exhibit C-2. The Base Building Work includes, but is not limited to, the
following elements of the Building in areas used by ACFD: (a) concrete floors (without
floor coverings); (b) unfinished perimeter walls (including windows, window frames, and
doors); (c) unfinished ceilings; (d) finish of the restrooms on ACFD's floor; (e) closets
for telephone and electrical systems (but not the systems themselves); (f) Building
mechanical, electrical, and plumbing systems within the Building core only; (g) interior
core walls; (h) standard fire sprinkler protection on each floor; (i) any code-required
items relating to the other elements of the Base Building Work, such as exit signs,
speakers, fire doors, and any other life-safety support system for each floor; and (j) dry
wall and tape of interior columns.
2. ACED Improvements. City and ACFD acknowledge and agree that City,
through City's contractor, shall construct improvements (the"ACED Improvements") in
the Premises in accordance with the Final Plans (as hereinafter defined). ACFD
understands and agrees that the installation of certain elements of the ACFD
Improvements may be performed before or after execution of the Agreement for reasons
of economics or convenience. Such elements may include, among other things, the
extension of mechanical and electrical distribution systems outside the Building core,
wall construction, column enclosures,painting, ceiling hanger wires, and window
treatment.
3. Plans.
(a) City and ACFD will approve in writing plans for completion of the Project,
including the Base Building Work and the ACFD Improvements (collectively, the
"Plans") and an estimate of the Total Project Cost.
A copy of the cost estimate is attached to this Work Letter as Exhibit C-2 and
incorporated herein by this reference. Upon agreement by City and ACFD on the Plans, a
1904321.4 44
OFFICE FACILITY USE AGREEMENT
true and correct copy of the Plans will be incorporated into this Work Letter by execution
of a Memorandum of Plans, in form attached hereto as Exhibit C-1 ("Memorandum of
Plans"). For purposes of the inclusion of the Plans only, the Memorandum of Plans,
attached hereto as Exhibit C-1, can be executed by the ACFD Chief and by the City
Manager.
(b) City and ACFD shall cooperate in good faith to finalize the Plans, without
delay. ACFD shall fully cOoperate by providing City, its architects, engineers, and
contractors with timely information and approvals of plans, drawings, and specifications.
Any acts by City or ACFD to delay or otherwise act negligently or in bad faith in
approving the Plans and/or cooperating with the other in the design and construction of
the ACFD Improvements shall result in a Delay (as hereinafter defined) under this Work
Letter.
(c) City and ACFD acknowledge that the Plans may not depict certain structural
elements of the Building and/or various elements of the Building systems that may result
in material modifications to the final plans and specifications for the ACFD
Improvements (collectively "Structural Modifications"). Furthermore, any final plans
and specifications for the construction of the ACFD Improvements may require
modification to account for the requirements of building codes and other legal
requirements of applicable governmental entities, including, but not limited to, Title 24
and the Americans with Disabilities Act (collectively the "Building Codes"). Within
ninety (90) days after the execution date of the Memorandum of Plans, , City shall cause
to be prepared final plans and specifications in substantial conformity with the Plans
taking into account(i) Structural Modifications, (ii) the requirements of the Building
Codes, (iii) other modifications resulting from physical constraints of the Premises, and
(iv) modifications requested by ACFD and consented to by City, which consent shall not
be unreasonably withheld (the "Final Plans"). ACFD agrees that, in addition to other
factors and considerations City may take into account, it shall not be unreasonable for
City to withhold its consent to any requested modifications to the Plans (i) if such
requested modifications would not comply with the Building Codes, (ii) if such requested
modifications would delay the completion of the ACFD Improvements beyond the
Scheduled Completion Date, (iii) if such requested modifications would cause an undue
burden on the architect, the contractor, the subcontractors, or City's personnel, or (iv) if
such requested modifications would unreasonably increase the burden on the Building
systems,either during construction or after completion of same. Upon agreement by City
and AFCD on the Final Plans, a true and correct copy will be attached to this Work Letter
by execution of a second Memorandum of Plans. For purposes of the Final Plans only, or
any further amendments to the Final Plans, the Memorandum of Plans, can be executed
by the ACFD Chief and by the City Manager.
(d) Total Project Cost shall include, without limitation, all architectural and
engineering fees and costs incurred in connection with the ACFD Improvements depicted
on the Final Plans including architectural plans required to depict accessibility routes for
the Building in general. Any'and all architectural and engineering fees and costs incurred
as a result of changes in the Final Plans requested by ACFD shall be ACFD's sole
responsibility and shall be paid by ACFD as Additional Rent within thirty (30) days after
1904321.4 45
OFFICE FACILITY USE AGREEMENT
ACFD's receipt of City's invoices accompanied by such other documentation as ACFD
may reasonably request showing that such additional fees or costs have been incurred.
4. Delay
(a) The Commencement Date shall not be delayed, postponed, or adjusted due to
a a Party Delay. No Party Delay or Force Majeure Delay shall be deemed to have
occurred unless and until the party claiming such delay has provided written notice to the
other party specifying the action or inaction that such notifying party contends constitutes
a Party Delay or Force Majeure Delay, as applicable. If such action or inaction is not -
cured within fifteen (15) days after receipt of such notice, then a Delay, as set forth in
such notice, shall be deemed to have occurred commencing as of the date such notice is
received and continuing for the number days the design of or completion of the ACFD
Improvements was in fact delayed as a direct result of such action or inaction.
(b) The term "Party Delay" as used in this Work Letter shall mean any delay that
either Party may encounter in the performance of its obligations under this Work Letter
because of any of acts or omissions of any nature by the other Party, whether committed
willfully, negligently, intentionally, or otherwise, that result in any delay including any:
(i) delay attributable to changes in or additions to the Plans, or to the ACFD
Improvements requested by ACFD, as well as any delays caused by a change order
issued at the other Party's request; (ii) delay attributable to the other Party's failure to
timely approve any and all Plans for ACFD Improvements; (iii) delay attributable to a
Party's failure to act in good faith in cooperating with the other Party, its architects,
engineers, and contractors in approving Plans; (iv) delay attributable to postponement of
any ACFD Improvements at the request of a a Party ; (v) delay by a Party in furnishing
information or giving any other approvals or authorizations within the time limits set
forth in this Work Letter, or if no time is set forth for such performance in this Work
Letter, then a reasonable time, time being of the essence; (vi) delay attributable to the
failure of a Party to pay, when due,.any amounts required to be paid by that Party
pursuant to this Work Letter or the Agreement; and (vi) any actual delay in the design
and/or completion of ACFD Improvements attributable solely to the acts or failures to
act, whether willful, negligent, or otherwise, of a Party, its agents, or contractors, to the
extent contrary to the terms hereof
(c) The term "Force Majeure Delay" as used in this Work Letter shall mean any
•
(i) actual delay in the design and/or completion of ACFD Improvements attributable to
any strike, lockout, or other labor or industrial disturbance (whether or not on the part of
the employees of either party hereto), civil disturbance, further order claiming
jurisdiction, act of public enemy, war, riot, terrorism, sabotage, blockade, or embargo; (ii)
actual delay in the design and/or completion of ACFD Improvements due to changes in
any Laws, including the Americans with Disabilities Act; or (iii) actual delay in the
design and/or completion of ACFD Improvements attributable to terrorist act, lightning,
earthquakes, fire, storm, hurricane, tornado, flood, washout, explosion, or any other
similar industry-wide or Building-wide cause beyond the reasonable control of the party
1904321.4 46
OFFICE FACILITY USE AGREEMENT
from whom performance is required, or any of its contractors, or other representatives.
Any prevention, delay, or stoppage due to any Force Majeure Delay shall excuse the
performance of the party affected for a period of time equal to any such prevention,
delay, or stoppage, except the obligations of either party to pay money, including Rent,
and all other charges, pursuant to the terms of the Agreement.
5. Changes. ACFD shall not request or make any changes or substitutions to the
Final Plans without City's prior written approval, which approval shall not be
unreasonably withheld; provided, however, that City may disapprove, in its sole and
absolute discretion, any such changes or substitutions that: (i) do not conform to
applicable governmental regulations or are disapproved by any governmental agency; (ii)
require power consumption and/or Building services beyond the level normally provided
to other occupants in the Building; (iii) overload the floors; or (iv) in City's reasonable
opinion, are of a nature or quality that is inconsistent with City's objectives concerning
the appearance or quality of the Building. Any such requested changes or substitutions
shall be subject to the provisions of Paragraph 4 above, and may constitute a ACFD
Delay as described in Paragraph 4 above.
6. Total Project Cost.
(a) For purposes hereof, "Total Project Cost" shall include, without
limitation, the following: (i) all design fees, engineering fees, and consultants' fees
incurred by City in connection with the design and engineering of the ACFD
Improvements, including the costs of space plans and all plans and specifications; (ii)
governmental agency plan check, permit, and other fees; (iii) sales and use taxes; (iv)
Title 24 fees; (v) testing and inspection costs; (vi) the cost of materials, labor, and
supplies; (vii) the general contractor's overhead and profit; (viii) charges for water,
electricity, gas, and ITVAC during the construction of the ACFD Improvements; (ix) all
other costs expended or to be expended in connection with the construction of the
Project, including the cost of the ACFD Improvements and ACFD's allocated share of
Base Building Costs and Demolition and Prep work; and (x) City's return on costs equal
to six percent(6%) of the sum of ACFD Improvement Cost and ACFD's allocated share
of the Base Building Costs and Demolition and Prep cost, all as more particularly set
forth in Exhibit C-2.
(b) If ACFD requests any changes or substitutions to the Plans, and City
approves such changes or substitutions, and such changes and/or substitutions result in an
increase in Total Project Costs, then Base Rent payable under the Agreement shall be
adjusted to take into consideration such increased costs. All changes or substitutions
shall be made at reasonably competitive prices.
(c) City and ACFD acknowledge that the costs set forth in Exhibit C-2 are an
estimate. The Parties agree that when Total Project Costs are determined, a revised
Exhibit C-2 shall be appended to the Memorandum Confirming Commencement Date
and Total Project Costs and shall serve as the basis for determination of Base Rent.
1904321.4 47
OFFICE FACILITY USE AGREEMENT
•
7. ACFD's Work. Any item or work not shown in the Final Plans, including, for
example, telephone and data service or furnishings, for which ACFD contracts separately
(hereinafter"ACFD's Work"), shall be conducted in such a way as not to hinder, cause
any disharmony with, or delay work of improvement in the Building. ACFD shall cause
its suppliers and contractors to engage only labor that is harmonious and compatible with
other labor working in the Building. In the event of any labor disturbance caused by
persons employed by ACED or ACFD's contractor, ACFD shall immediately take all
actions necessary to eliminate such disturbance. At any time any supplier, contractor,
workman, or mechanic performing ACFD's Work hinders or delays any other work of
improvement in the Building or performs any work that may or does impair the quality,
integrity, or performance of any portion of the Building, ACFD shall cause such supplier,
contractor, workman, or mechanic to leave the Building and remove all his tools,
equipment, and materials immediately upon written notice delivered to ACFD, and
ACFD shall reimburse City for any repairs or corrections of the ACFD Improvements or
ACFD's Work or of any portion of the Building caused by or resulting from the work of
any supplier, contractor, workman, or mechanic with whom ACFD contracts as
Additional Rent under the Agreement. If requested, ACFD shall provide City with
adequate proof of that insurance required to be maintained by ACFD pursuant to the
terms of the Agreement, prior to commencing any ACFD Work.
8. Completion of ACFD Improvements. ACFD and City shall review and approve the
Project construction schedule prior to commencement of work. City shall cause the
ACED Improvements to be constructed in a good and workmanlike manner, free from
design, material, and workmanship defects in accordance with the Final Plans and all
Applicable Laws.
9. ACFD's Access to the Premises. Inspection and Punchlist. ACFD's
representative shall have the right to enter the Premises at all reasonable times for the
purpose of inspecting the progress of construction of the ACED Improvements; provided
however, during the period of the construction of the Project, ACED shall not enter the
Premises unless accompanied by an authorized agent of City. City shall notify ACFD
when the ACFD improvements are substantially complete. On receipt of such notice,
ACFD's representative, City's representative, and if appropriate contractors, shall
promptly inspect the ACED Improvements and prepare a written list ("Punchlist') of any
items that are defective, incomplete, or do not conform to the Final Plans, applicable
permits or Applicable Laws.
10. Time Periods. All time periods referred to in this Work Letter shall be
computed on a business day basis, meaning Monday through Friday, excluding holidays.
I1. Party's Representative. Each Party shall designate to the other in writing,
upon execution of the Agreement, the name of one individual representative who will
work with the other's representatives throughout the period of construction of the ACFD
Improvements. In the event of a change in personnel, the other Party shall immediately be
1904321.4 48
OFFICE FACILITY USE AGREEMENT
notified of any replacement of a representative. In the event the designated representative
will not be available, due to a vacation or any other extended absence from the office,
notification shall promptly be given of an interim representative, and the dates that person
shall be acting as the interim representative.
12. ACFD's Default. Notwithstanding any provision to the contrary contained in
the Agreement, upon the occurrence of an Event of Default on the part of ACFD under
the Agreement, or upon a default by ACFD under this Work Letter prior to substantial
completion of the Project,then(i) in addition to all other rights and remedies granted to
City pursuant to the Agreement, City shall have the right to cause any and all engineers,
architects, contractors, and any other persons associated with the design or construction
of the Project to cease work thereon; and (ii) all other obligations of City under the
Agreement and this Work Letter shall be abated until such time as such default is cured in
accordance with the terms of the Agreement, or this Work Letter, as applicable.
13. Authority To Sign. Pursuant to Section 17.2 of the Agreement, this work
Letter is executed by the ACFD Chief and by the City Manager
14. Counterparts. This Work Letter may be executed in counterparts, each of
which shall be an original and all of which taken together shall constitute one and the
same instrument.
SIGNATURES ON FOLLOWING PAGE(S)
1904321.4 49
OFFICE FACILITY USE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Work Letter as of the
Effective Date of the Agreement.
•
ACFD CITY
ALAMEDA COUNTY FIRE DEPARTMENT, CITY OF DUBLIN,
a public agency a municipal corporation
By: By:
Print Name: Its: City Manager
Title Alameda County Fire District Chief Attest:
City Clerk
Approved as to Form:
Approved as to Form:
Donna R. Ziegler, County Counsel
City Attorney
By:
Deputy County Counsel
Exhibit C-1
• MEMORANDUM OF PLANS
For
OFFICETACILITY USE AGREEMENT
(6363 Clark Avenue)
This Memorandum of Plans, executed as of - , 20 is a supplement to that
certain Office Facility Use Agreement("Agreement") entered into effective as of July 1,
2012 by and between the CITY OF DUBLIN, a municipal corporation ("City"), and
ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire
Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and
governed by the Alameda County Board of Directors ("ACFD"). Capitalized terms used
in this Memorandum without definition shall have the meaning ascribed to such terms in
the Agreement.
City and ACFD hereby agree as follows:
1904321.4 50
OFFICE FACILITY USE AGREEMENT
•
Attached hereto is a true and correct copy of the Plans for the Premises that are the
subject of the Agreement. The Plans are hereby incorporated into the Agreement.
Pursuant to Section 3 of the Work Letter, attached as Exhibit C to the Agreement, and
duly executed by the City and ACFD, this Memorandum of Plans is executed by the
ACFD Chief and the City Manager.
IN WITNESS WHEREOF, this Memorandum of Plans is hereby executed as of
the date first written above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN,
By: By:
Print
Name:
Its: City Manager
Title Alameda County Fire District Chief
Attest:
City Clerk
Approved as to Form:
•
Donna R. Ziegler, County Counsel
Approved as to Form:
By:
Deputy County Counsel
City Attorney
•
1904321.4 51
OFFICE FACILITY USE AGREEMENT
Exhibit C-2
Formula for Determining Base Rate
Bldg/Cost Assumptions Total
Building Square Feet 55,000
ACFD Office Square Feet 14,000
•
ACFD Percent of 25.45%
Building
Project Cost Proforma-ACFD Office Portion of
Building
Base Building Cost(City $1,400,000
Cost Basis)
Demolition and Prep— $202,009
Direct and Indirect Costs
Improvements—Direct • $1,917,252
and Indirect Costs
Cost Per
Square Foot
Total Project Cost $3,519,261 $251.38
Estimate*
Agreement Rate Analysis_
Cost Return on Annual Rent Monthly Monthly
Cost Rent Rent PSF
NNN
$3,519,261 6.00% $211,156 $17,596 $1.26
Cumulative Rent Annual
(3% annual
adjustments)
Year I $211156
Year 2 $217,490
Year 3 $224,015
Year 4 $230,735
Year 5 $237.658
Total Rent $1,121,054
1904321.4 52
OFFICE FACILITY USE AGREEMENT
Exhibit C-3
Reserved for
WORK LETTER FOR NEW SPACE
1904321.4 53
OFFICE FACILITY USE AGREEMENT
MAINTENANCE FACILITY USE AGREEMENT
(Scarlett Court)
This Maintenance Facility Use Agreement (this "Agreement") is entered into
effective as of July 1, 2012 (the "Effective Date") by and between the CITY OF
DUBLIN, a municipal corporation ("City"), and ALAMEDA COUNTY FIRE
DISTRICT, a dependent fire district formed under the Fire Protection District Law of
1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda
County Board of Directors ("ACED"). City and ACFD are hereinafter referred to
collectively as the"Parties."
RECITALS
WHEREAS, since July 1, 1997, ACFD has provided fire and emergency
response services within the City pursuant to a separate written agreement;and
WHEREAS, City and ACFD are entering into a separate written agreement
pursuant to which ACFD will continue to provide fire and emergency response services
within the City for another twenty years;and
WHEREAS, pursuant to those separate service agreements ACED already •
maintains an office in the Dublin Civic Center (or such other location as may be
designated by the City)to provide fire prevention services; and
WHEREAS,ACFD and City have entered into a separate agreement pursuant to which
ACFD will have the use of office space for ACFD administrative activities;
WHEREAS, ACFD has a need for land and building space to conduct
maintenance, repair and testing of vehicles and apparatus;and
WHEREAS, City owns available land and building space (the "Property" as
defined below) that will be suitable for use by ACFD for a maintenance facility if certain
improvements are made; and
WHEREAS, City desires to allow ACFD to use such land and building space if
ACFD pays for the Total Project Costs(as defined below); and
WHEREAS, ACFD is willing to pay Total Project Costs for use of the land and
building.
NOW THEREFORE,the City and ACED agree as follows.
1904210.4 1
MAINTENANCE FACILITY USE AGREEMENT
Ei.htbt-F 13
•
ARTICLE I
BASIC PROVISIONS
•
1.1 City's mailing address: City of Dublin, 100 Civic Plaza, Dublin,CA 94568.
1.2 City's contact: Joni Pattillo,City Manager. Telephone: (925)833-6650.
1.3 ACFD's mailing address: 835 East 14th Street,Suite 200, San Leandro,CA
94577, with a copy to ACFD at the Premises.
1.4 ACFD's contact: - Deputy Chief of Administration, currently Chief Demetrious
N. Shaffer. Telephone: (510)618-3490.
1.5 Permanent Maintenance Facility address:5777 Scarlett Court, Dublin, CA
94568.
1.6 Temporary Maintenance Facility Address: 6363 Clark Avenue, Dublin, CA
94568.
1.7 Commencement Date: the date upon which City delivers possession of the
Premises to ACFD, anticipated to be January 2014. The specific date will be
identified in the Memorandum Confirming Commencement Date and Total
Project Costs (attached hereto as Exhibit A-2) which will be completed and
executed by the Parties when a definitive date and Total Project Costs are
determined.
1.8 Term: Starting on the Effective Date and continuing until the Expiration Date
(defined in the following section).
1.9 Expiration Date: The last day of the month in which the twentieth (201h)
anniversary of the Commencement Date occurs.
1.10 Option(s)to Extend Term: None.
I.I I A Base Rent for Permanent Maintenance Facility: As I3ase Rent for use of the
Premises, ACFD will pay the City as follows: •
Year Estimated Monthly
Base Rent
1-2 $129,821
3-4 $137,610
5-6 $145,867
7-8 $154,619
1904210.4 2
MAINTENANCE FACILITY USE AGREEMENT
•
•
•
9-10 $163,896
I1-12 $173,730
13-14 $184,154
15-16 $195,203 •
17-18 $206,915
19-20 $219,330
The Base Rent specified in this Section 1.1IA is an estimate based upon an
anticipated Total Project Cost equal to Six Million, Seven Hundred and Forty
Five Thousand, Five Hundred and Thirty Dollars ($6,745,530), of which ACFD
will initially contribute Three Million, Five Hundred Thousand Dollars
($3,500,000) as specified in Section 1.13. The specific formula for determining
the Base Rent is set forth in the attached Exhibit B-2. The Total Project Cost is
subject to change as the following line items are estimated amounts and subject to
change based on actual costs:
Building Costs and ACFD Improvements
Indirect Costs
If the actual costs for the above line items differ from the amounts specified in
Exhibit B-2, the Base Rent is subject to modification. When the final and actual
Total Project Cost is determined, the Base Rent shall be calculated based thereon,
and shall be specified in the Memorandum Confirming Commencement Date and
Total Project Costs. Every two (2) years during the Term, Base Rent shall
increase 6%,as set forth in Exhibit B-2.
1.11B Base Rent for Temporary Maintenance Facility: Two Hundred Thousand
Dollars ($200,000) payable in advance as part of the Initial Payment(see Section
1.13). This shall be the full base rent for use of the Temporary Maintenance
Facility by ACFD,regardless of the length of use.
1.12 ACFD's Share of Expenses: ACED'shall pay 100% of Operating Expenses for
the Permanent Maintenance Facility and the Temporary Maintenance Facility.
1.13 ACFD's Initial Payment: ACED shall pay to City the sum of Three Million,
Seven Hundred Thousand Dollars ($3,700,000) (the "Initial Payment") within
60 days following the Effective Date. This Initial Payment includes the sum of
Two Hundred Thousand Dollars.($200,000)for the prepaid Base Rent for the use
of the Temporary Maintenance Facility (defined below) for the period
commencing on the date that City delivers possession of the Temporary
Maintenance Facility to ACFD, and continuing until ACFD relocates its
maintenance facility to the Premises. The balance of the Initial Payment
1904210.4 3
MAINTENANCE FACILITY USE AGREEMENT
constitutes a portion of the cost to construct the Permanent Maintenance Facility,
and is identified on Exhibit B-2 as"ACFD Contribution."
1.14 Permitted Uses: Operation of a facility for maintenance, repair and testing of
vehicles and apparatus including cars, trucks, fire engines, fire trucks, boats,
trailers, heavy equipment, rescue and safety vehicles and other machinery that
may be used by ACFD or other entities that provide public services
("Apparatus") and related administration and training activities, all in
accordance with Applicable Laws. This includes Apparatus that are maintained
and or serviced for other public entities through agreements with ACFD.
1.15 Parking: All parking on the Property shall be for the exclusive use of
ACFD. Parking for the Temporary Maintenance Facility is addressed in Section
3.7
ARTICLE II
DEFINITIONS
Definitions. As used in this Agreement,the following terms shall have the definitions set
forth below. Additional terms are defined in the remainder of the Agreement.
"ACFD Improvements" is defined in Exhibit B.
"ACFD Parties" is defined in Section 6.1.
"ACFD's Share" is defined in Section 4.5.1.1.
"Additional Rent" means any and all sums other than Base Rent which ACED
is or becomes obligated to pay to City under this Agreement(whether or not specifically
called"Additional Rent" in this Agreement).
"Alterations" means any alterations, decorations, modifications, additions or
improvements made in, on, about, under or contiguous to the Premises by or for the •
•
benefit of ACFD including but not limited to, telecommunicatioris and/or data cabling,
lighting, 1-1VAC and electrical fixtures, pipes and conduits, partitions, cabinetwork and
carpeting.
"Applicable Laws" is defined in Section 5.3.
"Base Rent"means for each year during the Term, the monthly amount payable
for the Premises as set forth in Section 1.1 1.
"Claims" is defined in Section 6.3.
1901210.4 - 4
•
MAINTENANCE FACILITY USE AGREEMENT
•
"Commencement Date" is the date set forth in Section 1.7 as such may be
modified as specified in the Memorandum Confirming Commencement Date and Total
Project Costs referenced in Section 1.7.
"Common Area" means all areas and facilities located on the Property and used
by ACFD, including sidewalks, landscaped areas and similar areas and facilities that are
also shared with others. The Common Areas of the Property will be included and
identified in the Plans.
"Environmental Laws" is defined in Section 6.6.
"Hazardous Material" is defined in Section 6.5.
"Improvements" means the Permanent Maintenance Facility and all other
improvements constructed or installed on the Property, including, without limitation, a
parking lot,driveways, lighting and landscaping.
"Indemnitees" is defined in Section 6.3.
"Memorandum"means the Memorandum Confirming Commencement Date and
Total Project Costs to be executed by the Parties substantially in the form attached hereto
as Exhibit B-2,and which shall specify the Commencement Date and the Base Rent.
"Operating Expenses" is defined in Section 4.5.1.
"Passthrough Expenses" is defined in Section 4.7.
"Permanent Maintenance Facility" means the facility to be constructed by City
on the Property pursuant to this Agreement.
"Plans" is defined in Exhibit B.
"Premises" means the Property and the Improvements, including the Permanent
Maintenance Facility, and all other Improvements on the Property.
"Project" means the development of the Permanent Maintenance Facility on the
Property, including without limitation, completion of all related site preparation and
construction work necessary to prepare the Permanent Maintenance Facility and the
Premises for ACFD's.occupancy pursuant to this Agreement.
"Property" means the westernmost portion of the real property owned by City
and located in the City of Dublin at 5777 Scarlett Court, as depicted in Exhibit A-1
attached hereto and that will be used exclusively by ACFD. The Property is a portion of
Alameda County Assessor's Parcel No. 941-0550-029, and is more particularly described
in Exhibit A-1.
1904210.4 5
MAINTENANCE FACILITY USE AGREEMENT .
•
•
•
"Property Taxes"is defined in Section 4.6. - •
"Rent"means Base Rent and Additional Rent,collectively.
"Temporary Maintenance Facility" means the metal building located on the
east side of the building located at 6363 Clark Avenue, Dublin, California, and includes
only the metal building.
"Term" means the term of this Agreement as set forth in Section 1.8. as such
may be extended pursuant to the terms hereof.
"Total Project Cost'means City's cost to complete the Project, including
without limitation, demolition, site preparation, and construction as more particularly
described in Exhibit B-2. •
ARTICLE Ill
PREMISES AND TERM
3.1 Use of Premises. Subject to and upon the terms and conditions set forth
herein, City hereby agrees to allow ACFD the use of the Premises, and ACED hereby
agrees to use the Premises in accordance with the terms of this Agreement. ACFD
acknowledges that City has made no representation or warranty regarding the condition
of the Property, the Improvements, or the Temporary Maintenance Facility except as
specifically stated in this Agreement, including all exhibits, or as specified in the Plans as
they may be amended and accepted by ACFD and City.
3.2 Term and Commencement. The Term of this Agreement shall commence
on the Effective Date, and unless sooner terminated as provided herein, the Term shall be
for the period set forth in Section 1.8.
3.3 Delay in Delivery of Premises. If City fails to deliver possession of the
Premises to ACED on or before the anticipated Commencement Date set forth in Section
1 7. City shall not be subject to any liability for its failure to do so. This failure shall not
affect the validity of this Agreement or the obligations of ACED hereunder. Pursuant to
Section 3.7, ACFD shall be entitled to occupy the Temporary Maintenance Facility until
the Premises are delivered to ACFD.
3.4 Early Access. ACED shall not occupy the Premises prior to the •
Commencement Date except with the express prior,written consent of City. Provided
that (i) this Agreement has been executed by ACFD and City, and (ii) ACED, if
requested, has provided to City proof of insurance coverage for all insurance that ACFD
is required to maintain under this Agreement, ACFD shall be.permitted access to the
Premises prior to the Commencement Date for the purpose of installing ACFD's fixtures
and equipment, but not for the purpose of performing maintenance of Apparatus on the
1904210.4 6
MAINTENANCE FACILITY USE AGREEMENT
•
Premises. If ACFD is provided access to the Premises prior to the Commencement Date,
all of the terms and provisions of this Agreement shall apply to ACFD's use of the
Premises except for the requirement for the payment of Rent, and ACFD shall abide by
all of such terms and provisions.
3.5 No Representations. ACFD acknowledges that neither City nor any of
City's agents has made any representation or warranty as to the suitability or fitness of
the Premises or the Temporary Maintenance Facility for the conduct of ACFD's business,
and that neither City nor any of City's agents has agreed to undertake any alterations or
additions or to construct any improvements to the Premises or the Temporary
Maintenance Facility except as expressly provided in this Agreement and the Plans.
3.6 Intentionally omitted.
3.7 Temporary Maintenance Facility. Subject to and upon the terms and
conditions set forth in this Section, City hereby agrees to allow ACFD to use the
Temporary Maintenance Facility, and ACFD agrees to use the Temporary Maintenance
Facility in accordance with the terms of this Section 3.7. ACFD's right to use the
Temporary Maintenance Facility will commence during the first calendar quarter of
2013 when the Temporary Maintenance Facility is available for use, and shall terminate
30 days after the Commencement Date.
3.7.1 The Temporary Maintenance Facility shall include, for the
exclusive use of ACFD, secure parking that is adequate for Apparatus in a
location that can be locked with restricted public access.
3.7.2 ACFD acknowledges that City has made no representation or
warranty regarding the condition of the Temporary Maintenance Facility except
as specifically stated in this Agreement.
3.7.3 ACFD shall prepay all rent payable for the Temporary
Maintenance Facility as part of the Initial Payment pursuant to and as described in
Section 1.13.
•
3.7.4 ACFD shall use the Temporary Maintenance Facility solely in
accordance with the requirements of Article V (Use of Premises).
3.7.5 ACFD shall be responsible for payment of all operating expenses,
all utility payments, and all Real Property Taxes associated with the Temporary.
Maintenance Facility, and all such obligations shall constitute Additional Rent.
ACFD shall make all payments of Additional Rent to City in accordance with the
procedures described in Section 4.7 and in accordance with Annual Statements for
the Temporary Maintenance Facility which City shall provide. In addition,
ACFD shall be responsible, at ACFD's sole expense, for maintaining the
Temporary Maintenance Facility in good condition and repair. ACFD shall
•
1904210.4 7
MAINTENANCE FACILITY USE AGREEMENT
ti
comply with all Applicable Laws in connection with its activities and occupancy
of the Temporary Maintenance Facility. •
3.7.6 ACFD shall comply with all provisions of Article VI
(Environmental Matters)with respect to the Temporary Maintenance Facility, and
shall indemnify, defend and hold the Indemnitees harmless from and against all
Claims arising in connection with or resulting from ACFD's use of the Temporary
Maintenance Facility to the same extent provided in Sections 6.3 and 9.1.•
Throughout the period that it occupies the Temporary Maintenance Facility,
ACFD shall maintain all insurance described in Article IX (Insurance and
Indemnity) with coverage applicable to the Temporary Maintenance Facility and
ACFD's operations therein, and ACED shall comply with all other requirements
of Article IX throughout such period.
3.7.7 ACED shall have no right to assign or enter into use agreements
permitting any other party to occupy any portion of the Temporary Maintenance
Facility,without specific written consent from City.
3.7.8 In addition to the provisions set forth in this Section 3.7, the
following provisions of this Agreement shall apply to ACFD's occupancy of the
Temporary Maintenance Facility: Article VIII (Alterations), Article XI (Damage
and Destruction), Article Xil (Condemnation), Article XIII (Subordination and
Estoppel), Article XIV (Surrender of Premises; Holding Over), Article XV
(City's Reserved Rights), Article XVI (Default and Remedies) and Article XVII
(Completion of the Project).
3.7.9 City shall deliver possession of the Temporary Maintenance
Facility to ACFD vacant and in good repair and with a secure area for parking
Apparatus that has restricted access. City shall have no obligation to modify the
Temporary Maintenance Facility, it being understood that any such modifications
shall be undertaken by ACFD at ACED's expense; provided however,City's prior
written consent shall be required prior to commencement of any such
modification.
3.7.10 ACFD shall vacate the Temporary Maintenance Facility by not
later than 30 days after the Commencement Date.
ARTICLE IV
RENT,OPERATING EXPENSES,TAXES AND SECURITY DEPOSIT
4.1 Monthly Rent. From and after the Commencement Date, ACED shall pay
to City for each calendar month of the Term, the monthly Base Rent set forth in Section
• 1.11. Each monthly installment of Base Rent shall be due and payable to City in lawful
money of the United States, in advance, on the first (1st) day of each calendar month
1904210.4 8
MAINTENANCE FACILITY USE AGREEMENT
•
during the Term, without abatement, deduction, claim or offset(unless the Parties
mutually agree to allow an abatement, deduction, claim or offset), and without prior
notice, invoice or demand,at City's address set forth in Section 1.1 or such other place as
City may designate from time to time. ACFD's payment of Base Rent for the first
month of the Term shall be delivered to City on the Commencement Date.
4.2 Prorations. Monthly installments for any fractional calendar month at the
beginning or end of the Term shall be prorated based on the number of days in such
month.
•
4.3 Additional Rent. All Additional Rent, including without limitation,
•
ACFD's Share of Passthrough Expenses (defined below) and ACFD's Share of Property
Taxes shall be due and payable to City in lawful money of the United States without
abatement, deduction, claim or offset within thirty (30) days of receipt of City's invoice
or statement for same (or if this Agreement provides another time for the payment of
certain items of Additional Rent, then at such other time) at City's address set forth in
Section 1.1 or such other place as City may designate from time to time.
4.4 Late Charge. ACFD acknowledges that the late payment of Rent will
cause City to incur administrative costs and other damages, the exact amount of which
would be impracticable or extremely difficult to ascertain. City and ACED agree that if
City does not receive any such payment within ten (10)calendar days after such payment
is due, ACFD shall pay to City as Additional Rent an amount equal to five percent(5%)
of the overdue amount as a late charge for each month or partial month that such amount
remains unpaid. The Parties acknowledge that this late charge represents a fair and
reasonable estimate of the costs that City will incur by reason of the late payment by
ACED. Acceptance of any late Rent and late charge therefore shall not prevent City from
exercising any of the other rights and remedies available to City for any other Event of
Default under this Agreement.
4.5 Common Area Charges,Operating Expenses and Taxes.
4.5.1 ACFD to Pay all Operating Expenses. ACFD shall be solely
responsible for payment of all operating expenses associated with the Premises
("Operating Expenses"), including without limitation, all costs associated with the
maintenance, repair, management and operation of the Improvements and the Property,
including, but not limited to the following: repair and maintenance of the roof,
foundation and exterior walls of .the Improvements; periodic painting of the
Improvements; periodic cleaning of the exterior windows of the Improvements;
landscaping services; pest control; operation, maintenance and repair of equipment and
elevators(if any), utility systems, H VAC systems, mechanical and electrical systems and
sanitary and storm drain systems through maintenance contracts or otherwise;
maintenance services, repairs to and replacement of asphalt paving, bumpers, striping,
light bulbs, light standards, monument and directional signs and lighting systems,
perimeter walls, retaining walls, sidewalks, planters, landscaping and sprinkler system in
planting areas; any and all assessments levied against the Improvements and/or the
1904210.4 9
MAINTENANCE FACILITY USE AGREEMENT
•
•
•
Property; water, electrical and other utility services; removal of trash, rubbish and other
refuse; cleaning and replacement of signs, including relamping and repairs; costs
incurred in connection with compliance with any laws or changes in laws applicable to
the Improvements or the Property, including without limitation any laws or changes in
laws regarding Hazardous Material; subject to Section 4.5.1.2, the cost of capital
improvements to the Improvements, to the extent of the amortized amount thereof over
the useful life of such capital improvements calculated at a market cost of funds, all as
reasonably determined by City, for each year of useful life during the Term; the cost of
any environmental consultant or other services used in connection with City's monitoring
of the Property with respect to Hazardous Materials, and any other items reasonably
necessary from time to time to properly repair, replace, maintain and operate the
Improvements and the Property, on no more than an annual basis. If a property manager
is hired by City, Operating Expenses shall also include a management fee, of no more
than actual costs, consistent with comparable projects in the City of Dublin to cover
City's management, overhead and administrative expenses or City's payment of
professional management fees.
4.5.1.1 Common Area Maintenance. Tenant shall pay fifty percent (50%)
("ACFD's Share") of the cost to repair and maintain the Common Area, including
without limitation,the cost of sidewalk repairs,repaving, and landscape maintenance and
irrigation.
4.5.1.2 Capital Improvements. City and ACFD agree that they will meet
and confer to discuss the extent to which the cost of any particular capital improvement
that City proposes to undertake with respect to the Improvements shall be included within
Operating Expenses or otherwise paid by ACFD.
4.5.2 Exclusions From Operating Expenses. Despite any other provision of
Section 4.5.1, Operating Expenses shall not include: (a) depreciation, interest, or
amortization on mortgages or ground lease payments; (b) legal fees; (c) real estate
brokers' leasing commissions; (d)any costs expressly excluded from Operating Expenses
elsewhere in this Agreement; (e) costs of capital improvements, except as otherwise
stated herein; and (f) costs of any items for which City receives reimbursement from
insurance proceeds or a third party.
4.6 Taxes. Both Parties are exempt from payment of most taxes; however,for
purpose of this Agreement, the term "Property Taxes" shall mean any form of tax,
assessment, charge, license, fee, rent tax, levy, penalty (if a result of ACFD's
delinquency), real property or other tax now or hereafter imposed with respect to the
Improvements or the Property or any part thereof (including any Alterations), this
Agreement or any Rent payable under this Agreement by any authority having the direct
or indirect power to tax, or by any city, county, state or federal government or any
improvement district or other district or division thereof, whether such tax or any portion
thereof(i) is determined by the area of the Improvements or the Property, or any part
thereof or the Rent payable under this Agreement by ACFD, including, but not limited to
any gross income or excise tax levied by any of the foregoing authorities with respect to
1904210.4 10
MAINTENANCE FACILITY USE AGREEMENT
receipt of Rent due under this Agreement, (ii) is levied or assessed in lieu of, in
substitution for, or in addition to, existing or additional taxes with respect to the
Improvements or the Property or any part thereof whether or not now customary or
within the contemplation of City or ACFD, or (iii) is based upon any legal or equitable
interest of City in the Improvements or the Property or any part thereof ACFD and City
intend that all Property Taxes, including without limitation all new and increased
assessments, taxes, possessory interest taxes charged or levied in place of real property
taxes,fees, levies,and charges and all similar assessments,taxes, fees, levies and charges
shall be included within the definition of "Property Taxes" for purposes of this
Agreement.
4.6.1 Apportionment of Taxes. If the Improvements and the Property
are assessed as part of a larger parcel, then City shall equitably apportion the Property
Taxes and reasonably determine the Property Taxes attributable to the Improvements. If
other buildings exist on the assessed parcel, the Property Taxes apportioned to the
Improvements shall be based upon the ratio of the square footage of the Improvements to
the square footage of all buildings on the assessed parcel.
4.6.2 Tax on Improvements. Notwithstanding anything to the contrary
set forth in this Agreement, ACFD shall pay prior to delinquency any and all taxes, fees
and charges which are levied or assessed against City or ACFD: (a) upon ACFD's
equipment, furniture, fixtures, improvements and other personal property located on the
Property or in the Improvements, (b) by virtue of any alterations or leasehold
improvements made to the Property or Improvements• by ACED, and (c) upon this
transaction or any document to which ACFD is a party creating or transferring an interest
or an estate in the Premises. City shall promptly notify ACFD of any tax, fee or charge.
If any such tax, fee or charge is paid by City, ACFD shall reimburse City for City's
payment upon demand.
4.7 Payment of Operating Expenses and Taxes. ACFD shall pay to City ACFD's
Share (as defined in Section 4.5.1) of Common Area Expenses, ACFD's share of Real
Property Taxes (as determined pursuant to Section 4.6.1), and all Operating Expenses
attributable to the Premises that are not directly billed to ACFD (all of the foregoing,
collectively "Passthrough Expenses") as follows: on the Commencement Date (or as
soon thereafter as is reasonably practicable) and thereafter prior to the commencement of
each calendar year during the Term, City shall give ACFD a written estimate of ACFD's
•
Share of Passthough Expenses for the ensuing calendar year. Commencing on the
Commencement Date and continuing thereafter throughout the Term,ACFD shall pay, as
an item of Additional Rent, such estimated amount in equal monthly installments, in
advance, on or before the first day of each calendar month. If City has not furnished its
written estimate by the time set forth above, ACFD shall pay monthly installments of
Passthrough Expenses at the rate established for the prior calendar year, if any; provided
that when the new estimate is delivered to ACFD, as applicable, ACFD shall at the next
monthly payment date pay City any accrued deficiency based.on the new estimate, or
City shall credit any accrued overpayment based on such estimate toward ACFD's next
installment payment hereunder. Within a reasonable period of time after the end of each
1904210.4 11
MAINTENANCE FACILITY USE AGREEMENT
calendar year during the Term (but in no event more than 180 days after the end of each
year),City shall furnish ACED a statement("Annual Statement")showing in reasonable
detail ACFD's Share of the actual Passthrough Expenses incurred for the period in
question; provided, however, with respect to the calendar year during which this
Agreement expires or sooner terminates, City may,at its election,provide ACFD with an
Annual Statement prior to the end of such year based on estimated Operating Expenses,
as determined by City. If ACED's estimated payments are less than ACED's Share of
actual Passthrough Expenses as shown by the applicable Annual Statement, ACFD shall
pay the difference to City within thirty (30) days following delivery of the Annual
Statement. If ACFD shall have overpaid City, City shall credit such overpayment toward
ACFD's next installment payment hereunder or if no installment payment is due, refund
the amount to ACFD within thirty (30)days. When the Annual Statement is furnished to
ACFD for the calendar year in which this Agreement expires or sooner terminates: (i)
ACFD shall, even if this Agreement has expired or terminated, pay to City within thirty
(30) days after notice, any additional sum payable by ACFD in excess of the estimate
previously provided, and (ii) City shall rebate any overpayment to ACFD within thirty
(30) days following delivery of the Annual Statement. If City determines at any time
that the estimate of ACFD's Share of Passthrough Expenses for the current year is or will
become inadequate to meet ACFD's Share of all such Passthrough Expenses for any
reason, City may, at its election, determine the approximate amount of such inadequacy
and issue a supplemental estimate, and ACED shall pay any increase as reflected by such
supplemental estimate.
City shall keep or cause to be kept separate and complete books covering all
Passthrough Expenses and showing the method of calculating ACFD's Share of
Passthrough Expenses, and shall preserve for at least twelve (12) months after the close
of each year all material documents evidencing such Passthrough Expenses for that year.
For a period of 180 days following ACFD's receipt of an Annual Statement, ACFD, at its
sole cost and expense, through a representative designated by ACFD and reasonably
approved by City, shall have the right upon written notice to City, during reasonable
business hours at City's offices, to examine and/or audit the books and documents
evidencing such costs and expenses for the period covered by the applicable Annual
Statement, provided that ACED is not then in default under this Agreement. Any delay
or failure by City in delivering any estimate or statement pursuant to this Section shall
not constitute a waiver of its right to require ACED to pay ACFD's Share of Passthrough
Expenses,pursuant hereto.
ARTICLE S'
USE OF PREMISES
5.1 Permitted Use.The Premises shall be used solely for the purposes set forth
in Section 1.14 and for no other purpose without the written consent of City, which may
be granted or withheld in City's reasonable discretion. ACFD shall not do or suffer or
permit anything to be done in or about the Premises nor bring or keep anything therein .
that would in any way subject City to any liability, increase the premium rate of or affect
1901210.4 12 •
MAINTENANCE FACILITY USE AGREEMENT
any fire,casualty, rent or other insurance relating to the Property or the Improvements, or
cause a cancellation of, or give rise to any defense by the insurer to any claim under, or
conflict with, any insurance coverage. If any act or omission of ACFD results in any
such increase in premium rates,ACFD shall pay to City upon demand the amount of such
increase. Other than as specified in the Plans, no underground fuel storage tanks may be
located at the Premises without City's prior written approval, and City may condition
such approval upon ACFD's provision of proof of adequate insurance coverage for such
purpose. ACFD may keep on the Premises receptacles for storage of chemicals
including fuel, oil, coolants, fire foams and other fluids associated with the maintenance,
repair and testing of Apparatus, provided that all such receptacles are stored, used,
transported and maintained in compliance with all Applicable Laws.
5.2 Sienage. ACFD shall obtain the prior approval of the City, which approval
will not be unreasonably withheld, before placing any sign or symbol on or about the
Premises. Upon expiration or termination of this Agreement,all signs installed by ACFD
shall be removed and any damage resulting therefrom shall be promptly repaired by
ACFD,or such removal and repair may be done by City and the cost charged to ACFD as
Rent.
5.3 Compliance with Laws. ACFD shall procure and maintain all
governmental approvals, licenses and permits required for the proper and lawful conduct
of ACFD's permitted use of the Premises. ACFD shall throughout the Term comply with
and shall not use the Premises or suffer or permit anything to be done in or about the
saute which would in any way conflict with any of the following (collectively
"Applicable Laws"): (i) the provisions of all recorded covenants, conditions and
restrictions applicable to the Property, or (ii) any federal, state, county, local or other
governmental agency rules, regulations, statutes, ordinances, orders, standards,
requirements or laws now in force or hereafter enacted, promulgated or issued which are
applicable to the Premises, or the use or occupancy thereof, including without limitation
building,zoning,and fire codes and regulations.
5.4 Repairs, Replacements and Maintenance. ACFD shall, at ACFD's sole
expense, keep the Property and the Improvements in good condition in compliance with
Applicable Laws, and ACFD shall, at ACFD's sole expense promptly make all repairs,
replacements, alterations,or improvements necessary to comply with all Applicable Laws
and/or to maintain the Property and the Improvements in good condition and repair.
ARTICLE VI
ENVIRONMENTAL MATTERS
6.1 Use of Hazardous Materials. ACFD shall not cause or permit any
Hazardous Material to be generated,brought onto,used,stored,or disposed of in or about
the Property or the Improvements by ACFD or ACFD's agents, employees, contractors,
or invitees (collectively "ACFD Parties"), except for limited quantities of standard
office and janitorial supplies and other standard materials and supplies used in connection
1904210.4 13
MAINTENANCE FACILITY USE AGREEMENT
•
with the maintenance, repair and testing of Apparatus, including gasoline and oil. At
ACED's sole cost and expense, ACFD shall use, store and dispose of all such Hazardous
Materials in strict compliance with all Environmental Laws, and shall in all other respects
comply with all Environmental Laws.
6.2 Notice of Release or Investigation. If during the term of this Agreement
(including any extensions), ACFD becomes aware of (a) any actual or threatened
unauthorized release of any Hazardous Material in, on, under, or about the
Improvements or the Property, or(b)any inquiry, investigation, proceeding, or claim by
any government agency or other person regarding the presence of Hazardous Material in,
on, under, or about the Improvements or the Property, other than routines inspections,
ACFD shall give City written notice of the release or investigation within five (5) days
after learning of it and shall simultaneously furnish to City copies of any claims, notices
of violation, reports, or other writings received by ACFD that concern the release or
investigation.
6.3 Indemnification. ACFD shall defend (with counsel acceptable to City),
indemnify and hold harmless City and City's elected and appointed officers, officials,
employees, agents and representatives (collectively, "Indemnitees") from and against
any and all liabilities, losses, damages, fines, deficiencies, penalties, claims, demands,
suits, actions, causes of action, legal or administrative proceedings,judgments, costs and
expenses (including without limitation reasonable attorneys' fees and expenses, court
costs, expert witness fees and post judgment collection costs) (all of the foregoing,
collectively"Claims") resulting or arising from or in connection with any release of any
Hazardous Material in or about the Improvements or the Property or any other violation
of any Environmental Law by ACFD, or ACFD's agents, assignees, sublessees,
contractors, or invitees. This indemnification includes: (i) losses attributable to
diminution in the value of the Property or the Improvements, (ii) loss or restriction of use
of the Property or the Improvements, and (iii) all other liabilities, obligations,penalties,
fines, claims, actions (including remedial or enforcement actions of any kind and
administrative or judicial proceedings, orders, or judgments), damages (including
consequential and punitive damages), and costs (including attorney, consultant, and
expert fees and expenses) resulting from the release or violation. The indemnity
provided in this Section shall not extend to Claims to the extent the same are caused by
the negligence or willful misconduct of Indemnitees. The provisions of this Section shall
survive the expiration or termination of this Agreement.
6.4 Remediation Obligations. If the presence of any Fazardous Material,
brought onto the Premises by ACFD or ACED's employees, agents, contractors, or
invitees results in contamination of the Property, the Improvements or any part thereof,
ACFD shall promptly take all necessary actions to remove or remediate such Hazardous
Materials, whether or not they are present at concentrations exceeding state or federal
maximum concentration or action levels, or any governmental agency has issued a
cleanup order, at ACED's sole expense, to return the Property and the Improvements to
the condition that existed before the introduction of such Hazardous Material. ACED
shall first obtain City's approval of the proposed removal or remedial action. This
1904210.4 14
MAINTENANCE FACILITY USE AGREEMENT
provision does not limit the indemnification obligation set forth in Section 6.3. This .
Section is not intended to impair ACFD's right to use Hazardous Materials on the
Premises consistent with the provisions of this Agreement and in compliance with all
Applicable Laws.
6.5 Definition of Hazardous Material. As used in this Agreement, the term
"Hazardous Material' means any hazardous or toxic substance, material, or waste at
any concentration that is or becomes regulated by the United States, the State of
California, or any government authority having jurisdiction over the Property or the
Improvements. Hazardous Material includes: (a) any "hazardous substance," as that
term is defined in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) (42 United States Code sections 9601-9675); (b)
"hazardous waste," as that term is defined in the Resource Conservation and Recovery
Act of 1976 (RCRA) (42 United States Code sections 6901-6992k); (c) 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); (d) petroleum products; (e) radioactive material,
including any source, special nuclear, or byproduct material as defined in 42 United
States Code sections 2011-2297g-4; (f) asbestos in any form or condition; and (g)
polychlorinated biphenyls(PCBs)and substances or compounds containing PCBs.
6.6 Definition of Environmental Laws. As used in this Agreement, the term
"Environmental Laws" means all federal, state and local laws, ordinances, regulations,
rules orders and directives pertaining to Hazardous Materials, including without
limitation,the laws, statutes, and regulations cited in the preceding Section 6.5, as any of
the foregoing may be amended from time to time.
ARTICLE VII
UTILITIES AND MAINTENANCE
7.1 Utilities. ACFD shall be solely responsible for payment for all utilities
utilized in the Improvements or on the Property, including without limitation all
electricity,air conditioning and heating,water,sewer and trash collection.
7.2 Maintenance. ACED shall, at all times during the Term of this Agreement,
at ACFD's sole expense, keep the Property and the Improvements in good order,
condition and repair, including without limitation (i) maintenance of all exterior areas of
the Improvements and the Property, including without limitation, lighting and
landscaping; (ii) cleaning, painting, maintenance and repair of the Improvements, (iii)
maintenance and repair of mechanical, electrical, 1-IVAC and plumbing equipment and
systems and the structural components of the Improvements, including the roof,
foundation, floors and walls, and (iv) maintenance and repair of all parking lots,
walkways, driveways, fences, utility systems, fire sprinklers, stairs, elevators, corridors,
1904210.4 15
MAINTENANCE FACILITY USE AGREEMENT
•
restrooms, windows. If ACFD fails to maintain or keep the Property and Improvements
in good repair or if such failure results in a nuisance or health or safety risk, at City's
option, and after written notice to ACID , if ACID does not respond to such notice
within thirty (30) days (except in the event of nuisance or health and safety risk), City
may perform any such required maintenance and repairs,and within thirty(30)days after
receipt of City's invoice, ACFD shall pay City's costs incurred in connection with such
repairs, plus a percentage of such costs sufficient to reimburse City for all overhead,
general conditions,fees and other costs and expenses in connection therewith
7.3 Repair Obligations. Except as expressly set forth in this Agreement,
(including all attachments and exhibits hereto) or the Plans, City shall have no obligation
to repair or maintain the Property,the Improvements,or any equipment installed therein.
7.4 Compliance with Applicable Laws. City and ACFD shall each comply
with (and shall cause their respective employees, agents and contractors to comply with)
all Applicable Laws, including without limitation all Environmental Laws, whenever
either party undertakes any work of construction, alteration or improvement with respect
to the Property or the Improvements.
ARTICLE VIII
ALTERATIONS AND ADDITIONS
8.1 Alterations and Improvements. Other than routine repair of Improvements,
ACED may not make any improvements,alterations,additions or changes to the Property
or the Improvements ("Alterations") exceeding Ten Thousand Dollars ($10,000) in cost
without the prior written approval of City, which shall not be unreasonably withheld. If
ACID desires to make any Alteration costing in excess of$10,000, the Parties will meet
and develop an appropriate plan for accomplishing the Alterations.
Unless otherwise agreed upon by City in writing, all Alterations shall be done at
ACFD's expense, in a good and workmanlike manner, by ACID,Alameda County GSA,
or by licensed contractors, in conformity with plans and specifications reviewed and
approved by City, and in compliance with all Applicable Laws. ACID shall obtain all
necessary governmental approvals and permits for such Alterations. ACED shall give
City not less than ten (10) business days' notice prior to the commencement of
construction so that City may post a notice of nonresponsibility on the Premises. City
may at its option by written notice to ACID, require that ACFD, upon the expiration or
sooner termination of this Agreement,at ACFD's expense,remove any or all Alterations
and return the Premises to its condition as of the Commencement Date, normal wear and
tear excepted.
1904210.4 16
MAINTENANCE FACILITY USE AGREEMENT
ARTICLE IX
INSURANCE AND INDEMNITY
9.1 Mutual Indemnity. To the fullest extent permitted by law, ACFD shall
defend(with counsel reasonably acceptable to City), indemnify and hold the Indemnitees
harmless from and against any and all Claims arising out of or relating directly or
indirectly to this Agreement and ACFD's use of the Premises (including without
limitation, Claims for or relating to loss of or damage to property, injury or death of any
person, and economic losses and consequential or resulting damage of any kind),
including any Claim arising from or in connection with or in any way attributable to (i)
the use or occupancy, or manner of use or occupancy of the Improvements or the
Property by ACFD or ACFD Parties,(ii)any act,error, omission or negligence of ACFD
Parties or any invitee, guest or licensee of ACFD in, on or about the Premises, (iii) any
Alterations, activity, work, or thing done, omitted, permitted, allowed or suffered by
ACFD or ACFD Parties in, at, or about the Improvements or the Property, or (iv) any •
breach or default in performance of any obligation on ACFD's part in the performance of
any covenant or agreement to be performed by ACFD under this Agreement, except to
the extent caused by the negligence or willful conduct of City or the Indemnitees. This
indemnification does not extend to Claims arising out of Common Areas unless such
Claims arise from the negligence or intentional actions of ACFD or ACFD Parties.
To the fullest extent permitted by law, City shall defend(with counsel reasonably
acceptable to ACFD), indemnify and hold ACFD, AFCD Parties and its elected and
appointed officers, officials, employees, agents and representatives (collectively
"Indemnified Parties")harmless from and against any and all Claims(including without
limitation, Claims for or relating to loss of or damage to property, injury or death of any
person, and economic losses and consequential or resulting damage of any kind),
including any Claim arising from or in connection with or in any way attributable to: (i)
any act, error, omission or negligence of City or any of its contractors, agents, invitees,
•
guests or licensees in, on or about the Property or the Improvements, (ii) any activity,
work, or thing done,omitted, permitted,allowed or suffered by the City or its contractors,
agents, invitees, guests or licensees in;at, or about the Improvements or the Property, or
(iv) any breach or default in performance of any obligation on the part of City in the
performance of any covenant or agreement to be performed by City under this
Agreement, except to the extent caused by the negligence or willful conduct of ACFD or
the ACFD Parties.
The provisions of this Section shall not be construed or interpreted as in any way
restricting, limiting or modifying the insurance obligations of the Parties under this
Agreement and are independent of such obligations. Compliance with the insurance
requirements set forth in this Agreement shall not in any way restrict, limit or modify the
respective indemnification obligations of the Parties hereunder. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
19042 10.4 17
MAINTENANCE FACILITY USE AGREEMENT •
9.2 ACFD's Insurance. ACFD shall, at its sole expense, procure and maintain
throughout the Term (plus such earlier and later periods as ACFD may be in occupancy
•
of the Premises)all of the following:
(a) Commercial general liability insurance including contractual
liability coverage, written on an "occurrence" policy form, covering bodily injury,
property damage and personal injury arising out of or relating (directly or indirectly) to
ACFD's operations, conduct, assumed liabilities, or use or occupancy of the Premises,
naming the Indemnitees as additional insureds, with minimum coverage in the amount of
Two Million Dollars($2,000,000) per occurrence combined single limit for bodily injury
and property damage and Five Million Dollars ($5,000,000) in the aggregate. ACFD's
liability coverage shall be adequate to provide protection against liability for damage or
loss arising in connection with ACFD's work on Apparatus owned by third parties;
(b) Property insurance protecting ACED against loss or damage by fire
and such other risks as are insurable under then available standard forms of "all risk"
insurance policies, covering ACFD's personal property and trade fixtures in or about the
Premises, and any improvements and/or Alterations in the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost or highest
insurable value;
(c) Workers' compensation insurance in at least the statutory amounts;
and
(d) Comprehensive automobile liability insurance with a minimum
coverage of Two Million Dollars($2,000,000)per occurrence,combined single limit
providing coverage for owned, hired and non-owned vehicles.
The foregoing policies shall protect ACFD as an additional named insured,and City and
the other Indemnitees as additional insureds, and if subject to deductibles shall provide
for deductible amounts not in excess of those approved in advance in writing by City in
its reasonable discretion. City reserves the right to increase the foregoing amount of
required liability coverage from time to time (but not more often than once each calendar
year) to adequately protect Indemnitees and to require that ACED cause any of its
contractors, vendors or other parties conducting activities in or about or occupying the
Premises to obtain and maintain insurance as determined by City and as to which the
Indemnitees shall be additional insureds.
9.3 Excess Coverage Liability Policy.Nothing in this Article IX shall prevent
ACED from obtaining insurance of the kind and in the amounts provided for under this
Section under excess coverage liability insurance covering other properties as well as the
Premises; provided, however, that any such excess coverage liability insurance (i) shall
specify those amounts of the total insurance allocated to the Premises, which amounts
shall not be less than the amounts required by Section 9.2, (ii) such amounts so specified
shall be sufficient to prevent any one of the insureds from becoming a co-insurer within
the terms of the applicable policy, and (iii) shall, as to the Premises, otherwise comply
with the requirements of this Article as to endorsements and coverage.
1904210.4 18
MAINTENANCE FACILITY USE AGREEMENT
9.4. Insurance Form. ACFD maintains its insurance through the County of
Alameda, which is self-insured. Insurance coverage, other than ACFD's workers'
compensation insurance/coverage, shall (i) provide that no act or omission of ACFD
shall affect or limit the obligations of the insurer with respect to any other insured; (ii)
include all waiver of subrogation rights endorsement necessary to effect the provisions of
Section 9.6' and (iv) provide that the coverage shall be primary, that City, although an
additional insured, shall nevertheless be entitled to recovery for any damage to City or
the other Indemnitees by reason of acts or omission of ACFD, and that any coverage
carried by City shall be noncontributory with respect to coverage carried by ACFD. If
requested, proof of insurance coverage shall be delivered to City by ACFD on or before
the Commencement Date, and from time to time thereafter upon City's request. City may
at any time, and from time to time, inspect and /or copy any and all insurance coverage
required by this Agreement.
9.5 Insurance of ACFD Contractors and Agents. ACFD shall require all of its
agents, contractors, workmen, mechanics, suppliers or invitees performing construction
or repair work on the Property or in the Improvements to carry adequate property,
liability,automobile and workers compensation insurance.
9.6 Waiver of Subrogation. ACFD and City each agree to waive, and as
applicable shall cause the insurance companies issuing their respective property (first
party) insurance to waive any subrogation rights that each Party and such companies may
have against ACFD or City, respectively, as long as the insurance is not invalidated by
the waiver. If the waivers of subrogation are contained in their respective insurance
policies, City and ACFD waive any right that either may have against the other on
account of any loss or damage to their respective property to the extent that the loss or
damage is insured under their respective insurance policies.
9.7 City's Insurance. City shall maintain throughout the Term liability
insurance and property damage insurance comparable to or exceeding the coverage and
amounts of insurance carried by reasonably prudent municipal/government owners of
comparable property and workers' compensation coverage as regriired by law.
ARTICLE X
ASSICNNIENT AND OCCUPANCY
•
10.1 City's Consent Required. ACFD shall not assign, mortgage, pledge,
encumber or otherwise transfer this Agreement. Except as set forth in this Section,
ACFD shall not permit all or any part of the Premises to be used or occupied for any
purpose by anyone other than ACFD without the prior written consent of City, which
City will not unreasonably withhold. Except as set forth in this section, any assignment
or agreement permitting any third party to use or occupy the Premises without City's
•
prior written consent shall, at City's option, be void and shall constitute an Event of
Default entitling City to terminate this Agreement and to exercise all other remedies
1904210.4 19
MAINTENANCE FACILITY USE AGREEMENT
available to City under this Agreement and at law. Notwithstanding the foregoing, with
respect to an aggregate total of not more than twenty-five percent (25%) of the total
square footage of the Premises, ACFD may, without City's consent, enter into
agreements permitting entities that provide public services (including other lire districts
and departments)to use or occupy the Premises. ACFD will notify City of any such
agreement, and if requested, shall provide copies of such agreements to City.
10.2 No Release of Obligations. Except as permitted pursuant to Section 10.1,
the consent by City to an assignment or agreement for use by others shall not relieve •
ACFD or any assignee front the requirement of obtaining City's express prior written
consent to any other or further assignment or agreement for use by another occupant. No
occupant may assign its rights or allow others to use the Premises, without City's prior
written consent, which consent may be not be unreasonably withheld. Neither an
assignment nor the collection of rent by City from any person other than ACFD shall be
deemed a waiver of any of the provisions of this Article or release ACFD from its
obligations to comply with this Agreement, and ACFD shall remain fully and primarily
liable for all of ACFD's obligations under this Agreement.
10.3 Recapture. As material consideration for the execution of this Agreement
by City, ACFD hereby agrees that whenever it delivers notice to City that it desires
approval of a use agreement or assignment which covers the entirety of the Premises,
City shall have the right to review the terms and conditions of such proposed use
agreement or assignment and shall have a right for a period of fifteen (15) business days,
to cancel this Agreement, and enter into a direct agreement with any prospective user or
assignee. Such fifteen (15) day period shall commence upon ACFD's delivery to City of
written notice of the terms of the proposed assignment or use agreement and financial
statements for the proposed assignee or user. If City exercises its right to cancel this
Agreement,ACED shall surrender possession of all of the Premises not later than the date
on which the proposed use agreement or assignment term would commence.
10.4 Proceeds of Third Party Use Agreement or Assignment. Subject to
Section 10.5, if ACED enters into any assignment or use agreement permitting a third
party to use or occupy the Premises, City shall be entitled to receive as Additional Rent
hereunder,one hundred percent(100%) of any consideration paid by the assignee or user
for the use or occupancy of the Premises in excess of the amount of Base Rent
attributable to the space that is the subject of the use or occupancy agreement,except that
ACFD may recapture on an amortized basis over the term of the use agreement or
assignment, any brokerage commission paid by ACED in connection with the agreement
or assignment(not to exceed the amount of commissions typically paid in the market at
the time of such agreement or assignment) and reasonable marketing costs paid by ACFD
in connection with the use agreement or assignment.
10.5 Rent Proceeds. Notwithstanding the provisions of Section 10.4. ACFD shall
be entitled to retain the excess rent attributable to payments made by users, assignees or
occupants who at any one time occupy or use portions of the Premises equal on an
1904210.4 20
MAINTENANCE FACILITY USE AGREEMENT
aggregate basis to no more than twenty-five percent (25%) of the total square footage of
the Premises.
ARTICLE XI
DAMAGE AND DESTRUCTION
11.1 Repair and Restoration; Termination Rights. If all or part of the
Improvements or the Property is damaged by fire or other casualty, or if the
Improvements are so damaged that access to or use and occupancy of the Premises is
materially impaired, within forty-five (45) days of the date of the damage, City shall
notify ACFD of the estimated time, in City's reasonable judgment, required for repair or
restoration ("Repair Period"). If the estimated time is 180 days or less, City shall
proceed promptly and diligently to repair or restore the Premises or the portion of the
Improvements necessary for ACFD's occupancy, and this Agreement shall remain in
effect, except that for the time unusable, ACFD shall receive a Rent abatement for that
part of the Premises rendered unusable in the conduct of ACFD's business.
If the estimated time for repair or restoration is in excess of 180 days from the
date of the casualty, City, at its option exercised by written notice to ACFD within sixty
(60)days after the date of the casualty,shall either(a)commence to repair the damage, in
which case this Agreement shall continue in full force and effect, or (b) terminate this
Agreement as of the date specified by City in the notice, which date shall be not less than
thirty (30) nor more than sixty (60) days after the date such notice is given, and this
Agreement shall terminate on the date specified in the notice. If the time estimated for
repair is more than one year and City does not give notice terminating this Agreement,
then within thirty(30)days after ACFD receives City's notice providing a Repair Period,
ACFD may give notice to City terminating this Agreement as of the date specified in
ACFD's termination notice, which date shall not be before the date of such notice or
more than thirty(30)days after the date of ACFD's termination notice.
If the time estimated for repair is less than one year, or is more than one year and
ACFD does not exercise its foregoing termination rights, and in either case City fails to
repair the damage by the date that is the later to occur of(i) one year from the date of the
damage, or(ii) ninety (90) days after the end of the Repair Period,then ACED may give
notice to City, within ten (10) business days after the end of the Repair Period
terminating this Agreement as of the date specified in ACED's notice, which date shall
not be earlier than 45 days after the date of ACFD's termination notice nor more than 60
days after City's receipt of ACFD's termination notice; provided however, if City repairs
the damage for which it is responsible within 45 days after receipt of ACFD's termination
notice, City may elect to nullify ACFD's termination notice (and thereupon this
Agreement shall continue in full force and effect) by City's notice of such repair and
election given to ACFD on or prior to the expiration of such 45-day period.
1904210.4 21
MAINTENANCE FACILITY USE.AGREEMENT
•
112 Damage Near End of Term. Notwithstanding anything to the contrary set
forth in this Article, if the Property or the Improvements are damaged during the last
twelve(12) months of the Term, City and ACFD shall each have the option to terminate
this Agreement by giving written notice to the other of the exercise of that option within
thirty(30) days after the damage or destruction, and this Agreement shall terminate as of
the date specified in such notice which shall be not before the date of such notice nor
more than 30 days after the date of such notice.
11.3 Rent Apportionment. If City or ACFD elects to terminate this Agreement
under this Article Xl. ACFD shall pay Rent, prorated on a per diem basis and paid up to
the date of the casualty. if the Premises are wholly untenantable and this Agreement is
not tenninated, Rent shall abate on a per diem basis from the date of the casualty or
default until the Premises are ready for occupancy by ACFD or the default is cured. If
part of the Premises are untenantable, Rent shall be prorated on a per diem basis and
abated in proportion to the portion of the Premises which is unusable until the damaged
part is ready for ACFD's occupancy.Notwithstanding the foregoing, if any damage was
caused by the gross negligence or willful misconduct of ACFD, its employees or agents,
then, in such event,ACFD agrees that Rent shall not abate or be diminished.
11.4 Waiver of Statutory Provisions. The provisions of this Agreement, including
those in this Article Xl. constitute an express agreement between City and ACFD that
applies in the event of any damage to the Improvements or the Property. ACFD,
therefore, fully waives the provisions of any statute or regulation, including California
Civil Code sections 1932(2) and 1933(4), relating to any rights or obligations concerning
any such casualty.
11.5 Damage Caused by ACFD or ACFD Parties. Notwithstanding any
contrary provision of this Article XI, ACFD shall be solely responsible for the repair of
any damage to the Property or the Improvements resulting from the negligence, willful
action or failure to act by ACFD or ACFD Parties,and such repairs shall be undertaken at
ACFD's sole expense.
ARTICLE XII
CONDEMNATION
•
12.1 Total Taking-Termination. If title to the Premises or so much thereof is
taken through the exercise of any government power (by legal proceedings or otherwise)
by any public or quasi-public authority or by any other party having the right of eminent
domain, or by a voluntary sale or transfer either under threat of exercise of eminent
domain or while legal proceedings for eminent domain are pending so that reconstruction
of the Premises will not result in the Premises being reasonably suitable for ACFD's
continued occupancy for the uses and purposes permitted by this Agreement, this
Agreement shall terminate as of the date possession of the Premises or part thereof is so •
• taken.
1904210.4 22
MAINTENANCE FACILITY USE AGREEMENT
•
12.2 Partial Takine.• if any part of the Premises is taken through the exercise of
eminent domain (or is voluntarily conveyed under the threat thereof) and the remaining
part is reasonably suitable for ACFD's continued occupancy for the uses and purposes
permitted by this Agreement, this Agreement shall as to the part so taken terminate as of
the date that possession of such part of the Premises is taken and the Rent shall be
reduced in the same proportion that the floor area of the portion of the Premises taken
(less any addition thereto by reason of any reconstruction) bears to the original floor area
of the Premises as reasonably determined by City or City's architect. City shall, at its
own cost and expense, make all necessary repairs or alterations to the Premises so as to
make the portion of the Premises not taken a complete unit.
12.3 No Apportionment of Award. All condemnation awards and similar
payments shall be paid and belong to City, except for any amounts awarded or paid
specifically to ACFD for improvements, removal and reinstallation of ACFD's trade
fixtures and personal property, ACFD's moving costs and ACFD's goodwill. It is
expressly understood and agreed by ACFD that except as otherwise stated in this Section, •
City shall be entitled to the entire award for any partial or total taking of the Property.
12.4 Temporary Taking. No temporary taking of the Premises (which shall
mean a taking of all or any part of the Premises for 30 days or less) shall terminate this
Agreement or give ACFD any right to any abatement of Rent. ACFD may agree to a
temporary taking of a longer period. Any award made to ACFD by reason of such
temporary taking shall belong entirely to ACFD, and City shall not be entitled to share
therein.
ARTICLE XIII
SUBORDINATION AND ESTOPPEL; RIGHT OF FIRST OFFER
13.1 Estoppel Certificate. From time to time and within thirty (30) days after
request by City, unless the Alameda County Board of Directors is on recess, and then at
the first meeting thereafter, ACFD shall execute and deliver a certificate to any proposed
lender or purchaser, or to City, certifying, with any appropriate exceptions, (a) that this
Agreement is in full force and effect without modification except as noted, (b) the
amount, if any, of prepaid rent and Initial Contributions paid by ACED to City (and not
returned to ACFD), (c) the nature and kind of concessions, rental or otherwise, if any,
which ACFD has received or is entitled to receive, (d) that City has performed all of its
obligations due to be performed under this Agreement and that there are no defenses,
counterclaims, deductions or offsets outstanding or other excuses for ACFD's
performance under this Agreement as of such date, and (e) any other fact reasonably
requested by City or such proposed lender or purchaser.
13.2 Subordination and Attornment. ACED agrees that this Agreement is
subject and subordinate to (i) the lien of any mortgage or deed of trust on the
Improvements or the Property, and all renewals, extensions, modifications,
consolidations,and replacements of those items.
1904210.4 23
MAINTENANCE FACILITY USE AGREEMENT
13.3 Subordination Agreement. The subordination described in this Article XIII
is self-operative, and no further instrument of subordination shall be required to make it
effective. To confirm this subordination, however, ACFD shall, within thirty (30) days
after City's request (unless the Alameda County Board of Directors is on recess, then at
the first meeting thereafter), execute any further instruments or assurances in recordable
form that City reasonably considers necessary to evidence or confirm the subordination
of this Agreement to any such encumbrances.
13.4 Right of First Offer. Provided that ACID is not in default under this _ --I Field code changed
Agreement beyond any applicable notice and cure periods, if during the Term of this
Agreement, City determines to sell the Premises, ACFD shall have a right of first offer as
set forth herein. Prior to City's entering into an agreement for the marketing of the
Premises or City's solicitation of offers to purchase the Premises from third parties, City
shall offer in writing(the"First Offer")to sell the Premises to ACFD on the same terms
and conditions that City would then be willing to offer to a third party. The First Offer
shall, at a minimum, include the following information: the purchase price, the method
of payment of the purchase price; the amount of any required earnest money deposit; and
the timing for the close of escrow. ACFD shall have forty-five (45) days from the date
of the First Offer to accept the First Offer (the "Acceptance Period") by delivering to
City its acceptance on or before 5:00 p.m. on the last day of the Acceptance Period. If
ACFD fails to accept the First Offer before the Acceptance Period ends, the First Offer
shall be deemed rejected. If ACFD responds to the First Offer with anything other than
an unequivocal, unconditional acceptance or rejection, the right of first offer shall
terminate and the response shall be deemed an offer to purchase the Premises on the
terms and conditions in the response (the 'Counter Offer"). City shall be entitled to
accept or reject the Counter Offer in City's sole discretion, and if City rejects the Counter
Offer,the Counter Offer shall be deemed to be a rejection of the First Offer.
If ACFD accepts the First Offer,ACFD shall have sixty(60)days following
acceptance of the First Offer("Closing Period")to obtain from the Alameda County
Board of Directors approval to execute a contract to purchase the Premises pursuant to
the terms and conditions of the First Offer. If ACFD fails to obtain such approval within
the Closing Period,any earnest money paid by ACFD pursuant to the acceptance shall be
paid to City as City's liquidated damages, and the agreement to purchase the Premises
together ACFD's rights pursuant to this Section 13.4 shall be terminated. After the
termination, City shall be free to enter into an agreement for the sale of the Premises with
a third party on whatever terms City may choose to offer without further obligation under
this Section.
•
If ACFD rejects the First Offer and City subsequently negotiates with a third
party and is willing to enter into an agreement with that party on terms less favorable to
City or more favorable to the purchaser than those contained in the First Offer,City shall
offer to sell the Property to ACFD on those new terms by giving ACFD written notice
("Second Offer"). ACFD shall have twenty(20) business days from receipt of the
Second Offer to obtain from the Alameda County Board of Directors approval to accept
the new terms; provided however, if the Alameda County Board of Directors is on recess
1904210.4 24
MAENTENANCE FACILITY USE AGREEMENT
•
on the date that such 20-day period expires,this time period may be extended to the date
of the next Board meeting. If ACFD fails to accept the new terms or rejects the new
terms in writing, City shall be free to consummate the transaction with the third party
without any liability to ACFD. If ACED accepts the new terms, ACFD shall then
consummate the transaction with City on the terms and conditions in the Second Offer on
the later of(a)the time for consummation of the Second Offer,(b)sixty(60)days
following the date of the Second Offer,or(c)other date agreed upon by the Parties.
The rights and obligations of the Parties under this Section 13.4 shall
automatically terminate and have no further effect upon the first of the following events
to occur: (i)the expiration of the Term of this Agreement,or(ii)ACFD rejects a First
Offer or a Second Offer and City subsequently consummates a sale of the Premises to a
third party.
The right of first offer provided pursuant to this Section 13.4 is personal to ACFD
and may not be assigned by operation of law or otherwise without the express written
consent of City. Notwithstanding the foregoing,the right of first offer may be assigned
to the County of Alameda,a political subdivision of the State of California("County")
provided that the County's intended use for the Premises is the provision of fire
protection related services and uses, including the uses permitted under this Agreement.
ARTICLE XIV
SURRENDER OF PREMISES; HOLDING OVER
•
14.1 Surrender of Premises. On expiration of this Agreement, ACID shall
surrender the Premises in the same condition as when the Term commenced, ordinary
wear and tear excepted. Except for furniture, equipment and trade fixtures (other than
those which are affixed to the Premises so that they cannot be removed without material
damage to the Premises that cannot be repaired) all alterations, additions or
improvements, whether temporary or permanent in character, made in or upon the
Premises, either by City or ACFD, shall be City's property and at the expiration or earlier
termination of the Agreement shall remain on the Premises without compensation to
ACFD;provided that,upon reasonable written request of City,ACFD shall,at its expense
and without delay,remove any alterations,additions or improvements(including, without
limitation, all telecommunications equipment and cabling, and all alterations and
improvements made by ACFD after the Commencement Date) made to the Premises by
ACFD and designated by City to be removed,and shall repair any damage to the Property
or the Improvements caused by such removal. If ACFD fails to complete such removal or
to repair the Premises, City may complete such removal and repair, and ACID shall
reimburse City therefor. If ACFD fails to remove such property as required under this
Agreement, City may dispose of such property in its sole discretion without any liability
to ACFD,and further may charge the cost of any such disposition to ACED.
14.2 Hold Over Use. If ACFD remains in possession of the Premises after the
expiration or earlier termination of this Agreement with City's written consent, ACFD
shall be deemed, at City's option, to occupy the Premises on a month-to-month basis.
1904210.4 25
MAINTENANCE FACILITY USE AGREEMENT
•
During such occupancy(and prior to any termination by City), ACFD agrees to pay City,
monthly in advance, an amount equal to the greater of(i) the then fair market rental (as
reasonably determined by City) for the Premises, or (ii) one hundred and six percent
(106%) of all Base Rent which would become due during the last month of the Term, •
together with all other amounts payable by ACFD to City under this Agreement. Except
as provided in the preceding sentence, such month-to-month occupancy shall be on the
same terms and conditions of this Agreement except that any renewal options, cxpansion
options, rights of first refusal or any other rights or options contained in this Agreement
shall be deemed to be terminated and shall be inapplicable thereto. City's acceptance of
rent after such holding over with City's written consent shall not result in any other
tenancy or in a renewal of the initial term of this Agreement.
If after written notice to ACFD that City does not consent to ACED continuing to
occupy the Premises and ACFD remains in possession of the Premises after the
expiration or earlier termination of this Agreement without City's written consent,
ACFD's continued possession shall be on the basis of a tenancy at sufferance and ACFD
shall pay Rent during the holdover period in an amount equal to the greater of(i) one
hundred fifty percent(150%) of the then fair market rental (as reasonably determined by
City) for the Premises, or(ii) two hundred percent(200%) of all Base Rent which would
become due the last month of the Term, together with all other amounts payable by
ACFD to City.
ARTICLE XV
CITY'S RESERVED RIGHTS.
15.1 Rights Reserved to City. Without liability to ACED,and without effecting
an eviction or disturbance of ACFD's use or possession, City shall have the right to (i)
grant utility easements or other easements in, or subdivide or make other changes in the
legal status of the Property as City shall deem appropriate in its sole discretion, provided
such changes do not substantially interfere with ACFD's use of the Premises for the
Permitted Use.however,prior to doing so City will notify ACFD allowing sufficient time
for ACFD to comment on whether such action will interfere with its use; (ii) enter the
Premises at reasonable times and with reasonable advance notice(and at any time in the
event of an emergency), to inspect (including inspections by prospective lenders for or
buyers of the Property), or repair the Improvements and to perform any acts related to the
safety, protection, reletting, sale or improvement of the Property or the Improvements;
(iii) install and maintain signs on the Property; and (iv) make such rules and regulations
as,in the reasonable judgment of City, may be needed from time to time for,the care and
cleanliness of the Property and the Improvements and the preservation of good order
therein. If an emergency necessitates immediate access to the Premises, City shall
contact the ACFD Chief, or designee,who will be available 24 hours a day all days of the
year to allow access to the Property and Improvements at all times.
1904210.4 26
MAINTENANCE FACILITY USE AGREEMENT
•
ARTICLE XVI
DEFAULT AND REMEDIES
16.1 ACFD's Default. It shall be an "Event of Default" hereunder if ACFD
shall:
(a) fail to pay when due any monthly installment of Rent (or, if applicable
under this Agreement, ACFD's Share of Operating Expenses), or fail to pay any
other amount owed by ACFD to City under this Agreement as and when due and
such failure continues for thirty (30) days following written notice thereof to
ACFD by City;
(b) if requested, fail to provide any certificate, instrument or assurance as
required pursuant to Article IX if the failure continues for thirty (30) days after
written notice of the failure from City to ACFD;
(c) make a general assignment for the benefit of its creditors or file a
petition for bankruptcy or other reorganization, liquidation, dissolution or similar
relief;
(d) have a proceeding filed against ACFD seeking any relief mentioned in
(c)above which is not discharged within sixty(60)days thereafter;
(e) have a trustee, receiver or liquidator appointed for ACFD or a
substantial part of its property;
(f) abandon or vacate the Premises for more than three (3) consecutive
months;
(g) assign this Agreement or sublease any portion of the Premises in
violation of Article X:or
(h) fail to comply with any other provision of this Agreement in the
manner required hereunder and such failure continues for thirty (30) days after
written notice thereof to ACFD by City (or if the noncompliance cannot by its
nature be cured within the 30-day period, if ACFD fails to commence to cure such
noncompliance within the 30-day period and thereafter diligently prosecute such
cure to completion).
16.2 Remedies on Default. Upon the occurrence of an Event of Default, and after
written notice to ACFD that City considers ACED in Default, City shall have the right to
pursue any one or more of the following remedies in addition to any other remedies now •
or later available to City at law or in equity. These remedies are not exclusive but instead
are cumulative.
1904210.4 27
MAINTENANCE FACILITY USE AGREEMENT
(a) Continue Agreement. City may continue this Agreement in full force
and effect. In such case, so long as City does not terminate ACFD's right to
possession, the Agreement will continue in effect and City shall have the right to
collect Rent when due, and may undertake efforts to relet the Premises, or any
part of them, to third parties for ACFD's account. Reletting can be for a period
shorter or longer than the remaining term of this Agreement. ACFD shall pay to
City the Rent due under this Agreement on the date the Rent is due, less the Rent
City receives from any reletting. No act by City allowed by this Section shall
terminate this Agreement unless City terminates ACFD's right to possession.
After an Event of Default and for as long as City does not terminate ACFD's right
to possession of the Premises, if ACFD obtains City's consent, ACFD shall have
the right to assign or sublet its interest in this Agreement, but ACFD shall not be
released from liability.
(b)Terminate Agreement. City may terminate the Agreement and ACFD's
right to possession of the Premises at any time following an Event of Default. On
termination,City shall have the right to recover from ACFD all of the following:
(i) The worth, at the time of the award, of any unpaid Rent that
had been earned at the time of termination of this Agreement;
(ii) The worth, at the time of the award, of the amount by which
the unpaid Rent that would have been earned after the date of termination
of this Agreement until the time of the award exceeds the amount of the
unpaid Rent that ACED proves could have been reasonably avoided;
(iii) The worth, at the time of the award, of the amount by which
the unpaid Rent for the balance of the Term after the time of the award
exceeds the amount of unpaid Rent that ACED proves could have been
reasonably avoided;
(iv) Any other amount necessary to compensate City for all
detriment proximately caused by ACFD's failure to perform obligations
under this Agreement, including, without limitation, brokerage
commissions, advertising expenses, expenses of remodeling the Premises
for a new tenant,and any special concessions made to obtain a new tenant;
and
(v) Any other amounts, in addition to or in lieu of those listed
above that may be permitted by law.
"The worth, at the time of the award" as used in clauses (i) and (ii) of this
Paragraph (b) is to be computed by allowing interest at the maximum rate allowed
by law at that time, or if there is no such maximum, at a rate often percent(10%)
per annum. "The worth, at the time of the award," as referred to in clause(iii) of
this Paragraph (b) is to be computed by discounting the amount at the discount
1904210.4 28
MAINTENANCE FACILITY USE AGREEMENT
•
rate of the Federal Reserve Bank of San Francisco at the time of the award plus
one percent(1%). - •
16.3 City's Default. City's failure to perform any of its obligations under this
Agreement shall constitute a City Event of Default hereunder if the failure continues for
thirty (30) days after written notice of the failure from ACFD; provided however, if the
failure to perform cannot by its nature be cured within the 30 day period,City's failure to
perform shall not constitute a City Event of Default if City undertakes to cure the failure
within such thirty (30) day period and diligently and continuously attempts to complete
the cure as soon as reasonably possible.
16.4 Access. Full ingress and egress to the Premises by Apparatus is a material
term of this Agreement. If at any time access to the Premises is obstructed or blocked,
City shall immediately take reasonable action so that full access is restored. If access is
impaired, but sufficient to allow ingress and egress of Apparatus, then City shall
promptly take reasonable actions to restore full access. If the City's response is not
adequate, ACFD in its reasonable discretion may correct the problem or arrange for
appropriate alternative access. ACFD may immediately take action, after verbal notice to
City, in any emergency situation. An emergency situation includes any fire, natural or
other disaster or instance where Apparatus that is located on the Premises is needed and
any time there are insufficient Apparatus available to meet minimum daily deployment
requirements. If the obstruction or blockage has resulted from City's negligence or
willful action, City shall reimburse ACFD for all reasonable costs incurred by ACFD in
connection with such correction or alternative access within thirty (30) days following
ACFD's provision to City of an invoice with documented costs. If access problems
reoccur or if ACFD reasonably determines that City is not taking appropriate action to
restore access consistent with the Section, ACFD shall have the option to immediately
terminate this Agreement. If any obstruction or blockage has resulted from actions of
third parties or natural disasters, the Parties will work together and fully cooperate to
obtain reimbursement from third parties, including federal agencies.
•
ARTICLE XVII
COMPLETION OF THE PROJECT
17.1 Project Completion. The obligations of City and ACFD, with respect to
preparation of the Premises for occupancy and completion of the Project are set forth in
the Improvement Agreement attached hereto as Exhibit B, as it may be amended prior to
signature. The Improvement Plan and any further amendments to the Improvement Plan,
can be executed by the ACFD Chief and by the City Manager. It is acknowledged and
agreed that all improvements constructed by City pursuant to this Agreement are and
shall be the property of City from and after their installation.
• 1904210.4 29 .
MAINTENANCE FACILITY USE AGREEMENT
•
ARTICLE XVIII
NII SC EL LAN EO US
18.1 No Waiver. No receipt and retention by City of any payment tendered by
ACFD in connection with this Agreement shall constitute an accord and satisfaction, or a
compromise or other settlement, notwithstanding any accompanying statement,
instruction or other assertion to the contrary unless City expressly agrees to an accord and
satisfaction, or a compromise or other settlement, in a separate writing duly executed by
City. City will be entitled to treat any such payments as being received on account of any
item or items of Rent, interest, expense or damage due in connection herewith, in such
amounts and in such order as City may determine at its sole option. Failure of any party
to exercise any right in one or more instance shall not be construed as a waiver of the
right to strict performance or as an amendment to or modification of this Agreement.
Any waiver of any condition or provision set forth in this Agreement shall not be deemed
a waiver of any subsequent breach of such condition or provision or of any other
condition or provision,nor shall any such waiver be deemed a continuing waiver.
18.2 Severability. The Parties intend this Agreement to be legally valid and
enforceable in accordance with all of its terms to the fullest extent permitted by law. If an
arbitrator or a court of competent jurisdiction holds any provision hereof to be invalid or
unenforceable in whole or in part for any reason, the validity and enforceability of the
remaining clauses, or portions of them, shall not be affected unless an essential purpose
of this Agreement would be defeated by loss of the invalid or unenforceable provision.
18.3 Governing Law: Construction. This Agreement shall be construed
according to the laws of the State of California without regard to principles of conflict of
laws. The parties acknowledge that this Agreement is the product of negotiation and
compromise on the part of both parties and agree that the provisions hereof shall be
construed in accordance with their fair meaning and not in accordance with any rule
providing for interpretation against the party who causes the uncertainty to exist or
against the drafter. The captions used for the Sections and Articles of this Agreement
have been inserted for convenience only and shall not be used to alter or interpret the
content of this Agreement.
18.4 Binding Effect: Survival. The covenants, conditions, warranties and
agreements contained in this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. The representations and
warranties of City and ACED and the indemnification obligations of City and ACFD set
forth herein shall survive the expiration or termination of this Agreement as shall all other
provisions hereof which are intended to survive such expiration or termination:
18.5 Time.Time is of the essence of each provision of this Agreement.
18.6 Entire Agreement: Amendments. This Agreement and Exhibits A through
B-2 attached hereto and incorporated herein by this reference, constitutes the final,
1904210.4 30
MAINTENANCE FACILITY USE AGREEMENT
•
•
•
complete,and exclusive statement of the terms of the agreement between City and ACFD
pertaining to ACFD's use of the Premises and the Temporary Maintenance Facility, and
supersedes all prior and contemporaneous understandings or agreements of the parties
with respect thereto. This Agreement may not be amended or modified except in a
writing signed by both parties.
18.7 Notices. All notices delivered pursuant to this Agreement shall be in
•
writing and delivered to City or ACFD at the applicable address designated in Section 1.1
or to such other address as may hereafter be designated by either party by written notice
delivered to the other party in accordance with this Section. Such notices shall be
effective on the earlier to occur of actual receipt or: (i) if mailed, five (5) days after
posting at a United States post office, (ii) upon receipt if nailed by certified mail with
return receipt requested,and(iii) upon delivery if delivered by overnight delivery service
and delivery is confirmed by the delivery service.
18.8 Force Majeure. Except as otherwise provided in this Agreement,the time
for performance of an obligation other than the payment of money under this Agreement
shall be extended for the period during which a party is prevented from performing due to
Unavoidable Delay. "Unavoidable delay" shall mean any and all delay beyond the
applicable party's reasonable control, including without limitation, delays caused by the
other party; governmental restrictions, regulations, controls, preemptions or delays;
orders of civil, military or naval authorities; strikes, labor disputes, lock-outs, shortages
of labor or materials or reasonable substitutes therefore; Acts of God; fire, earthquake,
floods, explosions or other casualties; extreme weather conditions or other actions of the
elements;enemy action,civil commotion,riot or insurrection.
18.9 Attorneys' Fees . If the services of an attorney are required by any party to
secure the performance hereof or otherwise upon the breach or default of the other party,
or if any judicial remedy or arbitration is necessary to enforce or interpret any provision
of this Agreement, or if the services of an attorney are required upon the bankruptcy of a
party to this Agreement to compel or object to assumption or rejection of this Agreement,
seek relief from the automatic stay or object to an action to recover a preference or
fraudulent transfer, the prevailing party shall be entitled to reasonable attorneys' fees,
costs, expert witnesses fees, post judgment collection costs, and other expenses, in
addition to any other relief to which such party may be entitled.
18.10 Authority. Each party warrants and represents that it has full authority to
enter into this Agreement, that this Agreement constitutes a binding obligation of such
party, and that the individual(s) signing on behalf of such party are duly authorized to
bind such party hereto.
18.11 Approvals. Whenever the consent or approval of City is required
hereunder,'such consent or approval may be granted or withheld by the City Manager or
his or her designee, unless the City Manager determines in his or her discretion that such
matter shall be referred to City's governing body for consideration. •
1904210 4 • 31
MAINTENANCE FACILITY USE AGREEMENT
•
•
•
•
- 18.12 Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which together shall constitute one and the
same instrument. The signature page of any counterpart may be detached therefrom
without impairing the legal effect of the signature(s) thereon provided such signature
page is attached to any other counterpart identical thereto except having additional
signature pages executed by any other party. This Agreement shall take effect when
signed by all parties hereto and all parties have written notice of the signature of all the
remaining parties.
18.13 Brokers. ACFD and City each represent and warrant to the other that
except as stated in this Section, no broker or agent is entitled to a broker's commission or
finder's fee in connection with the execution of this Agreement or the consummation of
the transaction contemplated hereby, and each party agrees to defend and indemnify the
other party against any loss, expense or liability incurred by the other party as a result of
a breach of such representation and warranty. The provisions of this Section shall
survive the expiration or earlier termination of the Agreement. City shall pay a
consulting fee to Colliers International in accordance with a separate agreement.
18.14 Submission of Agreement. Submission of this document for examination
or signature by the Parties does not constitute an option or offer to allow use the Premises
or the Temporary Maintenance Facility on the terms in this document or a reservation of
the Premises or Temporary Maintenance Facility in favor of ACFD. This Agreement is
not effective until executed and delivered by both City and ACFD.
18.15 Non-Agency. It is not the intention of City or ACFD to create hereby a
relationship of principal and agent. and under no circumstances shall ACFD be
considered the agent of City, nor City an agent of ACFD.
SIGNATURES ON FOLLOfTING PAGE.
1904210.4 32
MAINTENANCE FACILITY USE AGREEMENT
•
NOW THEREFORE, City and ACFD have executed this Maintenance Facility
Use Agreement as of the date first written above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT CITY OF DUBLIN
•
By: By:
Print Name:
Its: City Manager
Title:
Attest:
City Clerk
Approved as to Form: Approved as to Form:
Donna R.Zieeler.County Counsel
City Attorney
By:
Senior Deputy County Counsel
•
•
1904210.4 33
MAINTENANCE FACILITY USE AGREEMENT
•
Exhibit A-I
DIAGRAM OF PROPERTY
The Property is the area contained within the dark lines shown on the following diagram
(identified by numbers 1-5).
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6> A DUBLIN�mAINTENANCE/ALAUAEDA COUNTY FIRE MAINTENANCE
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1904210.4 34
MAINTENANCE FACILITY USE AGREEMENT
•
Exhibit A-2
Memorandum Confirming Commencement Date and Total Project Costs
For
MAINTENANCE FACILITY USE AGREEMENT
(Scarlett Court)
This Memorandum Confirming Commencement Date and Total Project Costs, executed
as of , 20 ("Effective Date") is a supplement to that certain
Maintenance Facility Use Agreement ("Agreement") entered into effective as of July I.
2012 by and between the CITY OF DUBLIN, a municipal corporation ("City"), and •
ALAMEDA COUNTY FIRE DISTRICT,a dependent fire district formed under the Fire
Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and
governed by the Alameda County Board of Directors("ACED"). Capitalized terms used
without definition herein shall have the meanings ascribed to such terms in the
Agreement.
City and ACFD hereby agree as follows:
1. Commencement Date: The Commencement Date as defined in the Agreement
shall be: ,20 .
2. Base Rent: As Base Rent for use of the Premises,ACFD will pay the City as
follows:
Year Monthly
Base Rent
1-2
3-4
5-6 $
7-8 $
9-10 $
11-12 $
13-14 $
•
15-16 $
17-18 $
•
19-20 $
1904210.4 _ 35
MAINTENANCE FACILITY USE AGREEMENT
•
3. Exhibit I "Formula for Determining Base Rent"attached hereto and incorporated
into this Memorandum by reference,specifies the final Total Project Costs which
are the basis for determining Base Rent.
4. In the event of conflict between the terms of this Memorandum and the terms of
the Agreement,the terms of this Memorandum shall prevail.
IN WITNESS WHEREOF,City and ACFD have executed this Memorandum
Confirming Commencement Date and Total Project Costs as of the date first written
above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN,
By: By:
Print Name: City Manager
Title:
Attest:
City Clerk
•
Approved as to Form: Approved as to Form:
Donna R.%ic_Icr.County Counsel
13v: City Attorney
Deputy County Counsel
1904210.4 36
MAIN ENANCE FACILITY USE AGREEMENT
•
•
Exhibit B
IMPROVEMENT AGREEMENT
THIS IMPROVEMENT AGREEMENT("Improvement Agreement")
supplements the Maintenance Facility Use Agreement(the"Agreement")executed
concurrently herewith by and between the CITY OF DUBLIN,a municipal corporation
("City"),and ALAMEDA COUNTY FIRE DISTRICT,a dependent fire district formed
under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801
et seq.)and governed by the Alameda County Board of Directors("ACED"). All
capitalized terms not defined herein shall have the same meanings as set forth in the
Agreement.
1. Determination of Base Rent Based on Costs. City and ACFD each
acknowledge and agree that except as otherwise specified,the work described in this
Improvement Agreement shall be completed by City, and the Base Rent shall be
calculated based upon the costs and the formula set forth in Exhibit B-2; provided
however,the Base Rent shall be adjusted to reflect actual costs once they have been
determined.
2. Scope of Work. City shall undertake the following work(the"Scope of
Work") in accordance with the Final Plans(defined in Section 3 below):
(i) Site preparation, including without limitation,removal of existing asphalt;
(iii) Construction of an approximate 18,300 square foot facility(the
"Building")and completion of Base Building Work, including: (a)concrete floors
(without floor coverings)of tensile strength appropriate for Apparatus; (b) unfinished
perimeter walls(including windows, window frames,and doors);(c)unfinished ceilings;
(d) finish of the restrooms;(e)closets for telephone and electrical systems(but not the
systems themselves);(t) Building mechanical,electrical,and plumbing systems within
the Building core only; (g) interior core walls; (h)standard fire sprinkler protection on
each floor;(i)any code-required items relating to the other elements of the Base Building
Work,such as exit signs,speakers,fire doors,and any other life-safety support system for
each floor;and(j)dry wall and tape of interior columns;
(iv) Installation of improvements(the"ACED Improvements") in the
Building in accordance with the Final Plans;
(v) Site improvements, including paving and landscaping in accordance with
the Final Plans.
3. Plans. •
(a)City and ACFD will approve in writing plans for completion of the Scope of
Work (the"Plans")and an estimate of the Total Project Cost. Upon agreement by City
1904210.4 37
MAINTENANCE FACILITY USE AGREEMENT
•
•
and ACED on the Plans,a true and correct copy of the Plans will be incorporated into the
Agreement by execution of a Memorandum of Plans, substantially in the form attached
hereto as Exhibit B-I. The approved Plans shall be attached to the Memorandum of
•Plans which,for purposes of the inclusion of the Plans only the Memorandum of Plans,
attached hereto as Exhibit B-I,can be executed by the ACFD Chief and the City
Manager. The Total Project Cost estimate is attached to this Improvement Agreement as
Exhibit B-2 which is incorporated herein by this reference.
(b)City and ACFD shall cooperate in good faith to finalize the Plans,without
delay. ACFD shall fully cooperate by providing City, its architects, engineers, and
contractors with timely information and approvals of plans,drawings, and specifications.
Any acts by City or ACFD to delay or otherwise act negligently or in bad faith in
approving the Plans and/or cooperating with each other in the design and construction of
the ACED Improvements shall result in a Party Delay(as hereinafter defined) under this
Improvement Agreement.
(c)City and ACED acknowledge that the Plans may not depict certain structural
elements of the Building and/or various elements of the Building systems that may result
in material modifications to the final plans and specifications for the ACFD
Improvements(collectively`Structural Modifications"). Furthermore, any final plans
and specifications for the construction of the ACFD Improvements may require
modification to account for the requirements of building codes and other legal
requirements of applicable governmental entities, including,but not limited to,Title 24
and the Americans with Disabilities Act(collectively the"Building Codes"). Within
ninety(90)days after the date that the initial Memorandum of Plans is executed,City
shall cause to be prepared final plans and specifications in substantial conformity with the
Plans taking into account(i) Structural Modifications,(ii)the requirements of the
Building Codes,(iii)other modifications resulting from physical constraints of the
Premises,and (iv) modifications requested by ACFD and consented to by City,which
consent shall not be unreasonably withheld(the"Final Plans"). Upon agreement by City
and ACFD on the Final Plans,a true and correct copy will be attached to this
Improvement Agreement by execution ofa second Memorandum of Plans,executed by
the ACFD Chief and City Manager substantially in the form attached hereto as Exhibit B-
l. ACFD agrees that, in addition to other factors and considerations City may take into
account, it shall not be unreasonable for City to withhold its consent to any requested
modifications to the Plans or the Final Plans (i) if such requested modifications would
not comply with the Building Codes,(ii) if such requested modifications would •
unreasonably delay the completion of the ACFD Improvements beyond the Scheduled
Completion Date, or(iii) if such requested modifications would cause an undue burden
on the architect,the contractor,the subcontractors,or City's personnel.
(d)Total Project Cost shall include, without limitation, all architectural and
engineering fees and costs incurred in connection with completion of the Scope of Work
as depicted on the Final Plans. Total Project Cost shall also include any and all
architectural and engineering fees and costs incurred as a result of changes in the Final
Plans requested by ACED.
1904210.4 38 •
MAIN'T'ENANCE FACILITY USE AGREEMENT
•
4. Delay
(a).The Commencement Date shall not be delayed,postponed,or adjusted due to
a Party Delay. No Party Delay or Force Majeure Delay shall be deemed to have occurred
unless and until the Party claiming such delay has provided written notice to the other
Party specifying the action or inaction that such notifying party contends constitutes a
Party Delay or Force Majeure Delay,as applicable. If such action or inaction is not cured
within fifteen(15)days after receipt of such notice,then a City Delay, Force Majeure
Delay, or ACFD Delay,as set forth in such notice, shall be deemed to have occurred
commencing as of the date such notice is received and continuing for the number days
the design of or completion of the ACFD Improvements was in fact delayed as a direct
result of such action or inaction.
(b)The term"Party Delay"as used in this Improvement Agreement shall mean
any delay that either party may encounter in the performance of their obligations under
this Improvement Agreement because of the other Party's acts or omissions of any
nature,whether committed willfully,negligently, intentionally,or otherwise,that result in
any delay including any: (i)delay attributable to changes in or additions to the Plans,or
to the ACFD Improvements requested by ACFD,as well as any delays caused by a
change order issued at the other Party's request;(ii)delay attributable to failure to
timely approve any and all Plans for ACFD Improvements; (iii)delay attributable to
failure to act in good faith in cooperating with the other Party,its architects,engineers,
and contractors in approving Plans; (iv)delay attributable to postponement of any ACED
Improvements at the request of a Party; (v) delay by a Party in furnishing information or
giving any other approvals or authorizations within the time limits set forth in this
Improvement Agreement,or if no time is set forth for such performance in this
Improvement Agreement,then a reasonable time,time being of the essence; (vi)delay
attributable to the failure of a Party to pay, when due,any amounts required to he paid by
pursuant to this Improvement Agreement or the(vii)any actual delay in the design and/or
completion of the Scope of Work resulting from not responding to requests for
authorization or approval within the time period provided for response to such request or,
if no such time is stated, beyond a reasonable time therefore; (viii)any actual delay in the
design and/or completion of ACFD Improvements attributable solely to the acts or
failures to act,whether willful,negligent,or otherwise,of a Party, its agents,or
contractors,to the extent contrary to the terms hereof.
(c)The term"Force Majeure Delay"as used in this Improvement Agreement
shall mean any(i) actual delay in the design and/or completion of the Scope of Work
attributable to any strike, lockout,or other labor or industrial disturbance(whether or not
on the part of the employees of either party hereto),civil disturbance,further order
claiming jurisdiction,act of public enemy,war, riot,terrorism,sabotage,blockade, or
embargo; (ii)actual delay in the design and/or completion of ACED Improvements due to
changes in any Laws, including the Americans with Disabilities Act;or(iii)actual delay
in the design and/or completion of the Scope of Work attributable to terrorist act,
lightning,earthquakes,fire,storm, hurricane,tornado,flood,washout,explosion, or any •
1904210.4 39
MAINTENANCE FACILITY USE AGREEMENT
other similar industry-wide or Building-wide cause beyond the reasonable control of the
party from whom performance is required,or any of its contractors,or other
representatives. Any prevention,delay,or stoppage due to any Force Majeure Delay shall
excuse the performance of the Party affected for a period of time equal to any such
prevention, delay, or stoppage,except the obligations of either Party to pay money,
including Rent, and all other charges,pursuant to the terms of the Agreement.
5. Changes. ACFD shall not request or make any changes or substitutions to the
Final Plans without City's prior written approval,which approval shall not be
unreasonably withheld; provided, however,that City may disapprove, in its sole and
absolute discretion,any such changes or substitutions that:(i) do not conform to
applicable governmental regulations or are disapproved by any governmental agency;(ii)
require power consumption and/or Building services beyond the level normally provided
• to other occupants in the Building; (iii)overload the floors; or(iv) in City's reasonable
opinion,are of a nature or quality that is inconsistent with City's objectives concerning
the appearance or quality of the Building. Any such requested changes or substitutions
shall be subject to the provisions of Paragraph 4 above, and may constitute a Party Delay
as described in Paragraph 4 above.
6. Total Project Cost.
(a) For purposes hereof,'`Total Project Cost"shall include,without
limitation,the following: (i) all design fees,engineering fees,and consultants' fees
incurred by City in connection with the design and engineering of all components of the
Scope of Work, including the costs of space plans and all plans and specifications; (ii)
governmental agency plan check, permit,and other fees; (iii)sales and use(axes;(iv)
Title 24 fees;(v)testing and inspection costs;(vi) the cost of materials, labor,and
supplies_(vii)the general contractor's overhead and profit; (viii)charges for water,
electricity, gas, and FI VAC during the construction of the Building and the ACFD
Improvements; (ix)all other costs expended or to be expended in connection with the
construction of the Project,including without limitation,demolition costs, site
preparation costs,site improvement costs, and the cost of construction of the Building
and the ACFD Improvements; (x)City's administrative and construction management
fees,and(xi) City's return on costs equal to four percent(4%)of all Project costs, as
more particularly set forth in Exhibit B-2.
(b) If ACFD requests any changes or substitutions to the Plans,and City
approves such changes or substitutions, and.such changes and/or substitutions result in an,
increase in Total Project Cost,then Base Rent payable under the Agreement shall be
adjusted to take into consideration such increased costs. All changes or substitutions
shall be made at reasonably competitive prices.
(c) City and ACFD acknowledge that the costs set forth in Exhibit B-2 are an
estimate. The Parties agree that when Total Project Cost is determined,a revised Exhibit B-2 shall be appended to the Memorandum Confirming Commencement Date and Total
Project Costs and shall serve as the basis for determination of Base Rent.
1904210.4 40
MAINTENANCE FACILITY USE AGREEMENT
7. Standards for Performance of the Work. City shall cause the
Improvements to be constructed in a good and workmanlike manner,free from design,
material,and workmanship defects in accordance with the Final Plans and all Applicable
Laws.
8. Inspection and Punchlist.ACFD's representative shall have the right to
enter the Premises at all reasonable times for the purpose of inspecting the progress of
construction of the Improvements; provided however,during construction of the Project,
ACFD shall not enter the Premises unless accompanied by an authorized agent of City.
City shall notify ACFD when the Improvements are substantially complete.On receipt of
such notice,ACFD's representative,City's representative,and the architect shall
promptly inspect the Improvements and prepare a written list("Punchlist")of any items
that are defective, incomplete,or do not conform to the Final Plans,applicable permits or
Applicable Laws.
9. ACFD's Work. Any item or work not shown in the Final Plans, including,
for example,telephone and data service or furnishings, for which ACFD contracts
separately(hereinafter"ACFD's Work"),shall be conducted in such a way as not to
hinder,cause any disharmony with,or delay work of improvement in the Building.
ACFD shall cause its suppliers and contractors to engage only labor that is harmonious
and compatible with other labor working on the Project. In the event of any labor
disturbance caused by persons employed by ACFD or ACFD's contractor,ACFD shall
immediately take all actions necessary to eliminate such disturbance.At any time any
supplier,contractor,workman,or mechanic performing ACFD's Work hinders or delays
any other work of improvement on the Property or performs any work that may or does •
impair the quality, integrity, or performance of any portion of the Building,ACFD shall
cause such supplier,contractor, workman, or mechanic to leave the Premises and remove
all his tools,equipment,and materials immediately upon written notice delivered to
ACFD,and ACFD shall reimburse City for any repairs or corrections to the Project
caused by or resulting from the work of any supplier,contractor,workman, or mechanic
with whom ACFD contracts as Additional Rent under the Agreement. If requested,
ACFD shall provide City with adequate proof of insurance required to be maintained by
ACFD pursuant to the terms of the Agreement,prior to commencing any ACFD Work.
10. Completion of Scope of Work. ACFD and City shall review and approve the
Project construction schedule prior to commencement of work.
11. Party Representatives.
I I.a ACFD has designated Deputy Chief Demetrious Shaffer,or his designee,
to work with City's representatives throughout the period of construction of the ACFD
Improvements. In the event of a change in personnel,ACFD shall immediately notify
City of its replacement representative. In the event the designated ACFD representative
will not be available,due to a vacation or any other extended absence from the office,
1904210.4 41
MAINTENANCE FACILITY USE AGREEMENT
ACFD shall notify City of an interim ACFD representative, and the dates such interim
representative shall be ACFD's representative.
11.b City has designated Henna Lichtenstein,Facility Project Manager,to
work with ACFD's representatives throughout the period of construction of the Plan and
ACFD Improvements. In the event of a change in personnel,City shall immediately
notify ACED of its replacement representative. In the event the designated City
representative will not be available,due to a vacation or any other extended absence from
the office,City shall notify ACED of an interim City representative,and the dates such
interim representative shall be City's representative.
12. ACFD's Default.Notwithstanding any provision to the contrary contained in
the Agreement, upon the occurrence of an Event of Default on the part of ACFD under
the Agreement,or upon a default by ACFD under this Improvement Agreement prior to
substantial completion of the Project, then(i) in addition to all other rights and remedies
granted to City pursuant to the Agreement,City shall have the right to cause any and all
engineers,architects,contractors,and any other persons associated with the design or
construction of the Project to cease work thereon; and(ii)all other obligations of City
under the Agreement and this Improvement Agreement shall be abated until such time as
such default is cured in accordance with the terms of the Agreement,or this Improvement
Agreement, as applicable.
13. Casualty; Risk of Loss. If the Premises or any portion of the
Improvements are damaged or destroyed prior to the date that City notifies ACED
pursuant to Section 8 that the Improvements are substantially complete,City shall
promptly cause the general contractor to restore the Premises and complete the
construction of the Improvements. All proceeds of builder's risk insurance applicable to
the loss shall be disbursed in accordance with customary practices of institutional
construction lenders as the restoration progresses,and all other costs of completing the
Improvements shall be factored in to Base Rent in accordance with Section I of this
Improvement Agreement.
14. Authority To Sign. Pursuant to Section 17.1 of the Agreement.this
Improvement Agreement is executed by the ACFD Chief and by the City Manager
15. Counterparts. This Improvement Agreement may be executed in
counterparts, each of which shall be an original and all of which taken together shall
constitute one and the same instrument.
SIGN lTURES ON FOLLOWING PAGE(S)
1904210.4 42
• MAINTENANCE FACILITY USE AGREEMENT
IN WITNESS WHEREOF,the parties have executed this Improvement
Agreement as of the Effective Date of the Maintenance Facility Use Agreement.
•
ACFD CITY •
ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN,
By: By:
Print Name:
Its: City Manager
Title: Alameda County Fire District Chief
Attest:
City Clerk
Approved as to Form: Approved as to Form:
Donna R.Ziegler,County Counsel
City Attorney
By:
Senior Deputy County Counsel
1904210.4 43
MAINTENANCE FACILITY USE AGREEMENT
Exhibit 13-1
MEMORANDUM OF PLANS
For
MAINTENANCE FACILITY USE AGREEMENT
(Scarlett Court)
This Memorandum of Plans executed as of , 2012, is a supplement to that
certain Maintenance Facility Use Agreement("Agreement") entered into effective as of
July 1, 2012 by and between the CI'I'Y OF DUBLIN, a municipal corporation ("City"),
and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the
Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and
governed by the Alameda County Board of Directors("ACED"). Capitalized terms used
herein without definition shall have the meaning ascribed to such terms in the Agreement.
City and ACFD hereby agree as follows:
Attached hereto is a true and correct copy of the Plans for the Permanent Maintenance
Facility that is the subject of the Agreement. The Plans are hereby incorporated into the
Agreement.
Pursuant to Section 3 of the Improvement Agreement(Exhibit B to the Agreement), and
and Section 17.1 of the Agreement,this Memorandum of Plans is'executed by the ACFD
Chief and by the City Manager.
IN WITNESS WHEREOF,this Memorandum of Plans is hereby executed as of
the date first written above.
ACED CITY
ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN,
By: By:
Print Name: Its: City Manager
Title Alameda County Fire District Chief Attest:
City Clerk
Approved as to Form: Approved as to Form:
Donna R.Ziegler,County Counsel
By: City Attorney
Deputy County Counsel
1904210.4 44
MAINTENANCE FACILITY USE AGREEMENT
•
Exhibit B-2
Estimated Costs; Formula for Determining Base Rate
ACED Maintenance Facility Rent Analysis
Assumptions Total
• Building size 18,300
Land Value(City cost pst) $20.17
Agreement Term 20
Rental Adjustment 6.00%
Adjustment timing(Years) 2
_Project Cost Proforma
Land(City Cost Basis) $1,757,210
Building Costs and ACFD $3,902,000
Improvements
Indirect Costs $1,086,320
Total Project Cost $6,745,530
Less: ACFD Contribution $3,500,000
Net City Project Cost $3,245,530
Agreement Rate Analysis
Cost Return on
Cost
$3,245,530 4.00%
Rent Overview(with adj Annual
every 2vr)
Years 1-2 $129,821
Years 3-4 $137,610
Years 5-6 $145,867
Years 7-8 $154,619
Years 9-10 $163,896
Years 11-12 $173,730
Years 13-14 $184,154
Years 15-16 $195,203
Years 17-18 $206,915
Years 19-20 $219,330
Total Rent
• 1904210A 45
MAINTENANCE FACILITY USE AGREEMENT