HomeMy WebLinkAboutItem 4.2 - 3002 ACFD Lease Agreement
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STAFF REPORT
CITY COUNCIL
DATE: January 14, 2020
TO: Honorable Mayor and City Councilmembers
FROM:
Linda Smith, City Manager
SUBJECT:
Amendment to Office Facility Use Agreement with Alameda County Fire
Department
Prepared by: John Stefanski, Assistant to the City Manager
EXECUTIVE SUMMARY:
The City Council will consider approving an Amended and Restated Office Facility Use
Agreement with the Alameda County Fire Department for the new Public Safety
Complex.
STAFF RECOMMENDATION:
Adopt the Resolution Approving the Amended and Restated Office Facility Use
Agreement with the Alameda County Fire Department for the New Public Safety
Complex.
FINANCIAL IMPACT:
As described in Table 1 below, Alameda County Fire Department’s (ACFD) rented
space under the proposed Amended and Restated Office Facility Use Agreement has
increased, resulting in a commensurate increase in rental income to the City’s General
Fund.
TABLE 1: Rental Income Increase
Year Rentable SF $/SF Monthly Rent Annual Rent
Previous Lease Term 13,971 $1.60 $22,354 $268,248
Year 1 15,065 $1.65 $24,857 $298,287
DESCRIPTION:
Background
The City of Dublin contracts with ACFD for fire services and has done so since 1997. In
2014, the City and ACFD entered into an Office Facility Use Agreement allowing for
ACFD to relocate their administrative offices to the City-owned property located at 6363
Clark Avenue. The Agreement established a five -year term with five options to extend
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the term in one-year periods. ACFD has exercised the first and second options,
extending the current term to December 31, 2020.
In early 2019 the City began construction of the new Public Safety Complex, a roughly
39,000-square-foot facility to house both Dublin Police Services (DPS) and ACFD. As a
result of the new construction, ACFD temporarily relocated their administrative
operations. ACFD is scheduled to move back into the new facility by the end of January
2020.
Agreement Terms
Under the proposed Amended and Restated Office Facility Use Agreement, ACFD will
rent 15,015 square feet for exclusive office space and locker rooms, increasing from
13,971 in the previous facility. ACFD and DPS will share a gym space as well as related
circulation space (hallways). ACFD will be allocated 45 parking spaces ad jacent to their
entrance.
The proposed Agreement extends the current term to January 31, 2025 and contains
one extension option of five additional years which would extend the agreement to
January 31, 2030.
Base rent will increase annually by 3%. Given the increase in the total amount of space
rented, annual base rent for the upcoming year is $298,287, increasing from $268,248
as shown in Table 1 above. ACFD’s share of operating expenses will be 39%, which is
based upon ACFD’s rented square footage of t he building relative to the total square
footage of the building.
Over the course of constructing the new facility, ACFD made several requested
improvements or modifications including:
- Expansion of the Training Room;
- Improvements to the Parking Lot Pavement to support ACFD equipment;
- Modifications to the Locker Room;
- Improvements to the Side Entry Canopy; and
- Modifications to the Training Room’s Heating, Ventilation, and Air Conditioning
(HVAC) systems.
The total cost of these improvements was $485,395 which ACFD will reimburse in full in
accordance with the proposed Agreement.
A copy of the proposed Agreement can be found in Exhibit A to the Resolution.
Next Steps
Following City Council action, Staff will take all administrative actions necessary to
execute the Agreement.
STRATEGIC PLAN INITIATIVE:
None.
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NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Approving the Amended and Restated Office Facility Use Agreement with
the Alameda County Fire Department for the New Public Safety Complex
2. Exhibit A to the Resolution-Amended and Restated Office Facility Use Agreement
with the Alameda County Fire Department for the New Public Safety Complex
RESOLUTION NO. XX-20
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING THE AMENDED AND RESTATED OFFICE FACILITY USE AGREEMENT
WITH THE ALAMEDA COUNTY FIRE DEPARTMENT FOR
THE NEW PUBLIC SAFETY COMPLEX
WHEREAS, since July 1, 1997, ACFD has provided fire and emergency response
services within the City pursuant to a separate written agreement and; and
WHEREAS, on July 1, 2012, the parties entered into that certain Office Facility Use
Agreement (hereinafter referred to as the “Agreement”) that authorized ACFD’s use of City-
owned office space in exchange for certain payments; and
WHEREAS, the Agreement established a five-year term for ACFD’s use of such space,
which commenced on January 1, 2014, provided ACFD with five (5) options to extend the term
in one (1) year periods, and required that the extensions be documented by an amendment to
the Agreement; and
WHEREAS, ACFD exercised the first and second options, extending the term to
December 31, 2020; and
WHEREAS, City began undertaking certain improvements at the Real Property and
Premises, as defined in the Lease, which required ACFD to temporarily vacate the Premises
starting on or about March 1, 2019; and ACFD requested certain other improvements be
completed contemporaneously with City’s originally planned improvements; and
WHEREAS, ACFD subleased alternate space to occupy during the time of ACFD’s
displacement from the Premises and incurred moving, set-up and other charges in order to use
the alternate space; and
WHEREAS, City reimbursed ACFD for its reasonable costs of relocating during the
period of displacement, to the extent such costs exceeded the sum of the Base Rent plus other
costs otherwise payable by ACFD pursuant to the Agreement; and
WHEREAS, City and ACFD now desire to enter into an amended and restated lease to
address modifications to the leased space, to adopt a longer lease term, and update other terms
of the Lease.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Amended and Restated Office Facility Use Agreement with the Alameda
County Fire Department attached hereto as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement on behalf of the City of Dublin and make any other minor modifications as necessary
to carry out the intent of this Resolution.
PASSED, APPROVED AND ADOPTED this 14th day of January 2020, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Mayor
ATTEST:
______________________________
City Clerk
114.1001 3452550.1 1
OFFICE FACILITY USE AGREEMENT
AMENDED AND RESTATED
OFFICE FACILITY USE AGREEMENT
(6363 Clark Avenue)
This Amended and Restated Office Facility Use Agreement (this “Lease”) is entered into
effective as of January 14, 2020 by and between the CITY OF DUBLIN, a municipal corporation
(“City”), and ALAMEDA COUNTY FIRE DEPARTMENT, a dependent special district formed
under the Fire Protection District Law of 1987 (Health and Safety Code Sections 13800 et seq.)
and governed by the Board of Supervisors of the County of Alameda as its Board of Directors
(“ACFD”). City and ACFD are hereinafter referred to collectively as the “Parties.”
WHEREAS, since July 1, 1997, ACFD has provided fire and emergency response services
within the City pursuant to a separate written agreement and; and
WHEREAS, on July 1, 2012, the parties entered into that certain Office Facility Use
Agreement (hereinafter referred to as the “Agreement”) that authorized ACFD’s use of City-
owned office space in exchange for certain payments; and
WHEREAS, the Agreement established a five-year term for ACFD’s use of such space,
which commenced on January 1, 2014, provided ACFD with five (5) options to extend the term in
one (1) year periods, and required that the extensions be documented by an amendment to the
Agreement; and
WHEREAS, ACFD exercised the first option on December 31, 2018, extending the term
to December 31, 2019; and
WHEREAS, City began undertaking certain improvements at the Real Property and
Premises, as defined in the Lease, which required ACFD to temporarily vacate the Premises
starting on or about March 1, 2019; and ACFD requested certain other improvements be completed
contemporaneously with City’s originally planned improvements; and
WHEREAS, ACFD subleased alternate space to occupy during the time of ACFD’s
displacement from the Premises and incurred moving, set-up and other charges in order to use the
alternate space; and
WHEREAS, the term for ACFD’s subleased alternate space ends on January 31, 2020;
and
WHEREAS, City reimbursed ACFD for its reasonable costs of relocating during the
period of displacement, to the extent such costs exceeded the sum of the Base Rent plus other costs
otherwise payable by ACFD pursuant to the Agreement, and wavied any claim City might have
for payment of Base Rent plus other costs otherwise payable by ACFD pursuant to the Agreement
during the period of ACFD’s relocation to the subleased alternate space; and
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OFFICE FACILITY USE AGREEMENT
WHEREAS, Parties anticipate that ACFD will move back into the Premises on or about
February 1, 2020 to avoid ACFD incurring charges for holding over in the subleased alternate
space; and
WHEREAS, City and ACFD now desire to enter into an amended and restated lease to
address modifications to the leased space, to adopt a longer lease term, and update other terms of
the Lease; and
WHEREAS, as part of the consideration for the Lease, City waives any claim it may have
for holdover rent under paragraph 14.2 of the Agreement.
NOW THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Agreement is amended as follows:
ARTICLE I
BASIC PROVISIONS
1.1 City’s mailing address: City of Dublin, 100 Civic Plaza, Dublin, CA 94568.
1.2 City’s contact: Linda Smith, City Manager. Telephone: (925) 833-6650.
1.3 ACFD’s mailing address: 6363 Clark Avenue, Dublin, CA 94568.
1.4 ACFD’s contact: David A. Rocha, Fire Chief. Telephone: (925) 833-3473.
1.5 Premises Square Footage and Location: The Premises are located on the first floor of
the Building in the area shown in Exhibit A.
1.6. Total Square Footage: The total square footage of the Building measuring 38,858
square feet.
1.7 Rentable Square Footage: ACFD’s total rented space is 15,065 square feet, effective
on the Commencement Date. Approximately 14,486 square feet consisting of office space and
locker rooms, are for exclusive use by ACFD, with approximately 1,158 square feet of Shared
Space between ACFD and Dublin Police Services. More specifically, 890 square feet are to be
shared between ACFD and Dublin Police Services for us as a physical training room (with one
half of the space allocated to each party) and 268 square feet are to be shared between ACFD and
Dublin Police Services as circulation space (with one half of the space allocated to each party.)
1.8 Commencement Date: February 1, 2020.
1.9 Term: Five (5) years.
1.10 Expiration Date: January 31, 2025
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OFFICE FACILITY USE AGREEMENT
1.11 Option to Extend: One (1) extension term of five (5) years.
1.12 Base Rent: As Base Rent for use of the Premises, ACFD will pay the City the following
sums:
3% annual
adjustment Rentable SF $/SF Monthly Annual
Previous Lease
Term 13,971 $1.60 $22,354 $268,248
Year 1 15,065 $1.65 $24,857 $298,287
Year 2 15,065 $1.70 $25,611 $307,326
Year 3 15,065 $1.75 $26,364 $316,365
Year 4 15,065 $1.80 $27,117 $325,404
Year 5 15,065 $1.85 $27,870 $334,443
1.13 ACFD’s Share of Expenses: Thirty-nine percent (39%). See Section 4.5.2. ACFD’s
share of expenses is based upon the square footage of the Premises relative to the total
square footage of the Building.
1.14 Permitted Uses: General office and training purposes only in accordance with
Applicable Laws.
1.15 Parking: ACFD is allocated 45 parking spaces adjacent to its entrance. Parking spaces
are unmarked and available for use by ACFD and are available to ACFD and the public
on a first come first served basis. There is no reserved parking. Parking is further
addressed in Section 18.1.
ARTICLE II
DEFINITIONS
Definitions. As used in this Lease, the following terms shall have the definitions set forth below.
Additional terms are defined in the remainder of the Lease
“ACFD Parties” means ACFD or ACFD’s agents, employees, contractors, subtenants or
invitees.
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OFFICE FACILITY USE AGREEMENT
“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 Lease (whether or not specifically called “Additional
Rent” in this Lease).
“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, 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 Lease, the monthly amount
payable per rentable square foot of the Premises set forth in Section 1.12.
“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 1.8.
“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.
Common Area does not include Shared Space, as defined separately.
“Environmental Laws” is defined in Section 6.6.
“Hazardous Material” is defined in Section 6.5.
“Indemnitees” is defined in Section 9.1.
“Operating Expenses” is defined in Section 4.5.3.
“Physical Training Room” is 890 square feet of space shared between ACFD, Dublin
Police Services and the City for use as a gym. The area is restricted to use by personnel of these
agencies and not for use by members of the public or for family members..
“Premises” means the premises shown on Exhibit A consisting of approximately 15,065
square feet of rentable space in the Building.
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OFFICE FACILITY USE 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.
“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 as such
may be modified or amended from time to time by City.
“Shared Space” means approximately 1,158 square feet of shared space between ACFD,
and Dublin Police services will contain a physical training room “Physical Training Room” and
circulation space.
“Term” means the period of time during which ACFD shall be permitted to use the
Premises as set forth in Section 1.9, as such may be extended pursuant to the terms hereof.
ARTICLE III
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 ACFD hereby agrees to use the Premises
in accordance with the terms of this Lease. ACFD acknowledges that City has made no
representation or warranty regarding the condition of the Premises, the Building or the Real
Property except as specifically stated in this Lease.
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 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.
ARTICLE IV
RENT, OPERATING EXPENSES, TAXES AND SECURITY DEPOSIT
114.1001 3452550.1 6
OFFICE FACILITY USE AGREEMENT
4.1 Monthly Rent. From and after the Commencement Date, ACFD shall pay to City
for each calendar month of the Term, the monthly Base Rent set forth in Section 1.12. 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 (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.
The Base Rent payable during Year 1 and each year thereafter shall be the amount of Base
Rent in effect during the last month of the prior year, increased by 3%. Base Rent for Year 1 is
calculated based on the lease term in the Agreement, which was $1.60 per square foot of rentable
space.
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 Lease 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 ACFD agree that if City does not receive any such
payment within thirty (30) 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 Lease.
4.5 Common Area Charges, Operating Expenses, and Taxes.
4.5.1 ACFD to Pay 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
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OFFICE FACILITY USE AGREEMENT
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 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 Lease 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 Lease expires or sooner terminates: (i) ACFD shall, even if this Lease
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 ACFD 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 five (5) years 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 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 ACFD is not then in default under this Lease.
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.
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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, the total square footage of the floor area to be charged with
such Operating Expense or Real Property Tax. ACFD acknowledges that the Premises are part of
a Building of that has other occupants, including City. ACFD’s Share of various Operating
Expenses shall be determined as a function of the Building square footage, and ACFD’s Share of
Operating Expenses for all items related to Shared Space shall not exceed the percentage of the
Building occupied by ACFD, regardless of whether or not the Building is fully occupied
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 (but not replacement) of the roof, foundation and exterior
walls of the Building; periodic painting of the Building’s external surfaces, Common Areas or
Premises; periodic cleaning of the exterior windows of the Building; landscaping services; outside
pest control; operation, maintenance and repair (but not replacement) 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 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);; 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, including
those described above, 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
insurance and other reasonable costs associated with such personnel; 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
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OFFICE FACILITY USE AGREEMENT
Building as reasonably determined by City, shall be added to and deemed a part of Operating
Expenses hereunder.
4.5.4 Exclusions From Operating 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 City’s
agreements, employment or tax issues; (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 Lease; (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 Lease, 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 Lease or any Rent payable under this Lease 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
Lease 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 Lease, (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
taxes charged or levied in place of real property taxes, 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 Lease.
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 Lease, 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
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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.
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 be 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 Lease, 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. 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 Lease and the provisions of the Rules and Regulations, the provisions of this
Lease 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.
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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 done 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.
5.5 Repairs and Replacements. ACFD shall repair and maintain the Premises, 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, or (ii) 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 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 Lease (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
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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, 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. The 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 Lease.
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. ACFD 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 Lease, 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,
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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 Lease, 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 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 this 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 ACFD 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 utilitiesIn
addition, prior to commencement of the Lease, City will install separate electric and gas meters
for ACFD on the Premises, and ACFD thereafter shall pay all charges of their metered service. If
such utilities and services (including without limitation, HVAC service) are requested by ACFD
during times other than the Building Standard Hours, City may invoice ACFD for the actual costs
incurred and ACFD 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
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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 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.
7.2 Interruption of Services. ACFD agrees that City shall not be liable for damages,
other than abatement of Rent or the actual cost to correct, 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 its agents
or invitees; or (f) any other cause beyond City’s reasonable control. 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 Lease 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 Lease, at ACFD’s sole expense, keep the Premises (including 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, City
shall promptly notify ACFD and allow ACFD 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 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
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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 ACFD, Alameda County General Services Agency, 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 Lease, 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 ACFD, and City
may at its option by written notice to ACFD, require that ACFD, upon the expiration or sooner
termination of this Lease, 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
ACFD IMPROVEMENTS
9.1 ACFD Requested Improvements. City began undertaking certain improvements
at the Premises, Real Property and Building, and ACFD requested certain other improvements be
completed contemporaneously with City’s improvements (the “ACFD Improvements”). The
ACFD Improvements are listed in Exhibit C. The plans for the ACFD Improvements are contained
within the City’s plans for undertaking the improvements to the Premises, Real Property a nd
Building (“the Plans”). The Plans are incorporated by reference as Exhibit C -1. City shall construct
the ACFD Improvements substantially in conformance with the Plans.
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ACFD understands and agrees that the installation of certain elements of the ACFD
Improvements may be performed before or after execution of the Lease 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. Should the terms of this
paragraph 9.1 preclude ACFD’s reasonable occupancy on February 1, 2020 at the
Commencement Date of the Term, the parties shall promptly meet and confer regarding the
logistics of ACFD’s subleased alternative space and City’s reimbursement of any additional
costs occasioned by ACFD’s inability to take occupancy on the Commencement Date including
but not limited to holdover charges.
9.2 Reimbursement of Costs. Within fourteen (14) days’ execution of this Lease,
ACFD shall reimburse the City for ACFD Improvements in full. The estimated total project cost
for the Improvements, including design, construction, administration and project management is Four
Hundred Eighty-Five Thousand, Three Hundred Ninety-Five Dollars ($485,395) (“Estimated
Improvement Cost”) ACFD shall be responsible for one hundred percent (100%) of Estimated
Improvement Cost. The Estimated Improvement Cost is itemized in Exhibit C. ACFD’s payment of
the Estimated Improvement Cost shall not excuse City’s obligation to construct the ACFD
Improvements in accordance with the Plans, or diminish ACFD’s rights under Paragraph 9.5.
9.3 City Compliance with Construction Requirements. City shall cause the ACFD
Improvements to be constructed in a good and workmanlike manner, free from design, material,
and workmanship defects in accordance with the Plans and all Applicable Laws. City is responsible
for all associated contract administration and payment of contractors, including compliance with
Public Contract Code and Labor Code requirements, as applicable. All work in performance of
this Lease must be done by skilled workers or mechanics. Work performed under this Lease must
be in conformance with the prevailing wage provisions of State laws. Prevailing wages are to be
paid for work to be performed by City during the Term of this Lease, as provided by relevant
provisions of the California Labor Code. City agrees to comply with all applicable provisions of
said Code as they relate to the payment of prevailing wages, and City agrees to indemnify, defend
and hold ACFD harmless from all claims, costs, causes of action, attorneys’ fees, damages or
liability arising out of or in connection with the failure of City or City’s contractors or
subcontractors to comply with the applicable provisions of said Code.
9.4 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 ACFD Improvements; provided however, during the period of the
construction of the Project, ACFD 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 ACFD Improvements and prepare a written list
(“Punchlist”) of any items that are defective, incomplete, or do not conform to the Plans, applicable
permits, or Applicable Laws. Should the terms of this paragraph 9.4 preclude ACFD’s occupancy
on February 1, 2020 at the Commencement Date of the Term, the parties shall promptly meet and
confer regarding the logistics of ACFD’s subleased alternative space and City’s reimbursement of
any additional costs occasioned by ACFD’s inability to take occupancy on the Commencement
Date including but not limited to holdover charges.
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OFFICE FACILITY USE AGREEMENT
9.5 Occupancy of the Premises. Occupancy of the Premises by ACFD shall not relieve
City in any respect from construction of the ACFD Improvements full compliance at all times with
the Plans. It is also understood that the Premises, at time of Commencement Date, will be in
compliance with occupancy requirements, operating regulations, and regulatory permits as
required for the services provided at this location. It is further understood and agreed that any
installation not in conformity with the Plans shall be corrected in a reasonable amount of time by
City at City’s sole cost and expense.
ARTICLE X
INSURANCE AND INDEMNITY
10.1 Indemnity. To the fullest extent permitted by law, ACFD shall defend (with counsel
reasonably acceptable to City), indemnify and hold the City, its employees, agents, volunteers, and
elective and appointive boards (“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 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 ACFD 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 Lease, except to the extent caused by the sole
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 sole 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 Lease, except to the extent caused by the sole negligence or willful conduct of
ACFD or the ACFD Parties.
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OFFICE FACILITY USE AGREEMENT
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 Lease and are independent
of such obligations. Compliance with the insurance requirements set forth in this Lease 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
Lease.
10.2 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, the Building or the Real Property 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 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.
10.3 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
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OFFICE FACILITY USE AGREEMENT
policy, and (iii) shall, as to the Premises, otherwise comply with the requirements of this Article
as to endorsements and coverage.
10.4. 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, proof
of coverage shall be delivered to City by ACFD 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 Lease.
10.5 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.
10.6 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.
107 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 XI
ASSIGNMENT AND SUBLETTING
11. City’s Consent Required. ACFD shall not assign, mortgage, pledge, encumber or
otherwise transfer this Lease. 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 or ACFD
Parties 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
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shall constitute an Event of Default entitling City to terminate this Lease and to exercise all other
remedies available to City under this Lease and at law.
11.2 No Release of Obligations. The consent by City to an assignment or agreement for
use by others shall not relieve ACFD 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 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
Lease, and ACFD shall remain fully and primarily liable for all of ACFD’s obligations under this
Lease.
11.3 Recapture. As material consideration for the execution of this Lease by City, ACFD
hereby agrees that whenever it delivers written 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 Lease and instead 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 Lease, 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.
11.4 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 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.
ARTICLE XII
DAMAGE AND DESTRUCTION
12.1 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 Lease shall remain in effect, except that for the time unusable,
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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 Lease shall
continue in full force and effect, or (b) terminate this Lease 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 Lease 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 Lease,
then within thirty (30) days after ACFD receives City’s notice providing a Repair Period, ACFD
may give notice to City terminating this Lease 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 ACFD may give notice to City, within ten (10)
business days after the end of the Repair Period terminating this Lease 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 Lease
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.
12.2 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 Lease by giving written notice
to the other of the exercise of that option within thirty (30) days after the damage or destruction,
and this Lease 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.
12.3 Rent Apportionment. If City or ACFD elects to terminate this Lease under this Article
XII, 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 Lease 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.
12.4 Waiver of Statutory Provisions. The provisions of this Lease, including those in this
Article XII, constitute an express agreement between City and ACFD that applies in the event of
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OFFICE FACILITY USE AGREEMENT
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.
12.5 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
Premises or the Building resulting from the negligence, willful action or fai lure to act by ACFD
or ACFD Parties, and such repairs shall be undertaken at ACFD’s sole expense.
ARTICLE XIII
CONDEMNATION
13.1 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.
13.2 Partial Taking. If any part of the Premises is taken through the exercise of eminent
domain (or is voluntarily conveyed under the threat thereof) 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. If City is unable to make Premises reasonably suitable for ACFD’s
continued occupancy in ACFD’s sole but reasonable business judgment for the uses and purposes
permitted by this Agreement, ACFD may terminate this Lease.
13.3 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.
13.4 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 Lease.
ARTICLE XIV
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SUBORDINATION AND ESTOPPEL
14.1 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 Lease 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 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 Lease and that there are no defenses, counterclaims,
deductions or offsets outstanding or other excuses for ACFD's performance under this Lease as of
such date, and (e) any other fact reasonably requested by City or such proposed lender or purchaser.
14.2 Subordination and Attornment. ACFD agrees that this Lease 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).
14.3 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, 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 Lease to any such
encumbrances or underlying leases.
ARTICLE XV
SURRENDER OF PREMISES; HOLDING OVER
15.1 Surrender of Premises. On expiration of this Lease, ACFD 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) 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 Lease 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 ACFD fails to
complete such removal or to repair the Premises, City may complete such removal and repair, and
ACFD shall reimburse City therefor. If ACFD fails to remove such property as required under
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OFFICE FACILITY USE AGREEMENT
this Lease, 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.
15.2 Hold Over Occupancy. If ACFD remains in possession of the Premises after the
expiration or earlier termination of this Lease 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), 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) 103% of Base Rent which would become due the last month of the Term, together with all
other amounts payable by ACFD to City under this Lease.
If after written notice to ACFD that City does not consent to ACFD continuing to occupy
the Premises and ACFD remains in possession of the Premises after the expiration or earlier
termination of this Lease, 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 XVII
CITY'S RESERVED RIGHTS.
16.1 Rights Reserved to City. Without notice and without liability to ACFD, 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 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 Lease) 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.
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ARTICLE XVII
DEFAULT AND REMEDIES
17.1 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 Lease, ACFD’s Share of Operating Expenses), or fail to pay any other amount owed by ACFD
to City under this Lease 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 X 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 ACFD or a substantial part
of its property;
(f) abandon or vacate the Premises for more than three (3) consecutive months
without prior approval of City;
(g) assign this Lease or allow use of any portion of the Premises in violation of
Article XI; or
(h) fail to comply with any other provision of this Lease 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).
17.2 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 Lease in full force and effect. In
such case, so long as City does not terminate ACFD's right to possession, the Lease 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.
114.1001 3452550.1 26
OFFICE FACILITY USE AGREEMENT
Reletting can be for a period shorter or longer than the remaining term of this Lease. ACFD
shall pay to City the Rent due under this Lease 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
Lease 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
Lease, but ACFD shall not be released from liability.
(b) Terminate Agreement. City may terminate the Lease 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 Lease 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 Lease;
(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 Lease 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 Lease,
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%).
17.3 City’s Default. City’s failure to perform any of its obligations under this Lease
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
114.1001 3452550.1 27
OFFICE FACILITY USE AGREEMENT
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 XVIII
MISCELLANEOUS
18.1 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 Lease. The nonexclusive license and right granted pursuant to this Section shall be
subject to the Rules and Regulations. ACFD may park vehicles overnight. ACFD shall not permit
or allow any vehicles that belong to or are controlled by ACFD or ACFD’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 Lease.
18.2 ADA Compliance. City shall maintain the Common Areas and Shared Space at
all times in conformity with the Americans with Disabilities Act (ADA) – Building Access, and
all later enacted amendments thereof, and shall be responsible for all repairs, alterations and/or
maintenance of the Common Areas and Shared Space under said laws. The Premises as delivered
shall be in conformity with said laws. City shall indemnify, defend and hold harmless ACFD, its
officers, agents and employees from all claims, liability, damages, or penalties (including costs of
investigation and attorneys’ fees) arising out of City’s failure, or alleged failure, to meet its
obligations as described herein this Paragraph.
17.3 Non-appropriation. This Agreement will terminate without penalty, liability or
expense of any kind to ACFD at the end of any fiscal year if funds are not appropriated for the
next succeeding fiscal year. If funds are appropriated for a portion of the fiscal year, this Lease
will terminate, without penalty, liability or expense of any kind at the end of the term for which
funds are appropriated. ACFD has no obligation to make appropriations for this Lease in lieu of
appropriations for new or other agreements. ACFD budget decisions are subject to the discretion
of the Board of Directors. City’s assumption of risk of possible non-appropriation is part of the
consideration for this Lease. Nothwishtanding the foregoing, ACFD agrees to provide no less than
forty-five (45) days notice to City of the Board of Director’s decision not to appropriate funds.
18.3 City Ownership. City warrants and represents to ACFD that, to City’s actual
knowledge, there is no recorded and/or nonrecorded matter of any kind whatsoever affecting the
Real Property that restricts or impedes, and/or is in conflict with, the use or occupancy of the
Premises and Shared Space, and/or the rights, liabilities, and obligations of the parties to this Lease.
114.1001 3452550.1 28
OFFICE FACILITY USE AGREEMENT
18.4 Nondisturbance. If any encumbrance to which this Lease is subordinate is
foreclosed, or a deed in lieu of foreclosure is given to the encumbrancer thereunder, this Lease
shall not terminate and the rights and possession of ACFD under this Lease shall not be disturbed
if no default by ACFD then exists under this Lease.
ARTICLE XIX
GENERAL
19.1 No Waiver. No receipt and retention by City of any payment tendered by ACFD
in connection with this Lease 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 oth er
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 Lease.
Any waiver of any condition or provision set forth in this Lease 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.
19.2 Severability. The Parties intend this Lease 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 Lease would be defeated by loss of the
invalid or unenforceable provision.
19.3 Governing Law; Construction. This Lease 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 Lease 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 Lease have
been inserted for convenience only and shall not be used to alter or interpret the content of this
Lease.
19.4 Binding Effect; Survival. The covenants, conditions, warranties and agreements
contained in this Lease 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 Lease as shall all other provisions hereof which are intended to
survive such expiration or termination.
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OFFICE FACILITY USE AGREEMENT
19.5 Time. Time is of the essence of each provision of this Lease.
19.6 Entire Agreement; Amendments. This Lease and Exhibits A, B and C are 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 Lease may not be amended or modified
except in a writing signed by both parties.
19.7 Notices. All notices delivered pursuant to this Lease 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.
19.8 Force Majeure. Except as otherwise provided in this Lease, the time for
performance of an obligation other than the payment of money under this Lease 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.
19.9 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 default of the other
party, or if any judicial remedy or arbitration is necessary to enforce or interpret any provision of
this Lease, or if the services of an attorney are required upon the bankruptcy of a party to this Lease
to compel or object to assumption or rejection of this Lease, 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.
19.10 Authority. Each party warrants and represents that it has full authority to enter into
this Lease, that this Lease 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.
19.11 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.
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OFFICE FACILITY USE AGREEMENT
19.12 Counterparts. This Lease 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 Lease shall
take effect when signed by all parties hereto and all parties have written notice of the signature of
all the remaining parties.
19.13 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 Lease 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 Lease. City
shall pay a consulting fee to Colliers International in accordance with a separate agreement.
19.14 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
Lease is not effective until executed and delivered by both City and ACFD.
19.15 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 ACFD.
SIGNATURES ON FOLLOWING PAGE.
114.1001 3452550.1 31
OFFICE FACILITY USE AGREEMENT
NOW THEREFORE, City and ACFD have executed this Amended and Restated Office
Facility Use Agreement as of the date first written above.
ACFD
ALAMEDA COUNTY FIRE
DEPARTMENT,
a dependent special district
CITY
CITY OF DUBLIN,
a municipal corporation
By: _______________________________
Print Name:________________________
Title:_____________________________
APPROVED AS TO FORM:
DONNA R. ZIEGLER, COUNTY
COUNSEL
By: _______________________________
Heather Littlejohn
Deputy County Counsel
By: _______________________________
Its: City Manager
Attest:_____________________________
City Clerk
Approved as to Form:
___________________________________
City Attorney
114.1001 3452550.1 32
OFFICE FACILITY USE AGREEMENT
Exhibit A
DIAGRAM OF PREMISES
114.1001 3452550.1 33
OFFICE FACILITY USE AGREEMENT
Exhibit B
General Building
RULES AND REGULATIONS
Except as otherwise provided in any provision of the Lease, 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.
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
114.1001 3452550.1 34
OFFICE FACILITY USE AGREEMENT
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.
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
114.1001 3452550.1 35
OFFICE FACILITY USE AGREEMENT
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 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.
114.1001 3452550.1 36
OFFICE FACILITY USE AGREEMENT
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.
114.1001 3452550.1 37
OFFICE FACILITY USE AGREEMENT
Exhibit C
ACFD IMPROVEMENTS &
ESTIMATED IMPROVEMENT COST
114.1001 3452550.1 38
OFFICE FACILITY USE AGREEMENT
Exhibit C-1
ACFD IMPROVEMENT PLANS