HomeMy WebLinkAboutAgenda - 02-15-1994 - VIII-J 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
�
7�"=�
ACTION AGENDA ITEM ABSTRACT Item No.
Meeting Date: February 15, 1994
SUBJECT: LEASE RENEWAL; CARRSORO PLAZA
DEPARTMENT: PURCHASING AND CENTRAL SERVICES PUBLIC HEARING:YES: NO:
ATTACHMENT(S): INFORMATION CONTACT:
PAM JONES, ext. 2650
jm,A lanall Telephone Number-
Hillsborough 732-8181
Chapel Hill 967-9251
Mebane 227-2031
Durham 688-7331
PURPOSE: To consider renewing a lease at Carrboro Plaza for space used by the North Carolina
Department of Motor Vehicles as a satellite Driver License Bureau.
BACKGROUND: In November,1986 the Commissioners approved a lease at Plantation Plaza (since
renamed Carrboro Plaza) for the purpose of relocating the satellite office of the Driver License
Bureau. The office had previously been located in the basement of Carrboro Town Hall, however,
the Town's expanding office needs made it necessary to relocate the Driver License office.
During the recent renewal negotiation process the State indicated a need for additional space, but
could not identify funding to support such a move. The lease has been intentionally extended for
only one year during which time the State will attempt to obtain funding (approximately$18,000)for
the additional space needed. If the State chooses to provide funding for the additional space,a new
lease will be executed with the County paying for the portion of the space to which we originally
committed (1,200 s.f.) and the State paying for the additional space (estimated to be approximately
1,800 s.f.).
Highlights of the 1994 lease renewal include:
Leased Premises: 1,200 square feet
Term: one year
Rent: $8.00 8-f-
Taxes, Insurance, Maintenance: $4.95/s.f.
Total County funds required to support this lease: $15,540**
"Note: This is a reduction in lease cost;the County currently pays$17,313/year.
Utilities: The State will continue to pay for utilities.
Maintenance: The County will continue to provide the same level of maintenance as in past
lease years.
Cleaning: The State will continue to pay for cleaning services.
Until the completion of the Southern Human Services Building,the Sheriff will continue to maintain
a satellite office at this facility.
4
2
RECOMMENDATION: The Manager recommends that the Board approve the lease renewal,
contingent upon Attorney and Staff review,for a period of one year for space to be used as a satellite
Driver License Bureau at Carrboro Plaza; and authorize the Chair to sign on behalf of the Board.
1.11 d194renew
LEASE AGREEMENT
LANDLORD: CARRBORO BELMAN S.C.LIMTED PARTNERSHIP,by Bafty
Hokfi V% Inc.,General Partner
TENANT: ORANGE COUNTY PURCHASING
INDEX
Addg Descdpbon P
I BASIC LEASE SCHEDULE 2
II DEFINITIONS 4
III TERM, CONSTRUCTION AND DELIVERY
OF POSSESSION 4
N RENT AND OTHER CHARGES 5
V RECORDS AND REPORTS 6
Vi USE AND OPERATION 6
VII COMMON AREAS 7
VIII MAINTENANCE AND REPAIR 8
IX OPERATING EXPENSE CHARGE 9
X INSURANCE 10
XI LANDLORD'S RELEASE FROM DAMAGE 11
XIl SIGNS AND ADVERTISING 11
XIII CASUALTY AND CONDEMNATION 11
XIV DEFAULT AND REMEDIES 12
XV ASSIGNMENT AND SUBLETTING 14
XVI TRANSFER OF LANDLORD'S INTEREST 14
XVII SUBORDINATION 14
XVIII ADDITIONAL PROVISIONS 15
EXHIBIT A PLOT PLAN&LEGAL DESCRIPTION
EXHIBIT B SIGN REQUIREMENTS
EXHIBIT C CONSTRUCTION, LANDLORD'S AND
TENAWS WORK
EXHIBIT D RULES AND REGULATIONS
4
Li
STATE OF NORTH CAROLINA
COUNTY OF ORANGE LEASE AGREENEMT
THIS LEASE AGREENENT, made and entered into this 241h day of January, 1994, by
and between CARRBORO BELMAN S.C. LINITED PARTNERSHIP, by Balfour Holdings, Inc.,
General Partner, (hereinafter referred to as 'LANDLORD') and ORANGE COUNTY
PURCHASING(hereinafter referred to as'TENANT);
WITNESSETH:
LANDLORD hereby lets to TENANT and TENANT hereby rents from LANDLORD the
Premises hereinafter defined, subject to the operation and effect of any and all instruments and
matters of record or in fact now or hereafter, intending to be legally bound under this Lease and
in consideration of$1.00 and other good and valuable consideration, LANDLORD and TENANT
hereby agree with each other as follows:
ARTICLE I
BASIC LEASE SCHEMA F
The following terms and definitions shall be applicable to the various provisions of this Lease
which refers to them and should the provisions of this Article conflict with any other provision
hereof, then such later provisions shall contra.
1.01. TENANrS TRADE NAME,, Orarige Courty Purchasirig
1.02 Poet OMoe Boot 8181
Mdmrcugh,North Camina 27278
cb J. M. Kane&Co.
40201MestChase Boulevard
Suite 400
Raleigh, North Carolina 27607
1.03. SHOPPING CENTER Canboro Plaza,located on that certain parcel of land more
particularly described in Exhibit A
1.04. - Those occupying space in the Shopping Center in excess
of 8,000 square feet
1.05. PREPASFS: Prerrrises leased(hereinafter called "Premises')consist of the space
13 outlined on Exhibit A, containing approximately 1200 square feet of gross leasable area.
1.06. LEASE?E. One(1)Lease Years, plus a Partial Lease Year, if arty, prior to
the first Lease Year. The Lease Term shall commence upon the Occupancy Date which shall
be the earliest of(i)occupancy by TENANT; or(ii) February 1, 1994. The Partial Lease Year,
if arty,will end December 31st of the year TENANT occupies the Premises, and the end of the
lease term shall be at 5:00 P.M. Eastern Standard Time on January 31, 1995.
1.07. Not Applimble
1.08. PLAN SUIMSSION CIATE Not Aq*qble
1.09. PER rrrED USES The sole and exclusive use of the Premises is for a Drivem
License Bureau and saMb sheriRs d 5w.
wRtbn OirR179dM
1.10. SM.- Payment of Rent shall begin on Rent Comrnencement Date which shall
be the earlier of(i)expiration of the fixture and stocking period, as provided in 1.07; or(ii)date
TENANT opens for business.
2
r I S
Al k*T m Rent
u
1 st Lease Year $9,600.00 per annum
ComMencernert-January 31, 1995 $ 800,00 per month
Percenlage Rent Rate: Not A AMbie
1.11. OPERATING
Common Area Maintenance: Apotil
$4,017.60 $
Taxes: $1,919.52
$159
Other: Not Applicable
1.12 .MWIEW. Not Applicable
1.13. EW: Not Applicable
1.14. SECURITY DEPOSIT; Not Applicable
1.15. ADVANCE REM PAYNM Not Applicable
1.16. INTIAL Not Applicable
1.17. HOURS OF OPERATION; As determined by LANDLORD,however,LANDLORD
reserves the right to adjust hours as LANDLORD may deem suitable in the best interest of the
Shopping Center and Ilexilble.
1.18. This is a one(1)year lease. Tenant has the opgon
to cancel this lease g addtio al fi X&V is Wanled in June 1994-Which vii enMle the agency
tD moue nb a larger space at Carrbow Plaza.
3
6 ,
ARTICLE 11
DEFINTIONS
2.01. ' shall mean the property let to TENANT as described in Article 1. The
Premises shall be measured from the exterior faces of all exterior walls and from the center line
of all common walls. The LANDLORD reserves to itself the use of the exterior walls and roof,
and the right to install, maintain, use and repair pipes, ducts, conduits, vents and wires leading
in, through, over, or under the Premises.
2.02. 1FdSE YEAR' as used herein is defined to mean a period of twelve (12)
consecutive full calendar months. If the Lease Term shall commence on a day other than the first
day of a calendar month, it shall be considered a partial month. At LANDLORD'S election,the
"Lease Year" shall mean any twelve (12) month period selected by LANDLORD. If by such
election,the period prior to the first"Lease Year"is longer than a partial month,then this period
shall be deemed a"Partial Lease Year." Minimum Rent, Percentage Rent and Additional Rent
shall be prorated for the partial month and/or Partial Lease Year.
2.03. MAX&ON AREAS'means the entire Shopping Center except the portions of the
Shopping Center upon which buildings, structures or other improvements have been erected for
lease or sale, and except areas designated for other uses by LANDLORD.
2.04. "SAS SALES'shall mean and refer to all sales of merchandise and services,
and all revenues of every kind, less sales tax, derived from the business conducted at or from
Premises. The amount of dollar value of bona fide refunds or credit, granted for return of
merchandise, shall be charged as a credit in reduction of the Gross Sales, for the period within
which such rekinds shall have been made. For the purpose of the foregoing,all credit sales shall
be included in Gross Sales for the month of sale.
2.05. "PRO RATA SHARE"means the ratio of the floor area of the Premises to the Gross
Usable Area of the Shopping Center, excluding principal TENAIS T'S Premises.
2.06. "�aB=1 EASA 71 E AEA'shall mean all areas rentable to tenants,as determined
by LANDLORD, and shall exclude the Cormon Areas.
ARTK;1 F 111
_Em
3.01. Its Lease shall be for the term specified in Article I hereof,which shall run from
the Occupancy Date as specified in Article I, except that the LANDLORD shall have the right to
postpone the Occupancy Date by service of written notice upon the TENANT.
If the Occupancy Date fails to occur within one hundred eighty(180)days after the date
specified in Article 1.06(1),either party may elect to terminate this Lease upon service of written
ndim to the other given prior to the Occupancy Date,in which case neither party shall have any
liability to the other under this Lease.
3.02 Faiva of TENANT b Oct In the event that TENANT'fails to open the Premises
for business fully fixhxed, stocked and staffed at the expiration of the fixture and stocking days
alkwied in Article I,then the LANDLORD shall have in addition to any and all remedies herein
prodded the right at its option to collect not only the Mininxun Rent but Additional Rent at the rate
of 11360th per day of the Minimum Rent.
3.03. CgognEdunPoseessiloit LANDLORD and TENANT hereby agree that TENANTS
taking possession of the Premises shall be deemed conclusive evidence to TENANT'S
acceptanoe of the Premises and satisfactory condition for compliance with all the covenants and
obligations of the LANDLORD in connection therewith. TENANT acknowledges that no promises
to decorate, after, repair or improve the Premises, either before or after the exeafion hereof,
have been made by the LANDLORD or its authorized representatives, except as the same may
be specified in Exhibit C attached hereto. TENANT'shell perform all TENANTS work on the
Premises in accordance with Exhibit C attached hereto, and shall thereafter install such stock,
fixtures,and equipment to perform such other work as shall be necessary or appropriate in order
to prepare the Premises for opening and continuous operation of TENANT'S business thereon.
4
7
3.04. Hdft If TENANT shall be in possession of the Premises after the
expiration of the term of this Lease,LANDLORD shall have the right to have the tenancy become
month to month,terminable by either party on seven(7)days prior written notice, at a monthly
rental which shall be at LANDLORDS discretion or equal to twice the sum of the monthly
installment of Minimum Rent payable during the last m aith of the tern. Such tenancy shall also
be subject to all of the conditions, provisions and obligations of this Lease. This shall not
constitute a waiver of the rights of the LANDLORD to dispossess the TENANT and recover
possession of the Premises and to bring any action for damages suffered by LANDLORD on
account of TENANTS holding over.
ARTKXE OC
RENT AND 91HO CHARGES
4.01. Nk*mffn B Throughout the term of this Lease, TENANT shall pay Minimum
Rent to LANDLORD as specified in Article 1. Mnim urn Rent shall be due the first day of each
month in advance and payable in equal monthly installments without notice or demand. The first
installmwt of rent shall be due on the Rent Commencement Date but shall be payable on
execution of this Lease. In the event that TENANT has made an Advance Rental Payment this
shall be applied to the payment of Minimum Rent beginning when the first(1st)morrth's rent is
due.
4.02. Percenlage Rent TENANT shall pay Percentage Rent to the LANDLORD MOW
notice or demand at the rate set forth in Article I. Within fifteen(15)days after the end of each
calendar month,the TENANT shall submit to the LANDLORD an accurate written statement, in
form satisfactory to LANDLORD, signed and certified by TENANT, showing the full amount of
Gross Sales of the TENANT during the immediately preceding month,together with payment of
Percentage Rent due based on the Gross Sales for that month. The Percentage Rent due shall
be calculated by multiplying the Gross Sales in excess of the sales amount specified in Article
1 by the Percentage Rent Rate also specified in Article I. Unless the LANDLORD requests a
deferent form,Gross Sales shall be a copy of TENANTS state sales and use tax report. Within
thirty(30)days after the end of each Lease Year or Partial Lease Year,Tenant shall furnish to
the LANDLORD a statement, in form acceptable to and approved by LANDLORD, duty certified
by TENANT, showing the Gross Sales made during the immediately preceding Lease Year or
Partial Lease Year. TENANT shall at the same time pay the full balance of the Percentage Rend
due for said Lease Year. Any excess of Percentage Rent,that TENANT may have paid monthly
during such Lease Year shall be credited against future rent payments. Each Lease Year shall
be construed as an independent aocounting period for the expose of computing the amount of
Percentage Rent.
4.03. Oftr In addition to Minimum and Percentage Rent,all of the payments
provided for in this Lease, including, but rot limited to, operating expense charges, marketing
funds,and WAC,to be made by TENANT to the LANDLORD shall be deemed to be"Additional
Rent"and all remedies applicable to the non-payment of Mninxun and Percentage Rent shall be
applicable thereto. Minimum Rent, Percentage Rent and Additional Rent are hereinafter
sometimes collectively referred to as"Rent"
4.04. ftw* Dep ad TENANT has concurrently with the execution of this Lease
deposited with LANDLORD the sum set forth in Section 1.14(hereinafter sometimes referred to
as the"Sear*Deposal)as security for the full performance of every provision of this Lease by
TENANT. LANDLORD may apply all or any part of the Security Deposit to axe any default by
TENANT hereunder,and TENANT shall promptly restore to the Security Deposit all amounts so
applied upon invoice. If TENANT shall fuly perform each provision of this Lease,any portion of
the Security Deposit which has not been appropriated by LANDLORD in accordance with the
provisions hereof shall be returned to TENANT without interest within thirty(30)days after the
expiration of the Lease Tern LANDLORD may deliver the funds deposited hereunder by
TENANT to the purchaser or transferee of LANDLORDS interest in the Premises in the event
that such interest be sold or transferred,and, in the event the purchaser or transferee assumes
the obligations of LANDLORD, thereupon LANDLORD shall be discharged from any further
liability with respect to such seamy deposit.
4.05. Pavment of Rent TENANT shall pay all Rent when due and payable,without any
setoff,deduction,objection or prior demand therefor whatsoever. If TENANT shall fail to pay any
Rend within ten (10) days of the due date, TENANT shall be obligated to pay a late payment
charge equal to the greater of One Hundred Dollars($100.00)or ten percent(10%)of any Rent
5
8
port paid to reimburse LANDLORD for its additional administrative costs. In addition, any Rent
which is not paid when due shall bear interest at the Default Rate(which shall be the higher of
eighteen percent(18%)or the highest rate permitted by law)from the first day due until paid. Any
payment by TENANT or acceptance by LANDLORD of a lesser amount than shall be due from
TENANT to LANDLORD shall be treated as a payment on account. The acceptance by
LANDLORD of a check for a lesser amount with an endorsement or statement thereon,or upon
any letter accompanying such check, that such lesser amount is payment in full shall be given
no effect, and LANDLORD may accept such check without prejudice to any other rights or
remedies which LANDLORD may have against TENANT.
4.06. Arimiall AftMIMM in Raft and Odw At the end of every Lease Year,
the annual amount to be paid by TENANT for Minimum Rent, Marketing Fund, and WAC
Maintenance shall be increased by the higher of(a)six percent(60/o)over the preceding Lease
Year,or(b)the increase in the CPI(as hereafter defined)for that Lease Year. The adjustments
shall take effect with the rent payment due each January 1,and shall be calculated based on the
increase in the CPI published the prior October,over that published the October one year before.
CPI shall mean the Consumer Price Index- U.S. City Average for Urban Wage Earners and
Clerical Workers,All Items(1982= 100)of the United States Bureau of Labor Statistics.
ARTICLE V
RECORDS AND REPORTS
5.01. TENAKM TENANT shall maintain and keep at TENANT'S home office
a full, complete and accurate permanent record and account of all Gross Sales,conducted at or
from Premises by or for the account of TENANT,for each day of the Term hereof. Records are
to be maintained in accordanoe with generally accepted accounting principles. LANDLORD shall
have the right, at any reasonable time, to examine such books and records (inducing all tax
retums)or have them audited,at the LANDLORD'S expense,except that if any such examination
or audit discloses a deficiency of more than two percent(2%)in any annual statement of Gross
Sales furnished by TENANT to LANDLORD, then TENANT shall pay the actual cost of such
examination or audit,and shall immediately pay any deficiency in Percentage Rent,plus a penalty
of ten percent(100/6)of the deficiency.
ARM=VI
USE HD OPERAMON
6.01 Pwmkbcl TENANT shall use the Premises for the uses designated as
permitted uses in Article I and for no other purpose without LANDLORD'S written consent. Any
variation or deviation from the specific use expressly set forth herein shall be deemed a default
of this Lease. TENANT shall conduct its business in the Premises continuously to achieve
maximum sales volume on all days and at all hours in which the Shopping Center is open and
shall conduct its business only under the trade name designated in Article 1. The LANDLORD
does not warrant or make any representation that the TENANT will have the exclusive right to sell
any items or services in this Shopping Center.
6.02 Ckirdnixiin TENANT covenants and agrees to remain open for business
at least during the store hours, as specified in Article I, and such additional hours for special
promotions and holi days, as shall be determined by LANDLORD. If TENANT fails to operate
during these hours it shall constitute a default hereunder entitling LANDLORD to pursue any
remedies it may have,including temrinating this Lease. If TENANT shall request LANDLORD'S
approval of the opening of the Premises for business for periods exceeding those specified in
Article I,and LANDLORD shall approve such request,TENANT shall pay for any additional costs
incurred by LANDLORD.
6.03. QuXbm vAlh TENANT will not breach or suffer the breach of any laws,
statutory regulations, covenants, oondtions or restrictions affecting the Shopping Center or the
Premises, each shall use and occupy the Premises in strict compliance therewith and in
compliance with LANDLORD'S rules and regulations. TENANT shall not do or pemtit anything
to be done in or about the Premises which will in ary way obstruct or interfere with the rights of
other tenants or oomipants of the Shopping Center,or use or allow the Premises to be used for
any improper, immoral, unlawful, objectional purpose, nor shall TENANT cause, maintain, or
pemA any nuisance in or about the Premises. TENANT shall, at its sole cost and expense,
comply with all laws, ales, regulations and requirements now in force, or which may hereafter
be enacted, relating to or affecting the condition, use or occupancy of the Premises. TENANT
6
_ � 9
has investigated the zoning classification, other rules, ordinances, and regulations
promulgat ed
by Public authority,and has satisfied itself that its intended use of the Premises is not in violation
thereof.
6.04. Aftmilam TENANT shall not make or suffer to be made any alterations,additions
or improvements to or of the Premises or any part thereof, without the prior written consent of
LANDLORD. Any afterations, additions, or improvements, except inventory and trade fixtures,
shall become Part of the really and shall belong to the LANDLORD. In the event the LANDLORD
consents to the making of any alterations or improvements to the Premises,the same shall be
made by TENANT at TENANTS sole cost and expense and any contactor or person selected
by TENANT to make the same must first be approved by LANDLORD in writing. All such
alterations, additions and improvements and arry removal, restoration, or repairs made to the
Premises shall be completed in good workmanlike manner with materials and labor in kind and
quality similar to that originally in the Premises and shall be free and dear of all liens for labor,
taxes or materials. Upon demand,TENANT shall provide LANDLORD with such waivers of lien
and other documents as LANDLORD may reasonably require to ascertain the provisions of this
Article have been complied with.
6.05. ElM irormenlal Il nanv Tenant shall not cause or permit any hazardous materials
(as defined below)to be brought upon, kept or used in or about the Premises or the shopping
center in which the Premises are located without Landlord's prior written consent,which consent
may be withheld in Landlord's sole discretion. Landlord hereby consents to Tenant's bringing
upon,keeping and using at the Premises(1) materials constituting inventory for resale,provided
that Tenant does not repackage such materials at the Premises in a manner that creates a
potential for a spill, leak or other release, and(2) comrrronly used products or supplies as may
be necessary for the cleaning or maintenance of the Premises or equipment, fixtures or
furnishings looted at the Premises. In consideration of the foregoing consent and any other
specific consent that Landlord may grant pursuant to this paragraph, Tenant shall be obligated
to maintain full compliance at all times, with respect to all hazardous materials to which such
consents relate, with any and all applicable ermron mental control, anti-pollution,or health and
safety statutes,laws and regulations,inducting,but not limited to,the Resource,Conservation and
Recovery Act,42 U.S.C.§6901,et seq.("RCLA');the Comprehensive E nvironnnenal Response
Compensation and Liability Act of 1980,as amended,42 U.S.C.§9601,et seq.f'CERCLA');the
Hazardous Materials Transportation act, 49 U.S.C. §801, et seq.; the Federal Water Pollution
Control Act, 33 U.S.C. § 1321, et seq.;the Toxic Substances Control Act, 15 U.S.C. §2601 et
seq. ('TSCNT and the Oaxrpational Safety and Health Act, 29 U.S.C. § 651 et seq. In the
even of the breach of the obligations contained in this paragraph by Tenant, or I the presence
of hazardous materials on or about the shopping center caused or permitted by Tenant results
in contamination of the Premises, the shopping center or surrounding area, Tenant shall
indemnify, defend and hold Landlord harmless from any and all dam,judgments, damages,
penalties,fines,costs,liabilities or losses arising in connection with such breach or contamination,
(including,without limitation)diminution in value of the Premises and/or shopping center and all
improvements thereon, damages for the loss or restriction on the use of rentable or useable
space or any amenities of the Premises and/or shopping enter,and reasonable attorneys'fees,
consultant fees,and expert fees. As used herein the term"hazardous materials"rmeans any and
all materials and substances which have been determined or are subsequently determined to be
harmful to human health or the environment, including but not limited to(1) "hazardous wastes"
as defined under RCRA or any other federal, state or local taw or regulation, (2) "hazardous
substances"as defined under CERCLA or any adw federal,state or local law or regulation,(3)
gasoline, petroleum, or other hydrocarbon products, by-prodr.rcts, derivatives, or fractions
(including spent products), (4) "toxic substances" as defined under TSCA, (5) "regulated
medical waste" as defined by 40 C.F.R. § 259.30, and (6) any radioac M materials or
substances.
ARTICLE VII
CONSM AREAS
7.01. Use of Ccrmmm AM Subject to regulations as established from time to time by
LANDLORD, TEIIW U in common with other tenants of LANDLORD and any designee of
LANDLORD, shall have the nonexclusive right of use of the Common Areas of the Shopping
Center. TENANT, its subtenants, successors and assigns shall riot solicit business or display
merchandise in any of the Common Areas or distribute hand bills or any other advertising matter
therein. LANDLORD shall have at all times exclusive right to control and manage the Common
Areas and without limitation of LANDLORD'S rights,LANDLORD may alter,remodel,change or
dose all or arty portion of the Common Areas, inducing the parking areas to such an extent as
7
-- _ 10
may be necessary in the opinion of the LANDLORD and may grant, modify or terminate
easements and other agreements pertaining to use and operation. LANDLORD may prohibit
Parking, passage of motor vehicles in areas previously designated for panting or passage and
may erect additional buildings on Commori Areas or charge the location of the buildings,
structures and other areas.
7.02. Enjk=Pa TENANT'S employees shall park only in the areas designated,
from time to time, by LANDLORD as employee parking and TENANT shall furnish LANDLORD
with the license numbers of any vehicle of TENANT and TENANTS employees. Should TENANT
or TENANTS employees park in the areas root designated by LANDLORD, LANDLORD reserves
the right to remove those cars of TENANT'S and/or TENANT'S employees at TENANT'S expense.
It shall be the responsibility of TENANT to notify its employees of designated parking areas.
Nothing herein shall be construed to require that LANDLORD furnish parking for TENANT or
TENAN rs employees.
ARTICLE VIII
MAINTENANCE AND REPAIR
8.01. TENANT Insta TENANT shall, at TENANT'S sole expense, install all trade
fixtures and equipment required to operate its business(all of which shall be of first-class quality
workmanship). Al trade fixtures, signs, or other personal property installed in the Premises by
TENANT shall remain the property of TENANT and may be removed at any time provided that
TENANT is not in default hereunder and provided the removal thereof does not cause TENANTS
default hereunder;and further provided that TENANT shall,at TENANT'S sole expense,promptly
repair any damage to the Premises resulting from the removal of personal property and shall
replace same with personal property of like or better quality. The term'trade fixtures"as used
herein shall not include carpeting, hood vent or any item which protrudes through the roof of the
Premises,floor coverings,attached shelving,lighting fixtures other than free-standing lamps,wall
coverings, or similar TENANT improvements which shall become the property of LANDLORD
upon surrender of the Premises by TENANT for whatever reason.
8.02 Niaebmance by TENANT, Except as provided in Section 8.05 hereof, TENANT
shall, at TENANT'S expense, at all times keep the Premises (interior and exterior) and
appurtenances thereto in good order,condition,and repair, clean,sanitary, and safe, including
the replacement of equipment, fixtures, and all broken glass (with glass of the same size and
quality)and shall,in a mariner satisfactory to LANDLORD,decorate and paint the Premises when
necessary to maintain at all times a dean and sightly first class appearance. In the event
TENANT fails to perform any of its obligations as required hereunder,LANDLORD may,but shall
not be required to, perform and satisfy same with TENANT hereby agreeing to reimburse
LANDLORD, as Additional Rent, for the cost thereof promptly upon demand. TENANT shall
make any and all addti ris, improvements, alterations, and repairs to or on the Premises cew
than those required for the structural repair of the roof,foundation,or exterior walls,which may
at any time be required or recommended by any lawful authorities, insurance underwriters,
inspection Rating Bureaus, or insurance inspectors designated by LANDLORD. LANDLORD
may,but shall not be obligated to,deal directly with any authorities respecting their requirements
for additions, ice,alterations,or repairs. All such work shall be performed in a good
and workmanlike mariner. All TENANT work (as set forth in Exhibit C) and all additions,
improvements,and alterations shall become the property of the LANDLORD upon the expiration
or earlier termination of this Lease.
8.03. TENANT Shall Dwha=al TENANT will not create or perrit to be created
or to remain, and will discharge, any lien(including, but not limited to, the liens of mechanics,
Laborers or materialmen for work or materials alleged to be done or furnished in connection with
the Premises), enarri m= or other charge upon the Premises or any part thereof, upon
TENANTS leasehold interest therein, provided,that TENANT shall riot be required to discharge
any such liens, encurribirances or charges as may be placed upon the Premises by the act of
LANDLORD. LANDLORD shall have the right, but riot the obligation, to discharge any lien on
behalf of TENANT, and to charge the amounts paid by LANDLORD, including costs, premiums,
attorney fees,to TENANT as additional rent.
LANDLORD reserves the right to enter the Premises to post and keep posted notices of
non-responsibility for any such lien. TENANT will pay, protect and indemnify LANDLORD within
thirty(30)days after demand therefore,from and against all liabilities,losses,claims,damages,
costs and expenses, includirg attomeys fees, incurred by LANDLORD by reason of the filing of
8
11
any lien and/or the removal of the same. _
8.04. SLnender of Premises, At the termination of this Lease, TENANT shall surrender
the Premises in the same condition(subject to the removals hereinafter required)as the Premises
were on the date the TENANT opened the Premises for business to the public,reasonable wear
and tear excepted,and shall surrender all keys for the Premises to LANDLORD at the place then
fixed for the Payment of Rent, and shall inform LANDLORD of all combinations on locks, safes
and vaults, if any, in the Premises. TENANT during the fast thirty(30)days of such term shall
remove all its trade fixtures, and, to the extent required by LANDLORD by written notice, any
other installation,alterations or improvements before surrendering the Premises as aforesaid and
shall repair any damage to the Premises caused thereby. TENANTS obligation to observe or
perform this covenant shall survive the expiration or other termination of the Lease.
8.05. Afiairftwice W LANDLORD shall keep the structural integrity of the
supporting walls,the foundations, and roof of the Premises in reasonable repair, provided that
TENANT shall promptly give LANDLORD written notice of the necessity for such repairs, and
provided that the damage thereto shall not have been caused by negligence of TENANT, its
concessionaires,officers,agents,employees,licensees,or invitees;in which evert TENANT shall
be responsible therefor. LANDLORD shall have no obligation to repair,maintain,alter,or perform
any other ads with reference to the Premises or any part thereof, or any plumbing, heating,
ventilating, electrical, air conditioning, or other mechanical installations therein. If Article 1.13
imposes WAC charges the LANDLORD will be responsible for the maintenance of WAC to the
Premises. If the LANDLORD does nil provide FIVAC maintenance,the TENANT shall maintain
the heating and air conditioning equipment throughout the term of this lease, including but not
limited to, the replacement of filters, belts, refrigerant, compressor, any and all parts, and the
entire unit if and when required. TENANT shall maintain a service contrail for the entire term of
this lease with LANDLORD'S approval of the maintenance contractor and terms of the agreement.
TENANT will provide LANDLORD a copy of said contract upon notice.
ARTICLE Q(
OPERATING EKPIENSE CHARGE
9.01. In addition to and separate from the Hnimum Rent,Percentage Rent and
any other charges,the TENANT shall pay to the LANDLORD as Additional Rent,TENANT'S Pro
Rata Share of the Operating Expense(urge. Further,that amount in Article I consisting in the
aggregate of all Common Area Maintenance casts,taxes, and other charges shall be adjusted
annually at the end of the LANDLORD'S fiscal year as provided for below. For purposes of this
Lease,the following will describe and define the Operating Expense Charge:
9.02. COMM A19M MMANUMS, The LANDLORD will operate and maintain or will
cause to be operated and maintained,the Shopping Center. LANDLORD'S operating costs shall
mean all costs and expenses of managing, operating, maintaining and insuring the Shopping
Center which are the responsibility of LANDLORD in a manner deemed by LANDLORD to be
reasonable and appropriate for the best interest of the Shopping Center, including, without
limitation costs for any services, furnished by LANDLORD for the non-exclusive use for all
tenants,all salaries,all insurance costs,(inducing insurance deductibles)structural repairs and
for Common Areas,capital expenses and any other charges deemed appropriate
by the LANDLORD for the maintenance and operation of the Comm Areas that will be in the
best interest of both LANDLORD and TENANT,plus administrative costs equal to fifteen percent
(15%)of the total cost of operating and maintaining the ConvTw Areas.
9.03. Tun The word Taxes, as used herein, shall mean all taxes, assessments,
impositions,levies,charges,excises,fees,licenses,and other sums levied,assessed,charged,
or imposed by any governmental authority or other twang authority, or which accrue on the
Shopping Center for each of the LANDLORD'S fiscal years(or portion thereof)during the term
of this Lease, inducing,without limitation,all costs and expenses incurred by the LANDLORD in
contesting or seeking to reduce the amount of the leasehold improvements,taxes,all penalties,
interest and other charges. TENANT shall pay before delinquenht, any and all taxes, levied or
assessed, and which become payable on TENANTS inventory, equipment, trade fixtures,
leasehold improvements and other personal property located in the Premises.
9.04. $Q Rata Share. TENANT will initially pay the amounts as shown in Section 1.11.
At the end of each of LANDLORD'S fiscal years,the LANDLORD will give TENANT notice of the
total paid by TENANT for that fiscal year,together with the actual amount of TENANTS Pro Rata
9
r-� 71 2
t
Share of operating expense charges for each year. If TENANTS share exceeds the aggregate
amount previously paid by TENANT for such period, TENANT shall pay to LANDLORD the
deficiency within ten (10) days following notice. LANDLORD shall apply any overpayment to
future operating expense charges. LANDLORD may adjust the amounts shown in Section 1.11
based on budgeted expenses and TENANT'S estimated Pro Rata Share.
ARTICLE X
DANCE
10.01. . TENANT agrees to carry, at its own expense, personal property
insurance including stock,trade fixtures,improvements,betterments and fixtures againstAil Direct
Risk Physical Loss, in an amount of not less than one hundred pervert(100%)of its insurable
Replacement Cost value. TENANT agrees to have his policy of insurance name the LANDLORD
as Loss Payee and make benefits payable to the TENANT and LANDLORD,as their interest may
appear. TENANT agrees to carry,at its sole cost and expense,throughout the term of the Lease,
Public Liability Insurance including contractual liability and Auto Liability Insurance for its own
protection, covering the Premises and the TENANTS use thereof with minimum amounts of
insurance of$500,000.00 for injury and/or death to any one person and$1,000,000.00 for injury
or death to any number of persons in arty one accident and property damage insurance in an
amount of$500,000.00 for damage to property of others in any one occurrence, and if TENANT
sells alcoholic beverages,Dram Shop Liability coverage of$1,000,000. TENANT agrees to give
LANDLORD prompt notice of any accidents or occurrences subject to coverage by its insurance,
or the LANDLORD'S insurance. TENANT agrees to be responsible for property damage or
liability arising out of its operation,whether covered by its insurance or not. TENANT agrees to
carry such other forms, amounts and types of insurance, as from time to time may be required
by LANDLORD, and all insurance shall be with companies approved by LANDLORD. TENANT
further agrees to provide evidence of all insurance required under this paragraph, in such form
or forms as may be required by the LANDLORD. TENANT agrees to have its insurance policies
endorsed to provide thirty (30) days advance notice of cancellation or material change be
provided to the LANDLORD prior to termrration of its coverage.
10.02. 1 To the extent permitted by law, TENANT shall defend, with
counsel satisfactory to LANDLORD and completely indemnify and hold forever harmless
LANDLORD from and against any and all liabilities,fines,suits,claims,demands,actions,causes
of actions, losses,costs(including attorney fees),damages,judgments,expense of any find or
character whatsoever,due to or arising out of (a)any breads or violation or nonperfomarim of
any cavenart, obligafion,condition or agreement set forth in this Lease on the part of TENANT
to be fulfilled, kept or performed:ardor(b)any damage to,loss,or destruction of any property
arising directly or indirectly out of TENANTS use or occupancy of the Premises;and/or(c)any
injury to arty person, including death, resulting any time therefrom, occurring in or about the
Premises.
In the event that LANDLORD is made a party to any action or proceeding which TENANT
is required to defend pursuant to the provisions of this Lease, LANDLORD shall have the right
to appear and take part in the action or proceeding by legal counsel of LANDLORD'S choice,at
LANDLORD'S expense.
TENANT shall also completely indemnify LANDLORD as to all costs and expenses
inured to enforce in the terms,provisions,conditions or covenants of this Lease,including,but
not limited to,attorneys fees. TENANT shall have its insurer endorse its liability insurance policy
to provide for coverage of TENANTS obligations under this paragraph.
10.03. TENANT agrees not to do anything which will void the
LANDLORD'S insurance or cause the premiums to increase. In the event that the LANDLORD'S
insurance premiums are increased, as a result of the TENANTS occupancy,then the TENANT
agrees to pay, in full,that increase in premium caused by its occupancy.
10.04. Waiver of EWU of Reoaiu W Neither LANDLORD mar TENANT shall be liable to
the other party or to any insurance company(by way of subrogation or otherwise) insuring the
other party for arty loss or damage to any building,structure or other tangible property or liability
for personal injury,or losses under workmen's compensation laws and benefits,even though such
loss or damage might have been occasioned by the negligence of such party, its agents or
employees.
10
13
ARTIC F)n
I AND ORUS RELEASE FROM DAMAGE
11.01. Willies,and Casualty. TENANT covenants and agrees not to hold LANDLORD
responsible or liable for any damages sustained by TENANT or any other person, due to the
interruption or lack of utilities or utility services to the Premises or the Shopping Center or any
part thereof or any appurtenances thereof becoming out of repair,or due to the happening of any
accident or damage, especially, but riot exclusively, for any damage caused by water, snow,
windstorm,tomado,gas,steam,electric wiring,sprinlder system,plumbing,or heating apparatus,
or any casualties occumng at the shopping center. TENANT agrees not to hold LANDLORD
liable for any ads or omissions of cotenants or other occupants of the Shopping Center, or for
losses by theft. TENANT agrees not to overload the floor slab,electric wiring,or utilities serving
the Premises and to install at its own expense, but only after obtaining LANDLORD'S written
approval, any electric wiring which may be required in connection with TENANTS apparatus.
TENANT shall procure for its own account and shall pay the cost of all utilities used at the
Premises.
11.02. EmaAadm TENANT agrees to look solely to LANDLORD to enforce
LANDLORD'S obligations hereunder and not to the partners or shareholders and shall not seek
any damages against the partners or shareholders of the LANDLORD. The maximum possible
liability of the LANDLORD to TENANT for LANDLORD'S obligations under this Lease shall not
exceed and shall be limited to the value of LANDLORD'S interest in the Premises and TENANT
shall oat look to any other property or assets of LANDLORD or any of the partners or
shareholders and officers or directors of LANDLORD in seeking to either enforce LANDLORD'S
obligations under this Lease or to satisfy judgment for LANDLORD'S failure to perform such
obligation.
ABIlCLE)9l
SIGNS AND ADVERTISING
12.01. SM As provided for in Exhibit B,TENANT shall,at its own cost and expense,
provide a suitable identification sign which requires Landlord approval prior to installation. Other
than such permitted signs, TENANT shall riot place, install, or maintain any sign, banner, flag,
aerial, ardervua, or other display outside the Premises unless consented to in writing by
LANDLORD; nor shall TENANT place or maintain on the glass of any window or door of the
Premises, or within one(1) foot of any such glass, any sign, decoration, lettering, advertising
natter, shade, blind, or other thing. All signs used by TENANT shall be professionally printed,
no handwritten signs are allowed.
12.02. Mar10ft Ford TENANT agrees to pay LANDLORD a non-recurring initial
assessmerrt,within ten(10)days of demand thereof,that amount as specified in Article 1.
LANDLORD may, at LANDLORD'S sole discretion, establish a Marketing Fund
for the Shopping Center to conduct sales promotions, center-wide advertising and related
activities intended to promote the Shopping Center. If established,TENANT agrees to pay that
amount in Article I to the Marketing Fund and this charge will be increased annually as provided
in this Lease.All monies received by LANDLORD under Section 1.12 shall be used solely for the
purpose of advertising, promotions, and related expenses. The LANDLORD hereby agrees to
pay 250/6 of ttat amount paid by TENANT to the Marketing Fund in any Lease Year and
LANDLORD agrees to provide management personnel to direct all advertising and promotions,
suffident secretarial services, utilities, supplies, telephone and all equipment necessary for the
efficient operation of the Marketing Fund, however, said costs are considered administrative
expenses and therefore will be deducted from LANDLORD'S contribution. All personnel and all
advertising and promotion experditures and decisions shall be under the exclusive control of the
LANDLORD. TENANT agrees to participate by the purchase and placement of an ad in a
minimum of four(4)Marketing Fund sponsored advertising efforts. TENANT agrees that such
advertisement shall be no less that one-fourth (1/4) page for tabloid and direct mail or the
equivalent in newspaper or electronic media.
ARTICLE)911
CASUALTY AND CONDEMNATION
13.01. Fie,Ejmloeion ar Other Casualty. In the event the Premises are damaged by fire,
explosion or any other casualty to an extent which is less than fifty(50%)percent of the cost of
11
14
replacement of the Premises,the damage except as provided in Section 13.02, shall promptly
be repaired by LANDLORD at LANDLORD'S expense, provided that LANDLORD shall not be
obligated to expend for such repair an amount in excess of the insurance proceeds recovered or
recoverable as a result of such damage and that in no evert shall LANDLORD be required to
repair or release TENANTS stock in trade fixtures, furniture, furnishings, floor coverings and
equipment. In the event of any such damage and(a) LANDLORD is not required to repair as
hereinabove provided,or(b)the Premises shall be damaged to the extent of fifty(50%)percent
or more of the cost of replacement, or (c) the building of which the Premises are a part is
damaged to the extent of twertty-five(25%)percertt or more of the cost of replacemert,or(d)the
buildings(taken in the aggregate)in the Shopping Center shall be damaged to the extent of more
than twenty-five(25%)percent or more of the cost of replacement, LANDLORD may elect either
to repair or rebuild the Premises or the building or buildings, or to terminate this L ease upon
giving notice of such election in writing to TENANT within ninety(90)days after the ocaurertce
of the evert lousing the damage. If the casualty, repairing, or rebuilding shall render the
Premises urttenarttable, in whole or in part, and the damage shall not have been due to the
default or neglect of TENANT,a proportionate abatement of the Minimum Rent shall be allowed
from the date when the damage occurred until the date LANDLORD completes its work, said
proportion to be computed on the basis of the relation which the gross square foot area of the
space rendered untenantable bears to the floor area of the Premises. Nothing in this Section
shall be construed to permit the abatement in whole or in part of the Percentage Rent.
13.02. LANDLOREYS and TENANTS The provisions of this Article XI I I with respect
to repair by LANDLORD shall be limited to such repair as is necessary to place the Premises in
the same condition as when possession was delivered by LANDLORD. Upon LANDLORDS
substantial completion,TENANT shall,at TENANTS expense,perform any work required to place
the Premises in the condition,pursuant to Exhibit C,and TENANT shall restore,repair or replace
its stock in trade fixtures, furniture, furrushings, floor coverings and equipment, and if TENANT
has dosed,TENANT shall promptly reopen for business. In the event that there are changes in
TENANTS Work from Exhibit C, LANDLORD shall approve in writing any dwiges.
13.03. CgodMMdM If the whole of the Premises,or so much thereof as to render the
balance unusable by TENANT, shall be taken under power of eminent domain, or otherwise
transferred in lieu thereof, or if any part of the Shopping Center is taken and its continued
operation is not in LANDLORD'S sole opinion, economical, this Lease shall automatically
terminate as of the date possession is taken by the conden in g authority. No award for any total
or partial taking shall be apportioned,and TENANT hereby unconditionally assigns to LANDLORD
any award which may be made in such taking or condernnation. In the event of a partial taking
w vch does riot result in the termination of this Lease, Minimum Rent shall be apportioned
according to the part of the Premises remaining usable by TENANT.
13.04. Smbnmsdon Awd All compensation awarded or for
acquiring under the paid any part or
paiver or threat d eminent domain, whether for the while or a part d the
Premises or Shopping Center,shall be the property of LANDLORD,whether such damages shall
be awarded as compensation for diminution in the value of the leasehold or to the fee of the
Premises or otherwise,and TENANT hereby assigns to LANDLORD all of the TENANtTS right
title and interest in and to any and all such compensation; provided, however,that LANDLORD
shall not be entitled to any award specifically made to TENANT for the taking of TENANTS trade
foktures, furniture or leasehold improvements to the extent of the cost to TENANT of said
imprvvernwds(exclusive of LANDLORD'S contribution),less depreciation computed from the date
Of said improvemtents to the expiration of the original term of this Lease.
ARTKIE t'
DEFAULT AND REIY®IES
14.01. DdM In the event that TENANT(a)fails to pay all or arry portion of Rent when
due, (b)fails to Cease all conduct prohibited hereby immediately upon receipt of written notice
from LANDLORD; (c)fails to take any action in accordance with the provisions d written notice
from LANDLORD to remedy TENANT'S failure to perform any d the temis, Covenants, or
conditions hereof (d) fails to conduct business in the Premises as herein required; (e) shall
become bankrupt or insolvent, or file any debtor proceedings, takes or have taken against
TENANT, any petition d bankruptcy, take action or has actions taken against TENANT ftx the
appointment d receiver for all or a portion d assets,files a petition for corporate reorganization
and makes an assignment for the benefit of creditors,or for any other matter TENANTS interest
hereunder shall pass to another by operation of law, or (f) is otherwise in breach d any d
12
15
TENANT'S obligations hereunder and shall not have cured the same within ten (10) days
following written notice from LANDLORD; then TENANT shall be in default hereunder, or(g) if
defaults under any other document or agreement entered into in connection with this Lease or
TENANT'S occupancy of the Premses.
14.02. B&II& In the event that TENANT is in default hereunder, LANDLORD shall
be entitled to pursue any remedy it may have at law or at equity, including, but not limited to,
those eMessly set forth hereafter. All remedies of LANDLORD shall be cumulative and in
addition to any other rights LANDLORD may be entitled. The exercise of any one or more rights,
remedies shall riot impair LANDLORD'S right to exercise any other right or remedy. No delay or
omission of LANDLORD to exercise any right or power arising from any default shall be deemed
a waiver of any right or remedy LANDLORD may have upon the occurrence.
14.03. Nrticular Reme,clea Upon the occurrence and continuance of any default,
LANDLORD,without notice to TENANT(except where expressly provided for below),may do any
one or more of the following: (a) with or without judicial process, enter the Premises, take
possession of any and all goods, inventory, equipment and all other personal property of the
TENANT without liability for trespass or conversion and may sell all or any part thereof at public
or private sale. TENANT agrees that five(5)days prior written notice of any public or private sale
shall constitute reasonable notice. The proceeds of such sale shall be applied first to the
payment of all costs and expenses in conducting the sale coning from said property, including
all attorney fees;second,to the payment of any indebtedness due LANDLORD;third,to pay the
TENANT, on demand in writing, any surplus remaining after all indebtedness of TENANT has
been paid to the LANDLORD; (b) perform on behalf of or at the expense of TENANT any
obligation of TENANT under this Lease which TENANT has failed to perform which LANDLORD
shall have given TENANT notice. The cost of which performance by LANDLORD,together with
interest thereon at the Default Rate from the date of such experxMures shall be deemed
Additional Rent payable to LANDLORD upon demand;(c)terminate this Lease by giving notice
of such election to the TENANT and reenter the Premises without the necessity of legal
proceedings and remove the TENANT and all other persons and property therefrcm;(d)with or
without terminating this Lease,and without the necessity of legal proceedings,LANDLORD may
retake control of the Premises,whether by changing the locks of the Premises or otherwise,and
control TENANTS access to the Premises;arKVor(e)exercise any other legal or equitable right
or remedy it may have. Any and all costs or expenses incurred by LANDLORD inducing,without
limitation, attorneys fees, and enforcing any of its rights or remedies under this Leese shall be
deemed to be additional rent and shall be repaid to LANDLORD by TENANT upon demand.
14.04. Dwn@M If the Lease is termnated by LANDLORD pursuant to this Article,
TENANT shall nevertheless be liable for arty rent and damages which may be due or sustained
by LANDLORD and all reasonable costs,fees and expenses,inducing,but not limited to,attorney
fees, costs and expenses incurred by LANDLORD in pursuit of its remedies hereunder, and in
renting the Premises to others(including, but not limited to, the costs of redoing and replacing
TENANT upfitting work),from time to time,which at the election of LANDLORD shall be either:
(a) an amount equal to the rent which,but for the termination of this Lease,would
have been due during the remainder of the term of the Leese, less the amounts of rent, if arty,
which LANDLORD shall receive during such period from others to whom the Premises may be
rented, in which case such damages shall be computed and payable, at LANDLORD'S option,
either in an accelerated lump scan payment or in an amount equal to the total rental payments
due for the rerrraining term of the Lease,or payable in monthly installments in advance from the
first day of each cafe KW month following termination of the Lease and continuing until the date
on which the term would have expired, but for such teffronatm; or
(b) an amount equal to the present worth(as of the day of such termination)of
rent which, but for the termination of this Lease,would have become due during the remainder
of the term of the Leese, less the fair market rental value of the Premises(as determined by an
independent real estate appraiser named by LANDLORD),in which case such damages shall be
payable to LANDLORD in one lump surn on demand and shall bear interest at the Default Rate
until paid.
(c) If such termination shall take place after the expiration of two (2) or more
Lease Years, then for the purposes of computing the damages, the Annual Percentage Rent
payable with respect to each Lease Year following termination(including the Lease Year in which
such termination took place) shall be conclusively presumed to be equal the average annual
13
16
Percentage rent payable with respect to each Complete Lease Year preceding termination. If such
termination shall take place before the expiration of two(2)Lease Years, then for the Purposes
Of computing damages,the Annual Percentage Rent payable with respect to each Lease Year
following termnation shall be conclusively presumed to be equal to twelve(12)times the average
monthly Payment of Percentage Rent due Prior to such termination or if TENANT has not paid
any Percentage Rent during the tern, then the Annual Percentage Rent for each year of the
unexpired term shall be equal to twenty-five percent(25%)of the annual basic rental.
ARTICLE XV
15.01. TENANT acknowledges that TENANTS S agreement
to operate in the Premises for the Pernitted Use set forth in Article I hereof for the fully stated
term hereof was a primary inducement and precondition to LANDLORD'S agreement to lease the
Premises to TENANT. Accordingly,TENAN'T'S interest in the Premises shall be limited to the use
and occupancy thereof in accordance with the provisions hereof and shall be non-transferable.
Any attempts by TENANT to sublet the Premises in whole or in part or to sell, assign, lien,
encumber or in any manner transfer this Lease or any interest therein shall constitute a defauft
hereunder, as shall any attempt by TENANT to assign or delegate the rranagemerit or to pemvt
the use or occupancy of the Premises or any part hereof by anyone other than TENANT.
LANDLORD and TENANT acknowledge and agree that the foregoing provisions have been freely
negotiated by the parties hereto and that LANDLORD would riot have entered into this Lease
without TENANT'S consent to the terms of this Section 15.01. Any attempt by Tenant to sublet
all or arty potion of the Premises, to encumber same, or to in arty manner transfer, convey,
assign TENAM'S irderest therein, allow the use or management thereof, shall be void.
15.02. Change of Ccnkd. In the event TENANT is a corporation and subsidiary of
another corporation,it may assign this Lease to or merge with,its parent corporation. Any other
merger, or any dissolution, consolidation or other reorganization, or the sale or other transfer
(except as the result of death)of more than fifty percert(50%)of the corporate stock of TENANT
or fifty percent (50%) of its voting stock, shall constitute an assignment of this Lease,for all
purposes of this Article XV, and is prohibited without the wriften consent of LANDLORD.
LANDLORD agrees not to unreasonably withhold its consert to any assignment, resulting from
a merger or consolidation or sale or other transfer of assets having like effect which is otherwise
prohibited;provided that LANDLORD promptly receives all information reasonably requested,by
LANDLORD relating thereto; and provided ftxther that neither the reputation, experience, net
worth, nor financial condition of arty such Assignee, be less than that of Assignor.
ARTMILE XVII
TRANSFER OF LANDLORDS INTEREST
16.01. In the evert of the sale, assignment or transfer by LANDLORD of its
interest in the Shopping Center or in this Lease(other than a collateral assignment to secure a
debt of LANDLORD) to a successor-in-interest LANDLORD shall thereupon be released or
discharged from all of its covenants and obligations hereunder,except such obligations as shall
have accrued prior to any such sale,assignment or transfer,and TENANT agrees to look solely
to such successor in interest of LANDLORD for perfomtanoe of such obligations. TENANT shall
release LANDLORD of arty obligations relating to any securities given to LANDLORD by
TENANT,upon acknowledgement by such successors,or receipt of such securities. LANDLORD
shall thereby be discharged of any ftxther obligations relating thereto. LANDLORDS assignment
of the Lease, or of any or all of its rights herein,shall in no matter affect TENANTS obligations
hereuxmder. TENANT shall thereafter attom and look to such assignee,as LANDLORD,provided
TEN W has first received written notice of such assignment of LANDLORDS interest
ARTICLE XV11
SLAMROINATION
17.01. EmkgVW Certificate. W thin five (5) days after written request therefor by
LANDLORD or any other mortgagee or tnistee under a mortgage or deed of trust covering the
Premises,or if,upon any sale,assignment,or other transfer of the Premises by LANDLORD,an
estoppel certificate shall be required from TENANT, TENANT shall deliver, in form satisfactory
to LANDLORD, a statement to any proposed mortgagee or other transferee, or to LANDLORD,
certifying any fads that are then true with respect to this Lease Agreement, including without
limitation(if such be the case),that this Lease Agreement is in full force and effect that TENANT
14
i
17
' is in possession,that TENANT has commenced the
payment of rent and the dates for which rent
has been paid, and that there are no defenses or offsets to the Lease Agreement claimed by
TENANT. In the event that TENANT fails to provide such certificate within ten(10) days after
request therefor by LANDLORD, TENANT shall be deemed to have approved the contents of
any such certificate submitted to TENANT by LANDLORD and LANDLORD is hereby authorized
to so certify.
17.02. TENANT agrees that this Lease shall,at all times,be subject and
subordinate to the lien of any mortgagee(which terms shall include all security instruments)that
may be placed on Premises by LANDLORD, and TENANT agrees, upon demand, without cost
to execute any instrument that may be required to effectuate such subordination within he(5)
days after written request.
ARTICLE XVIII
18.01. Quilet LANDLORD covenants that TENANT, upon paying rent and
performing all of its other obligations under this Lease,shall peacefully and quietly have and enjoy
the Premises,throughout the Lease Term,or until this Lease is terminated, as herein provided.
18.02. Bigt]t d Entry. LANDLORD, its agents and representatives, shall have the right
to enter the Premises, at all reasonable times, for any reasonable purpose, including, but not
limited to, (a) inspection of Premises, (b) inspection and examination of TENANTS records
pursuant to the provisions of Article 5.01, (c) making repairs, replacements, alterations or
additions to Premises or building, (d)exhibiting Premises to prospective tenants during the last
one hundred eighty(180)days of the Term,and any such entry, herein authorized, shall not be
or constituted an eviction or deprivation of any right, conferred hereunder upon TENANT.
18.03. L3idnt to Relocnla. LANDLORD shall, at arty time during the term of this Lease,
have the right upon ninety(90)days written notice to the TENANT to relocate the TENANT to
another location within the Shopping Center upon the condition that the new space designated
by LANDLORD shall be substantially similar to the Premises in respect to layout and square
footage. All costs of relocation shall be bone by the LANDLORD.
18.04. Short Faim tease. The parties agree this Lease Agreement shall not be recorded,
however, rf either party so desires,the parties agree that they shiall execute a memorandum, or
short form i ease Agreement,in recordable form,specifying the commencement and temhiretion
dates of the term hereof and the Premises. Array cost associated with such recording will be at
the TENANT'S expense.
18.05. Navas and Effect d Aiseement This instrument contains the completed
agreement of the parties and there are no oral or written oo ditions, terms, understandings or
other agreements pertaining thereto,as to the Premises;and nothing herein shall in any way be
construed to impose upon either party hereto,any obligations or restrictions not herein expressly
set forth. The laws of the State where the shopping center is looted shall gavem the validity,
interpretation, performance, and enfocemert of this Lease Agreement
18.06. QWM VYhenever a period of time is provided in this Lase for LANDLORD to
do or perform any ad or thing,LANDLORD shall not be liable or responsible for any delays due
to strikes, lockouts, casualties, ads of God, war, govemrnental regulation or control or other
causes beyond the reasonable control of the LANDLORD,and the time for perliormance specified
herein shall be executed for the amount of time LANDLORD is so delayed.
18.07. . The oovmints, agmernerits, and obligations herein
contained,except as herein otherwise specifically provided,shall extend to,bind and inure to the
benefit of the parties hereto,and their respective personal representatives,heirs,successors and
assigns.
18.08. fthmo TENANT warrants that it has had no dealings with arty broker or agent
in connection with this Lem,other than LANDLORD'S broker,if any,and covenants to pay,hold
harmless and indemnify LANDLORD from and against, any and all cost,expense or liability for
any compensation,commissions and charges claimed by any other broker or agent with respect
to this Lease or the negotiation thereof.
15
18
18.09. Tire of Essence, Time is of the essence of this Lease and each and all of its
provisions.
18.10. Relaill Reeft3lon, TENANT agrees that TENANT,and if TENANT is a corporation
or partnership,its officers,directors,shareholders and any affiliates or partners,shall not,directly
or indirectly, operate, manage or have any interest in any other store or business (unless in
operation from the date of this Lease)which is similar to or in competition with the permitted uses
provided herein within a five(5) mile radius of the Premises.
18.11. Severa The legal invalidity or uraftceability of any one or more of the
provisions of this Lease shall in no way affect the validity of any other provision of the Lease as
a whde.
18.12. dam. All notices and demands which may be or required to be given by either
party hereunder shall be in writing. All nooboes and demands shall be sent by United States mail,
certified or registered mail, postage prepaid addressed to the addresses of LANDLORD and
TENANT specified in Article I.
18.13. Egany, If any lending institution with which Landlord has negotiated or may
negotiate financing for the Shopping Center does riot approve the financial and credit rating of
Tenant or otherwise does not approve of Tenant for such purposes of financing, Landlord shall
have the right to cancel this Lease prior to or within thirty(30)days after the final execution of
this Lease by both parties. In the event of such cancellation, this Lease shall becorne null and
void and neither party shall have any further rights or obligations hereunder.
16
19
IN WITNESS WHEREOF, LANDLORD and TENAW have signed and sealed this Lease in
appropriate and lawful manner.
LANDLORD- CARRBORO 9ahlA ,S.C. Limited
Pa►hw9v
BY: BALFOUR HOLDINGS,INC.,
General Partner
ATTEST
By:
Secretary Spenoer VVl anan
Moe President
Mix Corporate Seal
TENANT: ORANGE COUNTY PURCHASING
I
V1litness
AGOOMEDC43MENT OF CORPORATE
STATE OF
COUNTY OF
1, ,a Notary Public of the County and State
aforesaid, certiry that - pe o f natty appeared
before me this date and admowledged that:_fie is
a (State)corporation„ and Vial;by authority duly
given and as the act of the corporation,the foregoing im1ru neat was signed in its name by its
President, sealed with its corporate seal and attested by
as its Secretary.
WITNESS my hand and Notarial Seal the_day of 19y
NOTARY PUBLIC
W Commission Bores:
17
20 '
STATE OF
COUNTY OF
1, , a Notary Public for said County and
State,do hereby certify that personally appeared
before me this day and acluxWedged the due execution of the foregoing written instrument.
1MTNESS rry hand and Notarial Seal,this the_day of 19—
NOTARY PUBLIC
My ConvyUsion Expires:
18
I �
Q�I
III��I1oe
22
EXHBIT A -- - -
CARR60RO PLAZA
LEGAL DESCRIPTION
The land referred to herein is located in Orange County, North Carolina,and is described
as follows:
Beginning at a pant in the eastern margin of SR 1937,the nort miest corner of the tract
conveyed to Tar Heel Manor Association, and running thence along the eastern right-of way of
SR 1937 North 27 degrees 31 feet 16 inches Wiest 1,322.67 feet to a point, thence North 26
degrees 21 feet 56 inches West 99.55 feet to a pant aiming thence North 52 degrees 55 feet
55 inches East 78.01 feet to a pant located in the southern margin of the right-of-way of N.C.
Highway 54; running thence with the margin of said road South 68 degrees 44 feet 53 inches
East 79.88 feet to a pant;thenoe with and along a curve to the right having a radius of 16,195.13
feet, a distance of 583.06 feet to a pant; thence with and along a curve to the right having a
radius of 22,173.71 feet, a distance of 362.06 feet to a pant;thence South 41 degrees 57 feet
41 inches Wiest 12.34 feet to a pant thence with and along a crave to the right having a radius
of 893.85 feet,a distance of 719.14 feet to a pant,northeast corner of the tract conveyed to the
Orange County Alooholic Control Board;running thence with the line of said Board property South
75 degrees 21 feet 15 inches West 39.91 feet to a pant;thence South 75 degrees 50 feet 02
inches West 88.00 feet to a pant;thence South 11 degrees 09 feet 58 inches East 241.00 feet
to a pant in the line of Tar Heel Manor Association; running thence with the line of the Tar Heel
Manor property South 78 degrees 50 feet 02 inches West 784.00 feet to a pant in the eastern
right-of-way of SR 1937,which is the pant and place of BEGINNING; containing 22.694 acres,
all according to that certain plat of survey entitled,"Boundary Survey for Plantation Partnership,"
dated May 17, 1984, revised July 20, 1984, by Southeastern Surveys, Inc.
Less and except out parcel B. containing 0.929 plus or minus acres.
CARRBORO PLAZA
SIGN FtEOLAREMMM
The fbllowng sign criteria has been established to assist tenarts in complying with their I
These basic standards have been made to govern to design, ftbrication and installation of
tenant signs and are intended to afford all tenants with good visual idertfication, both day and
night, and to protect against poody designed or poorly proportioned signage.
These sign standards have been selected to harmonize with and complement your shopping
oenter's building materials and%vill assist and created a unftm, about exciting,separate visual
identity for each tenart and will create the proper retail atrrmphere for your shopping center.
These criteria should be given to your sign company,in the evert you choose to use a company
other than that recommerxied to you by Landlord,to serve as a guide in the preparation of your
sign's design and cost estimates.
Please inform your sign fabricator,whether selected by you or recommended by I-andlord, d1lat
he must submit two copies of his detailed, scaled sign drawings to the office of the center's
leasing and management agent,J. M.Kane&Co.,for written approval prior to fabrication of your
sign. Notwithstanding anything contained herein, all signage and the criteria listed herein are
sL4ect to applicable governmental laws,ordinances and regulations.
TEXT OF SIGN
The text of to sign should contain only your company name. Baboration on the comparr�s
products or services,slogans,logos or other verbiage is riot allowed without Landlords approval.
IM
Al signs shall be in to forms of irdvkkjW illurninated face-lighted channel letters of the block
type. Permitted letter is Antique Clive KWLm Any dewation is subject to Landlords approval.
Interior illumirufm box-type skjns or panels with painted or cut out plastic letters are not
permitted
FAERICATION
The Wer malarial will be constructed ertirely of Black Fluropon prepainled baked-finish
alurTimsn Uder skk%vMs must be.040 alumimm Letter backwalls must be.040 aluminum
Netted labricadon,four i,d deep. The interior sidewalls and backs of letters will be while.
The plex4ass face YAll be.125 plex under acrylite boe color Pure Vfte plexiglass with dark one
inch jewelite trim caps. No other colors are acceptable without specific approval by Landlord.
Paceway color is#5342 Trail.
ILLLMNAMM
The leders vAll be Murninated by neon white tubing.
SIZE AND U)Q&MM
Single line signs all be a rninimurn of 12 inches and a maximurn d 18 inches in overall height;
hamwer, the precise heK_Ot and length of all signs must be approved by Landlord in order to
meet overall sme restrictions imposed by to Town o(Cariboro. All signs will be certered
honzordally on to face of to canopy. Dernised prernises located at building comers are required
to install signs an both perpemlicular canopies,as peffnitted by county codes.
No part of the sign is to protrude into the top and bottom acoert bands rKA be within six inches
of the top or baft, of the canopies.
APPUCAMON
Sign leder YAII be fastened to a meW continuous wiring bar(raceway)which will house all wiring,
D al.9c.-r.no a and supports for the sign letters and will be located at the bottom of each letter
running horiz:oritally on the back of to letters
^
24
The raceway shall be fabricated of aluminum(.050 d.063)and shall be uniformly seven inch by
seven inch(T'x Tj square to allow appropriate internal reinforcing and adequate service access
to all hardware.
The raceway shall be attacied using through belts penetrating the facia with angle iron backups.
No toggle bolts will be allowed. Bolt penetration to be properly caulked and sealed. Back of
raceway to be separated from building surface with nylon spacers.
The wiring bar(raceway)will be painted to match adjaoert building surface.
On signs featuring separate words, separate wiring bass are required.
FXmosed electrical conduit is not pemtitted. All sign supports must be painted to match raceway,
unless they can be constructed of Black Ruropon.
ELECTRICAL SERVICE
For 184nch to 244nch high letters, use two rows of neon tubing inside the sign letter.
Al electrical wiring must be "LA:' approved inspected and approAmately tagged prior to
installation.
The sign lighting must be continuous and noninterrupted(no flashing or blinking, etc.)
TRANSFORMERS
Only 30 milllamp transformers will be permitted.
Once again,you may be held liable and bear all costs for removal ardor correction of signs,sign
installation and damage to building by signs that do not coda m to the sign criteria as set forth
in the above-mentioned specifications.
MAINTENANCE
In the evert signage is in need of repair, it is Tenant's responsibility to repair signage
immediately. H after fifteen days notification to repair sign no action has been taken by Tenant,
Landlord shall contract to repair ardor maintain sign at Tenant's sole expense.
21
' 25
EXHBT C _-- -
CARRBORO PLAZA
LANDLORD'S AND TENANTS WORK
LANDLORD'S WORK
Tenant aooepls Premises"As W1.
TENANTS WORK
All work required to complete and place the leased Premises in finished condition
for opening for business, is to be done by the Tenant at Tenar's sole expense in
accordance with mutually approved pis and speafla t m prepared by the
Tenant's architect in conformity with this Exhibit"C'. The Tenant shall bear the
entire expense and responsibility for providing within the leased Premises(whether
affixed or not)all trade fixtures and merchandise and all other property incidental
to the operation of the type of business to be opened by the Tenant.
Tenant agrees to the fdlumng conditions with respect to all work required to
complete and place the leased premises in finished condition for opening for
business:
1) Licensed contractors and subcontractors are required for all work A list of
oont;actors will be submitted to Landlord for approval prior to commencing
any work.
2) Proper Builders Risk Insurance and Liability Inskuance will be obtained by
Tenant for protection cif Shopping Center and Landlord. Evidence of
insurance must be presented to Landlord for approval Rdg to commencing
any work Owner shall be named as an additional insured.
3) Tenant is responsible for changing of all looks at the conclusion o f
Landlords work and prior to tenant's occupancy.
4) Tenant will pay all costs related to hook up of any utilities. Any required
changes to utilities, impact fees or other charges will be paid by Tenant
26 f
DW9T D
CARRHORO PLAZA
RUES AND REGULATIONS
The following Rules and Regulations shall remain in full force and effect until TENANT is
notified in writing by LANDLORD of any changes and amendments.
1) All loading and unloading d goods shall be done only in areas and through
the entrances designated for such purposes by LANDLORD.
2) The delivery or shipping of merchandise,supplies and fixtures to and from
the leased premises shall be subject to such rules and regulations as in the judgement of
LANDLORD are necessary for the proper operation of the leased premises or SHOPPING
CENTER.
3) All garbage and refuse shall be kept in the container specified by
LANDLORD and shall be placed outside of the premises prepared for collection in the
manner and at the times and places specified by Landlord. TENANT shall pay the cost d
removal of any of TENANTS refuse or rubbish.
4) No aerial shall be erected on the roof or exterior walls of the premises, or
on the grounds,without, in each instance,the written consent of LANDLORD. Any aerial
so installed without such written consent shall be subject to removal without notice at any
time.
5) No loudspeakers,tel evisioris,phonographs,radios or other devices shall be
used in a-rnanner so as to be heard or seen outside of the PRBMSES without the prior
written consent of LANDLORD.
6) TENANT shall not place or permit any obstructions or merchandise in the
outside areas immedately adjoining the PRENSES.
7) The plumbing faatitles shall not be used for any other purpose than that for
which they are aonshKftd,and no far+eign substance of ary kind shall be thrown therein,
and the expense of any breakage, stoppage or damage resulting from a violation of this
provision shall be borne by TENANT,who shall,or whose employees, agents or invitees
shall have caused it
8) TENANT shall use at TENANTS cost such pest extermination contractor
as LANDLORD may approve and at such times as is obviously necessary.
9) TENANT shall not bum ary trash or garbage of any kind in or about the
leased premises or the SHOPPING CENTER
10) TENANT and TENANT'S employees and agents shall not solicit business
in the parking lot or other common areas, nor shall TENANT distribute ary handbills or
other advertising matter in automobiles parked in the parking area or in any other common
area.
11) TENANT shall not pemtit,allow or cause any noxious,disturbing or offensive
odors, firmer or gasses, or any smoke, dust, steam or vapors, or any loud or disturbing
noises,sounds or vibrations to originate in or to be emitted from PREMSES.
12) TENANT shall maintain the show windows in a clean, nest and ordery
condition.
13) TENANT agrees to repair any damage that might be caused to PREMISES
by any other persons in oornedieorn with breaking and entering of said PREMISES.
14) TENANT shall at all times maintain an adequate number d suitable fire
extinguishers on its PREMISES for use in case of load fires,including electrical or chemical
fires.
15) TENANT shall maintain operating hours at all times consistent with other
tenarits in the Center,such tours to be determined by LANDLORD.
a
27
16) TENANT shall be L
area in front of the leased responsible for removal of ice,snow and debris from the
premises.
17) LANDLORD reserves the right to rescind, amend, alter or waive any of the
Ong rL es and regulations at any time when, in its judgement, it deems it necessary,
proper for its best interest and for the best interests of the Tenants, and no
such rescission,amendment,alteration or waiver of any noes or regulations in favor of one
tenant shall operate as an alteration or waiver in favor of any other tenant. LANDLORD shall not be responsible to any tenant for the non ervarxe or violation by any other
-obs
tenant of
arty of these rules and regUations at any time.
24