HomeMy WebLinkAbout02/17/2015 16 Tower Annex Building Lease AgreementBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 16.
For Meeting of: February 17, 2015
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ITEM TITLE:
SUBMITTED BY:
SUMMARY EXPLANATION:
Resolution authorizing approval of two lease agreements with
the Tower, LLC for two spaces in the Tower Annex Building
to be used for City personnel off-site training and to provide
office space for the City—Federal Major Crime Task Force
personnel
Tony O'Rourke, City Manager - 575-6040
Dominic Rizzi, Jr., Chief of Police - 575-6200
The City has had a lease for space in the Tower building that has been used for off-site training
of City personnel. The current lease space is no longer large enough to accommodate the
demand presented during the City's training programs and additional space is needed for the
higher demand. In addition to this space need, the City Council has recently authorized a
partnership with several federal agencies that will work with City police officers to form a Major
Crime Task Force. The task force requires office space to accommodate their needs. The City
has the opportunity to meet the needs of both of the afore -mentioned groups through two lease
agreements with the Tower, LLC for space available within the Tower Annex Building. The two
leases attached to and incorporated in the accompanying resolution will provide 2,620 square
feet of space for off-site training for City staff, as well as 4,003 square feet of space to house the
Major Crimes Task Force.
The term of the Lease is five (5) years and may be extended in the future. The cost per square
foot for this space is $18.00 and the Lease provides for a 3% per year escalator each year after
the first year of the lease. The areas provided by these leases include adjacent parking and will
adequately serve the need for City training purposes and office space to meet the requirements
of the Task Force.
Resolution: X
Other (Specify): Leases
Contract:
Start Date:
Item Budgeted:
Ordinance:
Contract Term:
End Date:
Amount:
Funding Source/Fiscal
Impact:
Strategic Priority:
Insurance Required? No
Mail to:
Phone:
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
Adopt the Resolution.
Public Safety
City Manager
ATTACHMENTS:
Description
Tower Annex Lease -City and Fed Major Crime
Task Force
contract
Upload Date
2/12/2015
2/12/2015
Type
Resollutlion
Contract
RESOLUTION NO. R -2015-
A RESOLUTION relating to employee training and public partnerships; approving two lease
agreements with the Tower, LLC for space within the Tower Annex building
for a City staff off-site training facility, together with a lease for space to
house the City / Federal Major Crime Task Force partnership.
WHEREAS, the City has initiated specialized training for its staff that is intended to
provide better customer relations insight, improved customer service and timely staff response
to citizen concerns as have been expressed in response to the citizen survey; and
WHEREAS, the City previously leased a space in the Tower building to conduct the staff
training, but has reached the point where additional space is required that cannot be provided in
the present lease location; and
WHEREAS, the City has entered into a partnership with several federal agencies,
including the DEA, the ATF, the HIS and the FBI, with the purpose of creating a Major Crimes
Task Force that will provide a concerted multi -agency effort focused on curtailing certain
targeted crimes within the Yakima area; and
WHEREAS, the multi -agency task force requires space from which to operate as a unit
and there is sufficient space available in the Tower Annex building to house the task force as
well as to provide the space needed by the City for training purposes; and
WHEREAS, the City has reached an agreement with the federal partners for lease
payment assistance over the course of the developing partnership with the City;
WHEREAS, the City Council has determined that it is in the best interest of the City to
authorize the execution of the Tower Annex leases, attached hereto and incorporated herein by
this reference to provide the training and task force space necessary for the City to meet the
space needs that presently are presented for the two identified purposes; Now, Therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to execute the
two attached and incorporated Tower Annex Building Tenant Leases for two lease spaces to be
utilized for City staff off-site training purposes as well as to house the City -Federal Major Crimes
Task Force personnel.
ADOPTED BY THE CITY COUNCIL this 17th day of February, 2015.
ATTEST: Micah Cawley, Mayor
Sonya Claar Tee, City Clerk
THE TOWER, LLC
TOWER ANNEX BUILDING
TENANT LEASE
TO
CITY OF YAKIMA
Off Site Training Facility
TENANT
February 2015
LEASE AGREEMENT
1.0 BASIC LEASE PROVISIONS
1.1 LANDLORD: THE TOWER, LLC
ADDRESS: THE TOWER
402 E YAKIMA AVENUE SUITE 1200
YAKIMA WA 98901
Phone: (509) 248-4040
1.2 TENANT:
1.3 PREMISES:
1.4 PERMITTED USES:
CITY OF YAKIMA
ADDRESS: 129 NORTH 2ND STREET
YAKIMA, WA 98901
PHONE NUMBER: (509)
The Tower Annex, 421 E. Chestnut Avenue, Suite 110, 2.0
Yakima, Washington, consisting of approximately
2620 rentable square feet.
The Demised Premises shall be occupied
and used for general office use, subject to
the terms and conditions of this Lease.
5.0
1.5 LEASE TERM: Five (5) Years 3.0
1.6 COMMENCEMENT DATE: April 1, 2015 3.0
1.7 TERMINATION DATE: March 31, 2020 3.0
1.8 BASE MONTHLY RENT: THIRTY NINE HUNDRED THIRTY AND 4.1
NO/100THS DOLLARS ($3,930.00) PER
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MONTH, payable monthly in advance on or before the
first day of each calendar month, subject to annual
increases, as detailed in sub -section 4.2 of this
Lease.
1.9 TAX INCREASE BASE YEAR: 2015 4.3
1.10 Parking Provided at No Additional Cost: 2.1
Landlord shall provide parking in the parking lot located at the southeast corner of
Naches and Chestnut Avenue and the JEM Development Real Estate, Inc. parking
garage, subject to Landlord's reserved right to relocate Tenant parking to
reasonably comparable substitute parking spaces in other lots owned or operated
by Landlord.
1.11 LANDLORD'S WORK: Prior to lease commencement, Landlord agrees to paint
the demised premises' interior walls and install building standard carpeting at
Landlord's sole expense.
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THE TOWER
YAKIMA, WASHINGTON
OFFICE BUILDING LEASE
THIS LEASE is made this day of February, 2015 between THE TOWER,
LLC, a Washington limited liability company, ("Landlord") and CITY OF YAKIMA,
("Tenant").
1.0 BASIC LEASE PROVISIONS: The Basic Lease Provisions on the previous
pages (i) and (ii) are hereby incorporated into this Lease.
2.0 DEMISED PREMISES:
Landlord hereby leases to Tenant and Tenant leases from Landlord those
certain premises located in THE TOWER ANNEX BUILDING (hereinafter the "Building")
designated on the floor plan attached hereto as Exhibit "A" (the "Demised Premises"),
and more particularly described in section 1.3 of this Lease (page i above), located on
the following described real property situate in the City of Yakima, Yakima County,
Washington, to wit:
Lots 16 and 17, Block 91, TOWN OF NORTH YAKIMA, now
YAKIMA, as re-recorded in Volume "E" of Plats, Page 1,
Records of the Auditor of Yakima County, Washington,
known as THE TOWER ANNEX, Yakima, Washington (hereinafter the "Building"),
together with a non-exclusive right, subject to the provisions hereof, to use all
appurtenances thereunto, including but not limited to, other areas and facilities
designated by Landlord for use in common by tenants of the Tower Annex Building
(Common Areas). The Building and real property on which the same is situated, the
Tower building, and other areas and appurtenances are hereinafter collectively
sometimes called the "Building Complex".
This Lease is subject to the terms, covenants and conditions set forth
herein and Tenant and Landlord each covenant as a material part of the consideration for
this Lease to keep and perform each and all of said terms, covenants and conditions by it
to be kept and performed and that this Lease is made upon the condition of such
performance.
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2.1 Parking: Landlord provides parking without charge to Tenant:
The adjacent street level parking facilities are owned and operated by Landlord.
Additionally Landlord leases space in the JEM Development Real Estate, Inc. Garage
and the Chestnut Avenue Parking lot which it makes available for use by some tenants
and their employees. Landlord agrees to provide Tenant with the parking spaces as
described in section 1.10 of this Lease. No charge shall be made to Tenant for the
parking spaces provided to Tenant in accordance with section 1.10 of this Lease.
Landlord agrees that so long as Landlord operates the adjacent street level parking
facilities the same shall be available for the non exclusive use of the Tenants and patrons
of the Building Complex, subject to the payment of charges for such use which shall not
be more than charges to members of the public generally. Nothing herein contained shall
be construed as requiring the Landlord to continue to operate all or any part of said
parking facilities, nor to preclude Landlord from locating new buildings or other
improvements on all or any part of said parking facilities, or designating specific parking
spaces or areas for use of specific Tenants and or their employees and/or their business
invitees, Provided However, that if the spaces identified in section 1.10 cease to be
available on account of such improvements, the Landlord shall provide reasonable
comparable substitute parking spaces for Tenant.
2.2 There is no Section 2.2 of this Lease.
3.0 TERM: The term of this Lease shall be as described in section 1.5
commencing on the date set forth in section 1.6, or as soon thereafter as the Demised
Premises may be ready for occupancy, and shall end on the date set forth in section 1.7
unless sooner terminated pursuant to any of the provisions of this Lease.
3.1 Holding Over: In the event Tenant remains in possession of the
Demised Premises after the expiration or termination of this Lease without Landlord's
consent or without the execution of a new lease or in the absence of ongoing, good
faith negotiations for a renewal of this Lease, as evidenced by Tenant's receipt of a
written notice from Landlord confirming such, Tenant, at the option of Landlord, shall be
deemed to be occupying the Demised Premises as a tenant from month-to-month,
terminable by either party upon thirty (30) days prior written notice to the other party, at
a rental rate equal to twice the Monthly Rent and Additional Rent payable, if any, on
account of the Lease Year immediately preceding such expiration or termination.
Otherwise Tenant's occupancy of the Demised Premises after expiration or termination
of this Lease shall be subject to all the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month-to-month tenancy.
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4.0 RENT:
4.1 Base Rent: Tenant agrees to pay to Landlord, in advance, on or
before the first day of each and every month during the term hereof, at the offices of the
Landlord (as set forth in section 1.1 of the Basic Lease Provisions [page i]), or at such
other place as Landlord may from time to time designate (by written notice to the Tenant),
the Base Rent set forth in section 1.8 of this Lease (page i and ii above). Rent for a part
of the month shall be prorated in proportion to the number of days in said month.
4.2 Adjustment To Rent: Effective April 1, 2016 and annually on the
same date of each successive year thereafter during the term of this Lease, the Base
Monthly Rent shall be automatically increased to a sum equal to ONE HUNDRED AND
THREE PERCENT (103%) of the Base Rent for the immediately preceding 12 months.
4.3 Tax Adjustment: Tenant agrees to pay to Landlord as additional
rent the Tenant's pro rata share of any increase in property taxes over the tax increase
base year set forth in section 1.9 of the Basic Lease Provisions (page ii hereof).
Property taxes shall mean all real and personal property taxes or assessments, including
LID assessments, levied against the Tower Annex Building, including any costs incurred
in obtaining a reduction of taxes, which cost shall be allocated to the period for which the
reduction applies. Property taxes shall also include any tax levied in whole or in part in
lieu of property tax. The Tenant's pro rata share of said increases shall be determined by
dividing the total rentable square footage of the Demised Premises by the total rentable
square footage in The Tower Annex available for lease. The Tenant's proportionate
share of the tax increase shall be adjusted April 1 of each year and shall be billed and
paid monthly in advance.
4.4 Personal Property Taxes: Tenant shall pay all personal property
taxes with respect to property of Tenant located on the Demised Premises or in the
Building or the Building Complex. "Property of Tenant" shall include all improvements
that are paid for by Tenant, and "personal property taxes" shall include all property
taxes assessed against the property of Tenant, whether assessed as real or personal
property.
4.5 There is no Section 4.5 of this Lease.
5.0 CHARACTER OF OCCUPANCY AND HAZARDOUS SUBSTANCES:
5.1 The Demised Premises are to be used for the purpose of conducting
such business as is described in section 1.4 and for no other purpose.
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5.2 Tenant shall not suffer nor permit the Demised Premises nor any
part thereof to be used in any manner, nor anything to be done therein, nor suffer or
permit anything to be brought into or kept therein, which would in any way (i) make void or
voidable any fire or liability insurance policy then in force with respect to the Building; (ii)
make unobtainable from reputable insurance companies authorized to do business in the
State of Washington any fire insurance with extended coverage, or liability, elevator,
boiler or other insurance required to be furnished by Landlord under the terms of any
lease or mortgage to which this Lease is subordinate at standard rates provided Tenant is
not deprived of its intended use of the Demised Premises; (iii) cause or in Landlord's
reasonable opinion be likely to cause physical damage to the Building or any part thereof;
(iv) constitute a public or private nuisance; (v) impair, in the reasonable opinion of
Landlord, the appearance, character or reputation of the Building; (vi) discharge
objectionable fumes, vapors or odors into the Building air conditioning system or into the
Building flues or vents not designed to receive them or otherwise in such manner as may
unreasonably offend other occupants; (vii) impair or interfere with any of the Building
services or impair or interfere with or tend to impair or interfere with the use of any of the
other areas of the Building by, or occasion discomfort, or annoyance to Landlord or any of
the other tenants or occupants of the Building, any such impairment or interference to be
in the reasonable judgment of Landlord; (viii) injure the reputation of the Building or permit
the use of the Demised Premises for lodging or sleeping purposes; (ix) increase on an
ongoing periodic basis the pedestrian traffic in and out of the Demised Premises or the
Building above an ordinary level; (x) constitute waste; or (xi) make any noise or set up any
vibration which will disturb other tenants, except in the course of permitted repairs or
alterations.
5.3 Tenant shall not use the Demised Premises nor permit anything to
be done in or about the Demised Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of any public authority with respect to
the Demised Premises or the use or occupation thereof. Landlord shall give prompt
notice to Tenant of any notice it receives relative to the violation by Tenant of any law or
requirement of any public authority with respect to the Demised Premises or the use or
occupation thereof.
5.4 Hazardous Substances: The following provisions regarding
hazardous substances are in addition to and not in lieu of the provisions of sections 5.1,
5.2 and 5.3 above.
5.4.1 Presence and Use of Hazardous Substances. Tenant shall not,
without Landlord's prior written consent, keep on or around the Premises,
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Common Areas or Buildings, for use, disposal, treatment, generation, storage or
sale, any substances designated as, or containing components designated as
hazardous, dangerous, toxic or harmful (collectively referred to as "Hazardous
Substances"), and/or which are subject to regulation as Hazardous Substances by
any federal, state or local law, regulation, statue or ordinance. With respect to any
such Hazardous Substance, Tenant shall:
(1) Comply promptly, timely, and completely with all
governmental requirements for reporting, keeping and submitting manifests,
and obtaining and keeping current identification numbers;
(2) Submit to Landlord true and correct copies of all reports,
manifests and identification numbers at the same time as they are required
to be and/or are submitted to the appropriate governmental authorities;
(3) Within five (5) days of Landlord's request, submit written
reports to Landlord regarding Tenant's use, storage, treatment,
transportation, generation, disposal or sale of Hazardous Substances and
provide evidence satisfactory to Landlord of Tenant's compliance with the
applicable governmental regulation;
(4) Allow Landlord or Landlord's agent or representative to come
on the Premises at all times to check Tenant's compliance with all
applicable governmental regulations regarding Hazardous Substances;
(5) Comply with minimum levels, standards or other performance
standards or requirements which may be set forth or established for certain
Hazardous Substances (if minimum standards or levels are applicable to
Hazardous Substances present on the Premises, such levels or standards
shall be established by an onsite inspection by the appropriate
governmental authorities and shall be set forth in an addendum to this
Lease); and
(6) Comply with all governmental rules, regulations and
requirements regarding the proper and lawful use, sale, transportation,
generation, treatment, and disposal of Hazardous Substances.
In the event Tenant shall be found to have violated any of the above
covenants, any and all costs incurred by Landlord and associated with Landlord's
inspections of Tenant's Premises and Landlord's monitoring of Tenant's
compliance with this section 5.4, including Landlord's attorneys fees and costs,
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shall be additional rent and shall be due and payable to Landlord immediately
upon demand by Landlord.
5.4.2 Cleanup Costs, Default and Indemnification:
(1) Tenant shall be fully and completely liable to Landlord for any
and all cleanup costs and any and all other charges, fees, penalties (civil
and criminal) imposed by any governmental authority with respect to
Tenant's use, disposal, transportation, generation and/or sale of Hazardous
Substances, in or about the Premises, Common Areas, or Building.
(2) Tenant shall indemnify, defend and hold Landlord harmless
from any and all of the costs, fees, penalties and charges assessed against
or imposed upon Landlord (as well as Landlord's attorneys fees and costs)
as a result of Tenant's use, disposal, transportation, generation and/or sale
of Hazardous Substances.
(3) Upon Tenant's default under this section 5.4, in addition to
the rights and remedies set forth elsewhere in this Lease, Landlord shall be
entitled to the following rights and remedies:
(i)
At Landlord's option, to terminate this Lease immediately; and
(ii) To recover any and all damages associated with the default,
including, but not limited to cleanup costs and charges, civil
and criminal penalties and fees, Toss of business and sales by
Landlord and other tenants of the Building, and any and all
damages and claims asserted by third parties and Landlord's
attorneys fees and costs.
6.0 SERVICES AND UTILITIES:
6.1 Standard Services: Landlord shall maintain the Demised Premises
in reasonably good order and condition, except for damage occasioned by the act or
omission of Tenant, the repair of which damage shall be paid for by Tenant. Landlord
shall furnish the Demised Premises with electricity for lighting and the operation of low
power usage office machines, heat and normal air conditioning, during the ordinary
business hours of the Building. Landlord shall also provide Tight replacement service for
building standard light fixtures. If the Demised Premises are equipped with special
lighting fixtures (whether installed by Tenant or by Landlord in response to Tenant's
request), Tenant shall reimburse Landlord for the cost of replacement bulbs for such
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lighting fixtures and, if replacement is requested at times other than the Landlord's routine
scheduled rounds for Tight bulb replacement, Tenant shall reimburse Landlord for
Landlord's labor cost therefore. Landlord shall also provide toilet room supplies and
customary building janitor service twice a week. Such heat and air conditioning shall be
furnished from the period from 7:00 a.m. to 6:00 p.m. on weekdays (except holidays),
which may be changed to other reasonable hours as solely determined by Landlord, or
such shorter period as may be prescribed by any applicable policies or regulations
adopted by any utility or governmental agency; provided, however, that Tenant shall bear
the cost of any heating or air conditioning beyond that set forth above.
6.2 Interruption of Services: Landlord shall not be liable to Tenant for
any loss or damage caused by or resulting from any variation, interruption or failure of
such services due to any cause whatsoever. No temporary interruption or failure of such
services incident to the making of repairs, alterations or improvements, or due to accident
or strike, or conditions or events beyond Landlord's reasonable control, shall be deemed
a constructive eviction of Tenant or relieve Tenant from any of Tenant's obligations
hereunder.
6.3 Excess Heat and Electrical Use: Before installing any equipment
in the Demised Premises that generates more than a minimum amount of heat, Tenant
shall obtain the written consent of Landlord, and Landlord may refuse to grant such
consent if the amount of heat generated would place an undue burden on the air
conditioning system for the Building. Landlord hereby consents to the Tenant's
installation and use of personal computers on the Demised Premises up to a maximum of
one per employee working on the Demised Premises. If Tenant uses any high power
usage equipment on the Demised Premises, Tenant shall, in advance, on the first day of
each month during the Lease Term, pay Landlord as additional Rent the reasonable
amount estimated by Landlord as the cost of furnishing electricity for the operation of
such equipment. The monthly Rent stated in this Lease does not include any amount to
cover the cost of furnishing additional electricity for such equipment. Whenever heat
generating machines or equipment are used by Tenant in the Demised Premises which
affect the temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the Demised Premises
in the event Landlord's independent consulting engineer determines same are reasonably
necessary as a result of Tenant's use of lights or equipment which generate heat loads in
excess of those for which the HVAC system is designed and the cost therefor, including
the cost of installation, operation and maintenance thereof, shall be paid as additional
rent by Tenant to Landlord upon demand by Landlord.
7.0 QUIET ENJOYMENT: Landlord warrants and agrees to defend Tenant in the
quiet enjoyment and possession of the Demised Premises during the term of this Lease
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so long as Tenant complies with the provisions hereof and is not in default beyond any
applicable cure period.
8.0 MAINTENANCE AND REPAIRS:
8.1 Landlord Repairs and Maintenance: Landlord shall make all
necessary repairs and replacements to the non -leasable areas of the Building, to the
heating, air conditioning and electrical systems located in the Building and to the common
areas, and Landlord shall also make all repairs to the Demised Premises which are
structural in nature; provided, however, that Tenant shall reimburse Landlord for all
repairs and replacements arising from Tenant's act, neglect or default and that of its
agents, servants and employees, and Landlord may require Tenant to secure such
reimbursement by deposit or bond prior to undertaking such repairs.
8.1.1 Governmental Compliance: In the event that the Landlord shall
deem it necessary, or be required by any governmental authority to repair, alter,
remove, reconstruct or improve any part of the Demised Premises or of the
Building (unless the same result from Tenant's act, neglect, default or mode of
operation), then the same shall be made by Landlord with reasonable dispatch,
and should the making of such repairs, alterations or improvements cause any
interference with Tenant's use of the Demised Premises, such interference shall
not relieve Tenant from the performance of its obligations hereunder.
8.2 Tenant Repairs and Maintenance: Tenant, at Tenant's sole cost
and expense, except for services furnished by Landlord pursuant to section 6 hereof,
shall maintain the Demised Premises in good order, condition and repair including the
interior surfaces of the ceilings (if damaged or discolored due to the fault of Tenant), walls
and floors, all doors, glass partitions, glass surfaces and windows; and to the extent such
items exceed Building standards, plumbing pipes, electrical wiring, switches, fixtures and
other special items subject to the provisions of section 14. Tenant agrees to promptly
repair at Tenant's expense all injury to the Demised Premises, or to the Building of which
they are a part, caused by moving the property of Tenant into, in, or out of the Building or
the Demised Premises. In the event Tenant fails to maintain the Demised Premises in
good order, condition and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Demised Premises. In the event Tenant fails to
promptly commence such work and diligently prosecute it to completion, then Landlord
shall have the right, but shall not be required, to do such acts and expend such funds at
the expense of Tenant as are reasonably required to perform such work. Landlord shall
have no liability to Tenant for any damage, inconvenience or interference with the use of
the Demised Premises by Tenant as a result of performing any such work.
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8.3 Furniture and Other Items: No safe or other articles of over 1,000
pounds shall be moved into the Demised Premises without the consent of the Landlord
which may be withheld at Landlord's sole judgment. Further, Landlord shall have the
right to fix the position of any article of such weight in the Demised Premises.
8.4 Tenant's keys to Premises not to be duplicated and to be
returned to Landlord on surrender of lease — Lock Chance Out Fees: Landlord shall
provide keys to the Demised Premises at the commencement of the Lease. Tenant
shall not have duplicate keys made to the Demised Premises. If Tenant requires
duplicate keys, it shall request same from Landlord, and Landlord will furnish duplicate
keys at the Locksmith's cost plus 15%. Upon surrender of Demised Premises by Tenant
for any reason, Tenant shall return all keys to the Demised Premises which have been
made available to Tenant or from any source whatsoever, to Landlord. If (i) keys
provided to Tenant are lost, or (ii) Tenant secures duplicate keys to the Demised
Premises from any source other than Landlord, or (iii) Tenant fails to return all keys
provided by Landlord, then in any said events, Tenant shall promptly pay to Landlord a
lock Change Out Fee at the going rate then being charged by Locksmiths in the Yakima
area.
9.0 ALTERATIONS AND ADDITIONS: Tenant shall make no alterations,
additions or improvements to the Demised Premises or any part thereof or make changes
to locks on doors or add, disturb or in any way change any plumbing or wiring without
obtaining the prior written consent of Landlord. Landlord may impose, as a condition to
the aforesaid consent, such requirements as Landlord may deem necessary in its
reasonable judgment. Those requirements will normally include requiring the Tenant to
submit professionally prepared and reasonably detailed plans and specifications for the
work for Landlord's prior written approval, requiring the Tenant to use the contractor
designated by Landlord, and reimbursing Landlord for any reasonable sums expended for
plan review and costs of inspection of Tenant's work. Those requirements may include
without limitation the manner in which the work is done, and the times during which it is to
be accomplished.
10.0 ENTRY BY LANDLORD: Landlord and its agents shall have the right to
enter the Demised Premises at all reasonable times and upon reasonable notice for the
purpose of examining or inspecting the same, to supply any services to be provided by
Landlord for Tenant hereunder, to show the same to prospective purchasers of the
Building, to make such alterations, repairs, improvements or additions to the Demised
Premises or to the Building of which they are a part as Landlord may deem necessary or
desirable, and to show the same to prospective tenants of the Demised Premises
(provided that in the event of a bona fide emergency, Landlord may enter the Demised
Premises without advance notice solely for the purpose of taking emergency action).
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Landlord may, for the purpose of supplying scheduled janitorial services, enter the
Demised Premises by means of a master key without liability to Tenant and without
affecting this Lease. If, during the last sixty (60) days of the term hereof, Tenant shall
have removed substantially all of its property from the Demised Premises, Landlord may
immediately enter and alter, renovate and redecorate the Demised Premises without
elimination or abatement of Rent or incurring liability to Tenant for any compensation.
Tenant shall not, without the prior consent of Landlord, change the locks or install
additional locks on any door or doors to the Demised Premises.
11.0 LIENS AND INSOLVENCY:
11.1 Liens: Tenant shall pay or cause to be paid all costs for work done
by Tenant or caused to be done by Tenant on the Demised Premises of a character
which will or may result in liens on Landlord's interest therein, and Tenant will keep the
Demised Premises free and clear of all mechanic's liens and other liens on account of
work done for Tenant or persons claiming under it. Tenant hereby agrees to indemnify,
defend and save the Landlord harmless of and from all liability, loss, damage, costs or
expenses, including reasonable attorneys fees, incurred on account of any claims of any
nature whatsoever for work done by or caused to be done by Tenant, or materials or
supplies furnished to Tenant, including lien claims of laborers, materialmen or others.
11.2 Insolvency: Tenant shall be deemed to be in default of this Lease
upon the occurrence of one or more of the following events: (i) any judicial
determination of the insolvency of Tenant or any of Tenant's guarantors including,
without limitation, the entry of an Order for Relief pursuant to the provisions of the
Bankruptcy Code whether voluntary or involuntary; (ii) appointment of a receiver or a
custodian or other similar officer for any portion of Tenant's property or of Tenant's
guarantors; (iii) the assignment for the benefit of creditors of any portion of Tenant's
property or of Tenant's guarantors; (iv) a determination, judicial or otherwise, that
Tenant is not generally paying its debts as such debts become due; or (v) any fact,
event or circumstance which in the reasonable opinion of Landlord indicates that
Tenant is insolvent or otherwise incapable of meeting the financial and other obligations
imposed upon Tenant under this Lease; (provided, however, that if any such action,
case or petition has been commenced against Tenant or Tenant's guarantors and the
same is dismissed within a period of sixty (60) days, then the event of default shall be
deemed cured for purposes hereof) whereupon Landlord may elect by notice to Tenant
to cancel and terminate this Lease, in which event neither Tenant nor any person
claiming through or under Tenant by virtue of any statute or of an order of any court
shall be entitled to possession or to remain in possession of the Demised Premises but
shall forthwith quit and surrender the same; and Landlord, in addition to the other rights
and remedies Landlord has by virtue of this Lease or any statute or rule of law, may
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retain as security for its damages any Rent, Security Deposit or monies received by
Landlord from Tenant or others on behalf of Tenant. This Lease is upon the further
condition that if a petition for relief under any chapter of the Bankruptcy Code is filed by
or against Tenant or any guarantor and the trustee or debtor or debtor in possession
has not cured all defaults hereunder and assigned or assumed this Lease under the
Bankruptcy Code within sixty (60) days after the entry of the order for relief, then this
Lease shall automatically terminate without the necessity of further action by or notice
from either party. In case of termination pursuant to any of the foregoing provisions of
this paragraph, Tenant shall indemnify Landlord against all costs and expense and loss
of Rent.
12.0 DAMAGE TO PROPERTY, INJURY TO PERSONS:
12.1 Tenant's Waiver and Indemnification: Tenant hereby indemnifies
and agrees to hold Landlord harmless from and to defend Landlord against any and all
claims of liability for any injury or damage to any person or property whatsoever: (i)
occurring in, on or about the Demised Premises or any part thereof; and (2) occurring in,
or about the Building Complex, when such injury or damage is caused in part or in whole
by the act, neglect, fault or omission of any duty with respect to the same by Tenant, its
agents, contractors, employees or invitees except those liabilities arising out of the duties
and responsibilities of Landlord as set forth in this Lease, or liabilities arising from the
intentional acts or negligence of Landlord or its agents or representatives. Tenant further
indemnifies and agrees to hold Landlord harmless from and against any and all claims
arising from any breach or default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease, or arising from any act or negligence of
Tenant, or any of its agents, contractors, employees or invitees, from and against all
costs, attorneys fees, expenses and liabilities incurred in or about any such claim or any
action or proceeding brought thereon.
12.2 Release of Landlord: Landlord shall not be liable to Tenant for any
damage to personal property resulting from the carelessness, negligence or improper
conduct on the part of a co -tenant or anyone other than Landlord, or for any damage to
person or property resulting from any condition of the Premises or other cause, including
but not limited to damage by water, not resulting from negligence of Landlord. Tenant
shall give Landlord prompt notice of any defects in the Demised Premises to be remedied
by Landlord. To the extent not covered by normal fire and extended coverage insurance,
Tenant agrees to pay for all damage to the Building Complex, as well as all damage to
tenants or occupants thereof, caused by Tenant's misuse or neglect of the Demised
Premises or any portion of the Building Complex.
12.3 Loss or Damage to Tenant's Property: Neither Landlord nor its
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agents shall be liable for any damage to property entrusted to Landlord, its agents or
employees of the building manager, if any, nor for the loss or damage to any property by
theft or otherwise, by any means whatsoever, nor for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas, electricity, sprinkler
system leakage, water or rain which may leak from any part of the Building or from the
pipes, appliances or plumbing works therein or from the roof, street or subsurface or from
any other place or resulting from dampness or any other cause whatsoever; provided,
however, nothing contained herein shall be construed to relieve Landlord from liability for
any personal injury resulting from its negligence or that of its agents, servants or
employees. Landlord or its agents shall not be liable for any latent defect in the Demised
Premises or in the Building. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Demised Premises or in the Building or of defects therein or in the
fixtures or equipment.
13.0 INSURANCE:
13.1 Liability and Property Damage: Tenant shall procure and keep in
effect throughout the term of this Lease, General Liability insurance including damage for
bodily injury and property damage naming the Landlord as Additional Insured in the sum
of at least One Million Dollars ($1,000,000) Per Occurrence and Two Million Dollars
($2,000.000) Aggregate Limits. Tenant shall deliver said policies or certificates including
a copy of the Additional Insured endorsement to Landlord prior to initial occupancy and
continuously maintain such coverage thereafter. All insurance policies shall be with
companies reasonably approved by Landlord and each policy and certificate shall provide
that it is not subject to cancellation or reduction in coverage except after thirty (30) days
notice to Landlord. Landlord shall have the right, upon not less than thirty (30) days prior
written notice, to raise the limits hereinabove set forth not more often than annually during
the term of this Lease. In the event Tenant fails to provide proof of such insurance
coverage within three (3) days following Landlord's written request therefor, Landlord
may, at its option, procure the same for the account of Tenant, and the cost thereof, plus
fifteen percent (15%) administrative fee, shall be paid to Landlord upon receipt by Tenant
of bills therefor.
13.2 Fire and Extended Coverage: Tenant shall procure and maintain
at its own cost during the term of this Lease and any extension hereof fire and extended
coverage insurance on property of Tenant in the amount of the full replacement value
thereof.
13.3 Waivers of Subrogation: The parties shall obtain from their
respective insurance carriers waivers of subrogation against the other party, agents,
employees and, as to Tenant, invitees. Neither party shall be liable to the other for any
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loss or damage caused by fire or any of the risks enumerated in a standard fire insurance
policy with an extended coverage endorsement if such insurance was obtainable at the
time of such loss or damage.
Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the other party for
loss, damage or destruction with respect to its property (including the Building, Building
Complex, the Demised Premises and rental value or business interruption) occurring
during the term of this Lease to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or permission to release liability or naming the other
party as an additional insured as provided above.
13.4 Landlord Not Liable: Any building employee to whom property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord nor its agents shall be liable for
any damage to the property of Tenant or others entrusted to employees of the Building,
nor for the loss of or damage to any property of Tenant by theft or otherwise.
13.5 No Representation: Landlord makes no representation that the
limits of liability specified to be carried by Tenant under the terms hereof are adequate to
protect Tenant; if Tenant deems this insurance to be inadequate, Tenant shall, at its own
expense, provide such additional insurance as necessary.
14.0 DAMAGE OR DESTRUCTION TO PREMISES: If the Demised Premises
are damaged by fire or other casualty, then Landlord may, at Landlord's option, exercised
in writing within thirty (30) days of written notice of damage from Tenant, elect to
terminate this Lease or to repair the damages. If Landlord elects to repair the damages,
Landlord shall at its own expense, without unnecessary delay, repair the damages. If
Landlord elects to repair, Tenant shall pay the cost of repairing any Tenant improvements
in the Demised Premises other than the Building itself and building standard
improvements. Tenant shall be entitled to an abatement of rent in fair proportion to the
amount and nature of the damage sustained, until the Demised Premises are made fit for
occupancy and use. Provided, however, that Tenant shall not be entitled to an
abatement of rent if such damage was caused by the negligence or willful misconduct of
Tenant or Tenant's employees or invitees.
15.0 CONDEMNATION:
15.1 Entire Taking: If all of the Demised Premises or such portions of
the Building as may be required for the reasonable use of the Demised Premises are
taken by eminent domain, this Lease shall automatically terminate as of the date title
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vests in the condemning authority. In the event of a taking of a material part of but less
than all of the Building, where Landlord shall determine that the remaining portions of the
Building cannot be economically and effectively used by it (whether on account of
physical, economic, aesthetic or other reasons) or where Landlord determines the
Building should be restored in such a way as to materially alter the Premises, Landlord
shall forward a written notice to Tenant of such determination not more than sixty (60)
days after the date of taking. The term of this Lease shall expire upon such date as
Landlord shall specify in such notice but not earlier than sixty (60) days after the date of
such notice.
15.2 Partial Taking: Subject to the provisions of the preceding section
15.1, in case of taking of a part of the Demised Premises or a portion of the Building not
required for the reasonable use of the Demised Premises, then this Lease shall continue
in full force and effect, and the Rent shall be equitably reduced based on the proportion
by which the floor area of the Demised Premises is reduced, such Rent reduction to be
effective as of the date title to such portion vests in the condemning authority. If a portion
of the Demised Premises shall be so taken which in Tenant's reasonable judgment
renders the remainder of the Demised Premises unsuitable for continued occupancy by
Tenant under this Lease, Tenant may terminate this Lease by written notice to Landlord
no later than sixty (60) days after the date of such taking, and the term of this Lease shall
expire upon such date as Tenant shall specify in such notice not later than sixty (60) days
after the date of such notice.
15.3 Awards and Damages: Landlord reserves all rights to damages to
the Premises for any partial, constructive or entire taking by eminent domain, and Tenant
hereby assigns to Landlord any right Tenant may have to such damages or award.
Tenant shall make no claim against Landlord or the condemning authority for damages
for termination of the leasehold interest or interference with Tenant's business. Tenant
shall have the right, however, to claim and recover from the condemning authority
compensation for any loss to which Tenant may be put for Tenant's moving expenses,
business interruption or taking of Tenant's personal property and leasehold improvements
paid for by Tenant (not including Tenant's leasehold interest) provided that such damages
may be claimed only if they are awarded separately in the eminent domain proceedings
and not out of or as part of the damages recoverable by Landlord.
16.0 ASSIGNMENT AND SUBLETTING:
16.1 Neither Tenant nor its successors or assigns shall transfer, assign,
mortgage or encumber this Lease, by operation of law or otherwise, or sublet or permit
the Demised Premises, or any part thereof, to be used by others, without the prior written
consent of Landlord in each instance. If Tenant is a corporation whose shares are not
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regularly traded on a public stock exchange, or if Tenant is a limited liability company, any
transfer of any of Tenant's issued and outstanding capital stock or any issuance of
additional capital stock, or any transfer of membership units, as a result of which the
majority of the issued and outstanding capital stock or membership units of Tenant is held
by a corporation, firm, or person or persons who do not hold a majority of the issued and
outstanding capital stock of Tenant on the date hereof, shall be deemed an assignment
under this section 16. If Tenant is a partnership, then any transfer of an interest in the
partnership resulting in the withdrawal of a partner or the addition of a new partner, and
regardless of whether it results in a change of management, shall be deemed an
assignment under this section 16 unless each withdrawing partner and each new
partner, as the case may be, acknowledge in writing his/her/its liability for the
performance of Tenant's obligation hereunder for the balance of the lease term and such
writing is delivered to Landlord at or prior to the effective date of said transfer. Any
attempted transfer, assignment, subletting, mortgaging or encumbering of this Lease in
violation of the foregoing shall be void and confer no rights upon any third person. No
permitted assignment or subletting shall relieve Tenant of any of its obligations under this
Lease.
16.1.1 If, without complying with the provisions of section 16.1 above, this
Lease is transferred or assigned by Tenant, or if the Demised Premises, or any
part thereof, are sublet or occupied by anybody other than Tenant, whether as a
result of any act or omission by Tenant, or by operation of law or otherwise,
Landlord, whether before or after the occurrence of an event of default, may, in
addition to, and not in diminution of or substitution for, any other rights and
remedies under this Lease or pursuant to law to which Landlord may be entitled as
a result thereof, collect rent from the transferee, assignee, subtenant or occupant
and apply the net amount collected to the basic rent and additional charges herein
reserved, but no such transfer, assignment, subletting, occupancy or collection
shall be deemed a waiver of the provisions of this section or the acceptance of the
transferee, assignee, subtenant, or occupant as Tenant, or a release of Tenant
from the further performance by Tenant of its obligations under this Lease.
16.1.2 Transfers Incident to Corporate Mergers, Reorganizations, etc.:
Notwithstanding any other provision of this Lease to the contrary, Tenant has the
right to assign this Lease or sublet the Demised Premises in whole or in part to any
subsidiary, affiliate or successor corporation or partnership, without Landlord's
consent, upon giving Landlord ten (10) days prior written notice of such
assignment or subletting. A "subsidiary" of Tenant shall mean any corporation or
limited liability company not less than fifty percent (50%) of whose outstanding
voting stock or voting membership units shall at the time be owned, directly or
indirectly, by Tenant. An "affiliate" of Tenant shall mean any corporation or limited
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liability company which, directly or indirectly, controls or is controlled by or is under
common control with Tenant. For purpose of the definition of "affiliate", the word
"control" (including "controlled by" and "under common control with"), as used with
respect to any corporation, limited liability company, partnership or association
shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policy of a particular corporation, limited liability
company, partnership or association, whether through the ownership of voting
securities or by contract or otherwise. A "successor corporation or partnership"
shall mean any corporation, limited liability company or partnership into which
Tenant is merged or with which Tenant is consolidated or to which all or a
substantial portion of Tenant's assets are transferred.
16.2 The consent by Landlord to any assignment, transfer, or subletting to
any party, including a subsidiary, affiliate or successor corporation, limited liability
company or partnership shall not be construed as a waiver or release of Tenant from the
terms of any covenant or obligation under this Lease, nor shall the collection or
acceptance of rent from any such assignee, transferee, subtenant or occupant constitute
a waiver or release of Tenant of any covenant or obligation contained in this Lease, nor
shall any such assignment or subletting be construed to relieve Tenant from obtaining the
consent in writing of Landlord to any further assignment or subletting. In the event that
the Tenant defaults hereunder, Tenant hereby assigns to Landlord the rent due from any
subtenant of Tenant and hereby authorizes each such subtenant to pay said rent directly
to Landlord.
Tenant shall not mortgage or encumber this Lease without the prior written
consent of Landlord.
17.0 STORAGE SPACE LEASE INTEGRATED WITH THIS LEASE: If, at any
time during the term of this Lease, the Tenant shall have entered into a Lease of storage
space in the basement of The Tower Building or other storage areas of the Building
Complex, said Storage Lease and this Lease are agreed to be so integrated that any
default of the Tenant in the payment of rents or other charges under the Storage Lease
will automatically constitute a default under the terms of this Lease, and any default of the
Tenant in the payment of rents or other charges under this Lease shall automatically
constitute a default under the terms of said Storage Lease. It is further understood and
agreed that in the event of the termination of this Lease, either by mutual agreement of
the parties, by expiration of the term or otherwise (whether voluntary or involuntary), the
Storage Lease shall automatically terminate as of the same date, but not the converse,
i.e. termination of the Storage Lease will not effect an automatic termination of this Lease
of commercial office space.
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18.0 DEFAULT:
18.1 Cumulative Remedies: All rights of Landlord herein enumerated
shall be cumulative, and none shall exclude any other right or remedy allowed by law. In
addition to the other remedies provided in this Lease, Landlord shall be entitled to restrain
by injunction the violation or attempted violation of any of the covenants, agreements or
conditions of this Lease.
18.2 Tenant's Right to Cure: Tenant shall have a period of three (3)
business days from the date of written notice from Landlord to Tenant within which to
cure any default in the payment of Rent, Additional Rent or other sums due hereunder.
Tenant shall have a period of ten (10) days from the date of written notice from Landlord
to Tenant within which to cure any other default hereunder which is capable of being
cured by Tenant; provided, however, that with respect to any such default which cannot
be cured within such ten (10) day period the default shall not be deemed to be uncured if
Tenant commences to cure within ten (10) days and for so long as Tenant is diligently
prosecuting the cure thereof. It is further agreed that after service of notice as above set
forth, an additional condition to curing such default shall be payment by the Tenant of
Landlord's costs and expenses including attorneys fees not to exceed Two Hundred
Dollars ($200.00) for the preparation and service of such notice.
18.3 Abandonment: Abandonment means an absence from the
Demised Premises of five (5) days or more while Tenant is in default or Landlord
otherwise reasonably determines that Tenant has abandoned the Demised Premises and
its interest under this Lease. Abandonment by Tenant shall be considered a default with
no right to cure allowing Landlord to re-enter the Demised Premises under section 18.4.
18.4 Landlord's Re-entry: Upon an uncured default of this Lease by
Tenant, Landlord, at its option, may enter the Demised Premises or any part thereof and
expel, remove or put out Tenant or any other persons who may be thereon, together with
all personal property found therein, or Landlord may terminate this Lease, or it may from
time to time, without terminating this Lease and as agent of Tenant, relet the Demised
Premises or any part thereof for such term or terms (which may be for a term less than or
extending beyond the term hereof) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable with the right
to repair, remodel and change the Demised Premises with Tenant remaining liable for
any deficiency computed as provided in section 18.5. Landlord's option to relet the
Demised Premises pursuant to section 18.5 shall not require it to relet the Demised
Premises before leasing other vacant space in the Building. In the case of any default,
re-entry and/or dispossession by summary proceedings or otherwise, all Rent and
Additional Rent shall become due thereupon and be paid up to the time of such re-entry
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or dispossession, together with such expenses as Landlord may reasonably incur for
attorneys fees, advertising expenses, brokerage fees and/or putting the Demised
Premises in good order or preparing the same for re -rental together with interest thereon
as provided in section 32.14 hereof accruing from the date of any such expenditure by
Landlord.
18.5 Reletting the Demised Premises: At the option of Landlord, Rents
received by Landlord from such reletting shall be applied first to the payment of any
indebtedness from Tenant to Landlord other than Rent and Additional Rent due
hereunder; second, to the payment of reasonable costs and expenses of such reletting
and including, but not limited to, attorneys fees, advertising fees and brokerage fees and
to the payment of any repairs, remodeling and changes in the Demised Premises; third,
to the payment of Rent and Additional Rent due and to become due hereunder, and, if
after so applying said Rents there is any deficiency in the Rent or Additional Rent to be
paid by Tenant under this Lease, Tenant shall pay any deficiency to Landlord monthly on
the dates specified herein, and any payment made or suits brought to collect the amount
of the deficiency for any month shall not prejudice in any way the right of Landlord to
collect the deficiency for any subsequent month. Subject to Landlord's duty to mitigate
damages, which duty shall be limited in the event of other vacant space in the Building
during the continuance of such default, the failure of Landlord to relet the Premises or any
part or parts thereof shall not release or affect Tenant's liability hereunder nor shall
Landlord be liable for failure to relet or, in the event of reletting, for failure to collect the
Rent thereof, and in no event shall Tenant be entitled to receive any excess of net Rents
collected over sums payable by Tenant to Landlord hereunder. No such re-entry or
taking possession of the Demised Premises shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such intention be given
to Tenant. Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach and default.
Should Landlord at any time terminate this Lease by reason of any default, in addition to
any other remedy it may have, it may recover from Tenant the amount of Rent and
Additional Rent reserved in this Lease for the balance of the Term as it may have been
extended in excess of the then fair market rental value of the Demised Premises for the
same period plus all court costs and reasonable attorneys fees incurred by Landlord in
the collection of the same.
18.6 Nonpayment of Additional Rent: All costs and expenses which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be deemed
Additional Rent and, in the event of nonpayment thereof, Landlord shall have all the rights
and remedies herein provided for in case of non-payment of Rent.
18.7 Landlord's Lien: In addition to its statutory rights to a Landlord's
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lien, the Tenant does hereby grant to the Landlord a lien for the payment of any amounts
of Rent due hereunder upon all of the Tenant's goods, wares, fixtures, furniture,
improvements and other tangible personal property of the Tenant.
19.0 REMOVAL OF TENANT'S PROPERTY: All movable furniture and personal
effects of Tenant not removed from the Demised Premises within ten (10) days after the
vacation or abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice
to Tenant and without obligation to account therefor, and Tenant shall pay Landlord for all
expenses incurred in connection with the disposition of such property.
20.0 SURRENDER: Upon the expiration or earlier termination of this Lease,
Tenant shall promptly quit and surrender to Landlord the Premises broom clean, in good
order and condition, ordinary wear and tear excepted, and Tenant shall remove all of its
movable furniture and other effects. In the event Tenant fails to vacate the Demised
Premises on a timely basis as required, Tenant shall be responsible to Landlord for all
costs incurred by Landlord as a result of such failure, including, but not limited to, any
amounts required to be paid to third parties who were to have occupied the Demised
Premises.
21.0 ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the
Demised Premises by Tenant shall be conclusive evidence as against Tenant that the
Demised Premises were in the condition agreed upon between Landlord and Tenant, and
acknowledgment of satisfactory completion of any fix -up work which Landlord has agreed
in writing to perform, except as otherwise set forth herein.
22.0 SUBORDINATION: Tenant agrees that upon request of Landlord it will
subordinate its rights hereunder to the lien of any mortgage, ground lease or deed of trust
now or hereafter enforced against the land or building of which the Demised Premises are
a part and to all events made or hereafter to be made upon the security thereof. Tenant
agrees to execute such documents that may be necessary to effectuate the provisions of
this article.
23.0 PAYMENTS AFTER TERMINATION: No payments of money by Tenant to
Landlord after the termination of this Lease, in any manner, or after giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, shall reinstate,
continue or extend the term of this Lease or affect any notice given to Tenant prior to the
payment of such money, it being agreed that after the service of notice of the
commencement of a suit or other final judgment granting Landlord possession of the
Demised Premises, Landlord may receive and collect any sums of Rent due, or any other
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sums of money due under the terms of this Lease or otherwise exercise its rights and
remedies hereunder. The payment of such sums of money, whether as Rent or
otherwise, shall not waive said notice or in any manner affect any pending suit or
judgment theretofore obtained.
24.0 AUTHORITIES FOR ACTION AND NOTICE:
24.1 Landlord's Representative: Except as herein otherwise provided,
Landlord may act in any matter provided for herein by its building manager or any other
person who shall from time to time be designated in writing.
24.2 Notices: All notices or demands required or permitted to be given
to Landlord hereunder shall be in writing, and shall be deemed duly served when
received, if hand delivered, or five (5) calendar days after deposited in the United States
mail, with proper postage prepaid, certified or registered, return receipt requested,
addressed to Landlord at its principal office in the Building, or at the most recent address
of which Landlord has notified Tenant in writing. All notices or demands required to be
given to Tenant hereunder shall be in writing, and shall be deemed duly served when
received if hand delivered or within five (5) calendar days after deposited in the United
States mail, with proper postage prepaid, certified or registered, return receipt requested,
addressed to Tenant at its office in the Building. Either party shall have the right to
designate in writing, served as above, a different address to which notice is to be mailed.
25.0 SIGNAGE: No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such color, size and
style and in such place upon or in the Building, as shall be first designated by Landlord,
but there shall be no obligation or duty on Landlord to allow any sign, advertisement or
notice to be inscribed, painted or affixed on any part of the inside or outside of the
Building and Landlord's approval shall be given with the understanding that Tenant shall
be liable for the cost of removal and repair of any damage occasioned thereby at the end
of the Lease Term. Landlord shall have the right to remove all non -permitted signs
without notice to Tenant, and at the expense of Tenant.
26.0 NAME OF BUILDING PROJECT: Landlord presently refers to the Building
Complex as THE TOWER and the Tower Annex. Landlord hereby reserves the right, at
any time and from time to time, without notice to Tenant, to change the name of the
Building Complex at Landlord's sole discretion and without any liability to Tenant for any
loss, costs, or expenses occasioned thereby.
27.0 ADMITTANCE BY PASS -KEY: Landlord shall not be liable for the
consequence of admitting by pass -key or refusing to admit to the Demised Premises
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Tenant or any of Tenant's agents, employees or other persons claiming the right of
admittance.
28.0 WINDOWS: Tenant shall not allow anything to be placed on the outside
window ledges of the Demised Premises. No awnings shall be attached to the outside of
any windows of the Demised Premises. Only such window draperies or blinds furnished
by Landlord, which shall be uniform to building standards, shall be exposed to exterior
views.
29.0 LIGHT AND AIR: This Lease does not grant any right of access to light, air,
or view over the property, and Landlord shall not be liable for any diminution of such light,
air or view by any adjacent structure.
30.0 ESTOPPEL CERTIFICATE: Tenant further agrees at any time and from
time to time, on or before ten (10) days after written request by Landlord, to execute,
acknowledge and deliver to Landlord an estoppel certificate certifying (to the extent it
believes the same to be true) that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as modified, and
stating the modifications), that there have been no defaults thereunder by Landlord or
Tenant (or if there have been defaults, setting forth the nature thereof), and the date to
which the Rent and other charges have been paid, if any, it being intended that any such
statement delivered pursuant to this section may be relied upon by any prospective
purchaser of all or any portion of Landlord's interest herein, or a holder of any mortgage
encumbering any portion of the Building Complex. Tenant's failure to deliver such
statement within such time shall be a default under this Lease and shall be conclusive
upon Tenant that:
(a) This Lease is in full force and effect without modification except as
may be represented by Landlord;
(b) There are no uncured defaults in Landlord's performance;
(c) Not more than one (1) month's Rent has been paid in advance; and
(d) The amount of any security deposit paid to, and held by, Landlord..
31.0 FINAL SIX MONTHS -- LANDLORD MAY SHOW PREMISES: Landlord and
Landlord's agents shall have the right at reasonable hours to exhibit the Demised
Premises to prospective purchasers and during the final six (6) months of the term hereof
to prospective Tenants.
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32.0 MISCELLANEOUS:
32.1 Rules and Regulations: Landlord may make and enforce
regulations appropriate for maintenance and management of the Building including but
not limited to regulations for order, cleanliness and security, but said regulations shall not
be inconsistent with the terms, covenants and conditions of this Lease. Landlord shall not
be responsible to Tenant for the non-performance by any other tenant or occupant of said
rules or regulations.
32.2 Transfer of Landlord's Interest: The term "Landlord", as used in
this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of the Building at the time in
question, and in the event of any transfer or transfers of the title thereto, Landlord herein
named (and in the case of any subsequent transfers or conveyances, the then grantor)
shall be automatically released from and after the date of such transfer or conveyance of
all liability in respect to the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed and relating to events
occurring thereafter; provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer in which Tenant has an interest shall be turned over to the
grantee, and any amount then due and payable to Tenant by Landlord or the then grantor
under any provisions of this Lease shall be paid to Tenant.
32.3 Covenants Independent — No Setoff Right: This Lease shall be
construed as though the covenants herein between Landlord and Tenant are
independent and not dependent, and Tenant shall not be entitled to any set off of the
Rent or other amounts owing hereunder against Landlord, if Landlord fails to perform its
obligations set forth herein. The foregoing shall in no way impair the right of Tenant to
commence a separate action against Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder of a mortgage
or deed of trust covering the Building Complex or any portion thereof of whose address
Tenant has been notified in writing and an opportunity granted to Landlord and such
holder to correct such violation.
32.4 Severability: If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby, and it is also the intention of the parties to this
Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or
unenforceable, there shall be added as a part of the Lease a clause or provision as
similar in terms to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable, provided such addition does not increase or
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decrease the obligations of or derogate from the rights or powers of either Landlord or
Tenant.
32.5 Captions for Convenience: The captions of each section are
added as a matter of convenience only and shall be considered of no effect in the
construction of any provision or provisions of this Lease.
32.6 Binding Upon Heirs and Assigns: Except as herein specifically
set forth, all terms, conditions and covenants to be observed and performed by the
parties hereto shall be applicable to and binding upon their respective heirs,
administrators, executors and assigns.
32.7 Joint and Several Liability: If there is more than one entity or
person which or who are the Tenants under this Lease, the obligations imposed upon
Tenant under this Lease shall be joint and several.
32.8 No Surrender or Satisfaction: No act or thing done by Landlord or
Landlord's agent during the term hereof, including, but not limited to, any agreement to
accept surrender of the Demised Premises or to amend or modify this Lease, shall be
deemed to be binding upon Landlord unless such act or things shall be by an officer of
Landlord or a party designated in writing by Landlord as so authorized to act. The
delivery of keys to Landlord, or Landlord's agent, employees or officers shall not operate
as a termination of this Lease or a surrender of the Premises. No payment by Tenant, or
receipt by Landlord, of a lesser amount than the monthly Rent herein stipulated, shall be
deemed to be other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement on any check or any letter accompanying any such, or
payment as Rent, be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy available to Landlord.
32.9 Right to Change: Landlord shall have the right, without thereby
granting an actual or constructive eviction or incurring any liability to Tenant thereof, to
construct other buildings or improvements in any plaza, or other area designated by
Landlord for use by tenants or to change the location, character, or make alterations of, or
additions to, any of said plazas, or other Building Complex areas.
32.10 Representations by Landlord: Tenant acknowledges and agrees
that it has not relied upon any statements, representations, agreements or warranties
except such as are expressed in this Lease.
32.11 Time of Essence: Time is of the essence hereof.
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32.12 Authority to Act: Tenant represents to Landlord that the party
executing this Lease is authorized to do so by requisite action of the Tenants Board of
Director or members, or partners, as the case may be, and agrees upon request to deliver
to Landlord a resolution or similar document to that effect.
32.13 Landlord's Liability: Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part of the
Landlord are made and intended not as personal covenants, undertakings and
agreements for the purpose of binding Landlord personally or the assets of Landlord,
except Landlord's interest in the Demised Premises and Building, but are made and
intended for the purpose of binding only the Landlord's interest in the Demised Premises
and Building as the same from time to time be encumbered. No personal liability or
personal responsibility is assumed by nor shall at any time be asserted or enforceable
against Landlord, the venturers comprising Landlord or their respective heirs, legal
representatives, successors or assigns on account of the Lease or on account of any
covenant, undertaking or agreement of Landlord in this Lease contained.
32.14 Overdue Payments — Administrative Handling Charge: Tenant
hereby acknowledges that late payment by Tenant to Landlord of Rent, Additional Rent or
other sums payable by Tenant under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, processing and accounting charges
and late charges that may be imposed on Landlord by the terms of any mortgage or deed
of trust secured by the Building. Accordingly, in the event that any installment of Rent,
Additional Rent or other sums payable by Tenant under this Lease shall not be received
by Landlord or Landlord's designee within ten (10) days of the due date thereof, Tenant
shall pay to Landlord an administrative handling charge of five percent (5%) of the
amount thereof for each late payment. Acceptance of such administrative handling
charge by Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amounts nor prevent Landlord from exercising any of the other rights and
remedies granted in this Lease.
Any Rent, Additional Rent or other sums payable by Tenant under this
Lease which shall not be paid upon the due date thereof shall bear interest at a rate equal
to three (3) percentage points above the prime rate of interest published or announced
from time to time by U. S. Bank of Washington, or its successor or, in the absence of an
established prime rate, five (5) percentage points over that bank's rate of one (1) year
certificates of deposit but not in excess of the highest lawful rate permitted under
applicable laws calculated from the original due date thereof to the date of payment.
32.15 Force MJeure: Except for the payment of Rent, Additional Rent or
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other sums payable by Tenant, time periods for Tenant's or Landlord's performance
under any provisions of this Lease shall be extended day for day for periods of time
during which Tenant's or Landlord's performance is prevented due to circumstances
beyond Tenant's or Landlord's reasonable control.
33.0 GOVERNING LAW; ATTORNEYS FEES; VENUE: This Lease Agreement
shall be construed in accordance with the laws of the State of Washington. In the event
of any action arising hereunder, the prevailing party shall be granted its reasonable
attorneys fees and court costs. Venue for any such action shall be in the County of
Yakima.
34.0 ENTIRE AGREEMENT: This Lease, together with the exhibits attached
hereto, contains the entire agreement of the parties and may not be amended or modified
in any manner except by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
THE TOWER, LLC
By: JEM Development Real Estate, Inc.
General Manager
Joseph R. Morrier, Sr., President
LANDLORD
STATE OF WASHINGTON)
) ss.
COUNTY OF YAKIMA )
CITY OF YAKIMA
LANDLORD'S
ACKNOWLEDGMENT
TENANT
I certify that I know or have satisfactory evidence that Joseph R. Morrier, Sr.
signed this instrument, on oath stated that he was authorized to execute the instrument,
and acknowledged it as the President of JEM DEVELOPMENT REAL ESTATE, INC. (as
the General Manager of THE TOWER, LLC) to be the free and voluntary act of JEM
DEVELOPMENT REAL ESTATE, INC. in its capacity as General Manager of THE
TOWER, LLC for the uses and purposes mentioned in the instrument.
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DATED:
(Stamp or Seal)
STATE OF WASHINGTON)
) ss.
COUNTY OF YAKIMA )
Notary Public in and for the State of
Washington, residing at
My appointment expires:
TENANT'S
ACKNOWLEDGEMENT
I certify that I know or have satisfactory evidence that
signed this instrument and acknowledged it to be (his/her) free and voluntary act for the
uses and purposes mentioned in the instrument.
DATED:
(Stamp or Seal)
Notary Public in and for the State of
Washington, residing at
My appointment expires:
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ZRNZSaHO
'3 SHHOVN 30___
liamu0O as IV
101 9NINUVd
4
Exhibit "A"
nOOR PLM'
anmaAV SHHOVN
ANNEX BUILDING
rOR
JEM DEVELOPMENT COMPANY
YAK/MA, WA
THE TOWER, LLC
TOWER ANNEX BUILDING
TENANT LEASE
TO
CITY OF YAKIMA
TENANT
February [
--1
2015
LEASE AGREEMENT
1.0 BASIC LEASE PROVISIONS
1.1 LANDLORD:
1.2 TENANT:
1.3 PREMISES:
1.4 PERMITTED USES:
THE TOWER, LLC
ADDRESS: THE TOWER
402 E YAKIMA AVENUE SUITE 1200
YAKIMA WA 98901
Phone: (509) 248-4040
CITY OF YAKIMA
ADDRESS: 129 NORTH 2ND STREET
YAKIMA, WA 98901
PHONE NUMBER: (509)
The Tower Annex, 421 E. Chestnut Avenue, Suite 100, 2.0
Yakima, Washington, consisting of approximately
4003 rentable square feet.
The Demised Premises shall be occupied
and used for general office use, subject to
the terms and conditions of this Lease.
5.0
1.5 LEASE TERM: Five (5) Years 3.0
1.6 COMMENCEMENT DATE: April 1, 2015 3.0
1.7 TERMINATION DATE: March 31, 2020 3.0
1.8 BASE MONTHLY RENT: SIX THOUSAND FOUR AND 50/100THS 4.1
DOLLARS ($6,004.50) PER MONTH, payable
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monthly in advance on or before the first day of each
calendar month, subject to annual increases, as
detailed in sub -section 4.2 of this Lease.
1.9 TAX INCREASE BASE YEAR: 2015 4.3
1.10 Parking Provided at No Additional Cost: 2.1
Landlord shall provide exclusive use of eleven (11) parking spaces located
immediately adjacent to the north side of the Demised Premises as designated in
Exhibit "B". Additional parking is available for non-exclusive use of Tenant's
employees and guests in the parking lot located at the southeast corner of Naches
and Chestnut Avenue or the JEM Development Real Estate, Inc. parking garage,
subject to Landlord's reserved right to relocate Tenant parking to reasonably
comparable substitute parking spaces in other lots owned or operated by
Landlord.
1.11 LANDLORD'S WORK: Prior to lease commencement, Landlord agrees to paint
the demised premises' interior walls and install building standard carpeting at
Landlord's sole expense.
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THE TOWER
YAKIMA, WASHINGTON
OFFICE BUILDING LEASE
THIS LEASE is made this day of February, 2015 between THE TOWER,
LLC, a Washington limited liability company, ("Landlord") and CITY OF YAKIMA,
("Tenant").
1.0 BASIC LEASE PROVISIONS: The Basic Lease Provisions on the previous
pages (i) and (ii) are hereby incorporated into this Lease.
2.0 DEMISED PREMISES:
Landlord hereby leases to Tenant and Tenant leases from Landlord those
certain premises located in THE TOWER ANNEX BUILDING (hereinafter the "Building")
designated on the floor plan attached hereto as Exhibit "A" (the "Demised Premises"),
and more particularly described in section 1.3 of this Lease (page i above), located on
the following described real property situate in the City of Yakima, Yakima County,
Washington, to wit:
Lots 16 and 17, Block 91, TOWN OF NORTH YAKIMA, now
YAKIMA, as re-recorded in Volume "E" of Plats, Page 1,
Records of the Auditor of Yakima County, Washington,
known as THE TOWER ANNEX, Yakima, Washington (hereinafter the "Building"),
together with a non-exclusive right, subject to the provisions hereof, to use all
appurtenances thereunto, including but not limited to, other areas and facilities
designated by Landlord for use in common by tenants of the Tower Annex Building
(Common Areas). The Building and real property on which the same is situated, the
Tower building, and other areas and appurtenances are hereinafter collectively
sometimes called the "Building Complex".
This Lease is subject to the terms, covenants and conditions set forth
herein and Tenant and Landlord each covenant as a material part of the consideration for
this Lease to keep and perform each and all of said terms, covenants and conditions by it
to be kept and performed and that this Lease is made upon the condition of such
performance.
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2.1 Parking: Landlord provides parking without charge to Tenant:
The adjacent street level parking facilities are owned and operated by Landlord.
Additionally Landlord leases space in the JEM Development Real Estate, Inc. Garage
and the Chestnut Avenue Parking lot which it makes available for use by some tenants
and their employees. Landlord agrees to provide Tenant with the parking spaces as
described in section 1.10 of this Lease. No charge shall be made to Tenant for the
parking spaces provided to Tenant in accordance with section 1.10 of this Lease.
Landlord agrees that so long as Landlord operates the adjacent street level parking
facilities the same shall be available for the non exclusive use of the Tenants and patrons
of the Building Complex, subject to the payment of charges for such use which shall not
be more than charges to members of the public generally. Nothing herein contained shall
be construed as requiring the Landlord to continue to operate all or any part of said
parking facilities, nor to preclude Landlord from locating new buildings or other
improvements on all or any part of said parking facilities, or designating specific parking
spaces or areas for use of specific Tenants and or their employees and/or their business
invitees, Provided However, that if the spaces identified in section 1.10 cease to be
available on account of such improvements, the Landlord shall provide reasonable
comparable substitute parking spaces for Tenant.
2.2 There is no Section 2.2 of this Lease.
3.0 TERM: The term of this Lease shall be as described in section 1.5
commencing on the date set forth in section 1.6, or as soon thereafter as the Demised
Premises may be ready for occupancy, and shall end on the date set forth in section 1.7
unless sooner terminated pursuant to any of the provisions of this Lease.
3.1 Early Termination: In the event Tenant's funding is not renewed or
approved by the Federal Government causing Tenant to be unable to continue to pay the
rent as required under this Agreement, Tenant shall provide Landlord with sixty (60) days
written notice of such change in circumstances. Upon receipt of said notice, this Lease
Agreement shall terminate at the end of the sixty (60) day notice period provided, subject
to the terms of Lease termination set forth in this Agreement.
3.2 Holding Over: In the event Tenant remains in possession of the
Demised Premises after the expiration or termination of this Lease without Landlord's
consent or without the execution of a new lease or in the absence of ongoing, good
faith negotiations for a renewal of this Lease, as evidenced by Tenant's receipt of a
written notice from Landlord confirming such, Tenant, at the option of Landlord, shall be
deemed to be occupying the Demised Premises as a tenant from month-to-month,
terminable by either party upon thirty (30) days prior written notice to the other party, at
a rental rate equal to twice the Monthly Rent and Additional Rent payable, if any, on
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account of the Lease Year immediately preceding such expiration or termination.
Otherwise Tenant's occupancy of the Demised Premises after expiration or termination
of this Lease shall be subject to all the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month-to-month tenancy.
4.0 RENT:
4.1 Base Rent: Tenant agrees to pay to Landlord, in advance, on or
before the first day of each and every month during the term hereof, at the offices of the
Landlord (as set forth in section 1.1 of the Basic Lease Provisions [page i]), or at such
other place as Landlord may from time to time designate (by written notice to the Tenant),
the Base Rent set forth in section 1.8 of this Lease (page i and ii above). Rent for a part
of the month shall be prorated in proportion to the number of days in said month.
4.2 Adjustment To Rent: Effective April 1, 2016 and annually on the
same date of each successive year thereafter during the term of this Lease, the Base
Monthly Rent shall be automatically increased to a sum equal to ONE HUNDRED AND
THREE PERCENT (103%) of the Base Rent for the immediately preceding 12 months.
4.3 Tax Adjustment: Tenant agrees to pay to Landlord as additional
rent the Tenant's pro rata share of any increase in property taxes over the tax increase
base year set forth in section 1.9 of the Basic Lease Provisions (page ii hereof).
Property taxes shall mean all real and personal property taxes or assessments, including
LID assessments, levied against the Tower Annex Building, including any costs incurred
in obtaining a reduction of taxes, which cost shall be allocated to the period for which the
reduction applies. Property taxes shall also include any tax levied in whole or in part in
lieu of property tax. The Tenant's pro rata share of said increases shall be determined by
dividing the total rentable square footage of the Demised Premises by the total rentable
square footage in The Tower Annex available for lease. The Tenant's proportionate
share of the tax increase shall be adjusted April 1 of each year and shall be billed and
paid monthly in advance.
4.4 Personal Property Taxes: Tenant shall pay all personal property
taxes with respect to property of Tenant located on the Demised Premises or in the
Building or the Building Complex. "Property of Tenant" shall include all improvements
that are paid for by Tenant, and "personal property taxes" shall include all property
taxes assessed against the property of Tenant, whether assessed as real or personal
property.
4.5 There is no Section 4.5 of this Lease.
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5.0 CHARACTER OF OCCUPANCY AND HAZARDOUS SUBSTANCES:
5.1 The Demised Premises are to be used for the purpose of conducting
such business as is described in section 1.4 and for no other purpose.
5.2 Tenant shall not suffer nor permit the Demised Premises nor any
part thereof to be used in any manner, nor anything to be done therein, nor suffer or
permit anything to be brought into or kept therein, which would in any way (i) make void or
voidable any fire or liability insurance policy then in force with respect to the Building; (ii)
make unobtainable from reputable insurance companies authorized to do business in the
State of Washington any fire insurance with extended coverage, or liability, elevator,
boiler or other insurance required to be furnished by Landlord under the terms of any
lease or mortgage to which this Lease is subordinate at standard rates provided Tenant is
not deprived of its intended use of the Demised Premises; (iii) cause or in Landlord's
reasonable opinion be likely to cause physical damage to the Building or any part thereof;
(iv) constitute a public or private nuisance; (v) impair, in the reasonable opinion of
Landlord, the appearance, character or reputation of the Building; (vi) discharge
objectionable fumes, vapors or odors into the Building air conditioning system or into the
Building flues or vents not designed to receive them or otherwise in such manner as may
unreasonably offend other occupants; (vii) impair or interfere with any of the Building
services or impair or interfere with or tend to impair or interfere with the use of any of the
other areas of the Building by, or occasion discomfort, or annoyance to Landlord or any of
the other tenants or occupants of the Building, any such impairment or interference to be
in the reasonable judgment of Landlord; (viii) injure the reputation of the Building or permit
the use of the Demised Premises for lodging or sleeping purposes; (ix) increase on an
ongoing periodic basis the pedestrian traffic in and out of the Demised Premises or the
Building above an ordinary level; (x) constitute waste; or (xi) make any noise or set up any
vibration which will disturb other tenants, except in the course of permitted repairs or
alterations.
5.3 Tenant shall not use the Demised Premises nor permit anything to
be done in or about the Demised Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of any public authority with respect to
the Demised Premises or the use or occupation thereof. Landlord shall give prompt
notice to Tenant of any notice it receives relative to the violation by Tenant of any law or
requirement of any public authority with respect to the Demised Premises or the use or
occupation thereof.
5.4 Hazardous Substances: The following provisions regarding
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hazardous substances are in addition to and not in lieu of the provisions of sections 5.1,
5.2 and 5.3 above.
5.4.1 Presence and Use of Hazardous Substances. Tenant shall not,
without Landlord's prior written consent, keep on or around the Premises,
Common Areas or Buildings, for use, disposal, treatment, generation, storage or
sale, any substances designated as, or containing components designated as
hazardous, dangerous, toxic or harmful (collectively referred to as "Hazardous
Substances"), and/or which are subject to regulation as Hazardous Substances by
any federal, state or local law, regulation, statue or ordinance. With respect to any
such Hazardous Substance, Tenant shall:
(1) Comply promptly, timely, and completely with all
governmental requirements for reporting, keeping and submitting manifests,
and obtaining and keeping current identification numbers;
(2) Submit to Landlord true and correct copies of all reports,
manifests and identification numbers at the same time as they are required
to be and/or are submitted to the appropriate governmental authorities;
(3) Within five (5) days of Landlord's request, submit written
reports to Landlord regarding Tenant's use, storage, treatment,
transportation, generation, disposal or sale of Hazardous Substances and
provide evidence satisfactory to Landlord of Tenant's compliance with the
applicable governmental regulation;
(4) Allow Landlord or Landlord's agent or representative to come
on the Premises at all times to check Tenant's compliance with all
applicable governmental regulations regarding Hazardous Substances;
(5) Comply with minimum levels, standards or other performance
standards or requirements which may be set forth or established for certain
Hazardous Substances (if minimum standards or levels are applicable to
Hazardous Substances present on the Premises, such levels or standards
shall be established by an onsite inspection by the appropriate
governmental authorities and shall be set forth in an addendum to this
Lease); and
(6) Comply with all governmental rules, regulations and
requirements regarding the proper and lawful use, sale, transportation,
generation, treatment, and disposal of Hazardous Substances.
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In the event Tenant shall be found to have violated any of the above
covenants, any and all costs incurred by Landlord and associated with Landlord's
inspections of Tenant's Premises and Landlord's monitoring of Tenant's
compliance with this section 5.4, including Landlord's attorneys fees and costs,
shall be additional rent and shall be due and payable to Landlord immediately
upon demand by Landlord.
5.4.2 Cleanup Costs, Default and Indemnification:
(1) Tenant shall be fully and completely liable to Landlord for any
and all cleanup costs and any and all other charges, fees, penalties (civil
and criminal) imposed by any governmental authority with respect to
Tenant's use, disposal, transportation, generation and/or sale of Hazardous
Substances, in or about the Premises, Common Areas, or Building.
(2) Tenant shall indemnify, defend and hold Landlord harmless
from any and all of the costs, fees, penalties and charges assessed against
or imposed upon Landlord (as well as Landlord's attorneys fees and costs)
as a result of Tenant's use, disposal, transportation, generation and/or sale
of Hazardous Substances.
(3) Upon Tenant's default under this section 5.4, in addition to
the rights and remedies set forth elsewhere in this Lease, Landlord shall be
entitled to the following rights and remedies:
(i) At Landlord's option, to terminate this Lease immediately; and
(ii) To recover any and all damages associated with the default,
including, but not limited to cleanup costs and charges, civil
and criminal penalties and fees, loss of business and sales by
Landlord and other tenants of the Building, and any and all
damages and claims asserted by third parties and Landlord's
attorneys fees and costs.
6.0 SERVICES AND UTILITIES:
6.1 Standard Services: Landlord shall maintain the Demised Premises
in reasonably good order and condition, except for damage occasioned by the act or
omission of Tenant, the repair of which damage shall be paid for by Tenant. Landlord
shall furnish the Demised Premises with electricity for lighting and the operation of low
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power usage office machines, heat and normal air conditioning, during the ordinary
business hours of the Building. Landlord shall also provide light replacement service for
building standard light fixtures. If the Demised Premises are equipped with special
lighting fixtures (whether installed by Tenant or by Landlord in response to Tenant's
request), Tenant shall reimburse Landlord for the cost of replacement bulbs for such
lighting fixtures and, if replacement is requested at times other than the Landlord's routine
scheduled rounds for light bulb replacement, Tenant shall reimburse Landlord for
Landlord's labor cost therefore. Landlord shall also provide toilet room supplies and
customary building janitor service twice a week. Such heat and air conditioning shall be
furnished from the period from 7:00 a.m. to 6:00 p.m. on weekdays (except holidays),
which may be changed to other reasonable hours as solely determined by Landlord, or
such shorter period as may be prescribed by any applicable policies or regulations
adopted by any utility or governmental agency; provided, however, that Tenant shall bear
the cost of any heating or air conditioning beyond that set forth above.
6.2 Interruption of Services: Landlord shall not be liable to Tenant for
any loss or damage caused by or resulting from any variation, interruption or failure of
such services due to any cause whatsoever. No temporary interruption or failure of such
services incident to the making of repairs, alterations or improvements, or due to accident
or strike, or conditions or events beyond Landlord's reasonable control, shall be deemed
a constructive eviction of Tenant or relieve Tenant from any of Tenant's obligations
hereunder.
6.3 Excess Heat and Electrical Use: Before installing any equipment
in the Demised Premises that generates more than a minimum amount of heat, Tenant
shall obtain the written consent of Landlord, and Landlord may refuse to grant such
consent if the amount of heat generated would place an undue burden on the air
conditioning system for the Building. Landlord hereby consents to the Tenant's
installation and use of personal computers on the Demised Premises up to a maximum of
one per employee working on the Demised Premises. If Tenant uses any high power
usage equipment on the Demised Premises, Tenant shall, in advance, on the first day of
each month during the Lease Term, pay Landlord as additional Rent the reasonable
amount estimated by Landlord as the cost of furnishing electricity for the operation of
such equipment. The monthly Rent stated in this Lease does not include any amount to
cover the cost of furnishing additional electricity for such equipment. Whenever heat
generating machines or equipment are used by Tenant in the Demised Premises which
affect the temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the Demised Premises
in the event Landlord's independent consulting engineer determines same are reasonably
necessary as a result of Tenant's use of lights or equipment which generate heat Toads in
excess of those for which the HVAC system is designed and the cost therefor, including
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the cost of installation, operation and maintenance thereof, shall be paid as additional
rent by Tenant to Landlord upon demand by Landlord.
7.0 QUIET ENJOYMENT: Landlord warrants and agrees to defend Tenant in the
quiet enjoyment and possession of the Demised Premises during the term of this Lease
so long as Tenant complies with the provisions hereof and is not in default beyond any
applicable cure period.
8.0 MAINTENANCE AND REPAIRS:
8.1 Landlord Repairs and Maintenance: Landlord shall make all
necessary repairs and replacements to the non -leasable areas of the Building, to the
heating, air conditioning and electrical systems located in the Building and to the common
areas, and Landlord shall also make all repairs to the Demised Premises which are
structural in nature; provided, however, that Tenant shall reimburse Landlord for all
repairs and replacements arising from Tenant's act, neglect or default and that of its
agents, servants and employees, and Landlord may require Tenant to secure such
reimbursement by deposit or bond prior to undertaking such repairs.
8.1.1 Governmental Compliance: In the event that the Landlord shall
deem it necessary, or be required by any governmental authority to repair, alter,
remove, reconstruct or improve any part of the Demised Premises or of the
Building (unless the same result from Tenant's act, neglect, default or mode of
operation), then the same shall be made by Landlord with reasonable dispatch,
and should the making of such repairs, alterations or improvements cause any
interference with Tenant's use of the Demised Premises, such interference shall
not relieve Tenant from the performance of its obligations hereunder.
8.2 Tenant Repairs and Maintenance: Tenant, at Tenant's sole cost
and expense, except for services furnished by Landlord pursuant to section 6 hereof,
shall maintain the Demised Premises in good order, condition and repair including the
interior surfaces of the ceilings (if damaged or discolored due to the fault of Tenant), walls
and floors, all doors, glass partitions, glass surfaces and windows; and to the extent such
items exceed Building standards, plumbing pipes, electrical wiring, switches, fixtures and
other special items subject to the provisions of section 14. Tenant agrees to promptly
repair at Tenant's expense all injury to the Demised Premises, or to the Building of which
they are a part, caused by moving the property of Tenant into, in, or out of the Building or
the Demised Premises. In the event Tenant fails to maintain the Demised Premises in
good order, condition and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Demised Premises. In the event Tenant fails to
promptly commence such work and diligently prosecute it to completion, then Landlord
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shall have the right, but shall not be required, to do such acts and expend such funds at
the expense of Tenant as are reasonably required to perform such work. Landlord shall
have no liability to Tenant for any damage, inconvenience or interference with the use of
the Demised Premises by Tenant as a result of performing any such work.
8.3 Furniture and Other Items: No safe or other articles of over 1,000
pounds shall be moved into the Demised Premises without the consent of the Landlord
which may be withheld at Landlord's sole judgment. Further, Landlord shall have the
right to fix the position of any article of such weight in the Demised Premises.
8.4 Tenant's keys to Premises not to be duplicated and to be
returned to Landlord on surrender of lease — Lock Change Out Fees: Landlord shall
provide keys to the Demised Premises at the commencement of the Lease. Tenant
shall not have duplicate keys made to the Demised Premises. If Tenant requires
duplicate keys, it shall request same from Landlord, and Landlord will furnish duplicate
keys at the Locksmith's cost plus 15%. Upon surrender of Demised Premises by Tenant
for any reason, Tenant shall return all keys to the Demised Premises which have been
made available to Tenant or from any source whatsoever, to Landlord. If (i) keys
provided to Tenant are lost, or (ii) Tenant secures duplicate keys to the Demised
Premises from any source other than Landlord, or (iii) Tenant fails to return all keys
provided by Landlord, then in any said events, Tenant shall promptly pay to Landlord a
lock Change Out Fee at the going rate then being charged by Locksmiths in the Yakima
area.
9.0 ALTERATIONS AND ADDITIONS: Tenant shall make no alterations,
additions or improvements to the Demised Premises or any part thereof or make changes
to locks on doors or add, disturb or in any way change any plumbing or wiring without
obtaining the prior written consent of Landlord. Landlord may impose, as a condition to
the aforesaid consent, such requirements as Landlord may deem necessary in its
reasonable judgment. Those requirements will normally include requiring the Tenant to
submit professionally prepared and reasonably detailed plans and specifications for the
work for Landlord's prior written approval, requiring the Tenant to use the contractor
designated by Landlord, and reimbursing Landlord for any reasonable sums expended for
plan review and costs of inspection of Tenant's work. Those requirements may include
without limitation the manner in which the work is done, and the times during which it is to
be accomplished.
10.0 ENTRY BY LANDLORD: Landlord and its agents shall have the right to
enter the Demised Premises at all reasonable times and upon reasonable notice for the
purpose of examining or inspecting the same, to supply any services to be provided by
Landlord for Tenant hereunder, to show the same to prospective purchasers of the
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Building, to make such alterations, repairs, improvements or additions to the Demised
Premises or to the Building of which they are a part as Landlord may deem necessary or
desirable, and to show the same to prospective tenants of the Demised Premises
(provided that in the event of a bona fide emergency, Landlord may enter the Demised
Premises without advance notice solely for the purpose of taking emergency action).
Landlord may, for the purpose of supplying scheduled janitorial services, enter the
Demised Premises by means of a master key without liability to Tenant and without
affecting this Lease. If, during the last sixty (60) days of the term hereof, Tenant shall
have removed substantially all of its property from the Demised Premises, Landlord may
immediately enter and alter, renovate and redecorate the Demised Premises without
elimination or abatement of Rent or incurring liability to Tenant for any compensation.
Tenant shall not, without the prior consent of Landlord, change the locks or install
additional locks on any door or doors to the Demised Premises.
11.0 LIENS AND INSOLVENCY:
11.1 Liens: Tenant shall pay or cause to be paid all costs for work done
by Tenant or caused to be done by Tenant on the Demised Premises of a character
which will or may result in liens on Landlord's interest therein, and Tenant will keep the
Demised Premises free and clear of all mechanic's liens and other liens on account of
work done for Tenant or persons claiming under it. Tenant hereby agrees to indemnify,
defend and save the Landlord harmless of and from all liability, loss, damage, costs or
expenses, including reasonable attorneys fees, incurred on account of any claims of any
nature whatsoever for work done by or caused to be done by Tenant, or materials or
supplies furnished to Tenant, including lien claims of laborers, materialmen or others.
11.2 Insolvency: Tenant shall be deemed to be in default of this Lease
upon the occurrence of one or more of the following events: (i) any judicial
determination of the insolvency of Tenant or any of Tenant's guarantors including,
without limitation, the entry of an Order for Relief pursuant to the provisions of the
Bankruptcy Code whether voluntary or involuntary; (ii) appointment of a receiver or a
custodian or other similar officer for any portion of Tenant's property or of Tenant's
guarantors; (iii) the assignment for the benefit of creditors of any portion of Tenant's
property or of Tenant's guarantors; (iv) a determination, judicial or otherwise, that
Tenant is not generally paying its debts as such debts become due; or (v) any fact,
event or circumstance which in the reasonable opinion of Landlord indicates that
Tenant is insolvent or otherwise incapable of meeting the financial and other obligations
imposed upon Tenant under this Lease; (provided, however, that if any such action,
case or petition has been commenced against Tenant or Tenant's guarantors and the
same is dismissed within a period of sixty (60) days, then the event of default shall be
deemed cured for purposes hereof) whereupon Landlord may elect by notice to Tenant
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to cancel and terminate this Lease, in which event neither Tenant nor any person
claiming through or under Tenant by virtue of any statute or of an order of any court
shall be entitled to possession or to remain in possession of the Demised Premises but
shall forthwith quit and surrender the same; and Landlord, in addition to the other rights
and remedies Landlord has by virtue of this Lease or any statute or rule of law, may
retain as security for its damages any Rent, Security Deposit or monies received by
Landlord from Tenant or others on behalf of Tenant. This Lease is upon the further
condition that if a petition for relief under any chapter of the Bankruptcy Code is filed by
or against Tenant or any guarantor and the trustee or debtor or debtor in possession
has not cured all defaults hereunder and assigned or assumed this Lease under the
Bankruptcy Code within sixty (60) days after the entry of the order for relief, then this
Lease shall automatically terminate without the necessity of further action by or notice
from either party. In case of termination pursuant to any of the foregoing provisions of
this paragraph, Tenant shall indemnify Landlord against all costs and expense and loss
of Rent.
12.0 DAMAGE TO PROPERTY, INJURY TO PERSONS:
12.1 Tenant's Waiver and Indemnification: Tenant hereby indemnifies
and agrees to hold Landlord harmless from and to defend Landlord against any and all
claims of liability for any injury or damage to any person or property whatsoever: (i)
occurring in, on or about the Demised Premises or any part thereof; and (2) occurring in,
or about the Building Complex, when such injury or damage is caused in part or in whole
by the act, neglect, fault or omission of any duty with respect to the same by Tenant, its
agents, contractors, employees or invitees except those liabilities arising out of the duties
and responsibilities of Landlord as set forth in this Lease, or liabilities arising from the
intentional acts or negligence of Landlord or its agents or representatives. Tenant further
indemnifies and agrees to hold Landlord harmless from and against any and all claims
arising from any breach or default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease, or arising from any act or negligence of
Tenant, or any of its agents, contractors, employees or invitees, from and against all
costs, attorneys fees, expenses and liabilities incurred in or about any such claim or any
action or proceeding brought thereon.
12.2 Release of Landlord: Landlord shall not be liable to Tenant for any
damage to personal property resulting from the carelessness, negligence or improper
conduct on the part of a co -tenant or anyone other than Landlord, or for any damage to
person or property resulting from any condition of the Premises or other cause, including
but not limited to damage by water, not resulting from negligence of Landlord. Tenant
shall give Landlord prompt notice of any defects in the Demised Premises to be remedied
by Landlord. To the extent not covered by normal fire and extended coverage insurance,
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Tenant agrees to pay for all damage to the Building Complex, as well as all damage to
tenants or occupants thereof, caused by Tenant's misuse or neglect of the Demised
Premises or any portion of the Building Complex.
12.3 Loss or Damage to Tenant's Property: Neither Landlord nor its
agents shall be liable for any damage to property entrusted to Landlord, its agents or
employees of the building manager, if any, nor for the loss or damage to any property by
theft or otherwise, by any means whatsoever, nor for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas, electricity, sprinkler
system leakage, water or rain which may leak from any part of the Building or from the
pipes, appliances or plumbing works therein or from the roof, street or subsurface or from
any other place or resulting from dampness or any other cause whatsoever; provided,
however, nothing contained herein shall be construed to relieve Landlord from liability for
any personal injury resulting from its negligence or that of its agents, servants or
employees. Landlord or its agents shall not be liable for any latent defect in the Demised
Premises or in the Building. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Demised Premises or in the Building or of defects therein or in the
fixtures or equipment.
13.0 INSURANCE:
13.1 Liability and Property Damage: Tenant shall procure and keep in
effect throughout the term of this Lease, General Liability insurance including damage for
bodily injury and property damage naming the Landlord as Additional Insured in the sum
of at least One Million Dollars ($1,000,000) Per Occurrence and Two Million Dollars
($2,000.000) Aggregate Limits. Tenant shall deliver said policies or certificates including
a copy of the Additional Insured endorsement to Landlord prior to initial occupancy and
continuously maintain such coverage thereafter. All insurance policies shall be with
companies reasonably approved by Landlord and each policy and certificate shall provide
that it is not subject to cancellation or reduction in coverage except after thirty (30) days
notice to Landlord. Landlord shall have the right, upon not less than thirty (30) days prior
written notice, to raise the limits hereinabove set forth not more often than annually during
the term of this Lease. In the event Tenant fails to provide proof of such insurance
coverage within three (3) days following Landlord's written request therefor, Landlord
may, at its option, procure the same for the account of Tenant, and the cost thereof, plus
fifteen percent (15%) administrative fee, shall be paid to Landlord upon receipt by Tenant
of bills therefor.
13.2 Fire and Extended Coverage: Tenant shall procure and maintain
at its own cost during the term of this Lease and any extension hereof fire and extended
coverage insurance on property of Tenant in the amount of the full replacement value
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thereof.
13.3 Waivers of Subrogation: The parties shall obtain from their
respective insurance carriers waivers of subrogation against the other party, agents,
employees and, as to Tenant, invitees. Neither party shall be liable to the other for any
loss or damage caused by fire or any of the risks enumerated in a standard fire insurance
policy with an extended coverage endorsement if such insurance was obtainable at the
time of such loss or damage.
Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the other party for
loss, damage or destruction with respect to its property (including the Building, Building
Complex, the Demised Premises and rental value or business interruption) occurring
during the term of this Lease to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or permission to release liability or naming the other
party as an additional insured as provided above.
13.4 Landlord Not Liable: Any building employee to whom property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord nor its agents shall be liable for
any damage to the property of Tenant or others entrusted to employees of the Building,
nor for the loss of or damage to any property of Tenant by theft or otherwise.
13.5 No Representation: Landlord makes no representation that the
limits of liability specified to be carried by Tenant under the terms hereof are adequate to
protect Tenant; if Tenant deems this insurance to be inadequate, Tenant shall, at its own
expense, provide such additional insurance as necessary.
14.0 DAMAGE OR DESTRUCTION TO PREMISES: If the Demised Premises
are damaged by fire or other casualty, then Landlord may, at Landlord's option, exercised
in writing within thirty (30) days of written notice of damage from Tenant, elect to
terminate this Lease or to repair the damages. If Landlord elects to repair the damages,
Landlord shall at its own expense, without unnecessary delay, repair the damages. If
Landlord elects to repair, Tenant shall pay the cost of repairing any Tenant improvements
in the Demised Premises other than the Building itself and building standard
improvements. Tenant shall be entitled to an abatement of rent in fair proportion to the
amount and nature of the damage sustained, until the Demised Premises are made fit for
occupancy and use. Provided, however, that Tenant shall not be entitled to an
abatement of rent if such damage was caused by the negligence or willful misconduct of
Tenant or Tenant's employees or invitees.
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15.0 CONDEMNATION:
15.1 Entire Taking: If all of the Demised Premises or such portions of
the Building as may be required for the reasonable use of the Demised Premises are
taken by eminent domain, this Lease shall automatically terminate as of the date title
vests in the condemning authority. In the event of a taking of a material part of but less
than all of the Building, where Landlord shall determine that the remaining portions of the
Building cannot be economically and effectively used by it (whether on account of
physical, economic, aesthetic or other reasons) or where Landlord determines the
Building should be restored in such a way as to materially alter the Premises, Landlord
shall forward a written notice to Tenant of such determination not more than sixty (60)
days after the date of taking. The term of this Lease shall expire upon such date as
Landlord shall specify in such notice but not earlier than sixty (60) days after the date of
such notice.
15.2 Partial Taking: Subject to the provisions of the preceding section
15.1, in case of taking of a part of the Demised Premises or a portion of the Building not
required for the reasonable use of the Demised Premises, then this Lease shall continue
in full force and effect, and the Rent shall be equitably reduced based on the proportion
by which the floor area of the Demised Premises is reduced, such Rent reduction to be
effective as of the date title to such portion vests in the condemning authority. If a portion
of the Demised Premises shall be so taken which in Tenant's reasonable judgment
renders the remainder of the Demised Premises unsuitable for continued occupancy by
Tenant under this Lease, Tenant may terminate this Lease by written notice to Landlord
no later than sixty (60) days after the date of such taking, and the term of this Lease shall
expire upon such date as Tenant shall specify in such notice not later than sixty (60) days
after the date of such notice.
15.3 Awards and Damages: Landlord reserves all rights to damages to
the Premises for any partial, constructive or entire taking by eminent domain, and Tenant
hereby assigns to Landlord any right Tenant may have to such damages or award.
Tenant shall make no claim against Landlord or the condemning authority for damages
for termination of the leasehold interest or interference with Tenant's business. Tenant
shall have the right, however, to claim and recover from the condemning authority
compensation for any loss to which Tenant may be put for Tenant's moving expenses,
business interruption or taking of Tenant's personal property and leasehold improvements
paid for by Tenant (not including Tenant's leasehold interest) provided that such damages
may be claimed only if they are awarded separately in the eminent domain proceedings
and not out of or as part of the damages recoverable by Landlord.
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16.0 ASSIGNMENT AND SUBLETTING:
16.1 Neither Tenant nor its successors or assigns shall transfer, assign,
mortgage or encumber this Lease, by operation of law or otherwise, or sublet or permit
the Demised Premises, or any part thereof, to be used by others, without the prior written
consent of Landlord in each instance. If Tenant is a corporation whose shares are not
regularly traded on a public stock exchange, or if Tenant is a limited liability company, any
transfer of any of Tenant's issued and outstanding capital stock or any issuance of
additional capital stock, or any transfer of membership units, as a result of which the
majority of the issued and outstanding capital stock or membership units of Tenant is held
by a corporation, firm, or person or persons who do not hold a majority of the issued and
outstanding capital stock of Tenant on the date hereof, shall be deemed an assignment
under this section 16. If Tenant is a partnership, then any transfer of an interest in the
partnership resulting in the withdrawal of a partner or the addition of a new partner, and
regardless of whether it results in a change of management, shall be deemed an
assignment under this section 16 unless each withdrawing partner and each new
partner, as the case may be, acknowledge in writing his/her/its liability for the
performance of Tenant's obligation hereunder for the balance of the lease term and such
writing is delivered to Landlord at or prior to the effective date of said transfer. Any
attempted transfer, assignment, subletting, mortgaging or encumbering of this Lease in
violation of the foregoing shall be void and confer no rights upon any third person. No
permitted assignment or subletting shall relieve Tenant of any of its obligations under this
Lease.
16.1.1 If, without complying with the provisions of section 16.1 above, this
Lease is transferred or assigned by Tenant, or if the Demised Premises, or any
part thereof, are sublet or occupied by anybody other than Tenant, whether as a
result of any act or omission by Tenant, or by operation of law or otherwise,
Landlord, whether before or after the occurrence of an event of default, may, in
addition to, and not in diminution of or substitution for, any other rights and
remedies under this Lease or pursuant to law to which Landlord may be entitled as
a result thereof, collect rent from the transferee, assignee, subtenant or occupant
and apply the net amount collected to the basic rent and additional charges herein
reserved, but no such transfer, assignment, subletting, occupancy or collection
shall be deemed a waiver of the provisions of this section or the acceptance of the
transferee, assignee, subtenant, or occupant as Tenant, or a release of Tenant
from the further performance by Tenant of its obligations under this Lease.
16.1.2 Transfers Incident to Corporate Mergers, Reorganizations, etc.:
Notwithstanding any other provision of this Lease to the contrary, Tenant has the
right to assign this Lease or sublet the Demised Premises in whole or in part to any
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subsidiary, affiliate or successor corporation or partnership, without Landlord's
consent, upon giving Landlord ten (10) days prior written notice of such
assignment or subletting. A "subsidiary" of Tenant shall mean any corporation or
limited liability company not less than fifty percent (50%) of whose outstanding
voting stock or voting membership units shall at the time be owned, directly or
indirectly, by Tenant. An "affiliate" of Tenant shall mean any corporation or limited
liability company which, directly or indirectly, controls or is controlled by or is under
common control with Tenant. For purpose of the definition of "affiliate", the word
"control" (including "controlled by" and "under common control with"), as used with
respect to any corporation, limited liability company, partnership or association
shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policy of a particular corporation, limited liability
company, partnership or association, whether through the ownership of voting
securities or by contract or otherwise. A "successor corporation or partnership"
shall mean any corporation, limited liability company or partnership into which
Tenant is merged or with which Tenant is consolidated or to which all or a
substantial portion of Tenant's assets are transferred.
16.2 The consent by Landlord to any assignment, transfer, or subletting to
any party, including a subsidiary, affiliate or successor corporation, limited liability
company or partnership shall not be construed as a waiver or release of Tenant from the
terms of any covenant or obligation under this Lease, nor shall the collection or
acceptance of rent from any such assignee, transferee, subtenant or occupant constitute
a waiver or release of Tenant of any covenant or obligation contained in this Lease, nor
shall any such assignment or subletting be construed to relieve Tenant from obtaining the
consent in writing of Landlord to any further assignment or subletting. In the event that
the Tenant defaults hereunder, Tenant hereby assigns to Landlord the rent due from any
subtenant of Tenant and hereby authorizes each such subtenant to pay said rent directly
to Landlord.
Tenant shall not mortgage or encumber this Lease without the prior written
consent of Landlord.
17.0 STORAGE SPACE LEASE INTEGRATED WITH THIS LEASE: If, at any
time during the term of this Lease, the Tenant shall have entered into a Lease of storage
space in the basement of The Tower Building or other storage areas of the Building
Complex, said Storage Lease and this Lease are agreed to be so integrated that any
default of the Tenant in the payment of rents or other charges under the Storage Lease
will automatically constitute a default under the terms of this Lease, and any default of the
Tenant in the payment of rents or other charges under this Lease shall automatically
constitute a default under the terms of said Storage Lease. It is further understood and
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agreed that in the event of the termination of this Lease, either by mutual agreement of
the parties, by expiration of the term or otherwise (whether voluntary or involuntary), the
Storage Lease shall automatically terminate as of the same date, but not the converse,
i.e. termination of the Storage Lease will not effect an automatic termination of this Lease
of commercial office space.
18.0 DEFAULT:
18.1 Cumulative Remedies: All rights of Landlord herein enumerated
shall be cumulative, and none shall exclude any other right or remedy allowed by law. In
addition to the other remedies provided in this Lease, Landlord shall be entitled to restrain
by injunction the violation or attempted violation of any of the covenants, agreements or
conditions of this Lease.
18.2 Tenant's Right to Cure: Tenant shall have a period of three (3)
business days from the date of written notice from Landlord to Tenant within which to
cure any default in the payment of Rent, Additional Rent or other sums due hereunder.
Tenant shall have a period of ten (10) days from the date of written notice from Landlord
to Tenant within which to cure any other default hereunder which is capable of being
cured by Tenant; provided, however, that with respect to any such default which cannot
be cured within such ten (10) day period the default shall not be deemed to be uncured if
Tenant commences to cure within ten (10) days and for so long as Tenant is diligently
prosecuting the cure thereof. It is further agreed that after service of notice as above set
forth, an additional condition to curing such default shall be payment by the Tenant of
Landlord's costs and expenses including attorneys fees not to exceed Two Hundred
Dollars ($200.00) for the preparation and service of such notice.
18.3 Abandonment: Abandonment means an absence from the
Demised Premises of five (5) days or more while Tenant is in default or Landlord
otherwise reasonably determines that Tenant has abandoned the Demised Premises and
its interest under this Lease. Abandonment by Tenant shall be considered a default with
no right to cure allowing Landlord to re-enter the Demised Premises under section 18.4.
18.4 Landlord's Re-entry: Upon an uncured default of this Lease by
Tenant, Landlord, at its option, may enter the Demised Premises or any part thereof and
expel, remove or put out Tenant or any other persons who may be thereon, together with
all personal property found therein, or Landlord may terminate this Lease, or it may from
time to time, without terminating this Lease and as agent of Tenant, relet the Demised
Premises or any part thereof for such term or terms (which may be for a term less than or
extending beyond the term hereof) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable with the right
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to repair, remodel and change the Demised Premises with Tenant remaining liable for
any deficiency computed as provided in section 18.5. Landlord's option to relet the
Demised Premises pursuant to section 18.5 shall not require it to relet the Demised
Premises before leasing other vacant space in the Building. In the case of any default,
re-entry and/or dispossession by summary proceedings or otherwise, all Rent and
Additional Rent shall become due thereupon and be paid up to the time of such re-entry
or dispossession, together with such expenses as Landlord may reasonably incur for
attorneys fees, advertising expenses, brokerage fees and/or putting the Demised
Premises in good order or preparing the same for re -rental together with interest thereon
as provided in section 32.14 hereof accruing from the date of any such expenditure by
Landlord.
18.5 Reletting the Demised Premises: At the option of Landlord, Rents
received by Landlord from such reletting shall be applied first to the payment of any
indebtedness from Tenant to Landlord other than Rent and Additional Rent due
hereunder; second, to the payment of reasonable costs and expenses of such reletting
and including, but not limited to, attorneys fees, advertising fees and brokerage fees and
to the payment of any repairs, remodeling and changes in the Demised Premises; third,
to the payment of Rent and Additional Rent due and to become due hereunder, and, if
after so applying said Rents there is any deficiency in the Rent or Additional Rent to be
paid by Tenant under this Lease, Tenant shall pay any deficiency to Landlord monthly on
the dates specified herein, and any payment made or suits brought to collect the amount
of the deficiency for any month shall not prejudice in any way the right of Landlord to
collect the deficiency for any subsequent month. Subject to Landlord's duty to mitigate
damages, which duty shall be limited in the event of other vacant space in the Building
during the continuance of such default, the failure of Landlord to relet the Premises or any
part or parts thereof shall not release or affect Tenant's liability hereunder nor shall
Landlord be liable for failure to relet or, in the event of reletting, for failure to collect the
Rent thereof, and in no event shall Tenant be entitled to receive any excess of net Rents
collected over sums payable by Tenant to Landlord hereunder. No such re-entry or
taking possession of the Demised Premises shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such intention be given
to Tenant. Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such previous breach and default.
Should Landlord at any time terminate this Lease by reason of any default, in addition to
any other remedy it may have, it may recover from Tenant the amount of Rent and
Additional Rent reserved in this Lease for the balance of the Term as it may have been
extended in excess of the then fair market rental value of the Demised Premises for the
same period plus all court costs and reasonable attorneys fees incurred by Landlord in
the collection of the same.
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18.6 Nonpayment of Additional Rent: All costs and expenses which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be deemed
Additional Rent and, in the event of nonpayment thereof, Landlord shall have all the rights
and remedies herein provided for in case of non-payment of Rent.
18.7 Landlord's Lien: In addition to its statutory rights to a Landlord's
lien, the Tenant does hereby grant to the Landlord a lien for the payment of any amounts
of Rent due hereunder upon all of the Tenant's goods, wares, fixtures, furniture,
improvements and other tangible personal property of the Tenant.
19.0 REMOVAL OF TENANT'S PROPERTY: All movable furniture and personal
effects of Tenant not removed from the Demised Premises within ten (10) days after the
vacation or abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice
to Tenant and without obligation to account therefor, and Tenant shall pay Landlord for all
expenses incurred in connection with the disposition of such property.
20.0 SURRENDER: Upon the expiration or earlier termination of this Lease,
Tenant shall promptly quit and surrender to Landlord the Premises broom clean, in good
order and condition, ordinary wear and tear excepted, and Tenant shall remove all of its
movable furniture and other effects. In the event Tenant fails to vacate the Demised
Premises on a timely basis as required, Tenant shall be responsible to Landlord for all
costs incurred by Landlord as a result of such failure, including, but not limited to, any
amounts required to be paid to third parties who were to have occupied the Demised
Premises.
21.0 ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the
Demised Premises by Tenant shall be conclusive evidence as against Tenant that the
Demised Premises were in the condition agreed upon between Landlord and Tenant, and
acknowledgment of satisfactory completion of any fix -up work which Landlord has agreed
in writing to perform, except as otherwise set forth herein.
22.0 SUBORDINATION: Tenant agrees that upon request of Landlord it will
subordinate its rights hereunder to the lien of any mortgage, ground lease or deed of trust
now or hereafter enforced against the land or building of which the Demised Premises are
a part and to all events made or hereafter to be made upon the security thereof. Tenant
agrees to execute such documents that may be necessary to effectuate the provisions of
this article.
23.0 PAYMENTS AFTER TERMINATION: No payments of money by Tenant to
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Landlord after the termination of this Lease, in any manner, or after giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, shall reinstate,
continue or extend the term of this Lease or affect any notice given to Tenant prior to the
payment of such money, it being agreed that after the service of notice of the
commencement of a suit or other final judgment granting Landlord possession of the
Demised Premises, Landlord may receive and collect any sums of Rent due, or any other
sums of money due under the terms of this Lease or otherwise exercise its rights and
remedies hereunder. The payment of such sums of money, whether as Rent or
otherwise, shall not waive said notice or in any manner affect any pending suit or
judgment theretofore obtained.
24.0 AUTHORITIES FOR ACTION AND NOTICE:
24.1 Landlord's Representative: Except as herein otherwise provided,
Landlord may act in any matter provided for herein by its building manager or any other
person who shall from time to time be designated in writing.
24.2 Notices: All notices or demands required or permitted to be given
to Landlord hereunder shall be in writing, and shall be deemed duly served when
received, if hand delivered, or five (5) calendar days after deposited in the United States
mail, with proper postage prepaid, certified or registered, return receipt requested,
addressed to Landlord at its principal office in the Building, or at the most recent address
of which Landlord has notified Tenant in writing. All notices or demands required to be
given to Tenant hereunder shall be in writing, and shall be deemed duly served when
received if hand delivered or within five (5) calendar days after deposited in the United
States mail, with proper postage prepaid, certified or registered, return receipt requested,
addressed to Tenant at its office in the Building. Either party shall have the right to
designate in writing, served as above, a different address to which notice is to be mailed.
25.0 SIGNAGE: No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such color, size and
style and in such place upon or in the Building, as shall be first designated by Landlord,
but there shall be no obligation or duty on Landlord to allow any sign, advertisement or
notice to be inscribed, painted or affixed on any part of the inside or outside of the
Building and Landlord's approval shall be given with the understanding that Tenant shall
be liable for the cost of removal and repair of any damage occasioned thereby at the end
of the Lease Term. Landlord shall have the right to remove all non -permitted signs
without notice to Tenant, and at the expense of Tenant.
26.0 NAME OF BUILDING PROJECT: Landlord presently refers to the Building
Complex as THE TOWER and the Tower Annex. Landlord hereby reserves the right, at
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any time and from time to time, without notice to Tenant, to change the name of the
Building Complex at Landlord's sole discretion and without any liability to Tenant for any
loss, costs, or expenses occasioned thereby.
27.0 ADMITTANCE BY PASS -KEY: Landlord shall not be liable for the
consequence of admitting by pass -key or refusing to admit to the Demised Premises
Tenant or any of Tenant's agents, employees or other persons claiming the right of
admittance.
28.0 WINDOWS: Tenant shall not allow anything to be placed on the outside
window ledges of the Demised Premises. No awnings shall be attached to the outside of
any windows of the Demised Premises. Only such window draperies or blinds furnished
by Landlord, which shall be uniform to building standards, shall be exposed to exterior
views.
29.0 LIGHT AND AIR: This Lease does not grant any right of access to Tight, air,
or view over the property, and Landlord shall not be liable for any diminution of such light,
air or view by any adjacent structure.
30.0 ESTOPPEL CERTIFICATE: Tenant further agrees at any time and from
time to time, on or before ten (10) days after written request by Landlord, to execute,
acknowledge and deliver to Landlord an estoppel certificate certifying (to the extent it
believes the same to be true) that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as modified, and
stating the modifications), that there have been no defaults thereunder by Landlord or
Tenant (or if there have been defaults, setting forth the nature thereof), and the date to
which the Rent and other charges have been paid, if any, it being intended that any such
statement delivered pursuant to this section may be relied upon by any prospective
purchaser of all or any portion of Landlord's interest herein, or a holder of any mortgage
encumbering any portion of the Building Complex. Tenant's failure to deliver such
statement within such time shall be a default under this Lease and shall be conclusive
upon Tenant that:
(a) This Lease is in full force and effect without modification except as
may be represented by Landlord;
(b) There are no uncured defaults in Landlord's performance;
(c) Not more than one (1) month's Rent has been paid in advance; and
(d) The amount of any security deposit paid to, and held by, Landlord.
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31.0 FINAL SIX MONTHS -- LANDLORD MAY SHOW PREMISES: Landlord and
Landlord's agents shall have the right at reasonable hours to exhibit the Demised
Premises to prospective purchasers and during the final six (6) months of the term hereof
to prospective Tenants.
32.0 MISCELLANEOUS:
32.1 Rules and Regulations: Landlord may make and enforce
regulations appropriate for maintenance and management of the Building including but
not limited to regulations for order, cleanliness and security, but said regulations shall not
be inconsistent with the terms, covenants and conditions of this Lease. Landlord shall not
be responsible to Tenant for the non-performance by any other tenant or occupant of said
rules or regulations.
32.2 Transfer of Landlord's Interest: The term "Landlord", as used in
this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of the Building at the time in
question, and in the event of any transfer or transfers of the title thereto, Landlord herein
named (and in the case of any subsequent transfers or conveyances, the then grantor)
shall be automatically released from and after the date of such transfer or conveyance of
all liability in respect to the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed and relating to events
occurring thereafter; provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer in which Tenant has an interest shall be turned over to the
grantee, and any amount then due and payable to Tenant by Landlord or the then grantor
under any provisions of this Lease shall be paid to Tenant.
32.3 Covenants Independent — No Setoff Right: This Lease shall be
construed as though the covenants herein between Landlord and Tenant are
independent and not dependent, and Tenant shall not be entitled to any set off of the
Rent or other amounts owing hereunder against Landlord, if Landlord fails to perform its
obligations set forth herein. The foregoing shall in no way impair the right of Tenant to
commence a separate action against Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder of a mortgage
or deed of trust covering the Building Complex or any portion thereof of whose address
Tenant has been notified in writing and an opportunity granted to Landlord and such
holder to correct such violation.
32.4 Severability: If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the term of this
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Lease, then and in that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby, and it is also the intention of the parties to this
Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or
unenforceable, there shall be added as a part of the Lease a clause or provision as
similar in terms to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable, provided such addition does not increase or
decrease the obligations of or derogate from the rights or powers of either Landlord or
Tenant.
32.5 Captions for Convenience: The captions of each section are
added as a matter of convenience only and shall be considered of no effect in the
construction of any provision or provisions of this Lease.
32.6 Binding Upon Heirs and Assigns: Except as herein specifically
set forth, all terms, conditions and covenants to be observed and performed by the
parties hereto shall be applicable to and binding upon their respective heirs,
administrators, executors and assigns.
32.7 Joint and Several Liability: If there is more than one entity or
person which or who are the Tenants under this Lease, the obligations imposed upon
Tenant under this Lease shall be joint and several.
32.8 No Surrender or Satisfaction: No act or thing done by Landlord or
Landlord's agent during the term hereof, including, but not limited to, any agreement to
accept surrender of the Demised Premises or to amend or modify this Lease, shall be
deemed to be binding upon Landlord unless such act or things shall be by an officer of
Landlord or a party designated in writing by Landlord as so authorized to act. The
delivery of keys to Landlord, or Landlord's agent, employees or officers shall not operate
as a termination of this Lease or a surrender of the Premises. No payment by Tenant, or
receipt by Landlord, of a lesser amount than the monthly Rent herein stipulated, shall be
deemed to be other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement on any check or any letter accompanying any such, or
payment as Rent, be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy available to Landlord.
32.9 Right to Change: Landlord shall have the right, without thereby
granting an actual or constructive eviction or incurring any liability to Tenant thereof, to
construct other buildings or improvements in any plaza, or other area designated by
Landlord for use by tenants or to change the location, character, or make alterations of, or
additions to, any of said plazas, or other Building Complex areas.
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32.10 Representations by Landlord: Tenant acknowledges and agrees
that it has not relied upon any statements, representations, agreements or warranties
except such as are expressed in this Lease.
32.11 Time of Essence: Time is of the essence hereof.
32.12 Authority to Act: Tenant represents to Landlord that the party
executing this Lease is authorized to do so by requisite action of the Tenants Board of
Director or members, or partners, as the case may be, and agrees upon request to deliver
to Landlord a resolution or similar document to that effect.
32.13 Landlord's Liability: Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part of the
Landlord are made and intended not as personal covenants, undertakings and
agreements for the purpose of binding Landlord personally or the assets of Landlord,
except Landlord's interest in the Demised Premises and Building, but are made and
intended for the purpose of binding only the Landlord's interest in the Demised Premises
and Building as the same from time to time be encumbered. No personal liability or
personal responsibility is assumed by nor shall at any time be asserted or enforceable
against Landlord, the venturers comprising Landlord or their respective heirs, legal
representatives, successors or assigns on account of the Lease or on account of any
covenant, undertaking or agreement of Landlord in this Lease contained.
32.14 Overdue Payments — Administrative Handling Charge: Tenant
hereby acknowledges that late payment by Tenant to Landlord of Rent, Additional Rent or
other sums payable by Tenant under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, processing and accounting charges
and late charges that may be imposed on Landlord by the terms of any mortgage or deed
of trust secured by the Building. Accordingly, in the event that any installment of Rent,
Additional Rent or other sums payable by Tenant under this Lease shall not be received
by Landlord or Landlord's designee within ten (10) days of the due date thereof, Tenant
shall pay to Landlord an administrative handling charge of five percent (5%) of the
amount thereof for each late payment. Acceptance of such administrative handling
charge by Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amounts nor prevent Landlord from exercising any of the other rights and
remedies granted in this Lease.
Any Rent, Additional Rent or other sums payable by Tenant under this
Lease which shall not be paid upon the due date thereof shall bear interest at a rate equal
to three (3) percentage points above the prime rate of interest published or announced
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from time to time by U. S. Bank of Washington, or its successor or, in the absence of an
established prime rate, five (5) percentage points over that bank's rate of one (1) year
certificates of deposit but not in excess of the highest lawful rate permitted under
applicable laws calculated from the original due date thereof to the date of payment.
32.15 Force Majeure: Except for the payment of Rent, Additional Rent or
other sums payable by Tenant, time periods for Tenant's or Landlord's performance
under any provisions of this Lease shall be extended day for day for periods of time
during which Tenant's or Landlord's performance is prevented due to circumstances
beyond Tenant's or Landlord's reasonable control.
33.0 GOVERNING LAW; ATTORNEYS FEES; VENUE: This Lease Agreement
shall be construed in accordance with the laws of the State of Washington. In the event
of any action arising hereunder, the prevailing party shall be granted its reasonable
attorneys fees and court costs. Venue for any such action shall be in the County of
Yakima.
34.0 ENTIRE AGREEMENT: This Lease, together with the exhibits attached
hereto, contains the entire agreement of the parties and may not be amended or modified
in any manner except by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
THE TOWER, LLC
By: JEM Development Real Estate, Inc.
General Manager
-Joseph R. Morrier, r., President
LANDLORD TENANT
CITY OF YAKIMA
STATE OF WASHINGTON)
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) ss. LANDLORD'S
COUNTY OF YAKIMA ) ACKNOWLEDGMENT
I certify that I know or have satisfactory evidence that Joseph R. Morrier, Sr.
signed this instrument, on oath stated that he was authorized to execute the instrument,
and acknowledged it as the President of JEM DEVELOPMENT REAL ESTATE, INC. (as
the General Manager of THE TOWER, LLC) to be the free and voluntary act of JEM
DEVELOPMENT REAL ESTATE, INC. in its capacity as General Manager of THE
TOWER, LLC for the uses and purposes mentioned in the instrument.
DATED: -
(
Notary Public
Qfri4ngton
SOdf YA R CLAAR TEE
MY COMMISSION EXPIRES #,
OCTOBER 25, 2018
STATE OF WASHINGTON)
) ss.
COUNTY OF YAKIMA )
42 '
Notary Public in and for the tin/fowl
Washington, residing at
My appointment expires:
TENANT'S
ACKNOWLEDGEMENT
j
certify that I know or have satisfactory evidence that I nA t V c y 'L
signed this instrument and acknowledged it to be (his/her) free and vovi
Ly
act for the
uses and purposes mentioned in the instrument.
DATED: 3i l
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Ar�III��WASNI;,
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Notary Public it and for the S at -f,
Washington, residing at _41
My appointment expires: IMAM
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