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HomeMy WebLinkAbout25F - AGMT - LEASE FOR WESTEND SUBSTATIONREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 17, 2015 TITLE: LEASE AGREEMENT WITH RIO WEST LLC FOR WESTEND SUBSTATION OFFICE {STRATEGIC PLAN NO.1, 1F} RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: /_1 a U ZiIT /iii] ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO [ -11-Al fflff,00 Authorize the City Manager and Clerk of the Council to enter into a one -year lease agreement with Rio West, LLC, for period of November 1, 2015 to October 31, 2016, for the use of the Westend Substation located at 3750 W. McFadden Unit I in an amount not to exceed $29,664, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Police Department has operated the Westend Substation located at the corner of Harbor and McFadden for over 17 years. This location has become a community engagement center and is well known to area residents. During this engagement, the Department entered into a recurring no cost lease with the owner that has equated to a monetary of savings to the City of well over $400,000. Based on changing economic conditions the owner is no longer able to offer this space at no cost. This one -year agreement will allow the Police Department to continue our "Community Oriented Policing" mission with area residents with no interruption of services. As the location has been in use for many years, an expensive infrastructure has already been established and an examination of relocation costs found it to be cost prohibitive to move the substation this year. The Police Department intends to seek out alternative locations for the substation in the future to lower costs and ensure limited impact to the residents the substation serves. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 Community Safety, Objective #1 (Modernize the Community Policing philosophy to improve customer service, crime prevention and traffic / pedestrian / bicycle safety), Strategy F (Enhance the Police Department's community policing philosophy to balance both traditional policing and problem solving strategies to address and reduce violent, property and gang related crimes.) 25F -1 Agreement with Rio West LLC November 17, 2015 Page 2 FISCAL IMPACT Funds for this agreement are available in the Police Department's Criminal Activities — Treasury account (no. 02614455 62300). In the following amounts by fiscal year: FY 2015 -16 $ 19,776 FY 2016 -17 $ 9,888 Carlos Rojas Chief of Police Police Department Exhibit 1: Agreement APPROVED AS TO FUNDS AND ACCOUNTS: I&A M Francisco adtierrez Wrc Executive Director Finance & Mgmt. Services Agency 25F -2 SHOPPING CENTER LEASE - GROSS 1. Basic Provisions ( "Basic Provisions "), 1.1 Parties: This Shopping Center Lease ( "Lease "), dated for reference purposes September 1, 2015, is made by and between Rio Vista West. LLC. a California Limited Liability Comany ( "Lessor ") and The Santa Ana Police Department, a division of the City of Santa Ana, a municipal corporation ( "Lessee ") (collectively the "Parties ", or individually a "Party "). 1.2 Premises: That certain portion of the Shopping Center (as defined below), including all improvements therein or to be provided by Lessor under the terms of this Lease, commonly known by the street address of 3750 W, McFadden Avenue, Suite I, located in the City of Santa Ana. County of Orange, State of California, with zip code 92704, as outlined on Exhibit A attached hereto ( "Premises "), deemed to be approximately 989 rentable square feet of floor area. In addition to Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee shall have non- exclusive rights to use the Common Areas (as defined in Paragraph 23 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the building containing the Premises ( "Building ") or to any other buildings in the Shopping Center. The Premises and the Building are situated within the Shopping Center known as Riverview West Marketplace. The Premises, the Building, the Common Areas and all other buildings and improvements within said Shopping Center, together with the land upon which they are located, are herein collectively referred to as the "Shopping Center." (See also Paragraph 2) 1.3 Term: Twelve (12) full calendar months ( "Original Term "), commencing on November 1. 2015 ( "Commencement Date ") and ending October 31.2016 ( "Expiration Date "). (See also Paragraph 3) 1.4 Eariv PosspWon! 19 ke --,1, Ampnia L5 Base Rent: $2,472.00 per month ( "Base Rent "), payable on the first day of each month commencing on November 1 2015. (See also Paragraph 4 and Exhibit 1) There are provisions m this Lease for the Base Rent to be adjusted. See Exhibit "I ". 1.7 total eatabl a ea of the buildings in ih °c czxoypzfib ent °cr available for use as determined by Lessor from can'�cv- irme -vira B : "tern 1.asis ... wjeet to the r g! Lessor may reason al Ei3 .», . ,,., ... ide the Shopping Center into subareas for the urpescofallocating- Common- Tithe event that that s__e eo.ha Prsanses an d-lor Ib A 3eppn1g.S6nter arm -inPa during the t,....,, a fthi„ Lease, ass r ess ,.. shal VAP.PlellWe 3L8 V V V V A4ere# ants Assoeiatl .... «... l T...as. $ r er year mere�a �s�Assoeiution Duae" " mar 14erslnas }tsssssiation�n€s and or # s pro-v siox� az Morehants— Assoeiation -AddondG+tu-,-if- an3<attashed hereto, 1.9 Base Rent and Other Monies Paid Upon Execution: (a) Base Real: $2,472.00.00 for November I — 30, 2015 Security Deposit: $.00 ( "Security Deposit "). (See also Paragraph 5) (a) Other! $ far (f) Total Due Upon Execution of this Lease: $2,472.00 1.10 Agreed Use: Police substation and for no other use without Lessor's prior written consent, which may be granted or withhold at Lessor's sole discretion and subject to die use restrictions attached Exhibit "H ". (See also Paragraph 6) 1.11 Agreed Trade Name: Santa Ana Police Substation, (See also Paragraph 6) 1.12 Insuring Party. Lessor is the "Insuring Party". (See also Paragraph 8) 1.13 Real Estate Brokers: (See also Paragraph 15 and 25) (a) Representation: The following real estate broker (the "Broker ") and brokerage relationships exist in this transaction (check applicable boxes): X _Williams Real Estate Management Inc represents Lessor, 25F -3 (b) Payment to Brokers: Upon execution and delivery of this Lease by both Parties, Lessor shall pay to the Broker for the brokerage services rendered by the Broker the fee agreed to in the attached.- separate written agreement OP if a as ^•�eh-agreement4s r L�:- � .�rartteed by ( "GurGino 1.15 Attachments. Attached hereto are the following, all of which constitute a part of this Lease; N/A an addendum • a site plan marked Exhibit A, depicting the Premises and Shopping Center; • a current set of the Sign Criteria for the Shopping Center marked Exhibit "B'; NA a work letter marked Exhibit "C"; NA a Guaranty of Lease marked Exhibit "D" X a Lessee Memorandum of Lease Term Commencement marked Exhibit "E" X an Estoppel Certificate marked Exhibit "F" X a current set of Rules and Regulations for the Shopping Center marked Exhibit "G'; X other (specify); a list of Exclusive Uses. marked Exhibit "IT', 2. Premises. 2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. 2.2 Condition. Lessor shall deliver the Premises to Lessee in their "as -is, where -is, with all faults and defects soHditior:ing systems � GH4,1 .....g ” .,es- :€'� ^y; and all rsi�n:a. -tea" y 1�„pe�ratiag -eeHdi " "tea a nt th °^ ^•... „1 °io»....., ,.f «1,0 _„of',- bearing walls e.: a foundation -of the P- rvmis"al"ofred..F ^^ 1FC 1. ^.,,. with h..,.r.,,n «� max- tenon- ear..^ asfs��or- i€one�� 2, vmi,; 'rFia"'C- .�b0asel- warrants that -to its - lamiebn°•t..�tt.. nts on the D «aHll$e9- &}id- t�€- �BnllAOfl -AEea9 eHg�, ^ath the biaildiag-Oodos that effect at the time 01-M ease Bush impr.. erne ♦ or.,91 inn dlereof,� l6tBd� -riH$ were also a'd- appleaal laws, regulations, nanem in, effiet..f a «z t ire lt,A 1' 'PE'r PC�'PP�O1O Rref}HwFF10Hi° , Saildwdaxrafib, does R6t app Y te the use to which Lessee will p it the Premises, be requirea �nlra^8�&t mot or any similar ° °, use (see D. y .,h-9 Uti1:«. lastallat4ei« (ene4ned in Paragraph /nIessee solely 'spoo.n.,° v: N ' sing 'Aleth F of et-&A Applicable Re ,t,. ^d ., all, o,.. .. ^«,, fEr ' 0 ages , t«t. ^« past ..rve ..F .l,e Dre«.,:..p .... a he ^1 .,..ved if w n.. ^. «:...... ,1.. a past ___ __ ._._ _ __'__ _.__, n0 10.sa w vv zm xavo v H9t e" P,l'1" idea promptly ^R° ,.F. written ^ a„„, r_.. veu: c ..fir,, , .. h ,. �:seie nature ^d "t € : ^�t-e o'smla 11e ee4- the s t Le ep's .. does net g m r ^ '- th-this REMI ..��., np..w. ...., ...,..._ .,. _.,,... „ c:rc ,.... l�bessea - sva Ey w Eh H S months r. n c6alti lAate eery@ ee- lxtlr1^ the ebligati°« Of T- Asse °o a cvs"oc" Be"....1, 61+6h work as followa� (a } -8t b €eE to Paragraph 2 3(c� barn if such Capital c., andilare a ." ­ ". a raault e£ tk e spesife ue® Of th® promi9 eq by lness@@ as Geffivased wi .t -BOB by Lessees e„ in general, Loss ,.1,,,111..° full .,ponsible fe; the ......« thereof (b).�'s"f s._ hh r" +,,,*,,,1 Expenditure , the .... "•..ik-dl -4he ape ^�r"m°Hiifi °v" 1• r° (such govemanentagy not, thew, Lessor «h „11 f[-Yr suo1 C a.p3ta�r�p8>3dtiHEO-Rnd r ^ ..l.,,n ...,1. 1,e ..1, ®d-t6- pad -ea£h f F the the term of Fl.:r Ttl.:., r e ^re .. n tlusree f r. A that . h: ^1. the Base Dent is A..e #H6nth- d�tlf}ti�10- FOH3EEtHd6Fe won vrm�rax arfl9tiHt -egu "1 t„ t IY �ti..,F tlie-pe.t -.1$ . h ^"`" ---- st'triliU'cab?9iv"ott.e 25F -4 but • ay prepay its abligat. a at any time, rF be866i�raa9enRu' n _ =- is : «va a _ ..� «u - last .1 years _ r this Lease _ ° «u_ i is aR, a- Isa- mieall feasible to p , its � eee� ptian `o tera�it this Lea tea ® a nle °s r. Lessee notifies Lesser, in vp2i «u�^ ' �,€tat�re�pt- e€�ssser's termination notice that Lessee will pc y --a- tF.r�G^. 404 E pefidiiture. (cam hdetwrth t nding tl e bas she pravisien c sedi areg Avg, intanded u u voluntary, unexpooted, and now n plieable Requirements, ur -tliek as are instead tAggsmd by Lessee � as a result c___ aetflal ev proposed shange :,, ha e .itonsite ,.a. ,.r- ino4ifiieat�ken-te- =m--- --re� in that avenE— Lessee sba'll either; —(-i -) a: «er. .u' .u, oa into f, d/erahe eaeli e%13eF ekepe as may r9E1lttrernefl%f^" "•, ^'' n.,..•«..r c.,.,o «a•.. «o or r.:s~,.,..,Ticto such n...•..r v._eaditw4- a�4ta -ov1 tight- tie- terminate�hiS Leas®: oocalsaaey of the Promise (d) it is Hot Fely4fig 613 any representation as to «u y Brekore or Lesser-, and (a) eti�r- tltaa- asset- fetth- #agents, nor , efs have made era! or ­ti fie, . ., a' __�rospoott saidmatters 2.5 Lessee as Prior Owner /Occupant. The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work. 2.6 Vehicle Parking. Lessee shall not use and shall not permit its employees to use any parking spaces in the Shopping Center except for parking by vehicles that are no larger than full-size passenger automobiles or pick -up trucks, herein called "Permitted Size Vehicles." Lessee shall permit its employees to only occupy those parking spaces, if any, as depicted as employee parking spaces on the Shopping Center site plan. Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Paragraph 2.9. No vehicles other than Permitted Size Vehicles may be parked in the Common Area without the prior written permission of Lessor. In addition: (a) Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee's employees, suppliers, shippers, contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities; (b) Lessee shall not service or store any vehicles in the Common Areas; and (e) if Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor. 2.7 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Shopping Center and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to time for the general non - exclusive use of Lessor, Lessee and other Lessees of the Shopping Center and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas. 2.8 Common Areas - Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non- exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or tinder the terms of any riles and regulations or restrictions governing the use of the Shopping Center. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas, nor to display merchandise or conduct sales in the Common Areas. Any such storage, display or sales shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, as exercised in Lessor's sole discretion, which consent may be revoked at any time. In the event that any unauthorized storage or displays shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it. may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lesser, 2,9 Common Areas - Rides and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations ( "Rules and Regulations ") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or Lessees of the Building and the Shopping Center and their invitees. Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non - compliance with said Rules and Regulations by other Lessees of the Shopping Center, 2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time: 25F -5 (a) To make changes or additions to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, elevations, landscaped areas, signage, walkways and utility raceways; (b) To use and close temporarily any of the Common Areas for the purpose of maintaining, repairing and altering the Shopping Center, so long as reasonable access to the Premises remains available, and to close temporarily any of the Common Areas to whatever extent is required in the opinion of Lessor's counsel to prevent a dedication of or the accrual of any rights of any persons or of the public to any of the Common Areas; (c) To designate other land outside the boundaries of the Shopping Center to be a part of the Common Areas or to be entitled to use the Common Areas on a reciprocal basis; (d) To add additional buildings and improvements to the Common Areas; and (e) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Shopping Center as Lessor may, in the exercise of sound business judgment, deem to be appropriate. 2,11 Common Areas - Promotional Events; Sidewalk Sales. Lessor reserves the right, from time to time, in Lessor's sole discretion, to utilize portions of the Common Areas for promotional events, which may include, but shall not be limited to, entertainment. Lessor further reserves the right, in Lessor's sole discretion, to permit any one or more Lessees of the Shopping Center to conduct the display and/or sale of merchandise from the sidewalks immediately adjacent to such Lessees' respective premises, 2.12 Common Areas - Remodeling. At any time during the Term, Lessor may remodel or expand, in any manner, the existing Shopping Center, which work may include, without limitation, the addition of shops and/or new buildings to the Shopping Center (collectively, "Remodeled Center "). If Lessor deems it necessary for construction personnel to enter the Premises in order to construct the Remodeled. Center, Lessor shall give Lessee no less than 30 days prior notice and Lessee shall allow such entry. Lessor shall use reasonable efforts to complete any work affecting the Premises in an efficient manner so as not to interfere unreasonably with Lessee's business. Lessee shall not be entitled to any damages for any inconvenience or any disruption to Lessee's business caused by such work, provided, however, the Base Rent paid by Lessee for the period of the inconvenience shall be abated in proportion to the degree that Lessee's use of the Premises is impaired as reasonably determined by Lessor. 3. Term. 11 Term. The Commencement Date, Expiration Date and Original Term of this Lease arc as specified in Paragraph 1.3. 3.2 E,..` Possess I'll, ny provision hero.i�.Rng —Lasso 8,rly ".A.' .',�,.,1 . .4-hv ire ...., as being available F... ., .,.1z�..eA.. prior to 41. n.. m Date. n ..F I;aF1.ihPDB50SSiOn ,. „1,ou . «.. ..,...4.n;, e right n,. ee6n 4 Promises. TF an L'.,.-1. Pn6seasicm T\, eafss 'ffeE� iii Pa.,..,.aph 1 A L... ,. ,,,.n..n.,.... p. Y 6ruP.�r -a--r, -u�o ..1 1..,. e ,..,..o�., !.. ♦4o D�o.»;..o.. F b..�.. �., :.... T\..4 C Purposes „ «o.,.,..: «.... «d R.,t.. « :., :.... ncn a• ,•1�ayszx�mcv�ana- c�- uvcrr4...1 T o ."ia1141. u ........vv ........ ............v .... v. ttxli^)xaFl�n�ty” of RmaRr'ii . . t 33Lr n% d- te- nHi4t tloPays•i...\ .4.11 be :. oF.! A,.: «....6 «o.�d -meptu aA Lo..o,," eb!" a on-t. «u7 T a.�wol� shape of fin �mvnMv[�v . shall only be in effect f 10FA has - openePop business in the nremisas- prior -te- the -Go ns�nt Date, Any such Farly Pea a- sh:}ll- not- affeet the Ba e, 3913 Delay in nPe,° ^esslon. Lessor agrees to u commercially . of the 12rao se 4 reachedb®tween- Lesser-- anckbsss ©a;-in ittng 3,4 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee oomplies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor's election to withhold possession pending receipt of such evidence of insurance. 25F -6 4, Rent. 4.1 Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ( "Rent'). 4.2 Donnaen A =e t AgewaittE Lana, esessee all g ^a �« ate^ the 4eln he:° addition. Pa .ter-. .. ... .... •... ... WO 9. "W. .ssskerwesrr -=r.�k anWor any other space oosupied by a Lessee. (ii) The oest of watef, gas, electricity and telephone to qer,ioe dip Gemmea Amas and finy titilities 14 A dared. � (ii3 Txai,^ ,.,,�4 of trash disposal, pot.,., «« «.,1 ,°avcs48BFri pYepBFEy- k}�Hftg01$9Ykt- 5..e't'd n0 easts of ally em'ifamnemal sm, (i� }�Fc set aside f equipment, maintenance, z a.d- replasemen� e€ 6emrnon- t�reas: M ; <eal Prepperty TwEes (as defined in-Paragraph lt). (A) The - aest(e€ihe- pram { -HIS for the,1is�waacc��y�u�.��t /+.,« A.,« A «...... ( �iiJ�)--- �Ay�lita. s— aseownt ° «t�..�ar�a,- aEt- '`ro. ° °-�- arm,. -J ^gists- related- ke -C-ke- ape- ratisrrof- the�ieppitkg Genter -, -. :« the dropping como.= ^r-to -the, -open tat repai atd nastenansethere ^P° °mated ontre' uGh- preknseser�uflcling F�daa�= -ate ^yam, =nzon - Area- Opcsratrpensos- and Real Prepepty not spea&-a4y- am-takaketo- aet3`proa�iseser building tt e „ a shall be o „ Jtabl allw e ,., r o...,,... ..n t,.,;ta: or t4 oFera6iau�opalt= and- rnairttettanee- theses z�- �a�t�gs-- irt-th itzg. Center. (a) The irolusion of the - d-Es &-fir�-ebligaNea upon Inessef to amef hawe said impFov�entq or fkilit;os or to ProNrido those sen4ees ealess the Shop Gofnef al+eady has the same, Lesser alteady provides the services, or Lessor has agreed elsewh- Lome to «reed,, the same a same of!t4lsa (d) on kly en fi® soar a day-as t io -Raae leek s dxe l: °� ^...,a ^..'`',, ^-•- ^awe€- sttsipa3siiertts- shol] -b' of the 11MI Comman 4ven eraktng- Ic}iexsos:Witi #a lss than e °"eo-'s Share Lessee shall pay +0 Lessor the a nt�€ihe d�thir l0 days a €terdrl}ver�b. Lessor �f tln ^' annual re., neil:..tiefl statement- ( €)-- zTf;hare- ar- e- ons -or- more - Major- L- essees-{ as- hoteina€ t© r- deirned )- sviEhiaa- thaShopping- trenLor; lhenrttt- T.,essor's -sole optio,, ,mount- Eo -be- reimbursed ty sixeh- Majo- Losseas te- Lesser f erkan o-t =t #o-C � �°�9petattig- L3xpensas wmiuded from the rentable area of the Common Area Operating 25F -7 ponsos fBe EhesB ep ^:r^ : - " ithsta'n l ng Eke pcxceniag�s ®Uforll. m Paragraph 1.7. A rBhr he to^ "n om ee !is!! n ea^ 'Tie " " " "'easeRg a least3;000 square feet o f ,male area wi h ;tl e "� eppaag 6enier 4.3 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the terns hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. hr the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25.00 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs. - S. a ^,.....rF rn shall with o^ ...,,., o �6uti9n -z e..e,.r the co,.. sty no.,,.^:« a.. Lessee's faithful rformance, €i,, obligations inner this r ,. «I.o....:,.., „ . ader this-s = „T Lease, T esse may use, apply- or- retahtr 9'lfln3ny-perEi - ^F 8W4eoJ'-n^vposit€,r -d' ° :ry ...otni. •'I..,.ady due Lessor, for Roots whieI, wall- be- � -o, a ^s dV of to reimbtrrae- Br- eetapen ^ ^•° Lessor for an), liability,&xpens.,, less or damage or :..,.. by reason tliereog. if r.,n ,... .....,t:o., ,.n ................n:,.,, ,.stl,�ce�. •... rr sit, Losses shall to a.,.., . fler...«:torn request °"°F,.' aaBpB6tE - kH..m..a- viral' FFmoicxx.- �v- .voEBrFr9aid 6 n�^^”' «zrtme— f�•irci- amenal-fa fired L. this Lease. if «t,o upon Base -- Rent- in�e��,- rr.�tnia -L- ease - l=ease® -s ;wr.- iEEen-- rBgt:tost- €ram -L °- -'-o'ni®s�tiEk Loasetr -so t., «I,�tvtRS ^1nv. dart- e&th'e se•.•.•: •. Tiepos; shalt .. all- t:.,,^^ tear tho- -si ......orEioiv- fo-�no norBafi@•t n.,,� nvn„va vin- a�-aro• ., «I,,. initial Security pep ere E- ,mss.-thoAgreed-Usp he ....._... ... ................._ _ ..._._.._. _.._..e_ ... _ business ef�esses -or tom lessee or assignee, Lessor shall have "e- right- to-lncnase- e esurity isstt to the oxtout- neeossia ' m, Lessor's reasonable judgment, to ..,.•.......t far any : « ^rea5ad •••ea od «..^,. drat the pro«.:. may, s. Fs,1t thereof ^.,ate rial reduedefi in «t a essee. Lesser shall rot be rir '\ir't' -� z0, j ay Rae ;air .. u ...u.. tiu: ef-this 'L-easo,-LWS OF- °t ^11 tt ^' 014011 -o€-tk ® ^�,.'^ a ^••I: d Lesser. No part of the e^ °: ➢© esitskall -be considered to be hold har a', - ar -a ^:°^ to be paid by �T ,... g^u ..e- tHidet- tkkis- L-easo- 6. Use. 6.1 (a) Agreed Use; Agreed Trade Name. Lessee shall use and occupy the Premises only for the Agreed Use, and for no other use or purpose without Lessor's prior written consent, and Lessee shall operate at the Premises only under the Agreed Trade Name and under no other trade name without Lessor's prior written consent. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring promises or properties. Other than guide, signal and seeing -eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles, Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, or to the Agreed Trade Name. If Lessor elects to withhold consent, Lessor shall within 14 days after such request give written notification of sane, which notice shall include an explanation of Lessor's objections to the change in the Agreed Use and/or Agreed Trade Name, (b) Continuous Operation. Lessee shall continuously (i) operate and conduct the Agreed Use under the Agreed Trade Name within the entire Premises in a reputable manner and in conformity with industry standards of practice prevailing in the field of business sanong eaurahimas , ^ it Eke sans- business In .t sib . .Rt: 1.,,.o,.. the pporsises a Lou v ^.io ..t ..•l...iCtt tl t'4nB]Go 'pa raad6f_ia(:.s ) 61- P+omi with D«. e with so as to maximize Gvege-S" s' °Lessee shall °p the liters ••1. e n F r bus . A...,,, fl mnn ..•«,_t. o �at.,rda 4ram fl 00 ^ ran to 6iQ0 p.a., -ead Sunda), from 10:00 (c) Violations of Exclusive Use Rights. Lessee acknowledges that Lessor may grant, or may have previously granted, exclusive use rights to other Lessees of the Shopping Center and agrees that a material consideration to Lessor in entering into this Lease is Lessee's covenant to limit its use of the Premises to the Agreed Use under the Agreed Trade Name as set forth above. Lessee's violation of exclusive use rights granted to other Lessees of the Shopping Center will result in Lessor suffering irreparable harm and, therefore, in addition to all other rights and remedies available to Lessor, Lessor may seek to enjoin Lessee's breach of such covenant and Lessee shall be liable for any damages incurred or sustained by Lessor to such other Lessees whose exclusive use rights are breached by Lessee. In no event shall Lessor be liable to Lessee for any failure of any other Lessees of the Shopping Center to operate their businesses, or for any loss or damage that may be occasioned by or through the acts or omissions of other Lessees or third panties, (d) Other Tenancies. Lessor reserves the absolute right to establish procedures to control other tenancies in the Shopping Center. Regardless of whether any specific Lessees are shown on any site plan attached hereto, Lessee does not rely on 25F -8 [hat fact, nor does Lessor represent that any specific Lessee or number or type of Lessees shall or shall not during the Term occupy any portion of the Shopping Center, nor does Lessee rely on any other Lessee operating its business in the Shopping Center at any particular time or times. Further, no conduct by any Lessee, subLessee or other occupant of, or any customer of, or any supplier to or use of any portion of the Shopping Center shall constitute an eviction, constructive or otherwise, of Lessee from the Premises, and Lessee hereby waives any and all claims that it might otherwise have against Lessor by reason thereof 6.2 Hazardous Substances. (a) Reportable Uses Require Consent. The term "hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either; (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and /or crude oil or any products, by- products or fractions thereof, Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be fled with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, 'injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit. (b) Duty to Inform Lessor. if Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under- or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance. (c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements and take all investigatory and /or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and /or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party. (d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Shopping Center not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or die environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement. (e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which are suffered as a direct result of Hazardous Substances on the Premises prior to Lessee taking possession or which are caused by the gross negligence, or willful misconduct of Lessor, its agents or employees. Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. (f) Investigations and Remediation. Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessee taking possession, unless such remediation measure is required as a result of Lessee's use of the Premises (including "Alterations ", as defined in paragraph 7,3(a) below), in which event Lessee shall be responsible for such payment. Lessee 25F -9 shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor's investigative and remedial responsibilities. (g) Lessor Termination Option. If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and romediation thereof required by the Applicable .Requirements and this Lease shall continue in full force and effect, but subject to Lessor's rights tinder Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessor's desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a tennina don notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee's commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such connnitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available, If Lessee does not give such notice and provide the required hands or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor's notice of termination. 6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, filly, diligently and in a timely manner, comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate in any manner to such Requirements, without regard to whether said Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (u) any mustiness or other odors that might indicate the presence of mold in the Premises. 6A Inspection; Compliance, Lessor and Lessor's "Lender" (as defined in Paragraph 29) and consultants shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see Paragraph 9.1) is found to exist or be immincuL In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of written request therefor. 7. Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations. 7.1 Lessee's Obligations. (a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee's sale expense, keep the Premises, Utility Installations (intended for Lessee's exclusive use, no matter where located), and Alterations in good order, condition and repair (whether or not file portion of the Premises requiring repairs, or the means of repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, prossi re vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and skylights but excluding any items which are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices, specifically including the procurement and maintenance of the service contracts required by Paragraph 7.l(b) below. Lessee's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair. (b) Service Contracts. Lessee shall, at Lessee's sole expense, procure and maintain contracts, with copies to Lessor, in customary form and substance for, and with contractors specializing and experienced in the maintenance of the following equipment and improvements, if any, if and when installed on the Premises; (i) HVAC equipment, (ii) boiler and pressure vessels, and (iii) clarifiers and grease interceptors, Lessor reserves the right, upon notice to Lessee, to procure and maintain any or all of such service contracts, and Lessee shall reimburse Lessor, upon demand, for the cost thereof, (c) Failure to Perform. If Lessee fails to perform Lessee's obligations under this Paragraph 7.1, Lessor may enter upon the Premises after 10 days' prior written notice to Lessee (except in the case of an emergency, in which case no notice shall 25F -10 be required), perform such obligations on Lessee's behalf, and put the Premises in good order, condition and repair, and Lessee shall promptly pay to Lessor a sum equal to the cost thereof (d) Replacement, Subject to Lessee's indemnification of Lessor as set forth in Paragraph 8,7 below, and without relieving Lessee of liability resulting from Lessee's failure to exercise and perform good maintenance practices, if an item described in Paragraph 7.1(b) camiot be repaired other than at a cost which is in excess of 50% of the cost of replacing such item, then such item may be, replaced by Lessor, and the cost thereof shall be prorated between the Parties and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease, on the date on which Base Rent is due, an amount equal to the product of multiplying the cost of such replacement by a fraction, the numerator of which is one, and the denominator of which is 144 (i.e. 1 /144th of the cost per month). Lessee shall pay Interest on the unamortized balance but may prepay its obligation at any time 7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), and- subjes6-to e,valsume rnent asu°^« to h 4_2- Lessor shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or smoke detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, �� the s emi « m..o : _r _--man AreR Operating Expea"Wsus-, a n n Lessor shall not be obligated to paint the interior surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or replace windows, doors or plate glass of the Premises all of which shall be performed by Lessee at Lessee's sole expense, Lessee expressly waives the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease. 7.3 Utility Installations; Trade Fixtures; Alterations, (a) Definitions. The term "Utility Installations" refers to all floor and window coverings, air and /or vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises, The term "Alterations" shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and /or Utility Installations" are defined as Alterations and /or Utility Installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a). (b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's prior written consent. Lessee may, however, make non- strucnu'al Alterations and Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible f:om the outside, do not involve puncturing, relocating or removing the roof or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety systems, and the cumulative cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the aggregate or a sum equal to one month's Base Rent in any one year. Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and /or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and /or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (i) acquiring all applicable governmental permits, (ii) fiurishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner, Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with as -built plans and specifications. For work which costs an amount in excess of one month's Base Rent, Lessor nuty condition its consent, upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee's posting an additional Security Deposit with Lessor. (c) Liens; Bonds. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been famished, to or for Lessee at or for use on the Premises, which claims are or may be scented by any mechanic's or materiahnan's lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days' notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non - responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor's attorneys' fees and costs. 7.4 Ownership; Removal; Surrender; and Restoration. (a) Ownership, Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises, Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless 25F -11 otherwise instructed per Paragraph. 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises. (b) Removal. By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility Installations made without the required consent. (c) Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in goad operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing, if this Lease is for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee Owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also completely remove from the Promises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises), even if such removal would require Lessee to perform or pay for work that exceeds statutory requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of 26 below. 8. Insurance; Indemnity. 8.1 Payment of Premiums. The cost of the premiums for the insurance policies required to be carried by Lessor, pursuant to Paragraphs 8.2(b), 8.3(a) and 83(b), shall be a Common Area Operating Expense. erieds 8.2 Liability Insurance. (a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance or proof of self-insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an amoral aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional Insured- Managers or Lessors of Premises" Endorsement. The policy shall not contain any infra- insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligations under this Lease. The limits of said insurance shall not limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only, (b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein. 8.3 Property Insurance - Building, Improvements and Rental Value. (a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground - lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof, Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. (b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the fall Rent for one year with an extended period of indemnity for an to 25F -12 additional 180 days ( "Rental Value Insurance "). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period. (c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Shopping Center if said increase is caused by Lessee's acts, omissions, use or 000upaney e°f e P- ..."i -- 8.4 Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance. (a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations, Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations. (b) BRSIDOSS 1WOF-SAptiGHL Lessee shall obtain and maintain less of heame and @i9fa—experso inaurarr se to afoot =ts- ens=.;:?_- inatrsed- against by- pmdoa" lessees In =pr�• ' « ": •ti- -a,•F . ) the D-- raises as a « result F�SsuT,..alt p aFils_ (0) Worker's Compensation insurance Lessee shall obtain and y9H9aifl6(1 I}rgit}ei388- lit ccppl.cume - Requirements. Such r^poao y shall in6lude a Waiver ei -r ck'9%'O$4ifiOn= @JsdE)fS@M@m. Les . . asset n. opy er sueh endorsement ..long with the sertif4sate ,.,f inqufanee ey «p3 ...f —tkte policy (d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations under this Lease. 8.5 Insurance Policies. Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders Rating" of at least A- VII, as set forth in the most current issue of "Best's Insurance Guide ", or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. if either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same. 8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby. 8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, property manager, partners and Lenders, from and against any and all claims, loss of rents and/or damages, lions, judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indenmified. 8.8 Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinlders, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Promises or upon other portions of the building of which the Premises are a part, or from other sources or places, (ii) any damages arising from any act or neglect of any other Lessee of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Shopping Center, or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of Paragraph 8. I 25F -13 9. Damage or Destruction. 9.1 Definitions. (a) "Premises Partial Damage" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less from the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total. (b) "Premises Total Destruction" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 6 months or less from the date of the damage or destruction and /or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total. (c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 83(a), irrespective of any deductible amounts or coverage limits involved,. (d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation. (e) " Iazardous Substance Condition" shall mean the occurrence or discovery of a rendition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises or Common Areas which requires restoration, - 9.2 Partial Damage - Insured Loss, If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in frill force and effect. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to affect such repair, the Insuring Party shall promptly contribute the shortage in proceeds as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full Replacement Cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 10 days following receipt of written.notice of such shortage and request therefor. If Lessor receives said finds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 10 days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party. 9.3 Partial Damage - Uninsured Loss. If a Promises Partial Damage that is not an Insured Loss occurs, unless caused by a grossly negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after malting such commitment. N such event this Lease shall continue in Rill force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required finds are made available to Lessor. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice. 9.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction, If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6. 9.5 Damage Near End of Term. If at any time during the last 12 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective as of the date of occurrence of such damage by giving a written termination notice to Lessee within 90 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease and the damage is an Insured Loss, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (at adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such L2 25F -14 option expires. If Lessee duly exercises such option during such period and provides Lessor with Rinds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, or if the damage is not an Insured Loss, then this Lease shall terminate on the date specified in the termination notice and Lessee's option shall be extinguished. 9.6 Damage to Shopping Center. In the event of any damage or destruction to other portions of the Building or to any other buildings in the Shopping Center, whether insured or uninsured (and whether or not there is also damage or destruction to the Premises), which cannot reasonably be repaired in 12 months or less from the date of the damage or destruction, Lessor may either (i) repair such damage or destruction as soon as reasonably possible without expense to Lessee, in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 90 days after receipt by Lessor of knowledge of the occurrence of such damage or destruction. Such termination shall be effective 60 days following the date of such notice. 9.7 Abatement of Rent; Lessee's Remedies. (a) Abatement. In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Base Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee's use of the Premises is impaired, but not to exceed the proceeds actually received by Lessor from the Rental Value Insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein. (b) Termination; Advance Payments, Upon termination of this Lease pursuant to Paragraph 6,2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor. 10. Real Property Taxes. 10.1 Definition. As used herein, the term "Real Properly Taxes" shall Include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Shopping Center, Lessor's right to other income therefrom, and /or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Shopping Center address and where the proceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Shopping Center is located. The terns "Real Property Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Shopping Center, (ii) a change in the improvements thereon, and /or (iii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease. In calculating Real Property Taxes for any calendar year, the Real Property Taxes for any real estate tax year shall be included in the calculation of Real Property Taxes for such calendar year based upon the number of days which such calendar year and tax year have in common. 10.2 Payment of Taxes. Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes applicable to the Shopping Center, and said payments shall be included in the. oa-lei-dation 4 GBaiffiev Area Operating Expens ..rPar app 4—.1-. 10.3 Additional Improvements, Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessoe's request, or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties. Lsoir�' Assessment. lf'he Building .. «..t„L.....,.esseA Real Property Taxes alL� ^t° to he shall b ` 10.4 «6 I - Building — e a and : evemante it sl���a� ° e �ax.�,a;:pt A p „� preport on to be —deter t mad b} Lessor fro tk�r�spestive vaI aa4ions assigned n fl e assessor s werlclsoeta or auektellkei iaf-b-maHex as- may- be-reasonably ava lab ereo€ rgood faitk slbaeeneh[sive 10.5 Personal Property Taxes. Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real properly, Lessee shall pay Lessor the taxes attributable to Lessee's property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's property. [it] 25F -15 11. Utilities and Services. Lessee shall pay for all water, gas, heat, light, power, telephone, trash-dispesal and other utilities and services supplied to the Premises, together with any taxes thereon. Fa' o elite.: any suchut'.l E s -aud or sory sesara ne�segaaateLy mctated ess�P:n ^." —.� -�.� �^ '^ e :ero-iheroo-Lin•- aoeotdatsse y.it!rPa =a,gsap h 4 -- NeY�vithstanding thew. I -:^`^ of Parftgffiplt 4.2i if at any time in Lessor's sole judgment, Lessor determines that Lessee is using a disproportionate amount of water, electricity or other commonly metered utilities, or that Lessee is generating such a large volume of trash as to require an increase in the size of the trash receptacle and/or an increase in the number of times per month that it is emptied, then Lessor may increase Lessee's Base Rent by an amount equal to such increased costs, There shall be no abatement of Rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperation with governmental request or directions. 12. Assignment and Subletting. 12.1 Lessor's Consent Required. (a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment "), license or sublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior written consent. (b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose. (c) The involvement of Lessee or its assets in any transaction, or series of transactions by way of merger, sale, acquisition, financing, transfer, leveraged buy -out or otherwise, which results or will result in a reduction of the Not Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (including any guarantors) established under generally accepted accounting principles, - (d) An assignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per Paragraph 13.1(c), or a non - curable Breach without fire necessity of any notice and grace period, If Lessor elects to treat such unapproved assignment or subletting as a non- curable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, all fixed and non -fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent. (e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief. (f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested. (g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, i.e. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting. 12.2 Terms and Conditions Applicable to Assignment and Subletting. (a) Regardless of Lessor's consent, no assignment or subletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee. (b) Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach. (c) Lessor's consent to any assignment or subletting shall not constitute a consent to ally subsequent assignment or subletting. (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefore to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor's detormination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Promises, if any, together with a fee of $1,000.00 as consideration for Lessor's considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and /or documentation as may be reasonably requested. (See also Paragraph 35) 14 25F -16 (i) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing. (g) Lessors consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing. 12.3 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed to be included in all subleases under this Lease whether or not expressly incorporated therein: (a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee's obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee, Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary. (b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. (c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent. 13. Default; Breach; Remedies, 13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to true such Default within any applicable grace period: (a) The vacating or abandonment of the Premises. Lessee shall be deemed to have vacated the Premises if Lessee ceases to continuously operate its business in the Premises for a period of 5 consecutive days. (b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 5 days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES. (c) The failure of Lessee to allow Lessor and /or its agents access to the Premises or the corm ussion of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 5 days following written notice to Lessee. (d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) the service contracts, (iii) the rescission of ear unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 40, (viii) material data safety sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee. (e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default coninues for a period of 30 days after written notice; provided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its care, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion. (f) The occurrence of any of the following events: (i) the malting of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in I I U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of 15 25F -17 substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attaclunem, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions. (g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (h) If the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination or attempted termination of a Guarantor's liability with respect to this Lease other than in accordance with the express terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor die guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 30 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with die then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease. 13.2 Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in tie exercise of any right or remedy which Lessor may have by reason of such Breach: (a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been eamed at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's Failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of re- letting, including necessary renovation and alteration of the Premises, reasonable attorneys' fees, and that portion of any Leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detaner, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required trader Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall rum concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute. (b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to re -let, and/or the appointment of a receiver to protect the Lessor's interests, shall not constitute a termination of the Lessee's right to possession. (c) Pursue any other remedy now or hereafter available tinder the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and /or the termination of Lessee's right to possession shall not relieve Lessee from liability tinder any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Promises. 13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, or for die giving or paying by Lessor to or for Lessee of any cash or over bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions ", shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, subject to the timely, subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance. 25F -18 134 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor 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 which may be imposed upon Lessor by any Lender, Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one -time late charge equal to 10% of each such overdue amount or $100, whichever is greater, The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become due and payable quarterly in advance. 13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest ( "Interest ") charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 134. 13.6 Breach by Lessor. (a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. Under no circumstances shall Lessee have the right to terminate the Lease as a result of Lessor's breach or alleged breach of the Lease. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said care they do not diligently pursue it to completion, then Lessee may upon 30 days prior written notice to Lessor, elect to care said breach at Lessee's expense, and should Lessor fail or refuse to reimburse Lessee for the actual, itemized, third -party cost of such cure within 30 days following Lessor's receipt of Lessee's itemized invoice for same, Lessee may offset from Base Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one mouth's Base Rent or the Security Deposit, reserving Lessee's right to reimbursement from Lessor for any such expense in excess of such offset. 14. Condemnation. If the Promises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation "), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the floor area of the Premises is taken by Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 20 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 20 days after the condemning authority shall have taken possession) terminate this Lease as 'of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with die foregoing, this Lease shall remain in fiill force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction Rentable Area of the Premises caused by such Condemnation. Condemnation awards and /or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemner for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation to the extent of the Condemnation Award actually received by Lessor, if any. 15. Brokerage, 15,1 Representations and Indemnities of Broker Relationships. Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in connection with this Lease, and that no one other than said named Brokers is entitled to any commission or finder's fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other barmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys' Rees reasonably incurred with respect thereto. 16. Estoppel Certificates, 17 25F -19 (a) Lessee (as "Responding Party ") shall within 10 days after written notice from Lessor (the "Requesting Party ") execute, acknowledge and deliver to the Requesting Party an estoppel statement or certificate in writing in the form designated by Lessor (or Lessor's Leader or purchaser), plus such additional information, confirmation and /or statements as may be reasonably requested by the Requesting Party. (b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as maybe represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) not more than one months rent has been paid in advance. Prospective purchasers and encumbrances may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should. Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder. (c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within LO days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be. reasonably required by such lender or purchaser, including but not limited to Lessee's financial statements for the past 3 years, All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth. 17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee's interest in the prior lease. In the event of a transfer of Lessor's title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and /or covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined. 1s. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 19. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days. 20. Limitation on Liability. The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, or its partners, members, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction. 21. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease. 22, No Prior or Other Agreements, This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. 23. Notices. 23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of die Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing. is 25F -20 23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices transmitted by facsimile transmission or similar means shall be deemed delivered upon telephone confirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day. 24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment. THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH TIES LEASE. 25, No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent and Percentage Rent Rate shall be increased to 150% of the Base Rent and Percentage Rent Rate applicable immediately preceding the expiration or termination. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee. 26. Cumulative Remedies, No remedy or election hereunder shall be deemed exclusive but shall., wherever possible, be cumulative with all other remedies at law or in equity. 27. Construction of Agreement. In construing this Lease, all headings mid titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa, This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. 28. Binding Effect; Choice of Law. This Lease shall be binding upon the parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in the county in which the Premises are located. 29. Subordination; Attornment; Non,Disturbance. 29.1 Subordination, This Lease shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, "Security Device "), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender ") shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease shall be deemed prior to such Security Device, notwithstanding the relative . dates of the documentation or recordation thereof. 29.2 Attornment. Indic event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Devise to which this Lease is subordinated (i) Lessee shall, subject to the non - disturbance provisions of Paragraph 29.3, attom to Stich new owner, and upon request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such now owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor's obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner. 29.3 Non - Disturbance, With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee shall execute and deliver to Lessor a commercially reasonable non - disturbance agreement (a "Non- Disturbance Agreement ") from the Lender which Non - Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any IV] 25F -21 options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Promises. Within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtain a Non - Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non - Disturbance Agreement within said 60 days, then Lessee may, at Lessoe's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement. 29.4 Self-Executing. The agreements contained in this Paragraph 29 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non - Disturbance Agreement provided for herein. 30. Attorneys' fees, If any Party brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term "Prevailing Party" shall mean a Party who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, ,judgment, or the abandonment by the other Party of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to £idly reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal. action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). 31. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purcbasers, lenders, or Lessees, and malchng such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises. All such activities shall be without abatement of rent or liability to Lessee. 32. Auctions, Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent, which consent shall be granted or denied at Lessor's sole discretion. 33. Signs. Lessor may place on the Premises ordinary "For Lease" signs during the last 6 months of the term hereof. All signs must comply with all Applicable Requirements. Lessee shall not place, construct, or maintain on the glass panes or supports of the show windows of the Premises, the doors, exterior walls or the roof of the Building, or anywhere else within the Shopping Center outside of the Premises, or on any interior portions of the Premises that are visible from the exterior of the Premises, any signs, advertisements, names, insignia, trademarks, descriptive material or any other items without Lessor's prior written consent, which consent shall be granted or denied at Lessor's sole discretion. Lessor shall designate the size, shape, color, design, and location of all exterior sign(s) to be installed by Lessee, and Lessee shall, at Lessee's sole cost and expense, fabricate, construct and install all such sign(s) in full compliance with Lessor's designation and in accordance with the Sign Criteria for the Shopping Center attached hereto, if any. Lessee agrees to submit plans and specifications for Lessee's sign(s) for Lessor's written approval within 30 days after the fall execution hereof and to install such sign(s) prior to opening for business at the Premises. Lessor, at Lessee's cost, may remove any item placed, constructed or maintained in, upon or about the Premises or Shopping Center which does not comply with this paragraph. Lessee shall have the right to install lettering designating Lessee's business, on both sides of one panel of the pylon signago along Harbor Blvd at Lessee's expense; with Lessor's approval of location, size, style and color, All signs that are permanently attached to the Premises or Building shall become the property of Lessor at the expiration or earlier termination hereof; provided, however, that Lessee shall promptly remove all such signs if Lessor so elects, and Lessee shall promptly repair all damage caused by such removal. Lessee shall not place, construct or maintain in, upon or about the Premises any search lights, flashing lights, loudspealcers, phonographs or other visual or audio media. 34. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest. 35. Consents. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for are other Party, such consent shall not be unreasonably withheld or delayed. In those express instances where consent is within the 20 25F -22 sole discretion of a party, the party shall have no obligation to adhere to a standard of reasonableness. Lessor's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then - existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request. 36. Guarantor. 36.1 Execution. The Guarantors, if any, shalt each execute a guaranty of lease in the form prescribed by Lessor. 36.2 Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect, 37. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof. 38. Options. If Lessee is granted any Option, as defined below, then the following provisions shall apply. 38.1 Definition. "Option" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; and (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; 38.2 Options Personal To Original Lessee. Any Option granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, if requested by Lessor, with Lessee certifying that Lessee has no intention of thereafter assigning or subletting, 38.3 Multiple Options. In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised. 38.4 Effect of Default on Options. (a) Lessee shall have no right to exercise an Option: (1) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, doing the Tenn of the Lease. (b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an Option because of the provisions of Section 38.4(x). 39. Security Measures. Lessee hereby aclmowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties. While Lessor does not assume any responsibility to provide any security measures or any liability for failure to provide security measures or for any inadequacy thereof, Lessor shall have the authority to institute or continue such security measures as Lessor in its sole discretion deems necessary or appropriate from time to time, the cost and expenses of which shall be considered Common Area Operating Expenses. 40. Reservations. Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, (ii) to cause the recordation of parcel maps az'rd restrictions, and (iii) to create and /or install new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights, 41. Building Planning, Lessor shall have the right at any time or times, upon giving Lessee not less than 60 days prior written notice, to provide and furnish Lessee with space of comparable visibility located elsewhere within any of the buildings within the zt 25F -23 Shopping Center and to move Lessee into such new space, provided that the usable area of such now space is not less than the usable area of the Premises and provided that all of Lessee's reasonable out -of- pocket moving expenses (including but not limited to the cost of moving Lessee's personal property, the cost of reprinting Lessee's stationery or other business materials with the now address, and the cost to relocate and reinstall Lessee improvements and Lessee's telecommunications and computer equipment) shall be paid by Lessor, and provided further that Lessor shall construct at Lessor's expense such improvements to such new space as shall be necessary to place it in a condition that is substantially comparable to the Premises. Except as provided in the immediately preceding sentence, Lessor shall have no obligation to improve such space or pay any other expenses incurred by Lessee as a result of such toleration. On such relocation, the terms and conditions of this Lease shall remain in full force and effect, including but not limited to the Base Rent payable hereunder and Lessee's Share (even if the usable area of such relocated Premises is in excess of the usable area of the Premises), except that the Premises shall be in such new location, Upon Lessor's request, the Parties shall execute an amendment to this Lease in form required by Lessor confirming the relocation of the Premises to such now location. If the new space does not meet with Lessee's approval, which approval Lessee shall give or withhold in accordance with Paragraph 35, Lessee shall have the right to cancel this Lease by giving Lessor written notice thereof within 15 days of receipt of Lessor's notification of its intent to relocate Lessee. Lessee's failure to give such notice within such 15 day period shall be deemed Lessee's approval of tine new space. If timely notice is given by Lessee, then this Lease shall terminate unless Lessor rescinds Lessor's prior notice of its intent to relocate Lessee within 10 days after Lessor's receipt of Lessee's notice of cancellation. 42. Authority; Multiple Partles; Execution. (a) If either Parry hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days alley request, deliver to the other Party satisfactory evidence of such authority. (b) If this Lease is executed by more than one person or entity as "Lessee ", each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to (iris Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees bad executed such document. (c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 43. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions. 44. Offer. Preparation of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto. 45. Amendments. This Lease may be modified only in writing, signed by the Patties in interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non - monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises, 46. Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties arising out of this Lease is not attached to this Lease, 47. Accessibility; Americans with Disabilities Act. (a) The Premises: have not undergone an inspection by a Certified Access Specialist (CASp)• �7– has+- ttndorgene -an uaepoetien y a Sertiftodflsscss Sri six- ,' -sp) , „a •.... .ia «o e the Tenses met all appl�able�enstrustiorrrelated i t .. ..nc . aiati:vil Code 5S.54 —ek (b) Since compliance with the Americans with Disabilities Act (ADA) is dependent upon Lessee's specific use of the Premises, Lessor makes no warranty or representation as to whether or not die Premises comply with ADA or any similar legislation. In the event that Lessee's specific use of the Premises and /or Lessee's Work or improvements to the Premises requires any modifications, alterations or additions to the Premises in order to comply with the Accessibility Laws, such work shall be performed by Lessee at Lessee's sole cost and expense. Subject to the terms of this Lease, Lessee shall indemnify, defend, hold harmless and reimburse Lessor from and against any and all claims, actions, causes of action, damages, demands, liabilities, obligations, losses or expenses (specifically including, but not limited to reasonable attorneys' fees, court costs, and expert witness fees), proceedings, suits, debts, or any claimed indebtedness alleged against Lessor, its agents and assigns, arising out of or in counection with, in whole or in part, directly or indirectly (i) any use by Lessee of the Premises which is not in compliance with the Accessibility Laws, (ii) Lessee's 22 25F -24 failure to maintain the Premises in compliance with the Accessibility Laws, and/or (iii) Lessee's Work or Improvements to the Premises which are not in compliance with the Accessibility Laws. 48. Soldiers and Sailors Civil Relief Act (SSCRA). Lessee hereby certifies that he /she, individually, or any member or officer of the Lessee Corporation, Partnership, LLC or any other Organization is not currently an active member of any Branch or in the Reserve of any Branch of the Armed Forces of the United States of America, and. Further waives all of his/her /their rights to and under The Soldiers and Sailors Civil Relief Act (SSCRA), LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO, THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures. LESSOR Rio Vista West, LLC, a California Limited Liability By: Name Printed: Richard P. Kelter Title: Member Address: c/o WREM 3146 Red Hill Ave., Suite 150 Costa Mesa, CA 92626 Telephone: (714) 427 -5977 Facsimile: (714) 427 -5922 Email: Icathy@wrem.com wrem.com Email: Federal ID No. 33 -0777028 ATTEST: MARIA HUIZAR Cleric of the Council APPROVED AS TO FORM: SON.IAR. CARVALHO City Attorney Laura A. Rossini Senior Assistant City Attorney LESSEE Santa Ana Police Department A division of the City of Santa Ana, a municipal corporation Name Printed: David Cavazos Title: City Manager Address: 20 Civic Center Plaza, 8 °1 Floor Santa Ana, Ca. 92701 Telephone: (714) 647-5200 Facsimile; L_) Email: dcavttzos a sttnta- ana.org Email; Federal ID No. 23 25F -25 Exhibit "A" Site Platt 24 25F -26 ---------- "H-l" 25F-27 1 E3LVD Exhibit "B" Sign Criteria 25 25F -28 'E m M exhibit • vw a w x A r � 1 ^y p��y+ ,;,5 � � � "S E Mg � 7{ � P •" 4 �'• i .uJ 7r! •� ,n,f� . a l i i I 25F -29 I { T� i tA1 � s" mis r, i { f I' 4 to (`y a yi} y i' I t f j`i9n4 $ l 6 r r3 f p A'R -.n x e�J f aj 25F -30 ,ti i E'Yr l� 1. �w 25F -31 w �c z e1! +yid fw�2 I 2 �i HE a I ci A nn_µ .Tr ro } M W `w` m w ,m a� }� }� (� 7/ ;o f� J(f g -'' ©25F -322« RUOP L\ m fk (\ ° 2 ^z. <� d ? -'' ©25F -322« RUOP L\ m -'' ©25F -322« �F *MV wS �3 n! M V+ u 25F -33 W Z' At 4! A r� w MY� M M+ if I N T^ 25F -34 rz . s r,t C" 4 (\ J r4,1 t fin. ^"7 M M, 25F-35 I Z4 C) z 5 25F -37 r 25F -38 4 3� •r t : ?d M'y' w 4F rs . 111. k 25F -39 R v T µ ; 4 � A u • r:. u � � w, r. x u k. to- 9 H , 25F -42 « �A s V 'Afi e•F z� u u r � �s 4 i r 4 �r w ai 25F -43 EXHIBIT "E" MEMORANDUM OF LEASE TERM COMMENCEMENT This Form is prepared by Rio Vista West, LLC ( "Lessor ") and submitted to Santa Ana Police Department ( "Lessee ") per the terms of the Lease dated for Premises at 3750 West McFadden Avenue, Santa Ana, CA. Lessee shall either confirm all information as hue and correct or make the appropriate notations where Lessee disagrees with the information supplied by Lessor. Confirmation of Lease Terms. I. Date of Lease: 2, Date of Delivery of Premises by Lessor: 3. Lease "Penn Commencement Date: 4. Date of Expiration of Initial Lease Term: 5, Options to Renew: 6. Date of Minimum Rent Commencement: 7. Date of Adjustments (CAM) Commencement: S. Total rentable square footage of Premises: 9. Total prepaid Minimum Rent and Adjustments: 10. Total Security Deposit: Lessee Acknowledges: Lessee has inspected the Premises, including without limitation its physical attributes, square footage, frontage and adon, and accepts the Premises in their "As Is" condition as delivered by Lessor, except for the following (if "no exceptions ", enter Lessee acknowledges that the HVAC system, electrical, plumbing and mechanical systems servicing the Premises are in good working order as of the Lease Term Commencement Date, except for the following (if "no exceptions ", enter "NONE "): Lessee has not relied on any statements, promises, inducements, representations or warranties by Lessor nor any agent, broker, employee, manager or contractor of Lessor in executing this Memorandum of Lease Tenn Commencement. Based on its own due diligence and inspection, Lessee acknowledges that the Premises are suitable for Lessee's intended use and that Lessor is not obligated nor rosponsible for any repairs, improvements or other work to be made to the Premises. Acknowledgment of Authority The undersigned executed this Memorandum of Lease Term Commencement on behalf of Lessor and Lessee warrant and represent (hat each is authorized by their respective principals to execute this document on its behalf so that its contents are binding on the parties without any further action, approval, consent or ratification by either party. "Lessor" By: Rio Vista West, LLC, a California Limited Liability Company By: Williams Real Estate Management, Inc._ Managing Agent By: Audrey B. Williams, President EXHIBIT "E„ 33 25F -44 "Lessee" Do Not Sin _ approve for form only Lessor's Initials: Lessee's Initials: EXHIBIT "F" FORM OF LESSEE'S ESTOPPEL CERTIFICATE The undersigned, as Lessee, under that certain Shopping Center Retail Lease dated 20_, made with RIO VISTA NEST LLC, a California limited liability company, as Lessor, hereby certifies as follows: 1. That the undersigned has entered into occupancy of the Premises described in the Lease; 2. That the Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way, except as follows: 3. That the Lease represents the entire agreement between the parties as to the leasing of the Premises: 4. That the Commencement Date of the Lease is 5. That there is an unexpired term under the Lease of ( ) years; 6. That all conditions of the Lease to be performed by Lessor and necessary to the enforceability of the Lease have been satisfied; That there are no defaults by either Lessee or Lessor thereunder; & That no rents have been prepaid, other than as provided. in the Lease; and 9. That on this date there are no existing defenses or offsets which the undersigned has against the enforcement of the Lease by Lessor. The undersigned hereby agrees: To disclaim all right, title or interest in the Premises except the rights granted by the Lease; and 2. To notify the holder of any mortgage affecting the Premises of any default on the part of Lessor which Lessee proposes to care and deduct from rentals, or use as a basis for cancellation of the Lease and hereby grants to any such holder the option to cure said default within a reasonable length of time. Lessee further agrees not to invoke any of its remedies tinder the Lease during any period that any such bolder is proceeding to cure such default with clue diligence, or is tatting steps with due diligence to obtain the legal right to enter the Premises and cure the default. The undersigned hereby acknowledges that is presently the holder of a mortgage affecting the Premises. EXECUTED this day of 20— BY: (Do Not Sign _. for Form only _ ITS: 25F -45 EXIIIBIT "G" RULES AND REGULATIONS Lessor hereby establishes the following rules and regulations for the safety, care and cleanliness of (i) the store areas (hereinafter referred to as the "demised premises ") of any Lessee or Lessees of the Center (hereinafter referred to as the "Lessee "); (ii) the cormnon area; and (iii) the Center in general, or for the preservation of good order: A. FOR THE STORE AREAS: 1. All floor areas of the demised premises (including vestibules, entrances, and air returns), doors, fixtures, windows, and plate glass shall be maintained in a clean, safe and good condition. 2. All trash, refuse, and waste materials shall be stored in adequate containers and regularly removed from the demised premises. These containers shall not be visible to the general public and shall not constitute a health or fire hazard, or a nuisance to any other Lessee. In the event that any Lessee shall fail to remedy such a health or fire hazard, or nuisance, within five (5) days after written notice by Lessor, Lessor may remedy and /or correct such health or fire hazard or nuisance at the expense of the Lessee involved, 3. No portion of the demised premises shall be used for lodging purposes. 4. Neither sidewalks nor walkways shall be used to display, store, or place any merchandise, equipment or devices, except in connection with sidewalk sales held with Lessor's prior written approval. The roof of the demised premises shall not be used for the storage of merchandise or equipment, 5. No public telephone, newsstand, shoeshine stand, refreshment, vending or other coin operated machine shall be installed or placed on the sidewalk or walkway area adjacent to the demised premises or on the Common Areas without Lessor's prior written approval in each instance. 6. No person or persons shall use the demised premises, or any part thereof, for conducting therein a second- hand store, auction, distress or fire sale or bankruptcy sale, or "going- out -of- business" sale or "lost our lease" sale, without Lessor's prior written consent. 7. No portion of the demised premises shall be used for the storage of any merchandise, materials or other properties, other than those reasonably necessary for the operation of a Lessee's business. Lessor may, from time to time, inspect the demised premises to insure compliance with the foregoing provisions. S. Except for professionally prepared signs, Lessee shall not black out or otherwise obstruct the windows of the demised premises, without Lessor's prior written consent. 9. If a Lessee provides its customers with the use of shopping carts and/or baskets, such Lessee shall be responsible for causing said carts and/or baskets to be stored only in areas designated by Lessor. If such Lessee fails to routinely collect and store said carts as necessary (at least twice on a daily basis), Lessor may assume the responsibility of same and may bill the Lessee involved on an estimated monthly basis for such service. B. FOR THE COMMON AREAS: 1. All Lessees and their authorized representatives and invitees shall use any roadway, walkway, or mall (including the enclosed mall, if any) only for ingress and egress from the stores in the Center• Use of the Common Areas shall be in an orderly manner in accordance with directional or other signs or guides. Roadways shall not be used at a speed in excess of ten (10) miles per hour and shall not be used for parking or stopping, except for the immediate loading or unloading of passengers, Walkways and malls (including the enclosed mail, if any) shall be used only for pedestrian travel. 1 All Lessees and their authorized representatives and invitees shall not use the parking areas for anything but parking motor vehicles. All motor vehicles shall be parked in an orderly manner within the painted lines defining the individual parking places. During peals periods of business activity, Lessor can impose any and all controls Lessor deems necessary to operate the parking lot including, but not limited to, the length of time for parking use. 25F -46 3. No person shall use any utility area or truck loading area reserved for use in conducting business, except for the specific purpose for which permission to use these areas has been given. 4. No employee shall use any area for motor vehicle parking except the area specifically designated for employee parking for the particular period of time the use of to be trade. No Lessee shall designate an area for employee parking except the area designated in writing by Lessor. 5. Without the prior written consent of Lessor, no person shall use any of the Common Areas for (i) Vending, peddling or soliciting orders for sale or distributing of any merchandise, device, service, periodical, book, pamphlet, or other matter; (ii) Exhibiting any non - professional sign, placard, banner, notice or other written material or distributing any circular, booklet, handbill, placard, or other material; (iii) Soliciting membership in any organization, group, or association, or soliciting contributions for any purpose or parading, patrolling, picketing, demonstrating, or engaging in conduct that might interfere with the use of the Common Areas or be detrimental to any of the business establishments in the Center; (iv) Using the Common Areas for any purpose when none of the business establishments in the Center are open for business; (v) Discarding any paper, glass, or extraneous matter of any kind, except in designated receptacles; (vi) Using a sound - making device that is grossly annoying or unpleasant to the general public; or (vii) Damaging any sign, light standard, or fixture, landscaping material or other improvement or property within the Center. The above listing of specific prohibitions is not intended to be exclusive, but is intended to indicate the manner in which the right to use the Common Areas solely as a means of access and convenience in shopping at the business establishments in the Center is limited and controlled by Lessor. 25F -47 EYWI$IT "I3" Restricted Uses As of July 2015 1. As a grocery store, food store, market, aib)i market, convenience store, health food store or gourmet market. 2. As a fast food restaurant, with or without, drive -thri facilities. 3. As a shoe store. 4. As a Mexican Fast Food Restaurant. 5. As a store selling cellular telephones, accessories and related supplies. 6. As a business offering "Financial Services ", Financial Services means state and national banks, savings banks, credit unions, savings and loan institutions, mortgage and brokerage companies, and any other entities in the financial services business, as well as the operation of ATM's and financial Drive- thrus. 7. As a business offering money wiring or transfers, money loans, money orders, bill paying or related financial services. 8. As a store specializing in the sale of Vitamins, food supplements or related products. 9. As a Jewelry Store, 10. As a store selling (a) fresh ground and whole coffee beans, (b) express -based and coffee based drinks, (c) tea or tea based drinks, (d) gourmet brand- identified brewed coffee, and (e) blended beverages, including without limitation, those containing the following: coffee, espresso. 25F -48