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- Words: 7,231
- Pages: 15
LEASE
802a and 804a LAPEER
PORT HURON, MICHIGAN
Landlord: 802 Lapeer, LLC Tenant: The ARC of St. Clair County, Inc.
Table of Contents Page
1.
Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.
Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4.
Condition of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5.
Taxes on Landlord's Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6.
Taxes on Tenant's Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7.
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
8.
Common Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9.
Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10.
Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11.
Bankruptcy and Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
12.
Right to Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
13.
Use and Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
14.
Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
15.
Repairs and Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
16.
Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
17.
Care of Premises; Environmental Covenants and Indemnity . . . . . . . . . . . . . . . . . . 6
18.
Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19.
Landlord's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20.
Re-Renting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 i
21.
Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
22.
Water, Heat and Electricity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
23.
Advertising Display . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
24.
Access to Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
25.
Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
26.
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
27.
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28.
Remedies Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
29.
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
30.
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
31.
Estoppel Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
32.
Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
33.
Late Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
34.
Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
35.
Legal Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
36.
Option to Renew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
37.
Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
LEASE THIS LEASE is made on , 2009, by and between 802 Lapeer, LLC, a Michigan limited liability company, of 9231 Posey Dr., Whitmore Lake, MI 48189 ("Landlord"), and The ARC of St. Clair County, a Michigan non-profit corporation, of 1033 - 26th Street, Port Huron, MI 48060 ("Tenant"). 1.
Leased Premises. The Landlord, in consideration of the rents to be paid and the covenants and agreements to be performed by the Tenant, leases to the Tenant certain premises described as 802a and 804a Lapeer, Port Huron, Michigan (the "Leased Premises") each unit consisting of approximately1,000 square feet, together with 9dedicated parking spots and a nonexclusive right to use the remainder of the parking area and driveways on the property on which the Leased Premises are located. Tenant also may use the basement under the units for storage, but only with Landlord’s prior written consent.
2.
Term. The term of this Lease shall be for a period of three (3) years commencing on November 1, 2009.
3.
Rent. Tenant shall pay to Landlord at the address above, as minimum rental for said premises, annual rent as follows: Period Year 1 Year 2 Year 3
Annual Rent $24,000.00 $24,720.00 $25,461.60
Monthly Rent $ 2,000.00 $ 2,060.00 $2,121.80
4.
Condition of Premises. Tenant acknowledges that it is accepting the property "AS IS," and further acknowledges that Landlord has made no representations or warranties as to the condition of the Leased Premises not expressed herein. Tenant's possession of the Leased Premises shall be conclusive evidence that the Leased Premises are in good and satisfactory condition at the time of possession.
5.
Taxes on Landlord's Property. Tenant shall pay as additional rent its proportionate share of real estate taxes and special assessments on the buildings incurred during the term of the Lease or relating to any period of time covered by this Lease. Tenant’s proportionate share of the taxes or any other expense is 22%. This additional rent shall be paid within thirty (30) days after Landlord's written demand therefor. In addition to the foregoing, should the State of Michigan or any political subdivision thereof or any governmental authority having jurisdiction thereover impose a tax and/or assessment of any nature, in addition to or in replacement of the real estate taxes and/or assessments imposed against the premises of which the Leased Premises form a part, such tax and/or assessment shall be deemed real estate taxes or 1
assessments within the meaning of the paragraph, and Tenant shall be liable to Landlord for the amount thereof, to the end that Landlord shall have no liability for taxes arising out of its ownership of the demised premises or by virtue of its status as Landlord collecting the rentals reserved herein during the term of this Lease. In addition, at the request of Landlord's mortgagee, Tenant agrees to escrow real estate taxes upon the terms and conditions set by the mortgagee. 6.
Taxes on Tenant's Property. Tenant shall be responsible for and shall pay when due all municipal, county and state duties and taxes and all fees and charges assessed during the term of this Lease against any leasehold interest, fixtures, or personal property of any kind owned by or placed in, upon or about the premises by Tenant.
7.
Insurance. Tenant agrees to pay as additional rent its proportionate share of the cost of any premiums payable by Landlord for insurance of any nature, including, without limitation, any casualty, rental interruption and public liability coverage with respect to the demised premises. Such amount shall be paid as additional rent to Landlord within thirty (30) days after notice by Landlord to Tenant of said payment. Tenant will maintain in full force and effect during the entire term of this Lease, at Tenant's own expense and with responsible companies, the following policy or policies of insurance: a.
Commercial General Liability Insurance on the most recent Insurance Services Office (ISO) coverage form (or its equivalent) approved for use in the State of Michigan, to cover claims arising from the use or occupancy of the leased premises or the operation of the Tenant's business. The Landlord, its members, managers, employees and agents, and any mortgagee, or other person or persons whom the Landlord may designate, are to be named as additional insureds. The policy must have limits of insurance not less than One Million ($1,000,000) Dollars each occurrence, Two Million ($2,000,000) Dollars general annual aggregate, and if the Tenant has multiple locations, the aggregate must apply "per premises." The Personal Injury coverage must be endorsed to delete the exclusion for contractual liability. Insurance provided to the Landlord, its members, managers, employees and agents, will apply on a primary basis and will not contribute with any insurance available to any of the parties referenced here.
b.
Worker's compensation insurance with a limit of no less than that amount required by law.
c.
Property insurance written on the most recent "Special Cause of Loss" form (or its equivalent) as written by ISO, approved for use in the State of Michigan, with a maximum deductible of Five Thousand ($5,000) Dollars, with any coinsurance clause suspended, to the extent of ninety (90%) percent of the replacement value of all furnishings, trade fixtures, leasehold
2
improvements, equipment, merchandise, and other personal property from time to time situated in, on or upon the premises. All policies of insurance described in this section that Tenant is to procure and maintain will be issued by responsible companies. Executed copies of such policies of insurance, or at Landlord's election, certificates of such insurance, will be delivered to Landlord and any additional insureds or loss payee prior to delivery of possession of the premises to Tenant and within thirty (30) days prior to the termination or expiration of the term of each existing policy. All public liability and property damage policies will contain a provision giving Landlord and any additional insured or loss payee not less than thirty (30) days' notice, in writing, prior to any cancellation, reduction, or modification of such insurance. Tenant shall not commit or permit any acts or failures to act that may in any way impair any policy of insurance respecting the building or the Leased Premises. Tenant shall cooperate with Landlord in connection with the collection of any insurance monies that may be due in the event of loss and shall execute and deliver to Landlord such proofs of loss and other instruments as may be required for the purpose of facilitating the recovery of insurance monies. If Tenant fails either to acquire the insurance required pursuant to this section or to pay the premiums for such insurance or to deliver required certificates or policies, Landlord may, in addition to any other rights and remedies available to Landlord, acquire such insurance and pay the requisite premiums for them. Those premiums will be payable by Tenant to Landlord immediately upon demand as additional rent. 8.
Common Expenses. Tenant shall pay to Landlord, as additional rent, its proportionate share (22%) of common expenses incurred in relation to the Leased Premises. Such expenses will include, but not be limited to, expenses for snow removal, parking lot maintenance, and trash removal. The Landlord shall, not less frequently than annually, provide Tenant with a written statement indicating the common expenses and the amount payable by the Tenant, which shall be due and payable not more than thirty (30) days after the date on which Tenant receives such written statement. Landlord may, at its option, make reasonable advance estimates of common expenses for any calendar year during the term hereof, and Tenant shall, upon written demand by Landlord, pay the amount estimated by Landlord to be owing by Tenant, in such manner as shall be designated by Landlord, but not more frequently than monthly. The amount owing by Tenant under this paragraph for any partial calendar year during the term hereof shall be determined on a pro rata basis.
9.
Indemnification. Tenant agrees to defend, indemnify and hold harmless the Landlord, its heirs, successors, assigns, managers, employees and agents from any liability, loss, expense or damage to any person or property arising out of or related to Tenant's occupancy or use of the Leased Premises.
3
10.
Assignment. Tenant may not assign or transfer this Lease or sublet the premises or any part thereof without the written consent of the Landlord. Any assignment, transfer, or subletting without said written consent shall give the Landlord the right to terminate this Lease and to re-enter and re-possess the Leased Premises, and Tenant shall be liable to Landlord for all damages in connection therewith, in addition to any other remedies of Landlord provided by this Lease or by law.
11.
Bankruptcy and Insolvency. Tenant agrees that if the estate created hereby shall be taken in execution or by other process of law, or if the Tenant shall be declared bankrupt or insolvent according to law, or any receiver be appointed for the business and property of the Tenant, or if any assignment shall be made of the Tenant's property for the benefit of creditors, then this Lease may be canceled at the option of the Landlord.
12.
Right to Mortgage. Landlord reserves the right to subject and subordinate this Lease at all times to the lien of any mortgage or mortgages now or hereafter placed upon the Landlord's interest in the said premises and on the land and building of which the Leased Premises form a part. The Tenant agrees to execute and deliver upon demand such further instrument or instruments subordinating this Lease to the lien of any such mortgage or mortgages as shall be desired by the Landlord and any mortgagees or proposed mortgagees, and hereby irrevocably appoints the Landlord the attorney-in-fact of the Tenant to execute and deliver any such instrument or instruments for and in the name of the Tenant; provided, however, that so long as Tenant is not in default, said mortgagee, on behalf of itself and any purchaser at foreclosure, agrees to recognize Tenant's rights hereunder.
13.
Use and Occupancy. The Leased Premises shall be used and occupied for offices, meetings with clients, and training sessions. The Leased Premises will not be used for any other purposes without the written consent of the Landlord. The Tenant will not use the premises for any purpose in violation of any law, municipal ordinance or regulation. Tenant acknowledges that there are residential units located in the buildings, and it agrees to respect the quiet enjoyment of the occupants of those units. Tenant may do business with the public at the premises between the hours of 8am to 8pm, and, on an occasional basis, at other hours. However, if other tenants complain about the occasional early or late hour use, Tenant’s use will be restricted to the hours between 8am to 8pm. There will be no smoking permitted anywhere on the property. Tenant also agrees that no personal property will be placed outside, either in the rear of the buildings or on the sidewalk in front, and that Tenant will not permit loitering by its guests or employees outside of the buildings. Landlord must approve in advance all window treatments. On any breach of this agreement, the Landlord may, at its option, terminate this Lease forthwith and re-enter and re-possess the Leased Premises.
4
14.
Casualty. If the leased premises are damaged or destroyed in whole or in part by fire or other casualty during the term hereof, the Landlord, to the extent of insurance proceeds and subject to the requirements of the mortgagee, will repair and restore the same to good tenantable condition with reasonable dispatch. The rent herein provided for shall abate entirely in case the entire premises are untenantable and be prorated for the portion rendered untenantable, in case a part only is untenantable, until the same shall be restored to a tenantable condition; provided, however, that if the Tenant shall fail to adjust its own insurance or to remove its damaged equipment or property within a reasonable time and, as a result, repairing and restoration is delayed, there shall be no abatement of rental during the period of delay; and, provided further that if the Tenant shall use any part of the Leased Premises for storage during the period of repair, a reasonable charge shall be made therefor against the Tenant; and, provided further, that in case the Leased Premises or the buildings of which they are a part shall be destroyed to the extent of more than one-half (1/2) of their fair market value, or if the destruction occurs during the last year of the term of the Lease or during any option period, the Landlord may, at its option, terminate this Lease forthwith by a written notice to the Tenant.
15.
Repairs, Maintenance, Alterations. Landlord shall be responsible for the exterior of the Building in which the Premises are situated, including walls, roof, subsurface walls, and floor and including painting, structural maintenance, repair, and replacement, and for the replacement of the furnace and hot water heater. However, any maintenance, repairs, or replacement necessitated by the negligence or intentional acts of Tenant or its guests shall be the responsibility of Tenant to maintain, repair, or replace. With the exception of Landlord’s obligations for maintenance, repairs, and replacement, Tenant shall be obligated to repair and maintain the Premises at Tenant’s expense. The Premises shall be kept in good and safe condition, including the windows, the electrical fixtures, the plumbing fixtures, and any other system or equipment within the Premises. Tenant shall also maintain in good condition the sidewalk and driveway adjacent to the Premises, shall regularly sweep those areas and pick up any trash or debris in the area, and during the winter months shall keep the sidewalk adjacent to the Premises clear of snow and ice. Landlord shall have the parking lot adjacent to the Building plowed regularly. Tenant shall not make any alterations, additions or improvements to the Leased Premises without the Landlord's written consent. All alternations and improvements must be made by contractors acceptable to Landlord. All alterations, additions or improvements made by either of the parties hereto upon the premises, except movable office furniture put in at the expense of Tenant, shall be the property of the Landlord and shall remain upon and be surrendered with the Leased Premises at the termination of this Lease, without injury, or, at the option of the Landlord, all or any part shall be removed by Tenant at Tenant's expense. Under no circumstances shall Tenant permit a construction or other lien to attach to the Leased Premises.
16.
Eminent Domain. In the event the Tenant's premises or a substantial part thereof shall be taken under the power of eminent domain, then this Lease shall be void and 5
the term shall cease and terminate as of the date that possession is required for public use. In the case of a nonsubstantial taking, the Lease shall continue and a pro rata portion of the rental shall be abated. The entire compensation award for any taking as to both leasehold and reversion shall belong to the Landlord without any deduction therefrom for any present or future estate of the Tenant. 17.
Care of Premises; Environmental Covenants and Indemnity. The Tenant shall not perform any acts or carry on any practices which may injure the building or be a nuisance to its neighbors and shall keep the premises under its control clean and free from rubbish at all times. The Tenant shall, at its own expense, under penalty of forfeiture and damages, promptly comply with all laws, orders, regulations or ordinances of all municipal, county and state authorities affecting the premises hereby leased and the cleanliness, safety, occupation and use of same. Tenant will not permit any lien to attach to the premises and will defend, indemnify and hold Landlord harmless against any lien that attaches. Without limiting the generality of the foregoing: a.
Presence and Use of Hazardous Substances. Tenant shall not, without Landlord's prior written consent, keep on or around the Leased Premises, common areas, or the building, for use, disposal, treatment, generation, storage or sale, any substances designated as, or containing components designated as hazardous, dangerous, toxic or harmful, or which are subject to regulation by any federal, state or local law, regulation, statute or ordinance (collectively referred to as "Hazardous Substances"). With respect to any such Hazardous Substances, Tenant shall: (1)
Comply promptly, timely and completely with all governmental requirements for reporting, keeping and submitting lists and records, and obtaining and keeping current identification numbers;
(2)
Submit to Landlord true and correct copies of all reports, lists, records and identification numbers at the same time as they are required to be submitted to the appropriate governmental authorities;
(3)
Within five (5) days after Landlord's request, submit written reports to Landlord regarding Tenant's use, storage, treatment, transportation, generation, disposal or sale of Hazardous Substances and provide evidence satisfactory to Landlord of Tenant's compliance with the applicable governmental regulations;
(4)
Allow Landlord or Landlord's agent or representative to come on the Leased Premises at all times to check Tenant's compliance with all applicable governmental regulations regarding Hazardous Substances;
6
b.
18.
(5)
Comply with minimum levels, standards or other performance standards or requirements which may be set forth or established for certain Hazardous Substances (if minimum standards or levels applicable to Hazardous Substances present on the Leased Premises shall be established by an on-site inspection by the appropriate governmental authorities, such standards or levels shall be set forth in an addendum to this Lease); and
(6)
Comply with all applicable governmental rules, regulations and requirements regarding the proper and lawful use, sale, transportation, generation, treatment and disposal of Hazardous Substances.
Cleanup Costs, Default and Indemnification. (1)
Tenant shall be fully and completely liable to Landlord for any and all cleanup costs and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to Tenant's use, disposal, treatment, transportation, generation or sale of Hazardous Substances in or about the Leased Premises, common areas or the building;
(2)
Tenant shall indemnify, defend and hold Landlord, its members, managers, employees and agents harmless from any and all of the costs, fees, penalties, charges, liabilities, losses and damages assessed against or imposed upon Landlord (as well as their attorneys' fees and costs) as a result of Tenant's use, disposal, treatment, transportation, generation or sale of Hazardous Substances; and
(3)
Upon Tenant's default under this section, in addition to the rights and remedies set forth elsewhere in this Lease, Landlord shall be entitled to the following rights and remedies: (a)
At Landlord's option, to terminate this Lease immediately; and
(b)
To recover any and all damages associated with the default, including, but not limited to, cleanup costs and charges, civil and criminal penalties and fees, loss of business and profits by Landlord and other tenants of the building, any and all damages and claims asserted by third parties and Landlord's attorneys' fees and costs.
Nuisance. Tenant shall not commit or permit any nuisance or other act, whether noise, odor, smoke, sewerage, chemical wastes or otherwise, which may disturb the quiet enjoyment of any other occupants of the buildings in which the Leased Premises are located. Tenant shall not obstruct or cause to be obstructed any public or private roadways, sidewalks or common areas appurtenant to the buildings. In the 7
event Tenant commits or permits any nuisance or act set forth in this paragraph the same shall be deemed a default by Tenant under the terms of this Lease. 19.
Landlord's Liability. The Landlord shall not be responsible or liable to the Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the premises hereby leased or any part of the building of which the Leased Premises are a part, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes, or the roof, or for any other loss or damage whatsoever unless due soley to Landlord’s negligence. In no event will Tenant have the right to set off its rental obligation against any claimed liability of Landlord. These provisions shall not be interpreted to prevent Tenant from recovering under any policies of insurance.
20.
Re-Renting. The Tenant agrees that for a period commencing one hundred twenty (120) days prior to the termination of this Lease, the Landlord may show the premises to prospective tenants. On reasonable notice to Tenant, Landlord may show the premises to prospective purchasers at any time during the term of this Lease.
21.
Holding Over. If the Tenant holds over after the termination of this Lease, the tenancy shall be from month to month in the absence of a written agreement to the contrary, and the base rent shall be increased to two hundred (200%) percent of the base rent prior to the termination of this Lease.
22.
Water, Heat and Electricity. The Tenant will pay all charges made against the Leased Premises for water, heat, sanitation, electricity and any other utilities during the continuance of this Lease, as the same shall become due.
23.
Advertising Display. All signs and advertising displayed in and about the premises shall be such only as to advertise the business carried on upon said premises, and the Landlord shall control the character and size thereof. No sign shall be displayed excepting such as shall be approved in writing by the Landlord, and no awning shall be installed or used on the exterior of said building unless approved in writing by the Landlord.
24.
Access to Premises. The Landlord shall have the right to enter upon the Leased Premises at all reasonable hours for the purpose of inspecting the same. If the Landlord deems any repairs necessary, it may demand that the Tenant make the same. If the Tenant refuses or neglects forthwith to commence such repairs and complete the same with reasonable dispatch, the Landlord may make or cause to be made such repairs and shall not be responsible to the Tenant for any loss or damage that may accrue to its stock or business by reason thereof. If the Landlord makes or causes to be made such repairs, the Tenant agrees that it will forthwith on demand pay to the Landlord the cost thereof with interest at the highest rate permitted by law; and if the Tenant shall default in such payment, the Landlord shall have the remedies provided herein for a default in payment of rent. 8
25.
Quiet Enjoyment. The Landlord covenants that the Tenant, on payment of the rent and performing all the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said demised premises for the term aforesaid.
26.
Default. If the Tenant shall fail to pay any rental or other sum of money becoming due hereunder when due, or if Tenant shall fail to perform any other covenant or condition of this Lease, or if Tenant abandons the Leased Premises, then Tenant shall be in default.
27.
Remedies. Upon the Tenant's default, the Landlord may, in addition to any other right or remedy it may enjoy: a.
Terminate this Lease immediately upon the giving of notice to the Tenant;
b.
If default consists in whole or in part of the Tenant's failure to expend funds, make the necessary expenditures for the account of the Tenant who shall reimburse the Landlord therefor with interest at the maximum legal rate from the date of expenditure;
c.
Terminate the Tenant's right to possession of the Leased Premises without terminating the term of this Lease, immediately upon the giving of notice to the Tenant.
Upon termination of this Lease for any reason or by any means or upon termination of the Tenant's right of possession as provided above, the Tenant shall promptly surrender possession to the Landlord and vacate the Leased Premises, and the Landlord may re-enter the Leased Premises and expel the Tenant or anyone claiming an interest in said premises under the Tenant and remove the property of any of them without notice, formal claim or process, the Landlord being absolved of any liability or claim for damages in doing anything reasonably necessary or appropriate in connection therewith. If the Landlord elects to terminate the Tenant's right of possession without terminating the term of this Lease, the Landlord may, at its option, lease or sublet all or any part of the Leased Premises for the account of the Tenant on such terms and conditions and for a term longer or shorter than the unexpired term of this Lease as the Landlord may elect and collect from the Tenant any balance remaining due on the rent or other obligations payable by the Tenant under this Lease. The Tenant shall pay the Landlord, upon written demand, all damages and expenses of reletting, including, without limitation, broker's fees, attorney fees and the cost of Tenant improvements, with interest thereon at the maximum legal rate from the date expended by the Landlord. If the Landlord terminates this Lease, the Tenant shall pay the Landlord, upon written demand, the expense of reletting with interest as provided for in the previous paragraph, and the amount of all rental that would have been due had the Lease not been terminated, less the amount received from any reletting, such damage payments to be made when said rental would have been due had this Lease not been terminated. 9
Alternatively, Landlord may accelerate the rent remaining due under this Lease, and Tenant shall pay to Landlord the present value thereof, together with all expenses of reletting. 28.
Remedies Not Exclusive. The rights, remedies and benefits provided by this Lease shall be cumulative and shall not be exclusive of any other rights, remedies and benefits allowed by law.
29.
Waiver. One or more waivers of any covenant or condition by the Landlord shall not be construed as a waiver of a further breach of the same covenant or condition.
30.
Notices. Whenever under this Lease a provision is made for notice of any kind, it shall be deemed sufficient notice and service thereof if such notice to the Tenant is in writing addressed to the Tenant at its last known post office address or at the Leased Premises and hand delivered to the Leased Premises or deposited in the mail with postage prepaid; if such notice to the Landlord is in writing, addressed to the last known post office address of the Landlord and deposited in the mail with postage prepaid.
31.
Estoppel Statement. Tenant shall without charge at any time and from time to time, within ten (10) days after receipt by Tenant of written request therefor from Landlord or from any mortgagee under any mortgage on the real property on which the building containing the Leased Premises is located, deliver, in recordable form, a duly executed and acknowledged certificate or statement to the party requesting said certificate or statement or to any other person, firm or corporation designated by Landlord, certifying: a.
that this Lease is unmodified and in full force and effect or, if there has been any modification, that the same is in full force and effect as modified and stating any such modification;
b.
the date of commencement of the term of this Lease;
c.
that rent is paid currently without any offset or defense thereto;
d.
the dates to which the rent and other charges payable hereunder by Tenant have been paid and the amount of rent and other charges, if any, paid in advance;
e.
whether or not there is then existing any claim of Landlord default hereunder and, if so, specifying the nature thereof; and
f.
any other matters relating to the status of such Lease as shall be requested by Landlord or any such mortgagee.
10
32.
Waiver of Subrogation. Each party releases the other and any officer, agent, employee or representative of the other from all liability arising from any fire or other casualty for which insurance (permitting waiver of liability and containing a waiver of subrogation) is carried by the injured party to the extent of any recovery by the injured party under the insurance.
33.
Late Fee. Tenant shall pay an additional amount of five (5%) percent of any payment not made within ten (10) days after it is due.
34.
Security Deposit. Upon execution of this Lease, the Tenant shall deposit Four Thousand ($4,000.00) Dollars with the Landlord as security for the performance by the Tenant of the terms of this Lease. The Landlord may use, apply or retain (without liability for interest) the whole or any part of the security so deposited to the extent required for the payment of any rent or other sum as to which the Tenant may be in default hereunder or for any sum which the Landlord may expend by reason of the Tenant's default. Provided the Tenant shall comply with all the terms of this Lease, such security shall be returned to the Tenant upon termination of this Lease and after surrender of possession of the Leased Premises to the Landlord as required by this Lease. Upon notice, the Tenant shall pay the Landlord the amount of the security deposit used by the Landlord pursuant to this paragraph, so that the amount of the security is restored to the amount specified above. No default of the Tenant for which the Landlord uses all or any part of the security deposit shall be deemed cured until the Tenant has paid the Landlord the amount of the security deposit the Landlord has used.
35. 36.
37.
Legal Expenses. Landlord shall be entitled to recover from Tenant its actual attorneys' fees and expenses incurred on account of any default by Tenant. Option to Renew. Provided it is not in default, Tenant shall have the option to renew this Lease for one (1) three (3) year term on the same terms and conditions as provided herein. The rent shall increase each year during any renewal term at the rate of 5% per year. Tenant's option to renew may be exercised only by written notice, which must be received by Landlord at least one hundred twenty (120) days prior to expiration of the then current term, and time shall be of the essence. Rules and Regulations. Landlord has the right to establish reasonable rules and regulations which will become binding on Tenant ten (10) days after Tenant receives written notice, unless Tenant objects in writing within the following ten (10) days.
11
"Landlord" 802 Lapeer, LLC
"Tenant" The Arc of St. Clair County
By: Peter Drescher, Manager
By:
Its:
I:\KM\CL\1032\802 Lapeer\Lease 110909.wpd
12
802a and 804a LAPEER
PORT HURON, MICHIGAN
Landlord: 802 Lapeer, LLC Tenant: The ARC of St. Clair County, Inc.
Table of Contents Page
1.
Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.
Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4.
Condition of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5.
Taxes on Landlord's Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6.
Taxes on Tenant's Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7.
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
8.
Common Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9.
Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10.
Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11.
Bankruptcy and Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
12.
Right to Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
13.
Use and Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
14.
Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
15.
Repairs and Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
16.
Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
17.
Care of Premises; Environmental Covenants and Indemnity . . . . . . . . . . . . . . . . . . 6
18.
Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19.
Landlord's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20.
Re-Renting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 i
21.
Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
22.
Water, Heat and Electricity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
23.
Advertising Display . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
24.
Access to Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
25.
Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
26.
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
27.
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28.
Remedies Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
29.
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
30.
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
31.
Estoppel Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
32.
Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
33.
Late Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
34.
Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
35.
Legal Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
36.
Option to Renew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
37.
Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
LEASE THIS LEASE is made on , 2009, by and between 802 Lapeer, LLC, a Michigan limited liability company, of 9231 Posey Dr., Whitmore Lake, MI 48189 ("Landlord"), and The ARC of St. Clair County, a Michigan non-profit corporation, of 1033 - 26th Street, Port Huron, MI 48060 ("Tenant"). 1.
Leased Premises. The Landlord, in consideration of the rents to be paid and the covenants and agreements to be performed by the Tenant, leases to the Tenant certain premises described as 802a and 804a Lapeer, Port Huron, Michigan (the "Leased Premises") each unit consisting of approximately1,000 square feet, together with 9dedicated parking spots and a nonexclusive right to use the remainder of the parking area and driveways on the property on which the Leased Premises are located. Tenant also may use the basement under the units for storage, but only with Landlord’s prior written consent.
2.
Term. The term of this Lease shall be for a period of three (3) years commencing on November 1, 2009.
3.
Rent. Tenant shall pay to Landlord at the address above, as minimum rental for said premises, annual rent as follows: Period Year 1 Year 2 Year 3
Annual Rent $24,000.00 $24,720.00 $25,461.60
Monthly Rent $ 2,000.00 $ 2,060.00 $2,121.80
4.
Condition of Premises. Tenant acknowledges that it is accepting the property "AS IS," and further acknowledges that Landlord has made no representations or warranties as to the condition of the Leased Premises not expressed herein. Tenant's possession of the Leased Premises shall be conclusive evidence that the Leased Premises are in good and satisfactory condition at the time of possession.
5.
Taxes on Landlord's Property. Tenant shall pay as additional rent its proportionate share of real estate taxes and special assessments on the buildings incurred during the term of the Lease or relating to any period of time covered by this Lease. Tenant’s proportionate share of the taxes or any other expense is 22%. This additional rent shall be paid within thirty (30) days after Landlord's written demand therefor. In addition to the foregoing, should the State of Michigan or any political subdivision thereof or any governmental authority having jurisdiction thereover impose a tax and/or assessment of any nature, in addition to or in replacement of the real estate taxes and/or assessments imposed against the premises of which the Leased Premises form a part, such tax and/or assessment shall be deemed real estate taxes or 1
assessments within the meaning of the paragraph, and Tenant shall be liable to Landlord for the amount thereof, to the end that Landlord shall have no liability for taxes arising out of its ownership of the demised premises or by virtue of its status as Landlord collecting the rentals reserved herein during the term of this Lease. In addition, at the request of Landlord's mortgagee, Tenant agrees to escrow real estate taxes upon the terms and conditions set by the mortgagee. 6.
Taxes on Tenant's Property. Tenant shall be responsible for and shall pay when due all municipal, county and state duties and taxes and all fees and charges assessed during the term of this Lease against any leasehold interest, fixtures, or personal property of any kind owned by or placed in, upon or about the premises by Tenant.
7.
Insurance. Tenant agrees to pay as additional rent its proportionate share of the cost of any premiums payable by Landlord for insurance of any nature, including, without limitation, any casualty, rental interruption and public liability coverage with respect to the demised premises. Such amount shall be paid as additional rent to Landlord within thirty (30) days after notice by Landlord to Tenant of said payment. Tenant will maintain in full force and effect during the entire term of this Lease, at Tenant's own expense and with responsible companies, the following policy or policies of insurance: a.
Commercial General Liability Insurance on the most recent Insurance Services Office (ISO) coverage form (or its equivalent) approved for use in the State of Michigan, to cover claims arising from the use or occupancy of the leased premises or the operation of the Tenant's business. The Landlord, its members, managers, employees and agents, and any mortgagee, or other person or persons whom the Landlord may designate, are to be named as additional insureds. The policy must have limits of insurance not less than One Million ($1,000,000) Dollars each occurrence, Two Million ($2,000,000) Dollars general annual aggregate, and if the Tenant has multiple locations, the aggregate must apply "per premises." The Personal Injury coverage must be endorsed to delete the exclusion for contractual liability. Insurance provided to the Landlord, its members, managers, employees and agents, will apply on a primary basis and will not contribute with any insurance available to any of the parties referenced here.
b.
Worker's compensation insurance with a limit of no less than that amount required by law.
c.
Property insurance written on the most recent "Special Cause of Loss" form (or its equivalent) as written by ISO, approved for use in the State of Michigan, with a maximum deductible of Five Thousand ($5,000) Dollars, with any coinsurance clause suspended, to the extent of ninety (90%) percent of the replacement value of all furnishings, trade fixtures, leasehold
2
improvements, equipment, merchandise, and other personal property from time to time situated in, on or upon the premises. All policies of insurance described in this section that Tenant is to procure and maintain will be issued by responsible companies. Executed copies of such policies of insurance, or at Landlord's election, certificates of such insurance, will be delivered to Landlord and any additional insureds or loss payee prior to delivery of possession of the premises to Tenant and within thirty (30) days prior to the termination or expiration of the term of each existing policy. All public liability and property damage policies will contain a provision giving Landlord and any additional insured or loss payee not less than thirty (30) days' notice, in writing, prior to any cancellation, reduction, or modification of such insurance. Tenant shall not commit or permit any acts or failures to act that may in any way impair any policy of insurance respecting the building or the Leased Premises. Tenant shall cooperate with Landlord in connection with the collection of any insurance monies that may be due in the event of loss and shall execute and deliver to Landlord such proofs of loss and other instruments as may be required for the purpose of facilitating the recovery of insurance monies. If Tenant fails either to acquire the insurance required pursuant to this section or to pay the premiums for such insurance or to deliver required certificates or policies, Landlord may, in addition to any other rights and remedies available to Landlord, acquire such insurance and pay the requisite premiums for them. Those premiums will be payable by Tenant to Landlord immediately upon demand as additional rent. 8.
Common Expenses. Tenant shall pay to Landlord, as additional rent, its proportionate share (22%) of common expenses incurred in relation to the Leased Premises. Such expenses will include, but not be limited to, expenses for snow removal, parking lot maintenance, and trash removal. The Landlord shall, not less frequently than annually, provide Tenant with a written statement indicating the common expenses and the amount payable by the Tenant, which shall be due and payable not more than thirty (30) days after the date on which Tenant receives such written statement. Landlord may, at its option, make reasonable advance estimates of common expenses for any calendar year during the term hereof, and Tenant shall, upon written demand by Landlord, pay the amount estimated by Landlord to be owing by Tenant, in such manner as shall be designated by Landlord, but not more frequently than monthly. The amount owing by Tenant under this paragraph for any partial calendar year during the term hereof shall be determined on a pro rata basis.
9.
Indemnification. Tenant agrees to defend, indemnify and hold harmless the Landlord, its heirs, successors, assigns, managers, employees and agents from any liability, loss, expense or damage to any person or property arising out of or related to Tenant's occupancy or use of the Leased Premises.
3
10.
Assignment. Tenant may not assign or transfer this Lease or sublet the premises or any part thereof without the written consent of the Landlord. Any assignment, transfer, or subletting without said written consent shall give the Landlord the right to terminate this Lease and to re-enter and re-possess the Leased Premises, and Tenant shall be liable to Landlord for all damages in connection therewith, in addition to any other remedies of Landlord provided by this Lease or by law.
11.
Bankruptcy and Insolvency. Tenant agrees that if the estate created hereby shall be taken in execution or by other process of law, or if the Tenant shall be declared bankrupt or insolvent according to law, or any receiver be appointed for the business and property of the Tenant, or if any assignment shall be made of the Tenant's property for the benefit of creditors, then this Lease may be canceled at the option of the Landlord.
12.
Right to Mortgage. Landlord reserves the right to subject and subordinate this Lease at all times to the lien of any mortgage or mortgages now or hereafter placed upon the Landlord's interest in the said premises and on the land and building of which the Leased Premises form a part. The Tenant agrees to execute and deliver upon demand such further instrument or instruments subordinating this Lease to the lien of any such mortgage or mortgages as shall be desired by the Landlord and any mortgagees or proposed mortgagees, and hereby irrevocably appoints the Landlord the attorney-in-fact of the Tenant to execute and deliver any such instrument or instruments for and in the name of the Tenant; provided, however, that so long as Tenant is not in default, said mortgagee, on behalf of itself and any purchaser at foreclosure, agrees to recognize Tenant's rights hereunder.
13.
Use and Occupancy. The Leased Premises shall be used and occupied for offices, meetings with clients, and training sessions. The Leased Premises will not be used for any other purposes without the written consent of the Landlord. The Tenant will not use the premises for any purpose in violation of any law, municipal ordinance or regulation. Tenant acknowledges that there are residential units located in the buildings, and it agrees to respect the quiet enjoyment of the occupants of those units. Tenant may do business with the public at the premises between the hours of 8am to 8pm, and, on an occasional basis, at other hours. However, if other tenants complain about the occasional early or late hour use, Tenant’s use will be restricted to the hours between 8am to 8pm. There will be no smoking permitted anywhere on the property. Tenant also agrees that no personal property will be placed outside, either in the rear of the buildings or on the sidewalk in front, and that Tenant will not permit loitering by its guests or employees outside of the buildings. Landlord must approve in advance all window treatments. On any breach of this agreement, the Landlord may, at its option, terminate this Lease forthwith and re-enter and re-possess the Leased Premises.
4
14.
Casualty. If the leased premises are damaged or destroyed in whole or in part by fire or other casualty during the term hereof, the Landlord, to the extent of insurance proceeds and subject to the requirements of the mortgagee, will repair and restore the same to good tenantable condition with reasonable dispatch. The rent herein provided for shall abate entirely in case the entire premises are untenantable and be prorated for the portion rendered untenantable, in case a part only is untenantable, until the same shall be restored to a tenantable condition; provided, however, that if the Tenant shall fail to adjust its own insurance or to remove its damaged equipment or property within a reasonable time and, as a result, repairing and restoration is delayed, there shall be no abatement of rental during the period of delay; and, provided further that if the Tenant shall use any part of the Leased Premises for storage during the period of repair, a reasonable charge shall be made therefor against the Tenant; and, provided further, that in case the Leased Premises or the buildings of which they are a part shall be destroyed to the extent of more than one-half (1/2) of their fair market value, or if the destruction occurs during the last year of the term of the Lease or during any option period, the Landlord may, at its option, terminate this Lease forthwith by a written notice to the Tenant.
15.
Repairs, Maintenance, Alterations. Landlord shall be responsible for the exterior of the Building in which the Premises are situated, including walls, roof, subsurface walls, and floor and including painting, structural maintenance, repair, and replacement, and for the replacement of the furnace and hot water heater. However, any maintenance, repairs, or replacement necessitated by the negligence or intentional acts of Tenant or its guests shall be the responsibility of Tenant to maintain, repair, or replace. With the exception of Landlord’s obligations for maintenance, repairs, and replacement, Tenant shall be obligated to repair and maintain the Premises at Tenant’s expense. The Premises shall be kept in good and safe condition, including the windows, the electrical fixtures, the plumbing fixtures, and any other system or equipment within the Premises. Tenant shall also maintain in good condition the sidewalk and driveway adjacent to the Premises, shall regularly sweep those areas and pick up any trash or debris in the area, and during the winter months shall keep the sidewalk adjacent to the Premises clear of snow and ice. Landlord shall have the parking lot adjacent to the Building plowed regularly. Tenant shall not make any alterations, additions or improvements to the Leased Premises without the Landlord's written consent. All alternations and improvements must be made by contractors acceptable to Landlord. All alterations, additions or improvements made by either of the parties hereto upon the premises, except movable office furniture put in at the expense of Tenant, shall be the property of the Landlord and shall remain upon and be surrendered with the Leased Premises at the termination of this Lease, without injury, or, at the option of the Landlord, all or any part shall be removed by Tenant at Tenant's expense. Under no circumstances shall Tenant permit a construction or other lien to attach to the Leased Premises.
16.
Eminent Domain. In the event the Tenant's premises or a substantial part thereof shall be taken under the power of eminent domain, then this Lease shall be void and 5
the term shall cease and terminate as of the date that possession is required for public use. In the case of a nonsubstantial taking, the Lease shall continue and a pro rata portion of the rental shall be abated. The entire compensation award for any taking as to both leasehold and reversion shall belong to the Landlord without any deduction therefrom for any present or future estate of the Tenant. 17.
Care of Premises; Environmental Covenants and Indemnity. The Tenant shall not perform any acts or carry on any practices which may injure the building or be a nuisance to its neighbors and shall keep the premises under its control clean and free from rubbish at all times. The Tenant shall, at its own expense, under penalty of forfeiture and damages, promptly comply with all laws, orders, regulations or ordinances of all municipal, county and state authorities affecting the premises hereby leased and the cleanliness, safety, occupation and use of same. Tenant will not permit any lien to attach to the premises and will defend, indemnify and hold Landlord harmless against any lien that attaches. Without limiting the generality of the foregoing: a.
Presence and Use of Hazardous Substances. Tenant shall not, without Landlord's prior written consent, keep on or around the Leased Premises, common areas, or the building, for use, disposal, treatment, generation, storage or sale, any substances designated as, or containing components designated as hazardous, dangerous, toxic or harmful, or which are subject to regulation by any federal, state or local law, regulation, statute or ordinance (collectively referred to as "Hazardous Substances"). With respect to any such Hazardous Substances, Tenant shall: (1)
Comply promptly, timely and completely with all governmental requirements for reporting, keeping and submitting lists and records, and obtaining and keeping current identification numbers;
(2)
Submit to Landlord true and correct copies of all reports, lists, records and identification numbers at the same time as they are required to be submitted to the appropriate governmental authorities;
(3)
Within five (5) days after Landlord's request, submit written reports to Landlord regarding Tenant's use, storage, treatment, transportation, generation, disposal or sale of Hazardous Substances and provide evidence satisfactory to Landlord of Tenant's compliance with the applicable governmental regulations;
(4)
Allow Landlord or Landlord's agent or representative to come on the Leased Premises at all times to check Tenant's compliance with all applicable governmental regulations regarding Hazardous Substances;
6
b.
18.
(5)
Comply with minimum levels, standards or other performance standards or requirements which may be set forth or established for certain Hazardous Substances (if minimum standards or levels applicable to Hazardous Substances present on the Leased Premises shall be established by an on-site inspection by the appropriate governmental authorities, such standards or levels shall be set forth in an addendum to this Lease); and
(6)
Comply with all applicable governmental rules, regulations and requirements regarding the proper and lawful use, sale, transportation, generation, treatment and disposal of Hazardous Substances.
Cleanup Costs, Default and Indemnification. (1)
Tenant shall be fully and completely liable to Landlord for any and all cleanup costs and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to Tenant's use, disposal, treatment, transportation, generation or sale of Hazardous Substances in or about the Leased Premises, common areas or the building;
(2)
Tenant shall indemnify, defend and hold Landlord, its members, managers, employees and agents harmless from any and all of the costs, fees, penalties, charges, liabilities, losses and damages assessed against or imposed upon Landlord (as well as their attorneys' fees and costs) as a result of Tenant's use, disposal, treatment, transportation, generation or sale of Hazardous Substances; and
(3)
Upon Tenant's default under this section, in addition to the rights and remedies set forth elsewhere in this Lease, Landlord shall be entitled to the following rights and remedies: (a)
At Landlord's option, to terminate this Lease immediately; and
(b)
To recover any and all damages associated with the default, including, but not limited to, cleanup costs and charges, civil and criminal penalties and fees, loss of business and profits by Landlord and other tenants of the building, any and all damages and claims asserted by third parties and Landlord's attorneys' fees and costs.
Nuisance. Tenant shall not commit or permit any nuisance or other act, whether noise, odor, smoke, sewerage, chemical wastes or otherwise, which may disturb the quiet enjoyment of any other occupants of the buildings in which the Leased Premises are located. Tenant shall not obstruct or cause to be obstructed any public or private roadways, sidewalks or common areas appurtenant to the buildings. In the 7
event Tenant commits or permits any nuisance or act set forth in this paragraph the same shall be deemed a default by Tenant under the terms of this Lease. 19.
Landlord's Liability. The Landlord shall not be responsible or liable to the Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the premises hereby leased or any part of the building of which the Leased Premises are a part, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes, or the roof, or for any other loss or damage whatsoever unless due soley to Landlord’s negligence. In no event will Tenant have the right to set off its rental obligation against any claimed liability of Landlord. These provisions shall not be interpreted to prevent Tenant from recovering under any policies of insurance.
20.
Re-Renting. The Tenant agrees that for a period commencing one hundred twenty (120) days prior to the termination of this Lease, the Landlord may show the premises to prospective tenants. On reasonable notice to Tenant, Landlord may show the premises to prospective purchasers at any time during the term of this Lease.
21.
Holding Over. If the Tenant holds over after the termination of this Lease, the tenancy shall be from month to month in the absence of a written agreement to the contrary, and the base rent shall be increased to two hundred (200%) percent of the base rent prior to the termination of this Lease.
22.
Water, Heat and Electricity. The Tenant will pay all charges made against the Leased Premises for water, heat, sanitation, electricity and any other utilities during the continuance of this Lease, as the same shall become due.
23.
Advertising Display. All signs and advertising displayed in and about the premises shall be such only as to advertise the business carried on upon said premises, and the Landlord shall control the character and size thereof. No sign shall be displayed excepting such as shall be approved in writing by the Landlord, and no awning shall be installed or used on the exterior of said building unless approved in writing by the Landlord.
24.
Access to Premises. The Landlord shall have the right to enter upon the Leased Premises at all reasonable hours for the purpose of inspecting the same. If the Landlord deems any repairs necessary, it may demand that the Tenant make the same. If the Tenant refuses or neglects forthwith to commence such repairs and complete the same with reasonable dispatch, the Landlord may make or cause to be made such repairs and shall not be responsible to the Tenant for any loss or damage that may accrue to its stock or business by reason thereof. If the Landlord makes or causes to be made such repairs, the Tenant agrees that it will forthwith on demand pay to the Landlord the cost thereof with interest at the highest rate permitted by law; and if the Tenant shall default in such payment, the Landlord shall have the remedies provided herein for a default in payment of rent. 8
25.
Quiet Enjoyment. The Landlord covenants that the Tenant, on payment of the rent and performing all the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said demised premises for the term aforesaid.
26.
Default. If the Tenant shall fail to pay any rental or other sum of money becoming due hereunder when due, or if Tenant shall fail to perform any other covenant or condition of this Lease, or if Tenant abandons the Leased Premises, then Tenant shall be in default.
27.
Remedies. Upon the Tenant's default, the Landlord may, in addition to any other right or remedy it may enjoy: a.
Terminate this Lease immediately upon the giving of notice to the Tenant;
b.
If default consists in whole or in part of the Tenant's failure to expend funds, make the necessary expenditures for the account of the Tenant who shall reimburse the Landlord therefor with interest at the maximum legal rate from the date of expenditure;
c.
Terminate the Tenant's right to possession of the Leased Premises without terminating the term of this Lease, immediately upon the giving of notice to the Tenant.
Upon termination of this Lease for any reason or by any means or upon termination of the Tenant's right of possession as provided above, the Tenant shall promptly surrender possession to the Landlord and vacate the Leased Premises, and the Landlord may re-enter the Leased Premises and expel the Tenant or anyone claiming an interest in said premises under the Tenant and remove the property of any of them without notice, formal claim or process, the Landlord being absolved of any liability or claim for damages in doing anything reasonably necessary or appropriate in connection therewith. If the Landlord elects to terminate the Tenant's right of possession without terminating the term of this Lease, the Landlord may, at its option, lease or sublet all or any part of the Leased Premises for the account of the Tenant on such terms and conditions and for a term longer or shorter than the unexpired term of this Lease as the Landlord may elect and collect from the Tenant any balance remaining due on the rent or other obligations payable by the Tenant under this Lease. The Tenant shall pay the Landlord, upon written demand, all damages and expenses of reletting, including, without limitation, broker's fees, attorney fees and the cost of Tenant improvements, with interest thereon at the maximum legal rate from the date expended by the Landlord. If the Landlord terminates this Lease, the Tenant shall pay the Landlord, upon written demand, the expense of reletting with interest as provided for in the previous paragraph, and the amount of all rental that would have been due had the Lease not been terminated, less the amount received from any reletting, such damage payments to be made when said rental would have been due had this Lease not been terminated. 9
Alternatively, Landlord may accelerate the rent remaining due under this Lease, and Tenant shall pay to Landlord the present value thereof, together with all expenses of reletting. 28.
Remedies Not Exclusive. The rights, remedies and benefits provided by this Lease shall be cumulative and shall not be exclusive of any other rights, remedies and benefits allowed by law.
29.
Waiver. One or more waivers of any covenant or condition by the Landlord shall not be construed as a waiver of a further breach of the same covenant or condition.
30.
Notices. Whenever under this Lease a provision is made for notice of any kind, it shall be deemed sufficient notice and service thereof if such notice to the Tenant is in writing addressed to the Tenant at its last known post office address or at the Leased Premises and hand delivered to the Leased Premises or deposited in the mail with postage prepaid; if such notice to the Landlord is in writing, addressed to the last known post office address of the Landlord and deposited in the mail with postage prepaid.
31.
Estoppel Statement. Tenant shall without charge at any time and from time to time, within ten (10) days after receipt by Tenant of written request therefor from Landlord or from any mortgagee under any mortgage on the real property on which the building containing the Leased Premises is located, deliver, in recordable form, a duly executed and acknowledged certificate or statement to the party requesting said certificate or statement or to any other person, firm or corporation designated by Landlord, certifying: a.
that this Lease is unmodified and in full force and effect or, if there has been any modification, that the same is in full force and effect as modified and stating any such modification;
b.
the date of commencement of the term of this Lease;
c.
that rent is paid currently without any offset or defense thereto;
d.
the dates to which the rent and other charges payable hereunder by Tenant have been paid and the amount of rent and other charges, if any, paid in advance;
e.
whether or not there is then existing any claim of Landlord default hereunder and, if so, specifying the nature thereof; and
f.
any other matters relating to the status of such Lease as shall be requested by Landlord or any such mortgagee.
10
32.
Waiver of Subrogation. Each party releases the other and any officer, agent, employee or representative of the other from all liability arising from any fire or other casualty for which insurance (permitting waiver of liability and containing a waiver of subrogation) is carried by the injured party to the extent of any recovery by the injured party under the insurance.
33.
Late Fee. Tenant shall pay an additional amount of five (5%) percent of any payment not made within ten (10) days after it is due.
34.
Security Deposit. Upon execution of this Lease, the Tenant shall deposit Four Thousand ($4,000.00) Dollars with the Landlord as security for the performance by the Tenant of the terms of this Lease. The Landlord may use, apply or retain (without liability for interest) the whole or any part of the security so deposited to the extent required for the payment of any rent or other sum as to which the Tenant may be in default hereunder or for any sum which the Landlord may expend by reason of the Tenant's default. Provided the Tenant shall comply with all the terms of this Lease, such security shall be returned to the Tenant upon termination of this Lease and after surrender of possession of the Leased Premises to the Landlord as required by this Lease. Upon notice, the Tenant shall pay the Landlord the amount of the security deposit used by the Landlord pursuant to this paragraph, so that the amount of the security is restored to the amount specified above. No default of the Tenant for which the Landlord uses all or any part of the security deposit shall be deemed cured until the Tenant has paid the Landlord the amount of the security deposit the Landlord has used.
35. 36.
37.
Legal Expenses. Landlord shall be entitled to recover from Tenant its actual attorneys' fees and expenses incurred on account of any default by Tenant. Option to Renew. Provided it is not in default, Tenant shall have the option to renew this Lease for one (1) three (3) year term on the same terms and conditions as provided herein. The rent shall increase each year during any renewal term at the rate of 5% per year. Tenant's option to renew may be exercised only by written notice, which must be received by Landlord at least one hundred twenty (120) days prior to expiration of the then current term, and time shall be of the essence. Rules and Regulations. Landlord has the right to establish reasonable rules and regulations which will become binding on Tenant ten (10) days after Tenant receives written notice, unless Tenant objects in writing within the following ten (10) days.
11
"Landlord" 802 Lapeer, LLC
"Tenant" The Arc of St. Clair County
By: Peter Drescher, Manager
By:
Its:
I:\KM\CL\1032\802 Lapeer\Lease 110909.wpd
12
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