Exhibit 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made as of this 27th day of February,
1998 ("Effective Date") by and between Green Mountain Ventures I, Ltd., a Texas
limited partnership, having a principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Lessor"), and Business Partner Solutions, Inc., a Texas corporation, having a
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter
called "Lessee").
WITNESSETH, that in consideration of the rent and covenants herein reserved
and contained on the part of Lessee to be paid, performed and observed, Lessor
agrees to demise and lease unto Lessee the Leased Premises (defined below)
located in the Green Mountain Business Park ("Business Park") being developed by
Lessor.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the parties agree as follows:
1. DEFINITIONS AND BASIC TERMS. For the purpose of this Lease, the
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following terms shall have the meanings hereinafter specified:
(1) Property: The tract described in Exhibit "A" hereto and depicted
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on the preliminary site plan attached hereto as Exhibit "B" ("Preliminary
Site Plan"). Material changes to the Preliminary Site Plan are subject to
Lessee's review and reasonable approval, and the modified Preliminary Site
Plan will be attached to this Lease as Exhibit "B-1" ("Site Plan"). Lessee
shall not have the right to disapprove the changes to the Preliminary Site
Plan unless the changes to the Preliminary Site Plan materially alters the
Preliminary Site Plan.
(2) Building: The 116,102 square foot building located (or to be
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built by Lessor) on the Property, as generally shown on the Site Plan.
(3) Leased Premises: Approximately 87,001 square feet of floor space
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of the Building (56,463 square feet of office space and 30,538 square feet
of warehouse space), said premises being identified on the Site Plan, and
to be more particularly identified by the final floor plan to be
hereinafter approved by Lessor and Lessee. The Leased Premises shall
include the area bounded by the outside surface of any exterior walls of
the Building and the centerline of all walls separating such Leased
Premises from other areas leased or to be leased to other tenants plus any
areas adjacent to the front entrance of the Building which are covered by a
roof or awning. The Leased Premises, as shown on
the Site Plan, is a material consideration for Lessee entering into this
Lease, and, except when required by governmental ordinance or law, no
material change, alteration or addition shall be made to the Site Plan,
including but not limited to the parking area, methods of ingress and
egress, direction of traffic, lighting, curbing, building heights and
stories, the landscaping or any change which would affect visibility to the
Building. Should any such material change, alteration or addition to the
Site Plan or the Leased Premises made by or on behalf of Lessor without
Lessee's prior written consent (except when such change, alteration or
addition is required by governmental law or ordinance), Lessee may seek any
remedy it may have in law or equity after sending notice to Lessor of such
default and such default shall continue for a period of thirty (30) days
after written notice thereof shall be given to Lessor by Lessee.
(4) Common Area: Such parking areas, driveways, isles, sidewalks,
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curbs, delivery passages, loading areas, lighting facilities, greenbelts,
and other common and service areas situated on the Property and shown on
the approved Site Plan, for use by all tenants of the Building in common.
(5) Quasi Common Area: Such portions of the Common Area such as
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parking areas, entry doors, driveways, delivery passages and loading areas
that are designated for the exclusive use of tenants at the Property.
(6) Approved Plans: All the construction drawings, plans and
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specifications, including HVAC, plumbing and electrical plans and
specifications, as described on the attached Exhibit "G", as updated and
approved in accordance with the approval procedures set forth below.
(7) Additional Rent: All of the additional payments (in addition to
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Base Rent) payable by Lessee to Lessor in accordance with the provisions of
Paragraphs 3(c), 8(E), 9(A), 10(A) and 20 below.
(8) Lessor's Improvements: All of the Building improvements to be
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constructed on the Property, as described in the final Approved Plans.
(9) Declaration: The Declaration of Easements, Restrictions,
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Covenants, and Conditions for the Green Mountain Business Park
("Declaration") which is attached as Exhibit "D" hereto.
2. LEASE TERM AND LEASEHOLD IMPROVEMENTS.
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(1) In consideration of the agreements, terms,
provisions and covenants of this Lease, Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, the Leased Premises for an initial term
of ten (10) years ("Initial Term"), commencing on the date (the
"Commencement Date"), which is the later of (i) the Date of Substantial
Completion (as defined in paragraph 2.(D) below) or (ii) June 1, 1998, and
which shall expire on the last day of the one hundred and twentieth (120th)
full calendar month thereafter (subject to the renewal options set forth
below). In addition, Lessor hereby grants to Lessee, its customers, guests,
invitees, employees, agents and licensees all easements, rights and
privileges appurtenant to the Leased Premises and the Property, including
the right to use the parking areas, driveways, roads, alleys and means of
ingress and egress as reflected on the Site Plan.
Notwithstanding the above, Lessee may terminate this Lease at the end
of the first five (5) years of the Initial Term by giving Lessor three
hundred and sixty (360) days prior written notice of termination, and by
paying Lessor, on the date which is one hundred and eighty (180) days prior
to the date of termination, the sum of $200,000.00. In addition, Lessee may
terminate this Lease at the end of the first seven (7) years of the Initial
Term by giving Lessor three hundred and sixty (360) days prior written
notice of termination and by paying Lessor, on the date which is one
hundred and eighty (180) days prior to the date of termination, the sum of
$200,000.00. If Lessee sends notice of termination but fails to deliver
the $200,000.00 termination fee then Lessor may, in addition to the
remedies set forth herein, reinstate this Lease and Lessee shall be
responsible for complying with all the terms of this Lease through the
Initial Term and Lessor shall not have the right to ▇▇▇ to collect the
$200,000.00 termination fee.
(2) Within five (5) days after the Effective Date hereof, Lessor
hereby agrees to engage the services of a qualified contractor to
construct, with diligence and in a good and workmanlike manner, Lessor's
Improvements. Lessor has presented to Lessee, and Lessee has heretofore
approved, the preliminary Approved Plans. Lessor shall submit all final
construction drawings and specifications, including HVAC, plumbing and
electrical plans and specifications for Lessee's approval prior to the
initiation of construction. Lessee shall review the documentation so
submitted for consistency with the preliminary Approved Plans referenced in
Exhibit "G". Lessee shall, within five (5) business days after its receipt
of such documentation either approve the same, or indicate in writing the
specific reasons for Lessee's failure to approve. Lessee shall be required
to approve the documentation unless it is inconsistent with the preliminary
Approved Plans referenced on
Exhibit "G". Lessee's failure to respond within the required time frame
shall be deemed to be an approval of the documentation as submitted. At the
completion of this approval process Exhibit "G" will be revised and updated
to reflect the final Approved Plans agreed to by Lessor and Lessee.
(3) Lessor shall begin construction of Lessor's Improvements, based
on the Approved Plans, within two (2) days after Lessee has approved the
final Approved Plans and Lessor's receipt of such municipal permits as are
required for the construction of the foundation of the Building
("Foundation Permit"). Lessor shall use its best efforts to obtain, on or
before February 2, 1998, the Foundation Permit required for the
construction of Lessor's Improvements. If the Foundation Permit is not
issued by February 2, 1998, Lessor shall notify Lessee in writing, such
notice to be delivered to Lessee on or before February 4, 1998. Lessee may
then, at its option, terminate this Lease, whereupon neither Lessee nor
Lessor shall have any further rights or obligations hereunder. Lessee's
election to terminate may be exercised only by delivering written notice to
Lessor within three (3) business days of Lessee's receipt of notification
that the required Foundation Permit were not issued by February 2, 1998. If
such notice of election to terminate is not so received by Lessor within
such three (3) day period, Lessee's option to terminate shall expire, and
this Lease shall continue in full force and effect, except that all dates
for performance shall be extended by such additional period of time as is
required to obtain the Permits, but not to exceed fifteen (15) days in any
event. If all of the permits required for the construction of Lessor's
Improvements are not procured by March 2, 1998 Lessor shall notify Lessee
in writing, such notice to be delivered to Lessee on or before March 5,
1998. Lessee may then, at its option, terminate this Lease, whereupon
neither Lessee nor Lessor shall have any further rights or obligations
hereunder. Lessee's election to terminate may be exercised only by
delivering written notice to Lessor within three (3) business days of
Lessee's receipt of notification that the required Foundation Permit were
not issued by March 2, 1998. If such notice of election to terminate is not
so received by Lessor within such three (3) day period, Lessee's option to
terminate shall expire, and this Lease shall continue in full force and
effect.
(4) Lessor shall use its best efforts to cause Lessor's Improvements
to be substantially complete on the date (the "Anticipated Date of
Substantial Completion") which is the later of (i) June 1, 1998 or (ii)
within twenty weeks of receiving the Foundation Permit (which in no event
will be later than July 10, 1998). For purposes of this Lease, Lessor's
Improvements shall be deemed to be substantially
complete on that date (the "Date of Substantial Completion") when (i) they
are sufficiently complete so that Lessee can occupy or utilize the Leased
Premises for their intended use and (ii) Lessor has obtained a Certificate
of Occupancy with respect to the Leased Premises, issued by the appropriate
governmental authority having jurisdiction thereof, authorizing Lessee to
occupy the Leased Premises for the purposes permitted hereunder.
(5) In determining the date by which Lessor is obligated to achieve
the Anticipated Date of Substantial Completion, allowance has been made in
the construction schedule for up to five (5) days of delay for all reasons
beyond Lessor's reasonable control ("Excusable Delays"), including, but not
limited to, (i) weather-related delays for frost, rain, sleet, excessive
winds, or snow which substantially impair Lessor's ability to proceed with
any aspect of construction as scheduled or which substantially impair
Lessor's ability to enter, maneuver, or work on the site due to wet,
frozen, icy or snow-covered ground, and (ii) unusual market conditions
affecting the supply of materials or labor, including, but not limited to,
manufacturer's or supplier's delays in the delivery of the materials or the
unavailability of skilled laborers or tradesmen. In addition, the
Anticipated Date of Substantial Completion shall be extended with respect
to each change order requested by Lessee, or recommended by Lessor and
approved by Lessee, by the time period agreed to by Lessor and Lessee for
such period of time as is set forth in such approved change order. If the
aforementioned five (5) days of Excusable Delay are encountered, (i) Lessor
shall provide to Lessee an accounting of the days Lessor encounters all
Excusable Delays during the construction process, (ii) the Anticipated Date
of Substantial Completion shall be extended by one (1) day for each
additional day of Excusable Delay reported by Lessor. Upon written request
by Lessee, Lessor shall provide periodic updates of the construction
delivery schedule not more often than monthly.
(6) If the Date of Substantial Completion (excluding minor punchlist
items and minor improvements) has not occurred by July 10, 1998, then
Lessor agrees to pay to Lessee, on the Date of Substantial Completion, a
delay penalty in an amount equal to $1,000.00 per day for each day after
July 10, 1998 until the Date of Substantial Completion or the Outside Date
if Lessee terminates this Lease as provided in the following sentence. In
the event the Date of Substantial Completion has not occurred for any
reason on or before August 20, 1998 ("Outside Date"), Lessee may, at its
option, terminate this Lease on or before August 25, 1998, whereupon
neither Lessee nor Lessor shall have any further rights or obligations
hereunder.
(7) If the Approved Plans are modified by a change order requested by
Lessee, or recommended by Lessor and approved by Lessee, Lessee may order
changes to the Approved Plans consisting of additions, deletions or
modifications of the Approved Plans providing the following conditions are
fulfilled:
1. All change orders must be in writing and executed by Lessor
and Lessee.
2. Lessor shall charge a fee of ten percent (10%) of the cost
to complete the extra work done or extra material furnished pursuant
to the change order. Lessor shall be responsible for paying the
contractors performing the extra work done or extra material
furnished.
3. All extra work done and extra material furnished pursuant to
the change order shall be paid for in advance.
4. If a change order results in a decrease of the costs of
Lessor's Improvements then the money saved due to the decrease of the
costs of Lessor's Improvements shall result in a reduction in the Base
Rent over the Initial Term or be offset against the cost of extra work
done or extra material furnished as provided in paragraph 2(G)(iv)
(8) Lessee may at its option, terminate this Lease on or before March
15, 1998, in the event Lessee does not receive ad valorem tax abatements
from the City of San Antonio or other taxing authorities. If Lessee
exercises it option to terminate this Lease then Lessee shall send written
notice to Lessor of its intention to terminate the Lease on or before March
15, 1998 and pay Lessor the sum of $500,000.00 in cash on or before March
15, 1998 whereupon neither Lessee nor Lessor shall have any further rights
or obligations hereunder. If Lessor does not receive the written notice of
termination from Lessee and the $500,000.00 in cash from Lessee on or
before March 15,1998 then Lessee's option to terminate this Lease shall
automatically terminate without notice to Lessee.
3. BASE RENT.
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(1) During the first five (5) years of the Initial Term (and, in
addition, any partial month during after the Commencement Date), Lessee
covenants with Lessor to pay for the Leased Premises at the rate of Six
Hundred Fifteen Thousand Fifty Dollars and No/100 ($615,050.00) per year,
payable in equal monthly installments of Fifty-One Thousand Two Hundred
Fifty-Four Dollars and 17/100 ($51,254.17) per month ("Base Rent").
(2) During the second five (5) years of the Initial Term, Lessee
covenants with Lessor to pay for the Leased Premises at the rate of Six
Hundred Seventy-Six Five Hundred Fifty-Five Dollars and No/100
($676,555.00) per year, payable in equal monthly installments of Fifty-Six
Thousand Three Hundred Seventy-Nine Dollars and 58/100 ($56,379.58) ("Base
Rent").
(3) The monthly rental payment for the first month of this Lease
shall be pro rated and payable on the Commencement Date of this Lease, and
thereafter each installment of Base Rent and each monthly payment of
Additional Rent shall be paid in advance on or before the first day of each
and every calendar month during the Initial Term of this Lease (or any
extended term). If Base Rent and Additional Rent are not received by Lessor
within ten (10) business days after the due date, Lessee shall pay a late
charge equal to five percent (5%) of the late payment. If Lessee fails to
perform any of its obligations under this Lease, Lessor may, but shall not
be required to, discharge such obligations and the cost thereof shall be
paid by Lessee to Lessor as Additional Rent on the due date of the next
monthly rental payment.
(4) Lessee may, at its option, reduce the Base Rent payable hereunder
by paying Lessor prepaid Base Rent. For each $100,000.00 of Base Rent
prepaid by Lessee to Lessor, the Base Rent for the first five (5) years of
the Initial Term will be recalculated and reduced by thirty and one-half
cents ($.305) per square foot, and for the second five (5) years of the
Initial Term the Base Rent will be recalculated and reduced by thirty-three
and one-half cents ($.335) per square foot. Lessee may not pay more than
$1,800,000.00 to Lessor to reduce the Base Rent. Lessee shall notify Lessor
in writing of its intention to prepay a portion of the Base Rent within
ninety (90) days after the Effective Date of this Lease, and shall pay
Lessor such amount of prepaid Base Rent, as selected by Lessee, on the
Commencement Date. Remaining Base Rent due shall then be recalculated in
accordance with this paragraph, and shall be documented in an amendment to
this Lease which shall be executed by Lessor and Lessee.
4. OPTION TO RENEW. Lessee shall have the right and option to extend the
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term of this Lease for two (2) renewal terms of five (5) years each upon the
same terms and conditions as herein set forth, except for an adjustment in the
Base Rent as set forth below. To exercise such renewal options, Lessee must
give Lessor written notice of its intention to renew at least one hundred and
eighty (180) days before the scheduled expiration of the Initial Term of this
Lease, or at least one hundred and eighty (180) days before the expiration of
first renewal term, whichever is applicable. The annual Base Rent, payable in
equal monthly installments during each renewal, term shall be one hundred
fifteen percent (115%) of the Base Rent being paid in the year before the
renewal.
5. SECURITY DEPOSIT. If Lessee shall default hereunder with respect to
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the payment of Base Rent, or with respect to any other payment of money due by
Lessee hereunder, and if such default is not cured within any applicable grace
period, Lessee shall, within ten (10) days of written demand from Lessor,
deposit with Lessor the sum of the Base Rent for the month in which the alleged
default occurred ("Security Deposit") as security for the full and faithful
performance of every provision of this Lease to be performed by Lessee. If
Lessee thereafter defaults with respect to any provision of this Lease,
including but not limited to the provisions relating to the payment of Base
Rent, and if such default is not cured within any applicable grace period,
Lessor may, within ten (10) days after notice to Lessee use, apply or retain all
or any part of this Security Deposit for the payment of any Base Rent and any
other sum in default, or for the payment of any other amount which Lessor may
spend or become obligated to spend by reason of Lessee's default, or to
compensate Lessor for any loss or damage which Lessor may suffer by reason of
Lessee's default. If any portion of said Security Deposit is so used or
applied, Lessee shall within five (5) days after written demand therefor deposit
cash with Lessor in an amount sufficient to restore the Security Deposit to its
original amount, and Lessee's failure to do so shall be a material breach of
this Lease. Lessor shall not be required to keep this Security Deposit separate
from its general funds, and Lessee shall not be entitled to interest on the
Security Deposit. Any security deposit held by Lessor shall be returned to
Lessee within two (2) weeks of the expiration or termination of this Lease and
the performance by Lessee of its obligations hereunder.
6. HOLDOVER TENANCY. If Lessee retains possession of the Leased Premises
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or any part thereof after the expiration of the term or the earlier termination
of this Lease, without Lessor's prior written consent, Lessee (without prejudice
to any of Lessor's other rights and remedies) shall pay to Lessor (i) an amount
per month equal to one hundred twenty-five percent (125%) of the Base Rent
payable with respect to the Leased Premises during the last month of the term
and (ii) all Additional Rent for such period.
7. UTILITIES.
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During the term of this Lease, Lessee shall pay, directly to the applicable
utility provider, all separately metered utility
charges incurred by Lessee in connection with the Leased Premises. The parking
lot lights on the Common Area will be connected to the Lessee's electric meter
and Lessee will be responsible for paying the electric charges for the parking
lot lights. No interference, interruption, or curtailment of any utilities at
the Leased Premises shall constitute a basis for constructive eviction or rental
abatement, unless the same are due to the willful misconduct or negligence of
Lessor, its agents or employees, and unless, after receipt of written notice
thereof, Lessor fails to make reasonable and timely efforts to remedy same, nor
shall Lessor be liable for damages in connection with such interference,
interruption or curtailment unless same are the result of negligence on the part
of Lessor, its agents or employees. Lessor, as part of Lessor's Improvements,
agrees to provide separate meters for all utilities provided to the Leased
Premises.
8. COMMON AREA.
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(1) Lessor shall substantially complete the Common Area prior to the
Commencement Date. Lessor shall not materially change or alter the
dimensions and location of the Common Area without the prior written
consent of Lessee. No public telephones, newspaper machines, vending
machines, signage, kiosks, outdoor selling areas (whether seasonal or
permanent) or other obstruction shall be permitted on the Common Area,
except as may be otherwise expressly set forth in this Lease. Lessor
reserves the right to designate certain parts of the Common Area as Quasi
Common Area for the use of specific tenants such as designated parking
areas.
(2) Lessee, and its employees, customers, subtenants, licensees and
concessionaires shall have the nonexclusive right to use the Common Area,
such use to be in common with Lessor, other tenants of the Building, and
other persons entitled to use the same by virtue of Lessor's express
permission, and subject to such reasonable rules and regulations governing
use as Lessor may, from time to time, prescribe. Lessee shall not solicit
business or display merchandise within the Common Area, or distribute
handbills therein, or take any action which would interfere with the rights
of other persons to use the Common Area. Lessor shall require similar
agreements and standards from any other tenant in the Building. Lessor may
temporarily close any part of the Common Area for such periods of time as
may be reasonably necessary to make repairs or alterations to the Common
Area or the Building; provided that such closure shall not adversely
affect, reduce or restrict Lessee's parking or access to the Building.
(3) As part of the Site Plan approval process, Lessor and Lessee
shall agree to specific exclusive designated areas
in which automobiles owned by Lessee, its employees, subtenants, licensees
and concessionaires shall be parked, and Lessee shall use reasonable
efforts to see that such automobiles are parked in such areas. Upon
request, Lessee shall furnish to Lessor a complete list of the license
numbers of all automobiles operated by Lessee, its employees, and
subtenants. Lessor hereby designates the parking spaces marked on the Site
Plan as "Lessee Exclusive Parking Area" as Quasi Common Area in favor of
Lessee, and Lessee, its employees, subtenants, licensees and
concessionaires shall have the exclusive right to use such designated
parking spaces. All remaining parking area in the Common Area other than
Lessee's exclusive parking area shall be Quasi Common Area for the
remaining tenants of the Building to be used as an exclusive parking area.
(4) The Common Area shall be and remain under Lessor's sole operation
and control, and Lessor shall adequately maintain and repair the same
utilizing the funds described hereafter. As used in this Lease, the term
"common area costs" shall mean the total of all items of expense relating
to operating, managing, equipping, policing and protecting (if Lessor so
elects), repainting, repairing, replacing, and maintaining the Common Area
in the same condition as when originally installed (normal wear and tear
excepted, and excluding items of a capital nature such as the replacement
or repair of utility lines, or the replacement of the parking lot), and the
cost of painting the readily visible portions of the exterior walls of the
Building (exclusive of structural repairs and/or refurbishments). Such
common area costs shall also include, removal of rubbish, dirt, and debris
not generated by a tenant pursuant to the use of its lease space (Lessor
will not place trash receptacles on the Property for the use of the tenants
and each tenant, including, Lessee, will be responsible for engaging the
services of a waste disposal company to provide a trash receptacle and to
remove the contents of the trash receptacle on a regular schedule); costs
of planting, replanting, and replacing flowers and landscaping, and
supplies required therefor; costs of painting any of the foregoing items
and striping the parking lot; all costs of utilities used in connection the
maintenance of the Common Area; all costs of maintaining speed ramps (if
any), lighting facilities which are not separately metered to Tenant, and
storm drainage systems; all premiums for liability and property damage
insurance as provided herein; ad valorem taxes on the Property and Building
as provided herein; and management fees not to exceed two percent (2%) of
the Base Rent.
(5) Effective on the Commencement Date, and as Additional Rent
hereunder (payable at the same time or times
as Base Rent), Lessee shall pay to Lessor its proportionate share of the
common area costs (based upon Lessor's good faith estimates made prior to
or at the Commencement Date, and from time to time thereafter, subject to
adjustment as hereinafter provided in the next paragraph). Lessee's
proportionate share shall be equal to the product obtained by multiplying
such common area costs by a fraction, the numerator of which shall be the
total number of square feet of floor area in the Leased Premises, and the
denominator of which shall be the total number of square feet of the gross
leasable floor area in the Building. Notwithstanding the above, prior to
December 31, 1999, common area costs shall not exceed $0.588 per square
foot of the Leased Premises, and thereafter, annual increases in Lessee's
share of such common area costs shall not exceed an amount equal to 5% of
the common area costs attributable to Lessee for the previous year. For
partial calendar years occurring during the first and last years of the
primary term or any extension periods, if applicable, the expense stop for
the common area costs payable for such partial years shall be appropriately
prorated for the purposes of calculating common area costs owed by Lessee
due for such partial calendar year.
(6) Within sixty (60) days following the end of each calendar year,
Lessor shall furnish to Lessee a statement showing the total common area
costs for the calendar year just expired, the amount of Lessee's share of
such common area costs, and payments made by Lessee during such calendar
year under the preceding paragraph. If Lessee's share of such common area
costs for such calendar year shall exceed Lessee's payment so made, Lessee
shall pay to Lessor the deficiency within fifteen (15) days after receipt
of said statement. If Lessee's payments shall exceed Lessee's share of
such common area costs as shown on such statement, Lessee shall be entitled
to offset the excess against payments next thereafter becoming due if this
Lease is in effect, or such excess shall be refunded by Lessor if this
Lease has been terminated or if the term of this Lease has expired. The
common area costs shall be subject to reasonable audit by Lessee, at
Lessee's expense, as set forth in Paragraph 11 below. Lessor shall use
diligent efforts to minimize such costs of operation and maintenance in a
manner consistent with good commercial building practices in the community
where the Building is located.
(7) At the option of Lessor, Lessor may grant an easement to the
owners' association that will be established in connection with the
Declaration over and across the part of the common area adjacent to ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ for the purpose of an entryway. If an easement
is granted to the owners' association then the property subject to the
easement shall be maintained by the owners' association and if
the owners' association intends to construct a wall or monument on the
property subject to the easement then Lessee shall have the right to
approve the height of the wall or monument.
9. TAXES TO BE REIMBURSED OR PAID BY LESSEE.
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(1) In addition to the Base Rent provided for in paragraph 3 hereof,
Lessee agrees to pay to Lessor the following as Additional Rent:
1. Lessee shall pay its proportionate share of all real property
taxes and assessments which may be levied or assessed by any lawful
authority against the Property and Building for each calendar year or
tax year during the term hereof ("Tax Cost"), together with reasonable
attorney's fees and other expenses incurred by Lessor in contesting
any such taxes and assessments, provided such contest does not result
in an increase of Tax Cost to Lessee. Lessee's proportionate share
shall be equal to the product obtained by multiplying such ad valorem
taxes and assessment (and reasonable pro-rata expenses incurred by
Lessor to contest same, and provided that such reasonable expenses are
only reimbursable by Lessee if a tax savings was achieved as a result
of such contest) by a fraction, the numerator of which shall be the
total number of square feet of floor area in the Leased Premises, and
the denominator of which shall be the total number of square feet of
the gross leasable floor area in the Building. Should the State of
Texas or any political subdivision thereof, or any other governmental
authority having jurisdiction thereover, impose a tax and/or
assessment (other than an income or franchise tax) upon or against the
rentals payable by tenants in the Building to Lessor, in substitution
for the taxes and assessments levied or assessed against the Property
and the Building, such new tax and/or assessment shall be covered by
this paragraph.
2. Lessee's proportionate share of all real property taxes and
assessments (and expenses incurred by Lessor to contest same as
described above) during the term hereof, shall be paid in monthly
installments at the same time the Base Rent is paid, in an amount
estimated by Lessor based on previous year tax assessments. Said
funds may be commingled with the funds of Lessor and/or deposited with
Lessor's mortgagee as an escrow deposit, and Lessee shall be entitled
to no interest thereon. Upon receipt of all tax bills, assessment
bills and other expenses attributed to such taxes during any calendar
year or tax year during the term hereof, Lessor shall
furnish Lessee with a written statement of the actual amount of
Lessee's proportionate share of the taxes, assessments and expenses
for such year. If the total amount paid by Lessee under this paragraph
for any calendar year or tax year during the term of this Lease shall
be less than the actual amount due from Lessee for such year as shown
on such statement, Lessee shall pay to Lessor the deficiency within
thirty (30) days after demand therefor by Lessor; and if the total
amount paid by Lessee hereunder for any such calendar year or tax
year, is in excess of the actual amount due, such excess shall be
credited by Lessor to the monthly installment(s) next thereafter
becoming due from Lessee under this paragraph if this Lease is in
effect, or such excess shall be refunded by Lessor if this Lease has
been terminated or if the term of this Lease has expired. For the
calendar years and tax years in which this Lease commences and
terminates, the provisions of this paragraph shall apply, and Lessee's
liability for its proportionate share of any tax assessments for such
year shall be subject to a prorata adjustment based on the number of
days of said calendar or tax year during which the term of this Lease
is in effect. A copy of a tax ▇▇▇▇ or assessment ▇▇▇▇ submitted by
Lessor to Lessee shall at all times be sufficient evidence of the
amount of taxes and/or assessments levied or assessed against the
property to which such ▇▇▇▇ relates. Prior to or at the commencement
of the term of this Lease and from time to time thereafter throughout
the term hereof, Lessor shall notify Lessee in writing of Lessor's
estimate of Lessee's monthly installments due hereunder. Lessor's and
Lessee's obligations under this paragraph shall survive the expiration
of the term of this Lease.
3. Notwithstanding the foregoing, Lessee shall not be
responsible for the payment of its proportionate share of the ad
valorem taxes associated with the Property and Building which exceeds
$86,500.00 for the tax year 1999. If Lessee's proportionate share of
the ad valorem taxes associated with the Property and Building exceeds
$86,500.00 for the tax year 1999, then Lessee shall pay such excess
amount, but the Base Rent thereafter due by Lessee for each month
remaining in the Initial Term shall be decreased by an amount equal to
the amount of Lessee's proportionate share of the ad valorem taxes
that exceeds $86,500.00 spread over the number of months remaining in
the Initial Term.
(2) Lessee shall be liable for all taxes levied against personal
property and trade fixtures placed by Lessee in the Leased Premises, such
taxes to be paid directly by Lessee and
not as part of the Additional Rent. If any such taxes for which Lessee is
liable are levied against Lessor or Lessor's property, and if Lessor is
required to pay the same or if the assessed value of Lessor's property is
increased by inclusion of personal property and trade fixtures placed by
Lessee in the Leased Premises and Lessor elects to pay the taxes based on
such increase, Lessee shall pay to Lessor, upon demand, that part of such
taxes for which Lessee is primarily liable hereunder.
(3) Lessee may, at its sole cost and expense, and upon the receipt of
prior written approval of Lessor, such approval not to be unreasonably
withheld, contest any real estate taxes against the Property and/or the
Building, and attempt to obtain a reduction in the assessed valuation of
the Property and/or the Building for the purpose of reducing any such tax
assessment. In the event Lessor approves such contest, and upon the
request of Lessee, but without expense or liability to Lessor, Lessor shall
cooperate with Lessee and execute any document which may be reasonably
necessary and proper for any proceeding. If a tax reduction is obtained,
there shall be a subsequent reduction in Lessee's proportionate taxes and
assessments for such year, and any excess payments made by Lessee shall be
refunded by Lessor, without interest, when all refunds to which Lessor is
entitled from the taxing authority with respect to such year have been
received by Lessor.
10. INSURANCE PREMIUMS TO BE REIMBURSED BY LESSEE.
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(1) In addition to the Base Rent provided for in paragraph 3 hereof,
Lessee agrees to pay to Lessor the following as Additional Rent:
1. Lessee shall pay its proportionate share of all premiums paid
by Lessor for fire and extended coverage insurance for the Building
and Property during the term hereof in such reasonable amounts as
determined by Lessor's mortgagee. Lessee's proportionate share shall
be equal to the product obtained by multiplying such insurance costs
by a fraction, the numerator of which shall be the total number of
square feet of floor area in the Leased Premises, as determined by
paragraph 1(c) and the denominator of which shall be the total number
of square feet of the gross leasable floor area in the Building.
Notwithstanding the foregoing allocation formula, Lessee shall pay as
Additional Rent one hundred percent (100%) in any increase of
insurance costs directly attributable to the manner of Lessee's use of
the Leased Premises, other than its mere occupancy thereof for general
office/warehouse purposes. Lessor shall provide Lessee with all
available documentation
(including insurance service organization rate schedules and/or
inspection reports) in connection with any such surcharge prior to the
Commencement Date of this Lease, and the same shall be subject to the
reasonable approval of Lessee in all respects.
2. Lessee's proportionate share of all such premiums during the
term hereof shall be paid in monthly installments at the same time the
Base Rent is paid. Said funds may be commingled with the funds of
Lessor and/or deposited with said mortgagee as an escrow deposit, and
Lessee shall be entitled to no interest thereon. Upon receipt of
statements for such premiums attributed to any calendar year during
the term hereof, Lessor shall furnish Lessee with a written statement
of the actual amount of Lessee's proportionate share of such insurance
premiums for such year. If the total amount paid by Lessee shall be
less than the actual amount due from Lessee for such year, Lessee
shall pay to Lessor the deficiency within thirty (30) days after
demand therefor by Lessor; and if the total amount paid by Lessee
hereunder for any such calendar year is in excess of the actual amount
due, such excess shall be credited by Lessor to the monthly
installment(s) next thereafter becoming due from Lessee under this
paragraph if this Lease is in effect or such excess shall be refunded
by Lessor if this Lease has been terminated or if the term of this
Lease has expired. For the calendar years in which this Lease
commences and terminates, the provision of this paragraph shall apply,
and Lessee's liability for its proportionate share of any such
insurance premiums for such year shall be subject to a prorata
adjustment based on the number of days of said calendar year during
which the term of this Lease is in effect. A copy of the insurance
company billing statement or premium notice submitted by Lessor to
Lessee shall at all times be sufficient evidence of the amount of
insurance premiums to be reimbursed to Lessor hereunder. Prior to or
at the commencement of the term of this Lease, and from time to time
thereafter throughout the term hereof, Lessor shall notify Lessee in
writing of Lessor's estimate of Lessee's monthly installments due
hereunder. Lessor's and Lessee's obligations under this paragraph
shall survive the expiration of the term of this Lease.
11. AUDIT. Lessee shall have the right not more than one (1) time per
-----
year, at Lessee's sole cost and expense (except as set forth herein), at
Lessor's office or at the office of Lessor's agent, to audit, inspect and copy
the books and records of Lessor with respect to any cost or item which is passed
through to Lessee under this Lease, upon thirty (30) days advance written notice
by
Lessee to Lessor. Lessor shall cooperate with Lessee in providing Lessee
reasonable access to its books and records during normal business hours for this
purpose. If the results of the audit show an overcharge to Lessee of more than
five percent (5%) of the actual amount owed by Lessee, then Lessor shall pay the
reasonable costs of such audit, and Lessor shall credit or refund to Lessee any
overcharge of such items as discovered by the audit within thirty (30) days of
completion of such audit. In the event such audit discloses an undercharge of
such items as billed to Lessee, Lessee shall pay Lessor the amount of such
undercharge within thirty (30) days of completion of such audit.
12. MAINTENANCE. Lessor covenants and agrees, at its expense and without
-----------
reimbursement or contribution by Lessee, to keep and maintain in good condition
and repair, and replace if necessary, (i) the structural systems of the Building
including, without limitation, the roof, roof membrane, roof covering (including
interior ceiling if damaged by leakage), load-bearing walls and floor slabs, and
masonry walls and foundations, (ii) the exterior and below floor slab portions
of the plumbing system, (iii) the below floor slab portions of the electrical
system servicing the Building, and all conduits from the public utility
transformer poles to the Building and (iv) the underground sprinkler mains.
Notwithstanding the foregoing, Lessee shall be responsible to perform repairs to
any of the foregoing items which are necessitated solely as a result of the
acts, omissions, or sole or negligence of Lessee, its agents, contractors,
employees, licensees, concessionaires, subtenants, or customers, it being agreed
that in the instance of concurrent negligence, Lessor and Lessee shall each bear
their proportionate share of the costs of such repairs. In the event the
described portions of the Leased Premises become out of repair, and not in good
working condition, due to either the failure of Lessor to comply with the terms
of this paragraph, or a latent defect, then Lessor shall perform or cause to be
performed any and all repairs necessary to restore the Leased Premises to a
state of good condition and repair. If, following Lessee's delivery to Lessor
of written notice of such condition, Lessor fails to prosecute the repairs
required hereunder diligently and continuously until completion within thirty
(30) days of such notice (provided, in the event such repairs are not
susceptible to cure within such thirty (30) day period, then Lessor shall be
permitted such time as is reasonably necessary to repair such items so long as
Lessor commences such cure within such thirty (30) day period, diligently
pursues such cure and, in fact, cures such condition within a reasonable period
of time), Lessee may prosecute such repairs itself and, after submitting a final
▇▇▇▇ to the Lessor for such work, Lessor shall pay the ▇▇▇▇ for such repair work
within thirty (30) days after the Lessor receives the same. Notwithstanding the
foregoing, in the case of a casualty event which creates imminent danger to
persons or property, as applicable to a portion of the Leased Premises for which
Lessor is obligated
to repair, Lessee shall provide Lessor with twenty-four (24) hours prior notice
(which notice may be oral, but which must be immediately followed by written
notice) of such event and the need for immediate repairs, and if Lessor fails to
respond to Lessee's notice by initiating repair work as may be necessary within
twenty-four (24) hours after Lessor receives such notice, Lessee shall have the
right to prosecute any and all necessary repairs relating to such event, and,
Lessor shall pay the ▇▇▇▇ for such repair work within thirty (30) days after the
Lessor receives the same.
Lessee agrees at its own expense to keep the interior of the Leased
Premises and Common Area immediately adjacent to the front entrance to the
Building in a clean and healthy condition.
13. ACCEPTANCE OF PREMISES. Lessee agrees to accept the Leased Premises
----------------------
in its "as is" condition with all faults and no warranties either express or
implied, except as may be otherwise expressly set forth in this Lease, and
except for (a) the presence of any Hazardous Materials (as hereinafter defined),
and (b) latent defects provided, however, that Lessor will warrant that, to the
best of Lessor's knowledge, the structural and exterior portions of the Leased
Premises, including without limitation the roof (hereinafter, the "Structural
Portions of the Leased Premises") are in reasonably good working condition and
order as of the Commencement Date, and Lessor has received no notice that the
Property is not in compliance with all existing laws, codes, regulations and
ordinances of any governmental authorities. In the event Lessee discovers any
Hazardous Materials on the Property, and the removal of same would delay the
Commencement Date beyond the Outside Date, or otherwise adversely affect Lessee,
then Lessee shall have the right to terminate this Lease by delivering written
notice to Lessor at least ten (10) days prior to the date of termination if
Lessor does not provide reasonable assurances that the Commencement Date will
occur prior to the Outside Date. At the end of the term or other expiration of
this Lease, Lessee will surrender and deliver up the Leased Premises to Lessor
in the same condition and repair, reasonable and ordinary wear and tear, and
damage by fire or casualty, excepted.
14. INDEMNITY/LIABILITY INSURANCE. LESSEE HEREBY INDEMNIFIES AND HOLDS
-----------------------------
LESSOR, ITS SUCCESSORS AND ASSIGNS AND OFFICERS, PARTNERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, LIABILITIES, AND EXPENSES, INCLUDING ATTORNEY'S FEES,
LIABILITIES, LOSSES, DAMAGES, SUITS, ACTIONS, FINES, PENALTIES, CLAIMS OR
DEMANDS OF ANY KIND AND ASSERTED BY OR ON BEHALF OF ANY PERSON, INDEPENDENT
CONTRACTOR OR GOVERNMENTAL AUTHORITY, ARISING FROM ANY BREACH OR DEFAULT BY
LESSEE OF THIS LEASE OR THE OPERATION OR MAINTENANCE OF THE LEASED PREMISES, OR
THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSEE OR ITS
AGENTS, EMPLOYEES OR CONTRACTORS IN OR ABOUT THE LEASED PREMISES. IN THE EVENT
ANY ACTION OR PROCEEDING SHALL BE BROUGHT AGAINST LESSOR, ITS SUCCESSORS AND
ASSIGNS AND OFFICERS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS,
BY REASON OF ANY SUCH CLAIM, LESSEE SHALL DEFEND THE SAME AT LESSEE'S EXPENSE BY
COUNSEL REASONABLY SATISFACTORY TO LESSOR. LESSOR HEREBY INDEMNIFIES AND HOLDS
LESSEE, ITS AGENTS AND EMPLOYEES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES, AND EXPENSES, INCLUDING ATTORNEY'S FEES, LIABILITIES,
LOSSES, DAMAGES, SUITS, ACTIONS, FINES, PENALTIES, CLAIMS OR DEMANDS OF ANY KIND
AND ASSERTED BY OR ON BEHALF OF ANY PERSON, INDEPENDENT CONTRACTOR OR
GOVERNMENTAL AUTHORITY, ARISING FROM ANY BREACH OR DEFAULT BY LESSOR OF THIS
LEASE OR THE MAINTENANCE OF THE LEASED PREMISES. IN THE EVENT ANY ACTION OR
PROCEEDING SHALL BE BROUGHT AGAINST LESSEE BY REASON OF ANY SUCH CLAIM, LESSOR
SHALL DEFEND THE SAME AT LESSOR'S EXPENSE BY COUNSEL REASONABLY SATISFACTORY TO
LESSEE. In addition, Lessee at its expense, shall maintain liability insurance
for injuries to any person or persons and property with combined single limits
of not less than One Million and 00/100 ($1,000,000.00) Dollars, and furnish a
certificate of insurance evidencing such coverage to Lessor, and naming Lessor
as an additional insured (provided that such insurance may be maintained under
blanket policies, and Lessor's right of recovery thereunder is limited to the
amounts required to be maintained under this Lease as set forth above). The
certificate shall specify thirty (30) days written notice to Lessor of
cancellation or material changes in the policy. Lessor agrees that it will
promptly advise Lessee of any claims against Lessor in connection with the
Leased Premises, for which Lessee is responsible for hereunder so that Lessee
may assume the defense of the same in a timely manner.
LESSOR HEREBY INDEMNIFIES AND HOLDS LESSEE, ITS SUCCESSORS AND ASSIGNS AND
OFFICERS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, HARMLESS FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, AND EXPENSES, INCLUDING
ATTORNEY'S FEES, LIABILITIES, LOSSES, DAMAGES, SUITS, ACTIONS, FINES, PENALTIES,
CLAIMS OR DEMANDS OF ANY KIND AND ASSERTED BY OR ON BEHALF OF ANY PERSON,
INDEPENDENT CONTRACTOR OR GOVERNMENTAL AUTHORITY, ARISING FROM ANY BREACH OR
DEFAULT BY LESSOR OF THIS LEASE, OR THE OPERATION OR MAINTENANCE OF THE LEASED
PREMISES, OR THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR OR ITS AGENTS,
EMPLOYEES OR CONTRACTORS IN OR ABOUT THE LEASED PREMISES. IN THE EVENT ANY
ACTION OR PROCEEDING SHALL BE BROUGHT AGAINST LESSEE, ITS SUCCESSORS AND ASSIGNS
AND OFFICERS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, BY REASON
OF ANY SUCH CLAIM, LESSOR SHALL DEFEND THE SAME AT
LESSOR'S EXPENSE BY COUNSEL REASONABLY SATISFACTORY TO LESSEE. IN THE EVENT ANY
ACTION OR PROCEEDING SHALL BE BROUGHT AGAINST LESSEE BY REASON OF ANY SUCH
CLAIM, LESSOR SHALL DEFEND THE SAME AT LESSOR'S EXPENSE BY COUNSEL REASONABLY
SATISFACTORY TO LESSEE.
15. DESTRUCTION OF PREMISES. Risk of loss shall remain with Lessor until
-----------------------
the Commencement Date. After the Commencement Date, if the Leased Premises are
damaged, destroyed or rendered wholly or partially untenantable for Lessee's
intended use, by fire or other casualty, insured or which should have been
insured under the coverage Lessor is obligated to carry pursuant to Paragraph 10
of this Lease, then after written notice of the casualty events from Lessee to
Lessor, Lessor shall commence repair of the Leased Premises within a reasonable
period of time following Lessor's receipt of the permits necessary to perform
such restoration, and its receipt of insurance proceeds (or the availability of
such proceeds in the event the insurer or Lessor's lender requires such proceeds
to be escrowed), and restore the Leased Premises to substantially the same
condition in which the Leased Premises were in immediately prior to the
occurrence of the casualty, except as otherwise provided in this paragraph,
within a reasonable period of time following the commencement of such
restoration. Lessor's obligation to rebuild is limited to the extent that
insurance proceeds are available and sufficient to restore the Leased Premises.
In the event Lessor fails to commence such restoration within one hundred twenty
(120) days following the casualty (or such longer period of time as reasonably
necessary in the event Lessor is delayed solely due to the failure of the
applicable municipal authorities to issue permits for Lessor to commence such
restoration, such longer period not to exceed thirty (30) days) and/or Lessor
fails to complete such restoration and tender possession of the Leased Premises
to Lessee within one (1) year following such casualty event, then in either of
such events, Lessee shall be entitled to terminate this Lease upon written
notice to Lessor. From the date of such casualty, until the Leased Premises are
so repaired and restored, rent and all other charges and items payable hereunder
shall ▇▇▇▇▇ in such proportion as the part of the Leased Premises thus destroyed
or rendered untenantable bears to the total Leased Premises. However, if fifty
percent (50%) or more of the Leased Premises (based upon the cost to replace the
Leased Premises damaged or destroyed, as compared with the market value of the
improvements on the Leased Premises immediately prior to such fire or other
casualty, as shown by certificate of Lessor's architect), is destroyed or
rendered untenantable by fire or other casualty during the last year of the
term, or during the last year of any extension term of this Lease, then Lessor
or Lessee shall have the right to terminate this Lease effective as of the date
of the casualty, by giving written notice of termination to the other within
thirty (30) days of such casualty; provided, however, Lessee shall have the
right to nullify
any Lessor termination by exercising an option to extend this Lease (if
available). If the notice of termination is given within this thirty (30) day
period, this Lease shall terminate, and rent and all other charges shall ▇▇▇▇▇
as aforesaid from the date of such casualty, and Lessor shall promptly repay to
Lessee any Base Rent paid in advance which has not been earned as of the date of
such casualty. If the notice is not given, and Lessor is required or elects to
repair or rebuild the Leased Premises as herein provided, then Lessee shall,
promptly after Lessor's completion of its restoration obligations and delivery
of the Leased Premises to Lessee, repair and replace Lessee's property at the
Leased Premises to at least their condition prior to the damage or destruction.
Notwithstanding the foregoing, in the event the holder of any mortgage lien on
the Leased Premises requires that the insurance proceeds be applied to such
indebtedness, and Lessor does not desire to use other funds to reconstruct, then
Lessor shall have the right to terminate this Lease by delivering written notice
of termination to Lessee within thirty (30) days following the determination of
same by the holder of such mortgage lien, whereupon all rights and obligations
of either party hereunder shall cease.
16. EMINENT DOMAIN. In the event the Leased Premises or a substantial
--------------
portion thereof, which renders the balance economically unusable by Lessee for
the conduct of its business, are taken under the power of eminent domain for any
public or quasi-public use, then Lessee may, at its option, terminate and cancel
this Lease by giving Lessor notice in writing, by registered or certified mail,
within thirty (30) days of Lessee's receipt of notice of the condemnation from
Lessor. If Lessee so elects to terminate this Lease, said termination shall be
effective upon the date that the condemning authority takes possession of the
condemned property and thereupon both parties shall be relieved of any further
obligation under this Lease, except that the parties shall fulfill all of their
obligations hereunder to be performed to the date of such termination. In the
event this Lease is not terminated and canceled after a condemnation of a
portion of the Leased Premises, the Base Rent due hereunder shall be reduced in
proportion to the area of the Leased Premises taken, effective on the date
physical possession is taken by the condemning authority.
Lessee may file a separate claim for any of its leasehold interest
hereunder, leasehold improvements constructed by Lessee or constructed at
Lessee's expense, its trade equipment, machinery and fixtures and relocation
expenses.
If this Lease is not terminated as provided hereinabove, Lessor shall use
its best efforts to promptly and diligently restore the Leased Premises, or the
building in which they are located, to a condition as similar as possible to
that existing prior to the taking and suitable for the use intended hereunder.
17. ALTERATIONS. Lessor agrees that Lessee may at its own expense, from
-----------
time to time during the term hereof, make such interior alterations and changes
in and to the Leased Premises, as it finds necessary or convenient for its
purposes, provided that such interior alterations, additions or changes shall
not lessen the value of the building in which the Leased Premises is located;
provided, however, that Lessee shall not make structural changes or alterations
or non-structural changes or alterations costing in excess of $7,500.00 without
the prior written consent of Lessor, which shall not be unreasonably withheld or
delayed. Any structural alterations, additions and changes shall remain on the
Leased Premises at the end of the term of this Lease, or any renewal term
hereof, and shall be considered as improvements to and become a part of the real
estate of Lessor. Lessee agrees that any interior alterations, additions and
changes aforesaid made by it will be erected or made in a first-class,
workmanlike manner and all shall be subject to the terms and conditions of this
Lease. Lessee may not expand the Leased Premises without the prior written
consent of Lessor.
It is understood and agreed, however, that all trade equipment, machinery
and fixtures of every kind and description placed in and upon the Leased
Premises by Lessee during the term of this Lease, shall be and remain personal
property belonging to Lessee, and, at the expiration or termination of the term
of this Lease, or any renewal hereof, Lessee shall have the right to remove such
personal property from the Leased Premises, and shall restore and repair, at its
expense, any damage to the Leased Premises directly caused by the removal of
such items of personal property.
18. LESSOR'S ACCESS TO PROPERTY. Lessor or its agent may, so often as is
---------------------------
reasonable, and only with prior written notice to Lessee and with a Lessee
representative present at all times, enter upon the Leased Premises during the
Initial Term, or any renewal term of this Lease, for the purpose of maintaining
and inspecting the same, to show the Property for purposes of financing or
refinancing same, for purposes of placing signs thereon or offering the same for
lease after Lessee's term or for purposes of showing the Property to prospective
purchasers; provided, however, that Lessor shall only show the Leased Premises
to prospective tenants during the last twelve (12) months of the term of this
Lease, as such term may be extended. Other than in the case of an emergency,
Lessor shall use its best efforts to provide Lessee with advance notice of its
desire to enter upon the Leased Premises. Emergency for purposes of this
paragraph shall be defined as an event which eminently threatens loss of life or
destruction of property.
19. QUIET ENJOYMENT AND PERMITTED USE. Lessor represents and warrants
---------------------------------
that (i) Lessor is the fee simple owner and record title holder of the Leased
Premises, (ii) Lessor has not received any notice, and does not have any
knowledge, of any eminent domain or
similar proceeding which would affect the Leased Premises, (iii) Lessor has the
full right, power and authority to make this Lease, (iv) to the best of Lessor's
knowledge, other than the Declaration and the rules promulgated by the
architectural control committee created thereunder, no unrecorded restrictive
covenant, easement, lease or other written agreement restricts, prohibits or
otherwise affects Lessee's rights set forth in this Lease, including without
limitation Lessee's parking rights, rights to signage, construction, permitted
use or ingress and egress to and from the Leased Premises, and (v) that Lessee,
or any permitted assignee or sublessee of Lessee, upon the payment of the rent
and performance of the covenants hereunder, shall and may peaceably and quietly
have, hold and enjoy the Leased Premises and improvements thereon during the
term of this Lease, and any extension thereof, provided, however, that Lessee
shall not, without the prior written consent of Lessor, permit the Leased
Premises to be used for the storage, treatment or holding for any length of time
of any amount of hazardous waste or environmental contaminants.
20. ASSIGNMENT AND SUBLETTING. Lessee agrees that it will not assign this
-------------------------
Lease or sublet more than fifty percent (50%) of the Leased Premises without the
express written consent of Lessor, which consent shall not be unreasonably
withheld or delayed; except, Lessee shall have the absolute right to sublet,
assign or otherwise transfer its interest in this Lease to any parent or
operating subsidiary of Lessee, or subsidiary of the parent of Lessee,
affiliate, or to a corporation/company with which Lessee may merge or
consolidate, or be acquired by, without Lessor's approval, written or otherwise;
provided, in no event shall such subletting, assignment or transfer release
Lessee from its obligations under this Lease. As used herein the term
"affiliate" means a corporation controlling, controlled by or under common
control with Lessee. Lessee is not restricted in any manner from a change in
control or change in shareholders, directors, management or organization of
Lessee, or any subsidiary, affiliate or associate of Lessee, or to the issuance,
sale, purchase or disposition of the shares of Lessee, or any subsidiary,
affiliate or associate of Lessee. However, that the parties acknowledge that
Lessor may withhold such consent if the proposed assignee or subtenant is
involved in any way with hazardous waste or environmental contaminants and will
store, treat or hold same on the Leased Premises for any length of time. In the
event of a permitted subletting or assignment, Lessee shall remain liable to
Lessor for all the rentals called for under the terms of this Lease, and for the
performance of all covenants herein to be performed by Lessee. Lessee shall
fully disclose to Lessor the sublease terms and conditions and, as may be
requested by Lessor or its Mortgagee from time to time, Lessee shall provide
information of the status and terms of the sublease within seven (7) days from
receipt from Lessor of such request. Furthermore, for the Initial Term of this
Lease, in the event of a permitted subletting or
assignment of the Leased Premises for an amount in excess of the total amount to
be paid by Lessee hereunder, Lessee agrees to pay to Lessor as Additional Rent
an amount equal to fifty (50%) percent of the excess rent received by Lessee
from its assignee or subtenant after deduction of expenses directly related to
the assignment or subletting and the payment of utilities, taxes and the like by
Lessee with respect to the portions of the Leased Premises that are sublet or
assigned.
21. DEFAULT BY LESSEE. If Lessee shall fail to pay to Lessor the rent
-----------------
and/or other sums of money payable to Lessor as and when due and payable
hereunder, and such default shall continue for a period of ten (10) days after
written notice thereof shall be given to Lessee by Lessor, or in the event
Lessee shall fail to comply with any other provisions or conditions of this
Lease, upon its part to be kept and performed, and such default shall continue
for a period of thirty (30) days after written notice thereof shall be given to
Lessee by Lessor (or for such longer period as is reasonably necessary if the
alleged default is not reasonably capable of cure within thirty (30) days and
Lessee diligently proceeds to cure such default), or if Lessee shall be adjudged
bankrupt, or shall make an assignment for the benefit of creditors, or if a
receiver of any property of Lessee in or upon said Leased Premises, or for all
or part of Lessees' interest hereunder, be appointed in any action, suit or
proceeding by or against Lessee, and such adjudication, assignment or
appointment shall not be vacated or annulled within sixty (60) days, or if the
interest of Lessee in the Leased Premises shall be sold under execution, or
other legal process then in the event of the occurrence of any one or more of
the following events then Lessee shall have committed an "Event of Default".
22. LESSOR'S REMEDIES. Upon the occurrence of any Event of Default
-----------------
enumerated above, Lessor may, at its option, in addition to any and all other
rights or remedies available to it hereunder or at law or in equity, do any one
or more of the following:
(1) Terminate this Lease, in which event Lessee shall immediately
surrender possession of the Leased Premises to Lessor.
(2) Enter upon and take possession of the Leased Premises and expel or
remove Lessee and any other occupant therefrom, with or without terminating
this Lease.
(3) Alter locks and other security devices at the Leased Premises,
after repossessing the Leased Premises.
(4) Remove and store any or all of the office equipment and furniture
situated in the Leased Premises, after repossessing the Leased Premises.
(5) Enter upon the Leased Premises and do whatever Lessee is obligated
to do under the terms of this Lease; and Lessee agrees to reimburse Lessor
on demand for any expenses which Lessor may incur in effecting compliance
with Lessee's obligations under this Lease, and Lessee further agrees that
Lessor shall not be liable for any damages resulting to Lessee from such
action.
(6) Exercise all other remedies available to Lessor at law or in
equity, including injunctive relief.
Exercise by Lessor of any one or more remedies herein granted or otherwise
available shall not be deemed to be an acceptance or surrender of the Leased
Premises, whether by agreement or by operation of law, it being understood that
such surrender can be effected only by the written agreement of Lessor and
Lessee. In the event Lessor elects to re-enter or take possession of the Leased
Premises after Lessee's default, Lessee hereby waives notice of such re-entry or
repossession. In the event Lessor elects to terminate this Lease by reason of
the occurrence of an Event of Default, then notwithstanding any such
termination, Lessee shall be liable for and shall pay to Lessor the Base Rent
and other indebtedness accrued to the date of such termination, plus, as
damages, an amount of money equal to the excess (if any) of the total Base Rent
and all other payments due for the balance of the term of this Lease over the
fair market value of the Leased Premises for the balance of the term of this
Lease (subject to Lessor's duty to mitigate its damages). Upon the occurrence
of an Event of Default, Lessee shall also be liable for and shall pay to Lessor
upon demand, in addition to any other sums to be paid hereunder: all reasonable
broker's fees incurred by Lessor in connection with the reletting of all or any
portion of the Leased Premises; the costs of removing and storing Lessee's or
other occupant's property found in the Leased Premises; the Lessor's reasonable
costs of repairing, altering, remodeling or otherwise putting the Leased
Premises into a condition acceptable to a new lessee; and all reasonable
expenses incurred by Lessor in enforcing Lessor's remedies, including reasonable
attorney's fees.
In the event of termination or repossession of the Leased Premises upon the
occurrence of an Event of Default, Lessor shall use reasonable efforts to relet
the Leased Premises, or any portion thereof, on such terms as Landlord in its
discretion may require. In the event of any such reletting, Lessor may relet the
whole or any portion of the Leased Premises for any period, to any lessee, for
any rental and for any use and purpose.
23. DEFAULT BY LESSOR. In the event of any default by Lessor hereunder,
-----------------
Lessee may seek any remedy at law or in equity except the right to terminate
this Agreement, however, Lessee hereby
waives the benefit of any laws granting it a lien upon the property of Lessor
and/or upon the Base Rent due to Lessor; but prior to any such action, Lessee
shall give Lessor written notice specifying such default with reasonable detail,
and Lessor shall thereupon have thirty (30) days in which to cure any such
default. If such default cannot reasonably be cured within such thirty (30) day
period, the length of such period shall be extended for the period reasonably
required therefor if Lessor commences curing such default within such thirty
(30) day period and continues the curing thereof with reasonable diligence.
Unless Lessor fails to cure any default after such notice, Lessee shall not have
any remedy or cause of action. All obligations of Lessor hereunder shall be
construed as covenants, not conditions. In addition, Lessee specifically agrees
to look solely to Lessor's interest in the Property for the recovery of any
judgment against Lessor pursuant to this Lease, it being agreed that neither
Lessor, nor any successors or assigns of Lessor, nor any future owner of the
Building shall ever be personally liable for any such judgment.
24. STATUTORY AND ENVIRONMENTAL COMPLIANCE. To the best of Lessor's
--------------------------------------
knowledge, the Leased Premises have never and do not currently contain, nor are
they contaminated by, any hazardous or toxic waste materials in violation of any
applicable environmental law or regulation, including, but not limited to
Section 103 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9601, et seq, or applicable Texas environmental laws
-- ---
and regulations. In addition, no "clean-up" (as such term is used in applicable
environmental laws) of the Leased Premises has occurred pursuant to any
applicable federal or state environmental laws or regulations, nor have same
been ordered with respect to the Property.
Lessor warrants and represents that, to the best of its knowledge, the
Leased Premises are currently, and as of the Commencement Date of this Lease
will be, in compliance with (i) all applicable local, State and Federal laws,
statutes, rules, orders, ordinances, requirements and regulations (including
laws, statutes, rules, orders, ordinances, requirements and regulations relating
to environmental matters), and (ii) the rules, orders and regulations of the
Board of Fire Underwriters. If the Leased Premises are not in compliance with
(i) or (ii) above, Lessor shall cause the Leased Premises to be brought into
compliance with same prior to the Commencement Date.
Except as to matters which are Lessor's responsibility under the preceding
sections of this paragraph, Lessee shall promptly comply with all statutes,
ordinances, rules, orders, regulations and requirements of the Federal, State
and Municipal Government and of any and all their Departments and Bureaus
applicable to said Leased Premises for the correction, prevention and abatement
of nuisances, violations or other grievances, in, upon or connected
with the Leased Premises during the term of this Lease; and shall also promptly
comply with and execute all rules, orders and regulations of the Board of Fire
Underwriters for the prevention of fires, at Lessee's own cost and expense;
provided specifically that it shall be Lessee's responsibility to comply with
any and all present and future environmental statutes and any regulations
promulgated thereunder (hereinafter collectively referred to as "Environmental
Provisions"), which apply to the Property as a result of the existence of this
Lease, its termination or expiration and which are triggered as a consequence of
Lessee's use thereof or any environmental condition developing or coming into
existence during the term of this Lease on the Property where the Leased
Premises are located, which are attributable to acts or omissions of Lessee, its
employees, agents or representatives; provided, however, that the foregoing
shall not apply with respect to matters arising as a result of acts or omissions
of Lessor, its agents, employees, invitees or representatives or Lessor's
predecessors or successors or other tenants of the Building in which the Leased
Premises are located. This responsibility shall include, but not be limited to,
the submission of all information required thereunder by any governmental
authority and the development and implementation of any cleanup plan required
because of any spill or discharge of a hazardous substance or waste on the
Property which occurs during the term of this Lease arising from acts or
omissions of Lessee, it employees, agents or representative. In the event that
Lessee's obligations with respect to its duty to comply with the requirements of
any Environmental Provision as it applies to the Property on which the Leased
Premises are located are not fully and completely discharged as of the
expiration or effective date of termination of this Lease, this Lease shall
terminate and Lessee shall remain financially responsible for the cost of
discharging Lessee's obligations hereunder.
LESSEE AGREES TO INDEMNIFY AND HOLD LESSOR, ITS SUCCESSORS AND ASSIGNS AND
OFFICERS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS COMPLETELY
HARMLESS WITH RESPECT TO ALL DIRECT DAMAGES, INDIRECT DAMAGES, COSTS, LIABILITY,
CLAIMS, JUDGMENTS, FINES, PENALTIES OR POTENTIAL LIABILITY, WHETHER STATUTORY OR
OTHERWISE, IN CONNECTION WITH ANY ENVIRONMENTAL CONDITION OCCURRING DURING THE
TERM OF THIS LEASE (I) ON THE LEASED PREMISES OR (II) ON THE PROPERTY, WHICH AS
TO (I) OR (II) ARE ATTRIBUTABLE TO ACTS OR OMISSIONS OF LESSEE, ITS EMPLOYEES,
AGENTS, OR REPRESENTATIVES. THE INDEMNIFICATION PROVISIONS CONTAINED IN THIS
PARAGRAPH SHALL INCLUDE ALL COSTS, FINES, PENALTIES, CLEANUP COSTS, REASONABLE
CONSULTANTS', EXPERTS' AND ATTORNEYS' FEES AND ANY OTHER REASONABLE EXPENSES
INCURRED BY THE PARTY ENTITLED TO INDEMNIFICATION HEREUNDER. THE PARTIES HEREBY
ACKNOWLEDGE AND AGREE THAT THE
PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS
LEASE AND SHALL REMAIN ENFORCEABLE IN ACCORDANCE WITH THE TERMS HEREOF.
LESSOR AGREES TO INDEMNIFY AND HOLD LESSEE, ITS SUCCESSORS AND ASSIGNS AND
OFFICERS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS COMPLETELY
HARMLESS WITH RESPECT TO ALL DIRECT DAMAGES, INDIRECT DAMAGES, COSTS, LIABILITY,
CLAIMS, JUDGMENTS, FINES, PENALTIES OR POTENTIAL LIABILITY, WHETHER STATUTORY OR
OTHERWISE, IN CONNECTION WITH ANY ENVIRONMENTAL CONDITION ON THE PROPERTY WHICH
IS NOT OTHERWISE THE SUBJECT OF LESSEE'S INDEMNITY SET FORTH ABOVE, INCLUDING,
WITHOUT LIMITATION, ANY UNDERGROUND TANKS, OR DUE TO LESSOR'S FAILURE TO PROVIDE
INFORMATION, MAKE ALL SUBMISSIONS AND TAKE ACTION AS REQUIRED BY FEDERAL, STATE
AND LOCAL ENVIRONMENTAL PROTECTION AGENCIES DURING THE TERM OF THIS LEASE WHICH
ARE ATTRIBUTABLE TO ACTS OR OMISSIONS OF LESSOR, ITS EMPLOYEES, AGENTS OR
REPRESENTATIVES OR OTHER TENANTS. THE INDEMNIFICATION PROVISIONS CONTAINED IN
THIS PARAGRAPH SHALL INCLUDE ALL COSTS, FINES, PENALTIES, CLEANUP COSTS,
REASONABLE CONSULTANTS', EXPERTS' AND ATTORNEYS' FEES AND ANY OTHER REASONABLE
EXPENSES INCURRED BY THE PARTY ENTITLED TO INDEMNIFICATION HEREUNDER. THE
PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS PARAGRAPH SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS LEASE AND SHALL REMAIN ENFORCEABLE
IN ACCORDANCE WITH THE TERMS HEREOF.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LESSOR'S INDEMNIFICATION
SHALL ALSO SPECIFICALLY COVER COSTS IN CONNECTION WITH:
(I) HAZARDOUS MATERIALS PRESENT OR SUSPECTED TO BE PRESENT IN THE SOIL,
GROUND WATER OR SOIL VAPOR ON OR UNDER THE LEASED PREMISES BEFORE THE
DATE HEREOF; OR
(II) HAZARDOUS MATERIALS PRESENT ON OR UNDER THE LEASED PREMISES AS A
RESULT OF ANY DISCHARGE, DUMPING, SPILLING (ACCIDENTAL OR OTHERWISE)
ONTO THE LEASED PREMISES DURING OR AFTER THE TERM OR ANY EXTENSION
TERM BY LESSOR.
Lessee may, at its sole cost and expense, obtain a report (the "Phase I
Environmental Survey") on the environmental condition of the Property (or, at
its option, obtain a copy of Lessor's Phase I Environmental Study)(or, in the
alternative, Lessee may review a
copy of any environmental study that Seller has in its possession and relating
to the Property). If Lessee shall discover in its review of any such Phase I
Environmental Survey, or in any other environmental study reviewed by Lessee,
that any Hazardous Materials may be present in the soil, ground water or soil
vapor on or under the Leased Premises, Lessee may terminate this Lease upon
written notice to Lessor within ten (10) days after the date Lessee receives
such Phase I Environmental Survey, but for such termination to be effective,
notice thereof shall be delivered to Lessor on or before February 2, 1998. After
such termination, neither party shall have any obligation hereunder.
If, during the term of this Lease (or any extension hereof), any
governmental authority requires the investigation, remediation and/or monitoring
of Hazardous Materials at the Leased Premises or the Building and such
investigation, remediation and/or monitoring poses a safety threat to Lessee's
employees or customers (as determined by a qualified environmental expert), then
so long as the presence of such Hazardous Materials is not as a result of the
acts of Lessee or its agents, contractors or employees, Lessee shall be entitled
to receive an equitable abatement of rent from the date Lessee is not able to
occupy the Leased Premises until the date Lessee is able to safely re-occupy the
Leased Premises, and further provided that, so long as the presence of such
Hazardous Materials is not as a result of the acts of Lessee's or its agents,
contractors or employees, if such condition exists for one hundred twenty (120)
days or more, Lessee shall be entitled to terminate this Lease.
No alleged violation of any governmental law, ordinance, rule or regulation
by Lessee shall constitute a breach of any covenant under the provisions of this
Lease so long as Lessee is contesting in good faith the validity of such law,
ordinance, rule or regulation or the existence of its alleged violation thereof,
provided Lessee shall hold Lessor harmless from any liability or expense by
reason of any such contest or litigation concerning any such governmental law,
ordinance, rule or regulation, or any alleged violation thereof by Lessee.
25. NON WAIVER. No failure to insist on performance in any instance of
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any obligation hereunder shall be deemed a waiver of such performance, or any
subsequent performance of such obligation or of the performance of any other
obligation hereunder, and no waiver in any instance of the performance of any
obligation hereunder shall be deemed a waiver of any subsequent performance of
such obligation or of the performance of any other obligation hereunder.
26. NOTICES. All notices required or permitted under this Lease shall be
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in writing and shall be given by Certified Mail, Return Receipt Requested or by
Federal Express or other overnight
courier. For all purposes hereunder, including notices and the payment of
rentals, the addressee of the parties hereto are as follows:
Lessor: Green Mountain Ventures I, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Tel. ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
With copy to: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attorney at Law
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Tel. ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
Lessee: Business Partner Solutions, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel. ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
With copy to: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel. ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
Either party may change the foregoing address by notice given pursuant to
this paragraph.
27. SUBORDINATION. This Lease and all of the rights of Lessee hereunder
-------------
are and shall be subject and subordinate to the lien of any mortgage or
mortgages hereinafter placed on the Leased Premises or any part thereof, except
Lessee's property or trade fixtures, and to any and all renewals, modifications,
consolidations, replacements, extensions or substitutions of any such mortgage
or mortgages (all of which are hereinafter termed the mortgage or mortgages),
provided, nevertheless, each or all of such mortgages, except any mortgage
outstanding as of the date of this Lease, shall contain a provision to the
effect that so long as Lessee is not in default under this Lease, or any renewal
hereof, no foreclosure of the lien of said mortgage or any other proceeding in
respect thereof shall divest, impair, modify, abrogate or otherwise adversely
affect any interests or rights whatsoever of Lessee under the said Lease.
Such subordination shall be automatic, without the execution of any further
subordination agreement by Lessee, provided,
however, Lessee shall execute a written subordination/non-disturbance agreement,
in form similar to the subordination/non-disturbance agreement attached hereto
as Exhibit "E", if Lessor's Mortgagee (or any future Mortgagee) requests such
written document and agrees to execute such document confirming the non-
disturbance provision of the subordination/non-disturbance agreement.
28. LIENS. If, because of any act or omission of Lessee or anyone
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claiming through or under Lessee, any mechanic's or other lien or order for the
payment of money shall be filed against the Leased Premises or the Property, or
against Lessor (whether or not such lien or order is valid or enforceable),
Lessee shall, at its expense, cause the same to be canceled, discharged or
bonded of record within thirty (30) days after the date of filing thereof, AND
SHALL ALSO INDEMNIFY AND HOLD HARMLESS LESSOR FROM AND AGAINST ANY AND ALL
COSTS, EXPENSES, CLAIMS, LOSSES AND DAMAGES (INCLUDING REASONABLE ATTORNEYS'
FEES) IN CONNECTION THEREWITH.
29. INTEGRATION. It is expressly understood and agreed by and between the
-----------
parties hereto that this Lease sets forth all the promises, agreements,
conditions and understandings between Lessor and/or its agents and Lessee
relative to the Leased Premises and there are no oral promises, agreements,
conditions, or understandings between the parties with respect thereto.
30. SHORT FORM LEASE AND ESTOPPEL CERTIFICATE. The parties will, at any
-----------------------------------------
time upon the request of Lessor or Lessor's Mortgagee, promptly execute
duplicate originals of an instrument, in recordable form, which will constitute
a short form of this Lease setting forth a description of the Property, the term
of this Lease and any portion hereof, excluding the rental provisions.
In the event that either party or Lessor's Mortgagee requires an Estoppel
Certificate confirming the terms of this Lease, the other party shall provide
same, in the form attached hereto as Exhibit "C", or in such other similar form
reasonably requested by Lessor's Mortgagee, within ten (10) business days of
such request.
31. SUCCESSORS AND ASSIGNS. This Lease, and all the covenants, provisions
----------------------
and conditions herein contained shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
devisees, legal representatives, successors and permitted assigns.
32. BROKERS. Lessee and Lessor covenant and represent to each other that
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Trinity Asset Management--Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇ is entitled to be paid a fee or
commission by Lessor in connection with the transaction contemplated by this
Lease, and neither Lessee nor Lessor has had any dealings or agreements with any
other individual or entity requiring the payment of such a fee or commission.
In
the event either party has incurred any such other fee or commission not
disclosed in this Paragraph, or other similar fee on account of an alleged
employment, arrangement or contract with a broker or a finder, THEN THE PARTY
WHO IS ALLEGED TO HAVE RETAINED SUCH INDIVIDUAL OR ENTITY SHALL AND DOES HEREBY
AGREE TO INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY FROM AND AGAINST ANY SUCH
CLAIM AND ALL COSTS, EXPENSES, LIABILITIES AND DAMAGES INCURRED IN CONNECTION
WITH SUCH CLAIM OR ANY ACTION OR PROCEEDING BROUGHT THEREON. NOTWITHSTANDING ANY
OTHER PROVISION OF THIS LEASE TO THE CONTRARY, THE INDEMNITY AND HOLD HARMLESS
PROVISIONS CONTAINED IN THIS PARAGRAPH SHALL SURVIVE THE EXECUTION OF THIS LEASE
AND IF THIS LEASE IS TERMINATED, THE TERMINATION OF THIS LEASE.
33. GOVERNING LAW. This Lease shall be governed, interpreted and
-------------
construed in accordance with the laws of the State of Texas.
34. FORCE MAJEURE. In the event Lessor or Lessee shall be delayed or
-------------
hindered or prevented from the performance of any obligation required under this
Lease by reason of strikes, lockouts, inability to procure labor or materials,
failure to power, fire or other casualty, acts of God, restrictive governmental
laws or regulations, riots, insurrection, war or any other reason not within the
reasonable control of Lessor or Lessee, as the case may be, then the performance
of such obligation shall be excused for a period of such delay and the period
for the performance of any such act shall be extended for a period equivalent to
the period of such delay.
35. SIGNS. Lessee shall obtain Lessor's prior consent, which shall not be
-----
unreasonably withheld or delayed, prior to placing any sign on or about the
Leased Premises. Any such sign must conform with the Declaration and all
applicable municipal ordinances, regulations and rules of Lessor.
Notwithstanding the above, Lessor has approved the signage of Lessee as
preliminarily described on the attached Exhibit "G".
36. LIMITATION ON LESSOR'S LIABILITY AND EXCEPTIONS TO DEMISE. As used in
---------------------------------------------------------
this Lease, the term "Lessor" is limited to and includes only the fee simple
owner of the Property on the date this Lease is executed. In the event that the
owner of the Property transfers title thereto and the transferee assumes all of
Lessor's obligations hereunder, then upon such transfer the owner conveying
title shall be automatically relieved as of the date of such transfer of any and
all liabilities or obligations with respect to this Lease other than obligations
arising prior to the date of such transfer.
37. DECLARATION. The leasehold interest created by this Lease is subject
-----------
to all easements, covenants and obligations set
forth in the Declaration. Lessee acknowledges that an owners' association will
be established in connection with the Declaration and annual assessments will be
established to pay for the maintenance of the common area of the Business Park.
Lessee agrees to pay Lessor its pro rata share of such costs attributable to the
Property during the term hereof (excluding any interest or penalties owed by
Lessor under the Declaration). Lessee's proportionate share shall be equal to
the product obtained by multiplying such assessment by a fraction, the numerator
of which shall be the total number of square feet of floor area in the Leased
Premises and the denominator of which shall be the total number of square feet
of the gross leasable floor area in the Building. Lessor agrees to pay any
amounts in excess of $2,305.00 per year, plus an increase of five percent (5%)
per year after the first year of the Initial Term, associated with Lessee's pro
rata share of the assessment. For partial calendar years occurring during the
first and last years of the primary term or any extension periods, if
applicable, the expense stop for the common area costs of the Business Park
payable for such partial years shall be appropriately prorated for the purposes
of calculating common area costs of the Business Park owed by Lessee due for
such partial calendar year.
38. SUBROGATION. Lessor and Lessee each hereby waive any and all rights of
-----------
subrogation which it may have in connection with the policies of insurance
required by this Lease, and claims submitted thereunder.
39. ATTORNEYS FEES. If at any time during the term of this Lease (or any
--------------
extension hereof) either Lessor or Lessee shall institute any action or
proceeding against the other relating to the provisions of this Lease, or any
default hereunder, then the unsuccessful party in such action or proceeding
agrees to reimburse the successful party for the reasonable expenses for
attorney's fees, paralegal fees and disbursements incurred therein by the
successful party. Such reimbursement shall include all legal expenses incurred
prior to trial, at trial and at all levels of appeal and post judgment
proceedings.
40. RECORDING. The parties shall join in the execution of a memorandum or
---------
so-called "short-form" of this Lease for the purpose of recordation in
accordance with the form attached hereto as Exhibit "F" and made a part hereof.
Any recording costs associated with the memorandum or short form of this Lease
shall be borne by the party requesting recordation.
41. WAIVER OF LANDLORD'S LIENS. Lessor hereby waives and releases any
--------------------------
contractual, statutory, constitutional, or other Landlord's lien on Lessee's
furniture, fixtures, supplies, equipment and inventory.
42. LESSEE FINANCING. Lessee shall have the absolute right from time to
----------------
time during the term hereof (or any extension hereof) and without Lessor's
further approval, written or otherwise, to grant and assign a mortgage or other
security interest in Lessee's property to Lessee's lenders in connection with
any Lessee financing arrangements. Lessor agrees to execute such confirmation,
certificates and other documents (except amendments to this Lease unless Lessor
hereafter consents) as Lessee's lenders may reasonably request in connection
with any such financing.
43. LESSEE'S CONDUCT OF BUSINESS. Notwithstanding anything herein to the
----------------------------
contrary, nothing herein shall be construed as an obligation for Lessee to
operate its business in the Leased Premises. Lessee shall have the right to
remove Lessee's property and cease operations in the Leased Premises at any time
and at Lessee's sole discretion. However, the right to cease to operate its
business shall not affect Lessee's obligation to pay all amounts due hereunder
and to perform all covenants and obligations hereunder. In the event Lessee
ceases to operate its business in the Leased Premises for a period in excess of
sixty (60) days for any reason other than Lessee's alterations, or casualty,
condemnation or any other reason beyond Lessee's control, then Lessor shall be
entitled to terminate this Lease upon written notice to Lessee.
44. SATELLITE DISH. Subject to approval by applicable governmental
--------------
authorities, Lessor hereby grants to Lessee and its agents and contractors, at
Lessee's sole cost and expense, the right to install, maintain and operate a
mast mounted satellite dish antenna (the "Dish") and related equipment,
including cables from the exterior of the Leased Premises to equipment inside
the Leased Premises, necessary for the operation of the Dish. Lessee may locate
the Dish at or relocate the Dish to some other location on or about the Leased
Premises or the Building roof for purposes of adequate reception subject to
applicable law, codes and regulations. Lessee will ensure that the Dish, and
each part of it, will be installed in accordance with local and building rules
of construction and occupancy codes and shall repair all damage to the Leased
Premises (including but not limited to the roof of the Leased Premises) caused
as a result of Lessee's installation of the Dish. The Dish is and shall remain
the property of Lessee or Lessee's assignee, transferee or sublessee, and Lessor
and Lessee agree that the Dish is not, and installation of the Dish at the
Leased Premises shall not cause the Dish to become, a fixture pursuant to this
Lease or by operation of law. Lessee shall be responsible for the repair and
maintenance of the Dish during the term of this Lease (or any extended term), at
its sole cost and expense, and upon the termination of this Lease shall remove
said Dish and repair damage to the roof of the Leased Premises caused solely as
a result of such removal. Any roof penetrations caused
by Lessee shall not invalidate roof warranties; and roof penetrations shall be
performed by Lessor's contractor at Lessee's expense if required in order to
preserve roof warranties. The location and screening of the Dish shall be
subject to the rights of the architectural control committee established in the
Declaration.
45. OPTION AND RIGHT OF FIRST REFUSAL TO LEASE ADJACENT SPACE. Lessee
---------------------------------------------------------
shall have the option to lease all or part of the "Adjacent Space" (as
hereinafter defined), in addition to the Leased Premises, provided that Lessee
is in possession and occupancy of the Leased Premises, is not in default under
the terms of this Lease and exercises the option in the following manner and
subject to the following conditions:
(1) If at any time during the Initial Term Lessee shall desire to
lease the Adjacent Space then Lessee shall send written notice to Lessor of
such election. This option shall be irrevocable from the Effective Date to
the last day of the Initial Term (either by termination or expiration), at
which time said option shall terminate without notice to Lessee. The terms
and conditions for the Adjacent Space shall be the same as set forth in
this Lease except the base rent for the Adjacent Space shall be $3.50 per
square foot per year for years one through five of the Initial Term and
$3.85 per square foot per year for years six through ten of the Initial
Term. The monetary cap put on ad valorem taxes, common area expenses for
the Property and common area expenses for the business park shall be
increased proportionately to reflect the added square footage and the use
associated with such Adjacent Space. Upon Lessee's election to lease the
Adjacent Space, Lessee thereby agrees to accept the Adjacent space "as-is"
"where-is" and "with all faults" and in the condition then existing, and
no warranties, either expressed or implied, shall be given by Lessor to
Lessee except Lessor agrees to install overhead lighting, a sprinkler
system and two 10x10 dock doors ("Lessor's Adjacent Space Improvements"),
at Lessor's expense, Lessor's Adjacent Space Improvements will be of
similar quality as was installed in the Leased Premises. Lessor's Adjacent
Space Improvements shall be substantially completed within ninety (90) days
of the execution of an addendum to this Lease reflecting the lease of the
Adjacent Space. The rent for the Adjacent Space shall commence on the date
the Lessor's Adjacent Space Improvements are substantially completed and
Lessor has obtained the requisite City of San Antonio permit to allow
occupancy of the Adjacent Space. The sections in this Lease setting forth
Lessor's obligation regarding Lessor's Improvements shall be inapplicable
to the lease of the Adjacent Space. The term for the lease of the Adjacent
Space shall correspond to the Initial Term of this Lease including the
termination rights
set forth in Section 2(A) of this Lease. If Lessee exercises the option set
forth in this paragraph and subsequently subleases the Adjacent Space then
the obligation set forth in paragraph 20 to pay as Additional Rent an
amount equal to fifty percent (50%) of the excess rent received by Lessee
from its subtenant shall be waived for the Adjacent Space.
(2) If at any time during the Initial Term Lessor shall desire to
offer to lease all or any portion of the Adjacent Space or receives a bona
fide offer from any person or entity to lease the Adjacent Space, Lessor,
before making or accepting the offer, as the case may be, shall send Lessee
a copy of the proposed Lease or lease proposal, except for the name of the
prospective tenant (herein referred to as the "Lease Proposal"), and notify
Lessee of the intention of Lessor to accept same. Lessor shall not send
Lessee a copy of any Lease Proposal until sixty (60) days after the
Commencement Date.
(3) Lessee shall have the right within fifteen (15) days to either (i)
accept the terms of the Lease Proposal in its own name for the rental and
on the other terms specified in the Lease Proposal, provided, however, that
in order for the Lessee to accept the terms of the Lease Proposal the term
of this Lease must be extended to a term equal to the term of the Lease
Proposal or (ii) exercise its option to lease the Adjacent Space as
provided in paragraph (A) above.
(4) If Lessee shall not so elect within the said fifteen (15) day
period, Lessor may then lease the Adjacent Space to the prospective tenant
provided the Lease is on the same material business terms and conditions
set forth in the Lease Proposal. In the event the Adjacent Space or such
part thereof is not leased to the same third party making the Lease
Proposal, then any further offer that Lessor receives to lease the Adjacent
Space or any part thereof, must first be submitted to Lessee in accordance
herewith.
(5) "Adjacent Space" as used herein, shall be the proximately 29,101
square foot space contiguous to the Leased Premises which is outlined on
the Site Plan.
46. OPTION FOR ADDITIONAL PARKING AREA: Lessee shall have the option to
----------------------------------
exclusively use all or part of the "Adjacent Parking Area" (as hereinafter
defined), in addition to the Lessee Exclusive Parking Area, marked on the Site
Plan provided that Lessee is in possession and occupancy of the Leased Premises,
is not in default under the terms of this Lease and exercises the option in the
following manner and subject to the following conditions:
(1) If at any time during the first seven (7) years of
the Initial Term, Lessee shall desire to use the Adjacent Parking Area then
Lessee shall send written notice to Lessor of such election on or before
seven (7) years after the Commencement Date. This option shall be
irrevocable from the Effective Date to the last day of the seventh (7th)
year of the Initial Term(either by termination or expiration),at which time
said option shall terminate without notice to Lessee.
(2) "Adjacent Parking Area" as used herein, shall be the area of land
outside of the Property which is marked on the Site Plan and consists of
two (2) tracts, one tract being adjacent to the north boundary of the
Property consisting of eighty (80) parking spaces ("80 space Adjacent
Parking Area") and the other tract being adjacent to the west boundary of
the Property consisting of forty (40) parking spaces plus a thirty foot
(30') cross-access easement roadway from the 80 space Adjacent Parking Area
to the public road tentatively known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇ space
Adjacent Parking Area").
(3) Lessee shall pay Lessor the sum of $2.20 per square foot of paved
area in the Adjacent Parking Area. If the thirty foot (30') cross-access
easement roadway which is part of the 40 space Adjacent Parking Area has
been constructed prior to Lessee's election then Lessee shall not be
required to pay for the paved area within the thirty foot (30') cross-
access easement roadway. If construction begins in the second year of the
Initial Term, the $2.20 per square foot of paved area shall be increased to
$2.31. If construction begins in the third year of the Initial Term, the
$2.31 per square foot of paved area shall be increased to $2.43. If
construction begins in the fourth year of the Initial Term, the $2.43 per
square foot of paved area shall be increased to $2.55. If construction
begins in the fifth year of the Initial Term, the $2.55 per square foot of
paved area shall be increased to $2.68. The improvements to the Adjacent
Parking Area shall be of similar quality to the parking area on the
Property.
(4) Lessee may engage the services of a contractor instead of paying
Lessor to construct the improvements on the Adjacent Parking Area, Lessee
may pay a qualified third party to design and construct the improvements to
the Adjacent Parking Area. Prior to commencing the improvements on the
Adjacent Parking Area, Lessee shall submit to Lessor the plans and
specifications of the improvements to the Adjacent Parking Area for
Lessor's approval, which approval shall not be unreasonably withheld or
delayed. Further, the improvements on the Adjacent Parking Area shall be
constructed in accordance with the approved plans and specifications.
(5) Lessee may elect to exercise its option for both the 80 space
Adjacent Parking Area and the 40 space Adjacent
EXHIBIT "A"
TO
LEASE AGREEMENT
Property
--------
as attached
Parking Area or either the 80 space Adjacent Parking Area but not the 40
space Adjacent Parking Area or either the 40 space Adjacent Parking Area
but not the 80 space Adjacent Parking Area. Lessee may elect to construct
only part of the 80 space Adjacent Parking Area and complete, at its
option, the remainder of the 80 space Adjacent Parking Area at a later
date. The 40 space Adjacent Parking Area may not be constructed in phases.
Lessee shall be responsible for the construction of the improvements on the
thirty foot (30') cross-access easement roadway from the 80 space Adjacent
Parking Area to the public road tentatively known as East Campus Drive if
such improvements are not in existence at the time Lessee exercises its
option for the 40 space Adjacent Parking Area.
(6) Lessee shall pay Lessor twenty percent (20%) of the cost to
construct the Adjacent Parking Area within ten (10) days after Lessor sends
Lessee the cost to construct the Adjacent Parking Area. The remaining
eighty percent (80%) of the cost to construct the Adjacent Parking Area
shall be paid to Lessor by Lessee within thirty (30) days after Lessor
sends Lessee the percentage of work completed during the prior period.
Lessor agrees not to invoice Lessee more than once every thirty (30) days.
If Lessee fails to pay for the cost to construct the Adjacent Parking Area
as provided above, then Lessor may stop construction of the Adjacent
Parking Area and/or exercise its rights under paragraph 21 of this Lease.
(7) Lessor shall use its best faith efforts to complete the
improvements to the Adjacent Parking Area within six (6) months after
Lessee pays Lessor the twenty percent (20%) of the cost to construct the
Adjacent Parking Area, subject to delays caused by the non-payment of the
cost to construct the Adjacent Parking Area as provided in paragraph F
above and excused delays provided in paragraph 34.
(8) The Adjacent Parking Area which becomes improved as provided
above, shall be annexed into the Common Area and designated as Quasi Common
Area for the benefit of Lessee. Lessee shall have exclusive control of the
Adjacent Parking Area for parking purposes on the date the improvements to
the Adjacent Parking Area are substantially completed.
47. NO JOINT VENTURE. Any intention to create a joint venture or
----------------
partnership relationship between the parties hereto is hereby expressly
disclaimed.
48. CORPORATE LESSEE. If Lessee is a corporation, the persons executing
----------------
this Lease on behalf of Lessee hereby covenants and warrants that: Lessee is a
duly constituted corporation qualified to do business in Texas, all Lessee's
franchise and
corporate taxes have been paid to date, and such persons are duly
authorized by the board of directors of such corporation to execute and deliver
this Lease on behalf of the corporation.
49. NO MODIFICATIONS. This writing is intended by the parties as a final
----------------
expression of their agreement and a complete and exclusive statement of the
terms thereof, all regulations, considerations and representations between the
parties having been incorporated herein. This Lease may be modified only by a
writing signed by the party against whom the modification is enforceable.
50. CAPTIONS. The captions and headings used in this Lease are for the
--------
purpose of convenience only and shall not be construed to limit the meaning of
any part of this Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
year first above written.
LESSOR:
GREEN MOUNTAIN VENTURES I, LTD., a
Texas limited partnership
BY: ▇. ▇▇▇▇▇ CORPORATION, a Texas
corporation, its general partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
LESSEE:
BUSINESS PARTNER SOLUTIONS, INC., a
Texas corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
-----------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Its: President
LIST OF EXHIBITS:
-----------------
Exhibit "A" - Property Description
Exhibit "B" - Preliminary Site Plan
Exhibit "B-1" - Site Plan (to be attached)
Exhibit "C" - Estoppel Certificate
Exhibit "D" - Declaration of Covenants
Exhibit "E" - Subordination/Non-Disturbance Agreement
Exhibit "F" - Short Form Memorandum
Exhibit "G" - Plans and Specifications
EXHIBIT A
---------
The proposed Building site is identified as Block 15 NCB 17790 Lot 2 on the
preliminary plat of Green Mountain Business Park Unit 2 and as further described
on the metes and bounds description attached hereto.
EXHIBIT A
▇▇▇▇▇ ENGINEERING CO.
================================================================================
ENGINEERING CONSULTANTS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PHONE ▇▇▇▇▇ ▇▇▇ - 5511
METES AND BOUNDS
DESCRIPTION OF
7.589 ACRES OF LAND
A Metes and Bounds description of a 7.589 acre (330,589 square feet) tract of
land situated in the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Survey ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇: being a portion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇;
being a portion of that certain 54.07 acre tract described in instrument to
Green Mountain Associates recorded in Volume 6398, Page 95 of the Bexar County
Real Property Records; being all of proposed ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ (Plat No. 980073); and being more particularly described as
follows:
COMMENCING at an aluminum disk monument found marking the eastern-most corner of
said 54.07 acre tract, situated in the southwesterly right-of-way line of F.M.
Loop 1604 (width varies) and in the northwesterly line of a 100 foot wide
Missouri Pacific Railroad right-of-way.
THENCE, along said southwesterly right-of-way line of F.M. Loop 1604 the
following two (2) courses and distances:
1. North 34 degrees 42'13" West, 590.58 feet to a 1/2-inch iron rod
found at an angle point;
2. North 42 degrees 08'40" West, 176.43 feet to the POINT OF
BEGINNING of the herein described tract of land;
THENCE, along the northwesterly right-of-way line of proposed East Campus (width
varies) the following four (4) courses and distances:
1. South 02 degrees 51'20" West, 70.71 feet to an angle point;
2. South 47 degrees 51'20" West, 84.22 feet to a point of curvature;
3. along the arc of a tangent curve to the right having a radius of
540.00 feet, a central angle of 25 degrees 12'37", a long chord
bearing South 60 degrees 27'38" West, 235.69 feet, a total arc
length of 237.60 feet to the point of tangency;
4. South 73 degrees 03'57" West, 444.28 feet to a point for corner,
THENCE, North 16 degrees 56'03" West, 486.25 feet to a point for corner.
▇▇▇▇▇ Contractors, Inc.
Green Mountain Business Park, ▇▇▇▇ ▇, ▇▇▇ ▇
7.589 Acres - Job #▇▇▇-▇▇▇-▇▇
Page 1 of 2
THENCE, North 73 degrees 03'57" East, 432.70 feet to a point for corner.
THENCE, North 26 degrees 53'33" East, 75.00 feet to a point for corner situated
in the aforesaid southwesterly right-of-way line of F.M. Loop 1604;
THENCE, along said southwesterly right-of-way line the following three(3)
courses and distances:
1. South 63 degrees 06'27" East, 111.64 feet to an aluminum disk
monument found at an angle point;
2. South 51 degrees 33'39" East, 352.17 feet to a 1/2-inch iron rod
set at an angle point;
3. South 42 degrees 08'40" East, 21.47 feet to the POINT OF
BEGINNING, containing 7.589 acres of land in Bexar County, Texas.
▇▇▇▇▇ Contractors, Inc.
Green Mountain Business Park, ▇▇▇▇ ▇, ▇▇▇ ▇
7.589 Acres - Job #▇▇▇-▇▇▇-▇▇
Page 2 of 2
EXHIBIT B
---------
The metes and bounds description for the 0.092 acre parcel attached hereto
further describes the area referred to in Note 1 of Preliminary Site Plan, also
included as part of Exhibit B.
EXHIBIT B
▇▇▇▇▇ ENGINEERING CO.
================================================================================
ENGINEERING CONSULTANTS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇
PHONE [210] 494 - 5011
METES AND BOUNDS
DESCRIPTION OF
0.092 ACRES OF LAND
A Metes and Bounds description of a 0.092 acre (4,017 square feet) tract of land
situated in the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Survey ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇: being a portion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇; being a
portion of that certain 54.07 acre tact described in instrument to Green
Mountain Associates recorded in Volume 6398, Page 95 of the Bexar County Real
Property Records; being all of proposed ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇ (Plat No. 980073); and being more particularly described as follows:
COMMENCING at an aluminum disk monument found marking the eastern-most corner of
said 54.07 acre tract, situated in the southwesterly right-of-way line of F.M.
Loop 1604 (width varies) and in the northwesterly line of a 100 foot wide
Missouri Pacific Railroad right-of-way.
THENCE, along said southwesterly right-of-way line of F.M. Loop 1604 the
following two(2) courses and distances:
1. North 34 degrees 42'13" West, 590.58 feet to a 1/2-inch iron rod
found at an angle point;
2. North 42 degrees 08'40" West, 176.43 feet to the POINT OF
BEGINNING of the herein described tract of land;
THENCE, along the northwesterly right-of-way line of proposed East Campus (width
varies) the following two(2) courses and distances:
1. South 02 degrees 51'20" West, 70.71 feet to an angle point;
2. South 47 degrees 51'20" West, 42.04 feet to a point for corner;
THENCE, North 42 degrees 08'40" West, 12.85 feet to a point for corner.
THENCE, North 36 degrees 39'35" East, 26.74 feet to a point for corner.
THENCE, North 16 degrees 56'03" West, 84.88 feet to a point for corner.
▇▇▇▇▇ Contractors, Inc.
Green Mountain Business Park, Unit 2, Lot 2 - Landscaping & Sign Easement
0.092 Acre - Job #▇▇▇-▇▇▇-▇▇
Page 1 of 2
THENCE, North 38 degrees 26'21" East, 25.43 feet to a point for corner situated
in the aforementioned southwesterly right-of-way line of F.M. Loop 1604;
THENCE, along said southwesterly right-of-way line the following two(2) courses
and distances:
1. South 51 degrees 33'39" East, 27.91 feet to a 1/2-inch iron rod
set at an angle point;
2. South 42 degrees 08'40" East, 21.47 feet to the POINT OF
BEGINNING, containing 0.092 acre of land in Bexar County, Texas.
▇▇▇▇▇ Contractors, Inc.
Green Mountain Business Park, Unit 2, Lot 2 - Landscaping & Sign Easement
0.092 Acre - Job #▇▇▇-▇▇▇-▇▇
Page 2 of 2
EXHIBIT "C"
TO
LEASE AGREEMENT
Estoppel Certificate
--------------------
as attached
TENANT ESTOPPEL LETTER
----------------------
[Tenant's Letterhead]
[Addressed to Purchaser or
Lender at Purchaser's or
Lender's Address]
Re: Leased Premises located at ________________________
Gentlemen:
The undersigned has been advised that you are contemplating the [purchase
of the property] [refinancing of the loan secured by the property] situated in
________________________(City), ____________________ (State), of which the
above-referenced leased premises are a part. The undersigned further
acknowledges and agrees that you will rely upon the information set forth in
this letter in connection with your decision whether to purchase said property.
The undersigned hereby certifies the following:
1. The undersigned occupies the above-referenced leased premises pursuant
to a lease dated ________________, 19__, between _______________________,
as landlord, and __________________________, as tenant. The undersigned
___ is ___ not (check the appropriate space) an assignee or sublessee of
the original tenant.
2. To the best knowledge of the undersigned, said lease is in full force
----
and effect, and there is no outstanding and uncured event of default
thereunder, except as follows:
3. No modifications have been made to said lease since the original
execution of same, except as follows:
________________________________________.
4. The expiration date of said lease is as follows:
_________________________________.
5. Rentals under said lease have been paid by the undersigned through the
following date: ___________, 19__.
6. The undersigned currently has no claims, defenses or offsets to any
action for collection of rentals accruing under said lease, except as
follows: _______________.
7. There are no renewal options under said lease, except as follows:
___________________________________________________.
8. The copy of said lease (and any amendments) that is attached hereto is
a true and correct copy thereof.
9. The undersigned does not claim any right, title, or interest in the
subject property other than as a tenant under the said lease.
10. The fixed monthly rent under the said lease is $______.
11. No monies have been paid to landlord in advance of the due date set
forth in the said lease except for $__________.
12. No monies have been paid to landlord as a Security Deposit except for
$______________________.
Yours very truly,
TENANT:
___________________________________
a__________________________________
___________________________________
By:________________________________
Title:_____________________________
Date: _____________________________
EXHIBIT "D"
TO
LEASE AGREEMENT
Declaration
-----------
as attached
DECLARATION OF EASEMENTS, RESTRICTIONS,
COVENANTS, AND CONDITIONS
FOR GREEN MOUNTAIN BUSINESS PARK
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF BEXAR )
THIS DECLARATION, made on the date hereinafter set forth by GREEN MOUNTAIN
VENTURES I, LTD., a Texas limited partnership and GREEN MOUNTAIN ASSOCIATES,
LTD., a Texas general partnership.
W I T N E S S E T H:
WHEREAS, GREEN MOUNTAIN VENTURES I, LTD., a Texas limited partnership and
GREEN MOUNTAIN ASSOCIATES, LTD., a Texas general partnership are the owner of
certain property in Bexar County, Texas, more particularly described on Exhibit
A, attached hereto and incorporated herein for all purposes.
NOW, THEREFORE, GREEN MOUNTAIN VENTURES I, LTD., a Texas limited
partnership and GREEN MOUNTAIN ASSOCIATES, LTD., a Texas general partnership
hereby declare that all of the properties described in Exhibit A shall be held,
sold and conveyed to others subject to the following easements, restrictions and
covenants, which are for the purposes of protecting the value and desirability
of, and which shall run with, the real property and be binding on all parties
having any right, title or interest in the described properties or any part
thereof, their heirs, successors and assigns, and shall inure to the benefit of
each owner thereof.
ARTICLE I
DEFINITIONS
Section 1.1 "Architectural Control Committee," or "ACC", shall mean and
refer to the committee created hereinafter, subject to the provisions of
Sections 5.23 and 5.24 hereof, by the Declarant.
Section 1.2 "Articles" shall mean and refer to the Articles of
Incorporation of the Association.
Section 1.3 "Association" shall mean and refer to the Green Mountain
Business Park, Inc., a Texas Nonprofit Corporation, and its successors and
assigns.
Section 1.4 "Board of Directors" shall mean and refer to the governing
body of the Association, the election and procedures of which shall be as set
forth in the Articles and Bylaws of the Association.
Section 1.5 "Bylaws" shall mean and refer to the Bylaws of the
Association as they may, from time to time, be amended.
Section 1.6 "Common Area" or "Common Areas" shall mean all real property
owned by the Association for the common use and enjoyment of the Owners. The
common area may include ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, directional signs, and permanent
signage advertising the Property as a whole, although such Common Area may
consist only of the signs if the entranceway and streets are dedicated to the
City of San Antonio or other governmental entity. The term "Common Area" shall
also be deemed to refer to any areas or easements within property dedicated to
the City of San Antonio or other governmental entity for Street or easement
purposes, (including the planted areas within medians and land in its natural
state within parks or drainage easements) if and only if the Declarant should
determine that such area or areas should be maintained, repaired or improved by
the Association for the benefit of the Development.
Section 1.7 "Declarant" shall mean and refer to Green Mountain
Associates, Ltd., a Texas limited partnership, and its successors and assigns.
Declarant shall also have the right and authority at any time to assign to any
third party or the Board the obligations, authority and position of Declarant.
Any such assignment shall be effective upon the recordation and instrument
setting forth the assignment as to a third party or in the case of the Board,
expiration of ninety (90) days after receipt by any member of the Board of
written notice of such assignment.
Section 1.8 "Declaration" shall mean this instrument and include the
same as it may, from time to time, be amended, supplemented and additional
properties added, subject to and in accordance with the terms hereof.
Section 1.9 "Development" shall mean and refer to the Green Mountain
Business Park to be situated on the Property.
Section 1.10 "Lot" shall mean and refer to any plot of land on the
Property subject to a recorded subdivision map or plat with the exception of the
Common Area.
Section 1.11 "Notice" shall mean and refer to delivery of any document by
regular mail, with postage prepaid, to the last known address (according to the
records of the Association) of the person or entity to whom such Notice is to be
given. Notice to one (1) of two (2) or more co-Owners shall constitute Notice
to all Owners. Notice shall be effective upon depositing such document in a
depository maintained by the United States Postal Service for such purposes.
Section 1.12 "Owner" or "Owners" shall mean and refer to the
record owner, whether one or more persons or entitles, of a fee simple title to
any part of the Property (as hereinafter defined), including contract sellers,
but excluding those having such interest merely as security for the performance
of an obligation.
Section 1.13 "Property" shall mean and refer to that certain real
property or part thereof described in Exhibit A, being a 54.07 acre tract, bound
by Green Mountain Road to the west, Loop 1604 to the North and east, and the
Union Pacific Railroad to the South. The Property may also include additional
acreage which may be incorporated into the Development.
Section 1.14 "Rules and Regulations" shall mean and refer to the rules
and regulations of the Association as set forth in Section 3.4 and as may, from
time to time, be amended, modified, supplemented and revoked pursuant to the
Bylaws.
Section 1.15 "Street" shall mean any publicly maintained roadway or
highway or highway right of way, and any private roadway maintained for service
to two or more Lots. Lands lying on opposite sides of the Street shall be
regarded as adjoining.
ARTICLE II
PROPERTY RIGHTS
Section 2.1 Owner's Easements of Enjoyment. Every Owner and such
------------------------------
Owners', tenants, subtenants, concessionaires, assignees and their invitees
shall have a right and easement of enjoyment in and to the Common Area which
shall be appurtenant to and shall pass with the title to every part of the
Property, subject to the following provisions:
(a) the right of the Association to suspend the voting rights of an
Owner for:
(1) any period during which any assessment against the part of
the Property of an Owner remains unpaid, provided the Owner has not
paid the assessment within thirty (30) days after receiving written
Notice that such assessment is due;
(2) any period during which the Owner is in violation of the
Declaration provided the Owner has received written Notice from the
Association of such violation, and does not correct such violation
with thirty (30) days after and receiving such Notice; and
(3) any period during which the Owner is in violation of the
Rules and Regulations provided the Owner has received written Notice
from the Association of such violation, and does not correct such
violation with
thirty (30) days after and receiving such Notice.
(b) the right of the Declarant to dedicate or transfer all or any
part of the Common Area to any public agency, authority or utility for such
purposes.
(c) the right of the Declarant to transfer or assign all of its
rights and privileges provided in the Declaration to the Association or
another person or entity.
(d) the right of the Association, in accordance with its Articles or
Bylaws, to borrow money for the purpose of improving the Common Area and
appurtenant facilities and in aid thereof to mortgage said Common Areas,
provided the Association is the fee title holder to the mortgaged Common
Area. The rights of any such mortgagee in said Common Areas shall be
subordinate to the rights of the Owners hereunder.
Section 2.2 Additions To Existing Property. Additional real property
------------------------------
may become subject to this Declaration in the following manner:
(a) Authority. If Declarant is the owner of any real property which
---------
it desires to add to the scheme of this Declaration or Declarant consents
to the addition of real property by any other person, firm or corporation,
it may do so by filing of record a Notice of Annexation, which shall extend
the scheme of the covenants, conditions and restrictions of this
Declaration to such real property. The Notice of annexation shall include
a metes and bounds description of the real property or any other legally
sufficient description of the real property.
(b) Amendments. The Notice of Annexation may contain additions,
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deletions and modifications of the covenants and restrictions contained in
this Declaration as may be necessary to reflect the different character, if
any, of the added real property.
(c) Mergers. Upon a merger or consolidation of the Association with
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another association, the Association's property, rights and obligations may
be transferred to another surviving or consolidated association or,
alternatively, the properties, rights and obligations of another
association may be added to the properties, rights and obligations of the
Association as a surviving corporation pursuant to a merger. The surviving
or consolidated association shall administer the covenants and restrictions
applicable to the properties of the association as one scheme. No such
merger or consolidation, however, shall effect any revocation, change or
addition to the covenants established by this Declaration.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
Section 3.1 Incorporation. Declarant shall charter a corporation under
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the Texas Non-Profit Corporation Act to be known as Green Mountain Business
Park, Inc., or by such other name as may be designated at the time of its
incorporation, which incorporation may be subsequent to the conveyance of any
part of the Property, for the purposes of assuring compliance with the terms of
this Declaration. The Association, acting through its Board, shall have the
power to enforce the covenants, conditions, restrictions, and all other terms
contained in this Declaration, and subject to the provisions set forth herein,
shall have the membership characteristics, powers, duties, and functions as set
forth herein.
Section 3.2 Every Owner shall be a member of the Association.
Membership shall be appurtenant to and may not be separated from ownership of
any part of the Property which is subject to assessment.
Section 3.3 The Association shall have two (2) class of voting
membership.
Class A: The Class A member(s) shall be all Owners with the exception of
the Declarant, and are entitled to one (1) vote for each full
acre comprising the part of the Property owned or one vote if the
part of the Property comprises less than one acre. When more than
one entity holds an interest in any acre, votes for such part of
the Property shall be exercised as they among themselves
determine, but in no event shall there be more than one (1) vote
per acre, except in respect to part of the Property comprising
less than one acre.
Class B: The Class B member(s) shall be the Declarant or entity controlled
by Declarant, and shall be entitled to three (3) votes for each
full acre comprising the part of the Property owned or one vote
if the part of the Property comprises less than one acre. When
more than one entity holds an interest in any acre, votes for
such part of the Property shall be exercised as they among
themselves determine, but in no event shall there be more than
three (3) votes per acre, except in respect to part of the
Property comprising less than one acre, provided that the Class B
membership shall cease and become converted to Class A membership
on the happening of the following events, whichever occurs
earlier:
(1) when the total votes outstanding in the Class A membership
equal the total votes outstanding in the Class B membership; or
(2) on January 1, 2015.
From and after the happening of these events, whichever occurs earlier, the
Class B Member shall be deemed to be a Class A Member entitled to one (1) vote
for each full acre comprising the part of the Property owned or one vote if the
part of the Property comprises less than one acre. in which it holds an
interest, subject to the following rights of the Declarant.
Pursuant to Section 2.2 additional land may be annexed into the Property
and upon every annexation of such additional land, the Association shall, (even
if Class B membership has theretofore ceased pursuant to this Section),
automatically have two classes of voting membership:
A. Class A Members shall be all Owners as defined in Section 3.2,
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with the exception of Declarant. Class A Members shall be entitled to one
(1) vote for each full acre comprising the part of the Property owned or
one vote if the part of the Property comprises less than one acre. When
more than one entity holds an interest in any acre, votes for such part of
the Property shall be exercised as they among themselves determine, but in
no event shall there be more than one (1) vote per acre, except in respect
to part of the Property comprising less than one acre.
B. Class B Members shall be the Declarant. The Class B Member shall
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be entitled to five (5) votes for each full acre comprising the part of the
Property owned or one vote if the part of the Property comprises less than
one acre. When more than one entity holds an interest in any acre, votes
for such part of the Property shall be exercised as they among themselves
determine, but in no event shall there be more than five (5) votes per
acre, except in respect to part of the Property comprising less than one
acre, provided that the Class B membership shall cease and become converted
to Class A membership on the happening of the following events, whichever
occurs earlier:
(1) when the total votes outstanding in the Class A membership
equal the total votes outstanding in the Class B membership; or
(2) on January 1, 2025.
From and after the happening of these events, whichever occurs earlier, the
Class B Member shall be deemed to be a Class A Member
entitled to one (1) vote for each full acre comprising the part of the Property
owned or one vote if the part of the Property comprises less than one acre in
which it holds an interest, subject to the following rights of the Declarant.
Section 3.4 Functions of the Association
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(a) Functions. The Association shall have all of the powers of a
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Texas non-profit corporation, as such powers may exist from time to time,
subject only to such limitations upon the exercise of such powers as may be
expressly set forth in this Declaration, Articles and Bylaws. It shall
further have the power to do and perform any and all acts which may be
necessary or proper for or incidental to the exercise of any of the express
powers granted to it by the laws of Texas or by this Declaration, Articles
or Bylaws. Without in any way limiting the generality of the two (2)
preceding sentences, the Association and the Board acting on behalf of the
Association, shall have the power and authority to perform the following
functions:
(1) Maintenance. The Association shall provide maintenance for
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the Common Area. The Association shall have the power, but not the
obligation, to provide maintenance for all dedicated rights-of-way and
public areas to the extent the applicable governmental agencies have
not accepted such for maintenance. The Association shall have the
power, but not the obligation, to provide maintenance for any property
located within the Property with respect to which the Association has
accepted an easement. The Association shall also have the power, but
not the obligation, to supplement the services provided by any
governmental agencies or to provided special maintenance or services
for particular areas in the Property which it deems desirable. The
Association reserves a perpetual right of access on and across all or
any part of the Property in order to provide any maintenance or
services required or authorized to be performed or undertaken by the
Association.
(2) Enforcement. The Association shall have the power to take
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any and all actions necessary to enforce all covenants, conditions and
restrictions affecting the Property and to perform any of the
functions or services delegated to the Association in any covenants,
conditions or restrictions applicable to the Property, Articles,
Bylaws or Rules and Regulations, including, without limitation, those
contained within this Declaration and as set forth in any amendment.
(3) Management. The Association shall conduct the
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business of the Association, including, but not limited to,
administrative services such as legal, accounting, financial and
communication services. The Association shall have the right to enter
into management agreements with companies affiliated with Declarant in
order to provide its services and perform its functions and to retain
professionals necessary or proper in the operation of the Association.
(4) Insurance. The Association shall have the power, but not the
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obligation, to purchase and maintain in effect general liability,
flood and hazard insurance covering improvements and activities on the
Common Area and such other insurance and in such amounts as the Board
deems necessary. The Association shall cause all officers or employees
having fiscal responsibility to be bonded in such amounts as the Board
deems necessary.
(5) Security. The Association shall have the power, but not the
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obligation, to engage the services of a security company or security
guard to provide security for the Development.
(6) Architectural Control. The Association shall operate the ACC
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in accordance with the terms of this Declaration.
(7) Regulations. The Association shall adopt, publish and
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enforce the Rules and Regulations.
(8) Lighting. The Association shall have the power, but not the
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obligation, to provide lighting on the Common Area.
(9) Construction. The Association may construct improvements on
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the Common Area. Any construction of improvements by the Association
shall be subject to the same approval process and procedures as are
provided herein.
(10) Failure to Maintain. The Association may provided exterior
-------------------
maintenance upon any building or part of the Property which, in the
Association's opinion requires such maintenance because such building
or part of the Property is being maintained in a sub-standard manner.
The Association shall notify the Owner in writing, specifying the
nature of the condition to be corrected, and if the Owner has not
corrected such condition within fifteen (15) days after the date of
such Notice, the Association may correct such condition. The cost of
such maintenance shall be assessed against the
part of the Property and Owner as provided in Section 5.22 an
individual assessment. For the purpose of performing the exterior
maintenance authorized by this section, the Association, through its
duly authorized agents or employees, shall have the right to enter
upon any part of the Property or building.
(11) Use of Assessments. The Association may carry out any of the
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functions and services specified in this Section 3.4 to the extent
such maintenance and services can be provided with the proceeds first
from annual assessments and then, if necessary and appropriate, from
special assessments or individual assessments. The functions and
services allowed herein to be carried out or offered by the
Association at any particular time shall be determined by the Board
taking into consideration proceeds of assessments and the needs of the
Association. The functions and services which the Association is
authorized to carry out or to provide may be added to or reduced at
any time upon the affirmative vote of a majority of the Board. The
Association may additionally carry out all other powers and duties set
forth in the Articles, Bylaws and Rules and Regulations.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 4.1 Creation of the Lien and Obligation of Assessments. The
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Declarant, for the Property, hereby covenants, and each Owner of any part of the
Property, by acceptance of a deed therefor, whether or not it shall be so
expressed in such deed, is deemed to covenant and agree to pay to the
Association:
(a) annual assessments or charges, and
(b) special assessments for capital improvements, such assessments to
be established and collected as hereinafter provided, and
(c) individual assessments.
The annual and special assessments, together with interests, costs and
reasonable attorney fees, shall be a charge on the part of the Property of the
Owner and shall be a continuing lien upon such part of Property against which
each such assessment is made. Each such assessment, together with interest,
costs and reasonable attorney fees, shall also be the obligation of the Owner at
the time when the assessment fell due. The obligation for delinquent
assessments shall not pass to an Owner's successors in title unless expressly
assumed by the successor.
Section 4.2 Purpose of Annual Assessments. The annual assessments levied
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by the Association may be used for the payment of costs associated with the
operation of the Association as more specifically set forth in Section 3.4.
Section 4.3 Maximum Annual Assessments. Until January 1, 1999 the
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maximum annual assessment shall be established based on the following formula:
FOR PARTS OF THE PROPERTY WITH IMPROVEMENTS:
$0.09 per square foot of office space
$0.05 per square foot of manufacturing or warehouse space.
FOR UNIMPROVED PARTS OF THE PROPERTY:
$400.00 per acre
(a) From and after January 1, 1999, the maximum annual assessment may
be increased each year not more than five percent (5%) (such percentage
increase may be cumulative from year to year) above the maximum assessment
for the previous year without a vote of the membership.
(b) From and after January 1, 1999, the maximum annual assessment may
be increased above five percent (5%) by the vote or written consent of two-
thirds (2/3) of each class of members who are voting in person or by proxy
at a meeting dully called for this purpose.
(c) The Board of Directors may fix the annual assessment at an amount
not in excess of the maximum annual assessment established in accordance
herewith.
Section 4.4 Special Assessments for Capital Improvements. In addition to
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the annual assessments authorized above, the Association may levy, in any
assessment year, a special assessment applicable to that year only for the
purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of a capital improvement upon the Common
Area, including fixtures and personal property related thereto, provided that
any such assessment shall have the vote or written consent of two-thirds
(2/3rds) or more of the votes of each class of members.
Section 4.5 Notice and Quorum for Any Action Authorized Under Section
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4.3 and 4.4. Written Notice of any meeting called for the purpose of taking any
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action authorized under Section 4.3 or 4.4 shall be sent to all members not less
than ten (10) days nor more than fifty (50) days in advance of the meeting. At
the first such meeting called, the presence of members or of proxies entitled to
cast sixty percent (60%) of all votes of each class of membership shall
constitute a quorum. If the required quorum is not present, another meeting may
be called subject to the call
notice requirements, and the required quorum at the subsequent meeting shall be
one-half (1/2) of the required quorum at the preceding meeting. No such
subsequent meeting shall be held more than sixty (60) days following the
preceding meeting.
Section 4.6 Uniform Rate of Assessments. The Declarant shall not be
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required to pay assessments on any part of the Property owned by the Declarant.
All other parts of the Property shall be assessed that portion of the aforesaid
annual or special assessments bearing the same ratio to the total thereof as the
number of square feet comprising such part of the Property shall bear to the
total number of square feet comprising all of the other parts of the Property,
which are not owned by the Declarant.
Section 4.7 Date of Commencement of Annual Assessments -Due Dates. The
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annual assessments provided for herein shall commence as to each part of the
Property, other than those owned by the Declarant, at such time as the Declarant
shall designate. The Board of Directors shall fix the amount of the annual
assessment against each part of the Property at least thirty (30) days in
advance of each annual assessment period; provided, however, that the failure of
the Board of Directors to fix the annual assessment as above provided shall be
conclusively deemed to be an election by the Board of Directors to continue in
effect the annual assessment made for the preceding annual assessment period.
Written Notice of the annual assessment shall be sent to every Owner subject
thereto. The due dates of the annual assessment shall be established by the
Board of Directors. The Association shall, upon demand, and for a reasonable
charge, furnish a certificate signed by an officer or designated agent of the
Association setting forth whether the assessments have been paid.
Section 4.8 Effect of Nonpayment of Assessments - Remedies of the
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Association. Any assessment not paid within thirty (30) days after the due date
-----------
shall bear interest from the due date at the rate determined by the Board of
Directors. The Association may bring an action at law against the Owner
obligated to pay the same, or foreclose the lien against such part of the
Property. Each such Owner, by its acceptance of a deed to a part of the
Property, hereby expressly vests in the Association, or its agents, the right
and power to bring all actions against such Owner personally or the collection
of such charges as a debt and to enforce the aforesaid lien by all methods
available for the enforcement of such liens, including judicial foreclosure by
an action brought in the name of the Association in a like manner as a mortgage
or deed of trust lien on real property, and such Owner hereby expressly grants
to the Association a power of sale in connection with said lien. The lien
provided for in this Section shall be in favor of the Association and shall be
for the benefit of all other Owners. No Owner may waive or otherwise escape
liability for the assessments provided for herein by non-use of the Common Area
or abandonment of
its part of the Property.
Section 4.9 Subordination of the Lien to Mortgages. The lien of the
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assessments provided for herein shall be subordinate to the lien of any first
mortgage and the leasehold rights of a tenant. Sale or transfer of any part of
the Property shall not affect the assessment lien. However, the sale or
transfer of any part of the Property pursuant to mortgage foreclosure or any
proceeding in lieu thereof, shall extinguish the lien of such assessments as to
payments which became due prior to such sale or transfer. The foreclosure of
the lien of the assessment shall not terminate the leasehold rights of a tenant.
No sale or transfer shall relieve such part of the Property from liability for
any assessments thereafter becoming due or from the lien thereof.
Section 4.1 Exempt Property. The property dedicated to, and accepted by,
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a local public authority and all property owned by a charitable or nonprofit
organization exempt form taxation by the laws of the State of Texas shall be
exempt from the assessments created herein except in respect to any land used
for business or proprietary functions. However, no land or improvements devoted
to a business use shall be exempt from said assessments.
Section 4.1 Change in Billing Period For Assessments. Notwithstanding
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anything to the contrary set forth herein, the Board of Directors shall have the
right to change the billing period for the annual assessments to a quarter-
annual or semi-annual billing period. Written Notice of any such change in
billing period shall be sent to every Owner at least thirty (30) days prior to
the date such change goes into effect. The due dates for assessment under any
such revised billing period shall be established by the Board of Directors.
ARTICLE V
USE RESTRICTIONS
The Property shall be occupied and used as follows:
Section 5.1 Obstruction of Common Area. There shall be no obstruction of
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the Common Area. Nothing shall be stored in the Common Area without the prior
written consent of the Declarant or Board of Directors.
Section 5.2 Nuisance. No noxious, or offensive activity or any kind
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shall be conducted on any portion of the Property as provided herein. No use
shall be permitted which is hazardous by reason of excessive danger of fire or
explosion, or offensive by reason of odor (not including reasonable odors
inherent in the operation of restaurant or food processor), fumes, vibrations,
dust, smoke, noise or pollution, in such condition or amount as to adversely
affect the surrounding area or premises which shall
constitute a violation of any law of the United States, the State of Texas,
County of Bexar, or the City of San Antonio.
Section 5.3 Use of Land: No part of the Property shall be used or
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maintained for any of the following activities:
(a) Sexually oriented businesses - This restriction shall be defined
as adult bookstores, adult entertainment establishments and adult motion
picture theaters as described herein:
Adult bookstore - a business enterprise which has a substantial
---------------
or significant portion of its stock in trade, or which has as its main
purpose the offering for sale of books, magazines, or sound
recordings, or printed, visual or audio material of any kind, which
are characterized by their emphasis on the description or depiction of
specified anatomical areas or specified sexual activities; or a
business establishment which offers for sale books, magazines,
pamphlets, pictures, drawings, photographs, motion picture films, or
sound recordings or printed, visual or audio material of any kind,
which business establishment, because of the depiction of description
of specified anatomical areas or specified sexual activities in the
materials offered for sale, is restricted to adults, or is advertised
or promoted as being restricted to adults.
Adult entertainment establishment - a place of business where
---------------------------------
live entertainment is provided for patrons, or a portion of a business
set aside for providing live entertainment to patrons, in which an
emphasis on the exhibition, depiction, or description of specified
anatomical areas or specified sexual activities; or a place where
exhibition of specified anatomical areas or specified sexual
activities, admittance is limited to adults, or admittance is
advertised or promoted as being restricted to adults.
Adult motion picture theater - a place of business where motion
----------------------------
pictures are shown to paying customers when such place is used for
presenting material having as its dominant theme, or distinguished or
characterized by, an emphasis on the depiction or description of
specified anatomical areas or specified sexual activities for
observation by patrons, and where admittance to such showings is
totally limited to adults.
(b) Commercial landfills
(c) Incineration of garbage, dead animals or refuse fat
rendering -This restriction will not apply to a laboratory which may
require incineration of certain materials.
(d) Stockyard or slaughtering of animals - This restriction will not
apply to the continued agricultural use of all or part of the Property for
cattle grazing. In addition, this restriction will not prohibit the
killing of animals in a laboratory, or a veterinarian clinic, or packaging
of food products.
(e) Refining of petroleum or its products - This restriction will not
apply to laboratory situations, molding of plastics or wraps to contain
products.
(f) Smelting of iron, tin, zinc, lead, or other ores -This
restriction will not apply to laboratory conditions, or the soldering or
welding of wire or metals for the assembly of products.
(g) ▇▇▇▇ or coke storage or sales - This restriction will not apply
to storage, sales, or distribution of such products by retailers such as
Home Depot, H.E.B., Albertsons, Builders Square, or any other such company
which may be storing charcoal or other products for distribution to retail
centers.
(h) Night Clubs (Bars) - defined as a business which derives over
fifty percent (50%) of its gross revenues from the onsite sale of alcoholic
beverages for the purpose of onsite consumption.
Some of the uses mentioned above may be incidental to an acceptable large
scale use at a site. These restrictions are not intended to prohibit such
incidental uses, the Declarant may review incidental uses on a case by case
basis, and grant approval of such uses in the Development.
Section 5.4 Open Storage. No open storage (defined as any storage other
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than within a permanent structure) shall be permitted on any part of the
Property unless such storage is to the rear or side of such part of the Property
and is screened by landscaping or other approved screening, so that such storage
cannot be seen from any Street and/or adjacent part of the Property. The
Declarant reserves the right to approve open storage, on any part of the
Property, subject to written approval and specific guidelines determined by
Declarant on a case by case basis.
Section 5.5 Temporary Buildings. No structure of a temporary character,
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trailer, tent, shack, garage, barn or other outbuilding shall be built, used or
maintained on any part of the Property within the Development at any time, other
than during the
construction or remodeling period of buildings or other permanent structures on
any part of the Property. The Declarant reserves the right to approve temporary
buildings on any part of the Property on a case by case basis, subject to
written approval and specific guidelines determined by the Declarant.
Section 5.6 Building Setback Restrictions. All buildings shall be
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setback a minimum of 100 feet from public street right of ways. Buildings shall
be setback a minimum of 50 feet from side and rear property lines. The
Declarant reserves the right to reduce building setback restrictions on a case
by case basis, provided such consent is given in writing by the Declarant.
No building shall be constructed on any part of the Property, within 100
feet of the rear property line or any residential lot fronting on the Mountain
Vista Drive. In addition, no building shall be constructed on the Property
within 125 feet of the rear property line of any residential lot fronting on
Vista Bluff Drive.
Section 5.7 Building Height Limit. Any exterior wall which is located on
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the Property and within 200 feet of the Vista subdivision shall be limited to 38
feet in height above the finished grade at the wall.
Section 5.8 Masonry. The elevations of any structure facing any Street
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within the Development, or Loop 1604, shall be constructed of windows, doors,
and architectural grade masonry material as determined by the Declarant, except
that non-masonry materials may be used upon the written approval of the
Declarant to screen mechanical equipment. The Declarant may approve of non-
masonry materials facing streets; however, Declarant may require that such
materials are screened in a manor acceptable to Declarant.
Section 5.9 Onsite Lighting. All exterior light fixtures shall be
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designed and placed to illuminate structures within the general confinement of
the boundary lines. Such exterior lighting must conform to plans and be
approved in writing by the Declarant or the Architectural Control Committee.
Parking lot lighting and exterior building lights located on the Property
and within 200 feet of a residential lot within the Vista subdivision, will be
designed in a manner to prevent light from projecting directly toward the
residential lot(s).
Section 5.1 Landscaping. A landscaped greenbelt (roadway greenbelt) with
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a minimum width of 20 feet, shall be installed and maintained adjacent to all
public street or highway right-of-way. The installation and maintenance of the
roadway greenbelts will be the responsibility of the Owner of such part of the
Property on which such greenbelt is located. Installation of landscaping in
roadway greenbelts shall occur when improvements such as a building or parking
lot are constructed on such part of the Property. Underground utility
construction and drainage improvements may be constructed in the roadway
greenbelts. Site signage, building signage, access roadways, sidewalks,
fencing, or other improvements may be constructed in the roadway greenbelts
subject to the written approval of the Declarant.
The Owner of a Lot adjacent to a Street shall also be responsible for
landscaping and maintenance of the parkway adjacent to such Lot. Installation
of such landscaping shall occur when improvements such as a building or parking
lots are constructed on such Lot.
No fence, wall, hedge or shrub planting which obstructs sight lines shall
be placed or permitted to remain on any corner part of the Property within the
triangular areas formed by the street property lines and a line connecting them
at points twenty-five feet (25') from the intersection of the street lines or in
the case of a rounded property corner, from the intersection of the street line
extended; the same sight lime limits shall apply on any Lot within ten feet
(10') from the intersection of street property lines with the edge of a driveway
or alley pavement. No tree shall be permitted to remain within such distance of
such intersections, unless the foliage is maintained at sufficient height to
prevent obstruction of such sight lines.
Section 5.1 Sidewalks. The Owners of Lots adjacent to Streets and
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highways shall install concrete sidewalks, with a minimum width of 4 feet,
complying with all governmental regulations, along the frontage of such public
streets or highways, where such sidewalks are required. Installation of such
sidewalks shall be done in conjunction with the construction of building or
parking improvements on the Lots.
Section 5.1 Refuse Areas. Refuse areas shall be visibly screened from
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Streets and adjacent parts of the Property. All such areas shall be located to
the rear of the building or to the side of a building, other than the Street
side and at least 100 feet from the front of the building.
Section 5.1 Roofs. Placement of any objects such as air conditioning
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units or exhaust fans or other equipment located on the roof of any building or
other permanent structure shall be effectively screened from view from streets
and other parts of the Property. The screening plan shall be subject to the
prior review and approval of the Declarant or the Architectural Control
Committee.
Section 5.1 Signs. All building or onsite signage shall be reviewed and
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approved by the Declarant or Architectural Control
Committee prior to installation.
Section 5.1 Fences. No fence, wall, or hedge shall be built or
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maintained in front of any buildings, except as required by governmental
ordinance or approved by the Declarant. Rear yard fencing shall not be
installed nearer than 15 feet to the front wall line of the building or nearer
than 15 feet to any adjoining building. Chain link fencing shall be permitted
only to the rear of the building and along the side or rear yard of the
building, provided such building is not along the Street side and not visible
from the Street, except if needed to provide security to the Lots for
unauthorized entry from public areas.
Section 5.1 Screening. All required screening within any Lot in the
---------
Property shall be constructed of 100 percent masonry or stucco, except that
berms or shrubs may be allowed subject to the written approval of the Declarant,
for screening if properly landscaped and maintained.
Section 5.1 Parking. All present and future vehicle parking shall be
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constructed and maintained on the Lots. The number of parking spaces to be
included in the parking area shall conform to the City Code of San Antonio,
Texas, and all other applicable government regulations. All such areas shall be
paved with permanent surfacing materials such as asphalt, macadam or concrete.
Any other materials shall be subject to the prior approval of the Declarant as a
part of the site plan. Parking areas shall be curbed and paved with appropriate
materials as specified and approved by the Declarant. No parking area shall be
allowed to be constructed within 20 feet from any public Street right-of-way
line. All parking shall be adequately screened by use of berm, trees,
landscaping, or other means acceptable to the Declarant. Parking areas for
trucks and vans shall be provided at the rear of the building or at the side of
the building within properly screened areas in accordance with the landscaping
provision. No on-Street parking of any vehicle shall be permitted and parking
areas shall be designed so as to insure that no on-Street parking will occur.
Section 5.1 Utilities. All onsite utility service lines, including
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electrical lines and telephone lines, located within a Lot shall be placed
underground unless approved in writing by the Declarant. Utility distribution
lines servicing the Property may be placed above ground. Any transformer or
terminal equipment provided within 150 feet of a public street or highway shall
be visibly screened from view from Streets and adjacent parts of the Property,
with appropriate screening material provided by, maintained by and at the sole
cost and expense of the Owner.
Section 5.1 Utility Easements. Easements for installation and
-----------------
maintenance of utilities and drainage facilities are reserved
as shown on the recorded plat. No structure, planting or other material shall be
placed or permitted to remain within the easements which may damage or interfere
with the installation and maintenance of utilities; or in the case of drainage
easements, which may change the direction of flow of water through drainage
channels in such easements. The easement area of each part of the Property, if
any, and all improvements in such area shall be maintained continuously by the
Owner of such part of the Property, except for those improvements for which a
public authority or utility company is responsible. Neither Declarant nor any
utility company using the easements herein referred to shall be liable for any
damage done by them or their assigns, agents, employees, or servants to
shrubbery, streets or flowers or other property of the Owners situated on the
land covered by said easements.
Section 5.2 Drainage Easements. Easements for drainage throughout the
------------------
Property, in the event same are applicable to such parts of the Property
situated therein, are reserved as shown on the aforementioned recorded plats,
such easements being depicted thereon as "drainage easements." No Owner of any
part of the Property may perform or cause to performed any act which would alter
or change the course of such drainage easements in a manner that would divert,
increase, accelerate or impede the natural flow of water over and across such
easements. More specifically, and without limitation, no Owner may:
(a) alter, change or modify the existing natural vegetation of the
drainage easements in a manner that changes the character of the original
environment of such easements;
(b) alter, change or modify the existing configuration of the
drainage easements, or fill, excavate or terrace such easement or remove
trees or other vegetation therefrom without the prior written approval of
the Architectural Control Committee and the City of San Antonio Drainage
Engineer;
(c) construct, erect or install a fence or other structure of any
type or nature within or upon such drainage easements;
(d) permit storage, either temporary or permanent, of any type upon
or within such drainage easements; or
(e) place, store, or permit to accumulate trash, garbage, leaves,
limbs, or other debris within or upon the drainage easements, either on a
temporary or permanent basis.
The failure of any Owner to comply with the provisions of this Section 5.20
shall in no event be deemed or construed to impose liability of any nature on
the Architectural Control Committee and/or Declarant, and such Architectural
Control Committee and/or
Declarant shall not be charged with any affirmative duty to police, control or
enforce such provisions. The drainage easements provided for in this Section
5.20 shall in no way affect any other recorded easement in the Property.
Section 5.2 Lot Maintenance. Each Owner shall maintain its part of the
---------------
Property and any road parkways adjacent to such part of the Property, in a neat
and attractive manner keeping the premises in good repair. This shall include,
but shall not be limited to:
(a) lawn mowing;
(b) tree and shrub pruning
(c) watering (if not restricted by governmental entities)
(d) keeping exterior lighting and mechanical facilities in working
order
(e) keeping lawn and garden areas alive, free of weeds and attractive
(f) keeping parking areas, driveways and roads in good repair
(g) painting on all buildings
(h) maintaining signs, fencing, screening, private parks, sidewalks,
Streets, Street lights and all other landscaped areas and unimproved areas
(i) complying with all government health and police requirements
(j) repair of exterior damage to improvements
(k) prompt removal of all litter, trash, refuse, and waste
Owner(s) shall not remove earth or trees, except with the permission of the
Declarant. Each Owner shall maintain the screened areas around transformers or
terminal equipment which serves such part of the Property.
During construction, it shall be the responsibility of each Owner to insure
that construction sites are kept free of unsightly accumulation of rubbish and
scrap materials, and that construction materials, trailers, shacks and the like
are kept in a neat and orderly manner.
The Declarant reserves the right to approve of a maintenance plan and the
level of maintenance for developed and vacant lots.
Section 5.2 Maintenance Enforcement. If, in the opinion of the Declarant
-----------------------
or the Association, any such Owner or occupant has failed in any of the duties
or responsibilities, described in Section 5.21, then the Declarant or the
Association may give such Owner written Notice of such failure and such Owner
must within ten (10) days after receiving such Notice, perform the care and
maintenance required. Should any Owner fail to fulfill this duty and
responsibility within such period, then the Declarant or the Association,
through its authorized agent or agents, shall have the right and power (but not
the obligation) to enter onto the Owner's part of the Property and perform such
care maintenance without any liability for damages or wrongful entry,
trespassing or other wise to any Owner. The Owner of the part of the Property
in which such work is performed shall be liable for the cost of such work and
shall promptly reimburse the Declarant or the Association for such cost. If
such Owner or occupant shall fail to reimburse the Declarant or the Association
within thirty (30) days after receipt of the statement for such work from the
Declarant or the Association, then said indebtedness shall constitute a lien
against the part of the Property on which the work was performed. Such lien
shall have the same attributes as the lien for assessments and special
assessments set fourth in Article IV, which provisions are incorporated herein
by reference, and the Association shall have identical powers and rights in all
respects, including but not limited to, the right of foreclosure.
Section 5.2 Architectural Control. In order to maintain landscaping and
---------------------
architectural compatibility, a primary consideration for the protection of the
occupants of a planned business park and light industrial development is that no
building, fence, sign, or other structure shall be erected, placed or altered on
any part of the Property until such part of the Property has been platted and
the plans and specifications for such building, fence, sign or other structure
and the location of such building, fence, sign or other structure and site plan
showing the location such building, fence, sign or other structure and the
location and nature of parking and landscaped area shall have been approved in
writing as to the quality of workmanship and materials, color coordination,
conformity and harmony of architectural design with existing structures within
the Property, and as to the conformity with all other provisions of this
Declaration, by the ACC. The plans and specifications to be submitted for review
and approval shall include the following:
(a) a topographical plot showing existing contour grades and showing
the location of all improvements, structures, walks, patios, driveways,
fences and walls. Existing and finished grades shall be shown at Lot
corners and at corners
of proposed improvements. Lot drainage provisions shall be indicated as
well as cut and fill details if any appreciable change in the Lot contours
is contemplated.
(b) exterior elevations
(c) exterior materials, colors, textures, and shapes
(d) structural design
(e) landscaping plan, including walkways, fences and walls
(f) parking area and driveway plan
(g) screening, including size, location and method
(h) utility connections
(i) exterior illumination, including location and method
(j) signs, including size, shape, color, location and materials
The ACC shall consist of three (3) regular members: the chairman of the ACC
("Chairman") and two (2) regular members to be appointed by the Chairman within
ten (10) days following his appointment. The ACC may also include up to two (2)
alternate members, each of whom shall be appointed by the Chairman and may be
authorized by the Chairman to attend any meeting of the ACC in the absence of
any regular member and to vote on all matters that come before the ACC at such
meeting. The ACC also may include up to two (2) associate members, which will
be appointed by the Chairman, any and all of whom may be authorized to attend
such meetings as the Chairman shall specify and to participate in any discussion
at such meetings, but not to vote on any matters. In the event one (1) of the
members of the ACC other than the Chairman is removed, resigns or is no longer
able to serve as a member, the Chairman shall appoint a new member of the ACC so
that there will continue to be three (3) regular members of the ACC. A record
of the members of the ACC shall at all times be kept at the offices of the
Association or Declarant and such information shall be provided to any Owner
upon request. Members of the ACC need not be officers, directors nor members
of the Association. Members of the ACC shall be reimbursed for reasonable out-
of-pocket expenses incurred in their capacity as members of the ACC.
The Declarant hereby appoints J. ▇▇▇▇▇▇ ▇▇▇▇▇ to be the first Chairman.
The Declarant shall have the right to remove the Chairman and any and all other
members from the ACC at any time for any reason, with or without cause. Any
successor Chairman of the
ACC shall be appointed by the Declarant. As of January 31 of each year, the
Declarant shall review the composition of the members of the ACC and shall
either re-appoint the Chairman or shall appoint a new Chairman. In the event of
death or resignation or other inability to serve of any member of said
committee, the Declarant shall designate a successor committee member or
members.
The Declarant may also appoint staff and consultants to the ACC, including,
but not limited to architects, landscape architects, planners, engineers,
attorneys and other individuals whose knowledge or skills will assist the ACC in
carrying out its functions.
In each instance where improvements have been erected, or the construction
thereof is substantially advanced, in such manner that the same violates the
restrictions contained in this Declaration, ACC approvals or any other covenants
which the ACC has the power to enforce, or in such manner that the same
encroaches on any easement or the Common Area, the ACC reserves the right (but
shall not be obligated in any manner) to release such Lot from the restriction
which it violated and to grant an exception to permit the encroachment or
violation so long as the ACC, in the exercise of its good faith discretion,
determines that the release or exception will not materially and adversely
affect the health, safety and appearance of the Property. All such
modification, releases or exceptions shall be within the sole opinion and
absolute discretion of the ACC. The ACC has the right, but not the obligation,
to grant waivers for minor deviations and infractions of this Declaration.
In the event said committee or its designated representative fail to
approve or disapprove any plans and specifications or plats within thirty (30)
days after the same have been submitted to it, such approval shall not be
required and the party shall be deemed to have fully complied with this Section,
however, such non-action shall not constitute the approval of any provisions of
such plans and specifications or plats in violation of any other covenants
contained herein which approval may be granted by affirmative action taken
pursuant to this Section.
The Architectural Control Committee shall have the express authority to
perform fact finding functions hereunder and shall have the power to construe
and interpret any covenant herein that may be vague, indefinite, uncertain or
capable of more than one construction. All decisions of the committee shall be
final and binding, and there shall be no revisions of any action of the
committee except by procedure for injunctive relief when such action is patently
arbitrary and capricious. The Declarant or members of the Architectural Control
Committee shall not be liable to any persons subject to or possessing or
claiming the benefits of these covenants for any damage or loss arising out of
their acts
hereunder, it being understood and agreed that the remedy of an aggrieved party
shall be restricted to injunctive relief.
Section 5.2 Variances. The Architectural Control Committee or the
---------
successor of the Architectural Control Committee shall have the sole authority
to grant variances to the covenants set forth in Article V of this Declaration.
Variances shall be granted only by the unanimous approval of the Architectural
Control Committee. The Declarant shall have sole authority to modify the
boundaries of the plat of the Property, attached hereto and incorporated herein.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Enforcement. The Declarant, Association, the Architectural
-----------
Control Committee or any Owner, shall have the right to enforce, by any
proceeding at law or in equity, all restrictions, conditions, covenants,
reservations, liens and charges now or hereafter imposed by the provisions of
this Declarant. Failure by the Declarant, Association, or by any Owner to
enforce any covenant or restriction herein contained shall in no event be deemed
a waiver of the right to do so thereafter. Declarant, for itself, its successors
or assigns, reserves the right to enforce these restrictive covenants, though it
may have previously sold and conveyed all of its interest in the Property,
controlled by these covenants. The reservation of this right of enforcement
shall not create an obligation or liability of any kind to enforce same.
Section 6.2 Severability. Invalidation of any one of these covenants or
------------
restrictions by judgment or court order shall in no wise affect any other
provision which shall remain in full force and effect.
Section 6.3 Term. The covenants, conditions and restrictions of this
----
Declaration shall run with and bind the Property, and shall inure to the benefit
of and be enforceable by the Association, Declarant and any Owner, their
respective legal representatives, heirs, successors and assigns until January 1,
2028, at which time said covenants shall be automatically renewed and extended
for successive periods of ten (10) years. The number of ten (10) year renewal
periods hereunder shall be unlimited with this Declaration being automatically
renewed and extended upon the expiration of each ten (10) year period for an
additional ten (10) year period; provided, however, that there shall be no
renewal or extension of this Declaration if during the last year of the initial
thirty (30) year period, or during the last year of any subsequent ten (10) year
renewal period, a majority of the total eligible votes of the membership of the
Association cast at a duly held meeting of the Members of the Association vote
in favor of terminating this Declaration at the end of its then current term.
It shall be required that written notice of any meeting at which such proposal
to terminate this Declaration is to be considered, setting forth the fact that
such a proposal will be considered, shall be given at least thirty (30) days and
no more than sixty (60) days in advance of such meeting. In the event that the
Association votes to terminate this Declaration, the President and Secretary of
the Association shall execute a certificate which shall set forth the resolution
of termination adopted by the Association, the date of the meeting of the
Association at which such resolution was adopted, the date that Notice of such
meeting was given, the total number of votes of Members of the Association, the
total number of votes cast in favor of such resolution and the total number of
votes cast against such resolution. The certificate shall be recorded in the
Real Property Records and Deed and Plat Records of Bexar County, Texas, and may
be relied upon for the correctness of the facts contained therein as they relate
to the termination of this Declaration.
Section 6.4 Assignment of Rights and Duties. Any and all of the rights,
-------------------------------
powers and reservations of the Association and Declarant may be assigned to any
person, corporation or association which will assume the duties of the
Association or Declarant, as applicable, pertaining to the particular rights,
powers and reservations assigned. Upon such assignee evidencing its consent in
writing to accept such assignment, have the same rights and powers and be
subject to the same obligations and duties, it shall, to the extent of such
assignment, have the same rights and powers and be subject to the same
obligations and duties as are herein given to and assumed by the Association or
Declarant. Further, the Association or Declarant may from time to time delegate
any and all of its rights, powers, discretion and duties hereunder to such agent
or agents as it may nominate.
Section 6.5 Power of Attorney. The Association is hereby granted an
-----------------
irrevocable power of attorney to represent the Owners in any proceedings,
negotiations, settlements or agreements relating to the damage, destruction or
condemnation of the Common Area and dedicated rights-of-way.
Section 6.6 Mineral Reservation. Declarant hereby reserves and retains
-------------------
all of its rights, title and interest in all oil, gas, coal, caliche and other
minerals in and to the Property. The minerals herein reserved include all
minerals regardless of the method of mining or exploitation. Declarant agrees
not to drill, extract or mine the oil, gas, coal, caliche or other minerals in
and to the Property without the express written permission of all Owners.
Section 6.7 Incorporation of Other Documents. The Architectural Design
--------------------------------
Guidelines, Articles, Bylaws and Rules and Regulations as may, from time to
time, be amended or modified are
incorporated herein for all purposes.
Section 6.8 Authorized Action. All actions which the Association is
-----------------
permitted to take under this instrument shall be authorized actions of the
Association as approved by the Board of Directors in the manner provided for in
the Bylaws of the Association, unless the terms of this Declaration provide
otherwise.
Section 6.9 Limitation of Liability. Declarant, as well as its
-----------------------
partners, agents, employees, officers, directors, partners and their respective
officers, directors, agents and employees, shall not be liable to any Owner or
lessee of the Lot or any portion thereof or to any other party for any loss,
claim or demand in connection with a breach of any provision of these covenants
by any party other than Declarant.
Section 6.1 Amendment by Members. This Declaration may be amended, at a
--------------------
regular or special meeting of the Members, by a vote of at least a majority of
the total eligible votes of the membership of the Association.
Section 6.1 Notice and Quorum. For any meeting called to amend the
------------------
Declaration, the following must be followed:
(a) Notice. Written notice of any meeting called for the purpose of
------
amending the Declaration shall be sent to all Members not less than fifteen
(15) days nor more than fifty (50) days in advance of the meeting.
(b) Quorum. At the first meeting called the presence at the meeting
------
of Members, or of proxies, entitled to cast sixty percent (60%) of all the
votes of each class of membership shall constitute a quorum. If the
required quorum is not forthcoming at any meeting, another meeting may be
called, subject to the Notice requirements set forth herein, and the
required quorum at any such subsequent meeting shall be one-half ( 1/2) of
the required quorum at the preceding meeting, provided that such reduced
quorum requirement shall not be applicable to any such subsequent meeting
held more than sixty (60) days following the preceding meeting.
(c) Amendment by Declarant. Until such time as Declarant ceases to be
----------------------
a Class B Member, Declarant specifically reserves for itself, its
successors and assigns, the absolute and unconditional right to alter,
modify, change, revoke, rescind or cancel any or all of the restrictive
covenants contained in this Declaration by filing, in the real property
records, an amendment to the Declaration. The Declarant is not required to
send out notices or conduct a meeting in order to amend the Declaration
under this Section.
Section 6.1 Severability. Should any covenant, condition, or
------------
restriction herein contained, or any article, section, paragraph, sentence,
clause, phrase or term of this Declaration be declared to be void, invalid,
illegal, or unenforceable, for any reason, by the adjudication of any court or
other tribunal having jurisdiction over the parties hereto and the subject
matter hereof, such judgment shall in no way affect the other provisions hereof
which are hereby declared to be severable and which shall remain in full force
and effect.
Section 6.1 Interpretation. The Board shall have the right except as
--------------
limited by any other provisions of this Declaration, Articles or Bylaws, to
determine all questions arising in connection with this Declaration and to
construe and interpret its provisions, and its good faith determination,
construction or interpretation shall be final and binding.
Section 6.1 Singular, Plural and Gender. Whenever the context so
---------------------------
permits, the use of the singular shall include the plural and the plural shall
include the singular, and the use of any gender shall be deemed to include all
genders.
Section 6.1 Construction. The provisions of this Declaration shall be
------------
liberally construed to effectuate its purpose of creating a uniform plan for the
operation and development of the Property.
Section 6.1 Articles and Sections. Article and section headings in this
---------------------
Declaration are for the convenience of reference and shall not affect the
construction or interpretation of these covenants. Unless the context otherwise
requires, reference herein to articles, divisions and sections are to articles
and sections of this declaration.
Section 6.1 Violations Defined. Any act of commission or omission
------------------
contrary to the commands or directives of this Declaration, or any breach of any
duty imposed by this Declaration shall constitute a violation hereof.
Notwithstanding anything contained herein to the contrary, the Association will
perform no act nor undertake any activity which will violate its non-profit
status under applicable state or federal law.
Section 6.1 Penalties. Failure of an Owner to comply with this
--------
Declaration, guidelines set by the ACC, Articles, Bylaws or Rules and
Regulations shall be grounds for action which may include, without limitation,
an action to recover sums due for damages, injunctive relief or any combination
thereof, including costs and attorneys' fees incurred in bringing such actions,
and if necessary, costs and attorney's fees for appellate review. The
Association shall also have the right to amend the Rules and
Regulations in order to provide for the imposition of fines for failure to
comply with this Declaration or the Rules and Regulations.
Section 6.1 Enforcement. Enforcement of the covenants, conditions and
-----------
restrictions contained in this Declaration shall be by any proceeding at law or
in equity and may be instituted by Declarant, its successors or assigns, the
Association, its successors or assigns, or any Owner against any person or
persons violating or attempting to violate or circumvent any covenant, condition
or restriction, either to restrain violation or recover damages, and against the
land, and to enforce any lien created by this Declaration. Failure by
Declarant, the Association or any Owner to enforce any covenant, condition or
restriction herein contained for any period of time shall in no event be deemed
a waiver or estoppel of the right to enforce same thereafter.
Section 6.2 Effect of Other Regulations. Wherever higher or more
---------------------------
restrictive standards are established by the provisions of any other applicable
statute, ordinance or regulation than are established by the provisions of this
Declaration, the provisions of such statute, ordinance or regulation shall
govern.
Section 6.2 Hearing by the Board. In addition to other remedies
--------------------
provided for the enforcement of these covenants, the Board of Directors is
authorized to hear and determine the facts in cases of alleged nuisances and
where it finds that facts exist which constitute a nuisance, the Board may order
the cessation and abatement of such nuisance.
[signature page to follow]
IN WITNESS WHEREOF, the undersigned, being the Declarant, herein have
hereunto set its hand and seal this 24th day of March, 1998.
GREEN MOUNTAIN ASSOCIATES, LTD., a
Texas limited partnership
By: ▇. ▇▇▇▇▇ CORPORATION, a Texas
corporation, its general partner
________________________________
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
GREEN MOUNTAIN VENTURES I, LTD., a
Texas limited partnership
By: ▇. ▇▇▇▇▇ CORPORATION, a Texas
corporation, its general partner
________________________________
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
State of Texas (S)
(S)
County of Bexar (S)
Before me, the undersigned, a Notary Public on this day personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
acting on behalf of the said Green Mountain Ventures I, Ltd., a Texas limited
partnership, and that he had executed the same as the act of such partnership
for the purpose and consideration therein express, and in the capacity therein
stated.
Given under my hand and seal of office, this _____ day of March, 1998.
___________________________________
Notary Public, State of Texas
State of Texas (S)
(S)
County of Bexar (S)
Before me, the undersigned, a Notary Public on this day personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
acting on behalf of the said Green Mountain Associates, Ltd., a Texas limited
partnership, and that he had executed the same as the act of such partnership
for the purpose and consideration therein express, and in the capacity therein
stated.
Given under my hand and seal of office, this _____ day of March, 1998.
___________________________________
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attorney at Law
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
EXHIBIT "E"
TO
LEASE AGREEMENT
Subordination/Non-Disturbance Agreement
---------------------------------------
as attached
SUBORDINATION/NON-DISTURBANCE AGREEMENT
THIS AGREEMENT made and entered into effective as of the ___ day of
_______________________, 1998 by and between
______________________________________________, having its principal office at
_____________________________("Mortgagee"), and
_____________________________________, a ________________ corporation.
("Tenant").
RECITALS:
--------
WHEREAS, Tenant entered into a lease with Green Mountain I, a Texas limited
partnership (the "Landlord") for a portion (the "Leased Premises") of the real
property (the "Premises") described in Exhibit "A", attached hereto, said lease
being dated as of _____________ (attached hereto as Exhibit "B"), said lease and
Addenda (hereinafter collectively referred to as the "Lease"); and
WHEREAS, Mortgagee holds a Mortgage (called the "Mortgage"); and
WHEREAS, Tenant and Mortgagee desire hereby to establish certain rights,
safeguards, obligations and priorities with respect to their respective interest
by means of the following non-disturbance, attornment and subordination
agreements.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and in consideration of One Dollar ($1.00) by each of the
parties hereto paid to the other, receipt of which is hereby acknowledge, the
parties do hereby covenant and agree as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage insofar
as it affects the Premises of which the Leased Premises forms a part, and
to all renewals, modifications, consolidations, replacements and extensions
thereof, to the full extent of the principal sum secured thereby and
interest thereon.
2. In the event it should become necessary to foreclose the Mortgage, the
Mortgagee thereunder will not join the Tenant under the Lease in summary or
foreclosure proceedings, and no foreclosure of the lien of the Mortgage, or
any other proceeding in respect thereof, shall divest, impair, modify,
abrogate or otherwise adversely affect any interests or rights whatsoever
of Lessee under the Lease, so long as the Tenant is not in default, beyond
the applicable period to cure, under any of the terms, covenants or
conditions of the Lease.
3. In the event that the Mortgagee shall, in accordance with the foregoing,
succeed to the interest of the Landlord under the
Lease, the Mortgagee agrees to be bound to the Tenant under all the terms,
covenants and conditions of the Lease, as renewed and extended, and the
Tenant agrees, from and after such event, to attorn to the Mortgagee and/or
purchaser at any foreclosure sale of the Premises, all rights and
obligations under the Lease to continue as though the interest of Landlord
had not terminated or such foreclosure proceedings had not been brought,
and the Tenant shall have the same remedies against the Mortgagee for the
breach of an agreement contained in the Lease that the Tenant might have
had against the Landlord if the Mortgagee had not succeeded to the interest
of the Landlord: provided, however, that the Mortgagee shall not be:
a. liable for any act or omission of any prior landlord (including the
Landlord); or
b. subject to any offsets or defenses which the Tenant might have against
any prior landlord (including the Landlord) relating to matters
occurring prior to the acquisition of title by mortgagee, its
successors and assigns; or
c. except for rent pre-paid in accordance with paragraph 3(d) of the
Lease, bound by any rent or additional rent which the Tenant might
have paid for more than the current month to any prior landlord
(including the Landlord); or
d. bound by any amendment or modification of the Lease made without its
consent; or
e. liable for the return of any security deposit not actually received.
4. Notwithstanding anything to the contrary hereinabove contained, to the
extent the provisions of the Mortgage dealing with application of casualty
insurance proceeds and condemnation proceeds may be inconsistent with
corresponding provisions of the Lease, the provision of the Mortgage shall
be controlling.
5. Mortgagee does not intend hereby to waive or negate any covenant or
agreement in said Lease, if any, which provides Landlord an option to
cancel independently of any default on the part of Tenant.
6. This Agreement may not be modified other than by an Agreement in writing,
signed by the parties hereto or by their respective successors in interest.
7. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns and
to no other persons.
8. It is expressly understood and agreed that this Agreement shall supersede,
to the extent inconsistent herewith, any provisions of the Lease relating
to the Subordination of the Lease and interest and estates created thereby
to the Lien or charge of the Mortgage.
9. This Agreement shall be governed by and construed in accordance with the
laws of the state in which the property is located.
10. The parties hereto agree to execute and deliver, in recordable form if
necessary, any and all further documents and instruments reasonably
requested by any party hereto or any title insurance company to give effect
to the terms and provisions of this Agreement.
11. If this Agreement is not executed by all parties then no parties that have
executed this Agreement shall be bound by the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed these presents,
effective as of __________________, 1998.
TENANT:
BUSINESS PARTNER SOLUTIONS, INC., a
Texas corporation
___________________________________
By: ___________________________________
Its: ___________________________________
MORTGAGEE:
________________________________________
By: ___________________________________
Its: ___________________________________
Date:___________________________________
STATE OF ___________ (S)
(S)
COUNTY OF ___________ (S)
The foregoing was acknowledged before me this ___ day of
______________________, 19___ by __________________, as ______________ of
BUSINESS PARTNER SOLUTIONS, INC., a Texas corporation, on behalf of said
corporation.
___________________________________
NOTARY PUBLIC, STATE OF
STATE OF ___________ (S)
(S)
COUNTY OF ___________ (S)
The foregoing was acknowledged before me this ___ day of
______________________, 19___ by _______________, as _____________ of
___________________________________________, on behalf of said company.
___________________________________
NOTARY PUBLIC, STATE OF
EXHIBIT "F"
TO
LEASE AGREEMENT
Short Form Memorandum
---------------------
as attached
SHORT FORM
MEMORANDUM OF LEASE
-------------------
GREEN MOUNTAIN VENTURES I, Ltd., a Texas limited partnership (hereinafter
referred to as "Lessor") has heretofore demised and let unto BUSINESS PARTNER
SOLUTIONS, INC. (hereinafter called "Lessee"), and Lessee has heretofore leased
and taken from Lessor, upon the terms and conditions and subject to the
limitations more particularly set forth in a certain agreement between Lessor
and Lessee dated the 27th day of February, 1998 (hereinafter referred to as the
"Lease"), certain premises containing approximately 87,061 square feet situated
in the 116,102 square foot building in Green Mountain Business Park in the City
of San Antonio, State of Texas, said building being situated on the tract of
land described in Exhibit "A" hereto and said leased premises being identified
on the site plan attached hereto as Exhibit "B", together with all rights in and
to the Common Area associated with the building granted by the Lease to have and
to hold the same for a term to commence on or about July 1, 1998.
EXECUTED this 27th day of February, 1998.
LESSOR:
GREEN MOUNTAIN VENTURES I, LTD., a
Texas limited partnership
BY: ▇. ▇▇▇▇▇ CORPORATION, a Texas
corporation, its general partner
________________________________________
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
LESSEE:
BUSINESS PARTNER SOLUTIONS, INC.,
a Texas corporation
________________________________________
By:_____________________________________
Its:____________________________________
STATE OF TEXAS (S)
(S)
COUNTY OF BEXAR (S)
THIS INSTRUMENT was acknowledged before me on the _____ day of February,
1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as President of ▇. ▇▇▇▇▇ CORPORATION, a Texas
corporation, as general partner of GREEN MOUNTAIN VENTURES I, LTD., a Texas
limited partnership, on behalf of said limited partnership.
___________________________________
NOTARY PUBLIC, STATE OF TEXAS
STATE OF TEXAS (S)
(S)
COUNTY OF BEXAR (S)
THIS INSTRUMENT was acknowledged before me on the _____ day of February,
1998, by ___________________________, as ________________ of BUSINESS PARTNER
SOLUTIONS, INC., a Texas corporation, on behalf of said corporation.
___________________________________
NOTARY PUBLIC, STATE OF TEXAS
AFTER RECORDING RETURN TO:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
EXHIBIT "G"
TO
LEASE AGREEMENT
Plans and Specifications
------------------------
as attached
EXHIBIT G
---------
BUSINESS PARTNER SOLUTIONS, INC.
87,001 SQUARE FOOT
OFFICE/WAREHOUSE SPACE
GREEN MOUNTAIN BUSINESS PARK
SAN ANTONIO, TEXAS
PERFORMANCE SPECIFICATION
January 13, 1998
BUSINESS PARTNER SOLUTIONS, INC.
EXHIBIT G
JANUARY 30, 1998
PREPARED BY: ▇▇▇▇▇ CONTRACTORS
PREFACE
This contract specification was prepared by ▇▇▇▇▇ Contractors, based on
information that was provided
by BPS. These specifications are intended to describe and detail the major
components of the proposed office/warehouse space and the level of both finish
and construction quality. This information should not be reproduced or copied in
whole or in part without the written consent of ▇▇▇▇▇ Contractors.
The work in this project involves the design and construction of
office/warehouse space to be constructed within a building which is
approximately 116,102 square feet in size. The space will include approximately
30,538 square feet of warehouse space, and 56,463 square feet of single floor
finished office space. The proposed building will be located on a 7.589 acre
site situated along the south frontage road of Loop 1604 approximately 1/4 mile
east of Green Mountain Road in San Antonio, Texas.
The intended purpose and use of the facility is for administrative offices and
warehouse space. The building will not be used to store or handle hazardous
materials in quantities that exceed the exempt amounts as defined by the Unified
Building Code/1997.
01000 GENERAL CONDITIONS
▇▇▇▇▇ Contractors, Inc. (CONTRACTOR) will provide all engineering and
architectural design, supervision, labor, materials, and building permits
necessary for the completion and utilization of the facility for the intended
purpose. All such expenses related to the interior fit out work as described in
this specification, will be included in the rental rate.
DESIGN CRITERIA:
----------------
The work will be designed under the direction of engineers, and in compliance
with the Unified Building Code/1997, Unified Plumbing Code/1997, Unified Fire
Code/1997, and all requirements of applicable State, Federal, and other
regulatory agencies having jurisdiction over such work. In the event of
conflicts between the referenced codes, local design criteria, or
interpretations by such local review authorities, the design engineer shall
determine the design, which based on the engineer's professional opinion, meets
the relevant written objective of the codes.
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GEOTECHNICAL STUDY/FOUNDATION DESIGN:
-------------------------------------
A detailed geotechnical investigation of the subsurface and the soil types will
be prepared by our soils engineer. All foundation and site engineering design
will be based on this report. A maximum concentrated floor load of 10,000 lbs.
due to racking posts (with 4" x 4" x 3/8" thick base plate) will be
assumed for the slab design. Roof collateral loading will be assumed to be 3
lbs. per square foot to accommodate sprinkler piping, lighting, etc. Additional
information for actual floor loading due to racking, and roof loading due to
suspended equipment will be required for final design.
ENVIRONMENTAL REPORT:
---------------------
A comprehensive Phase 1 environmental investigation of the proposed site has
been performed by qualified personnel from an environmental engineering
consultant. The Phase 1 ESA determined that the site has a low environmental
risk based upon the following:
a) a visual inspection of the surface of the site and surrounding
areas for presence of possible contaminants.
b) examination of the Federal and State lists of Superfund Sites,
title abstracts of the names of prior owners, tenants and other
users of the property from January 1, 1940.
This environmental report will be supplemented by visual on-site inspections to
check for presence of non-gaseous contaminants that may be exposed during
construction work. An updated ESA may be provided at the LESSEES expense.
LESSEE RESPONSIBILITIES:
------------------------
The LESSEE will be directly responsible for the following:
a) LESSEE shall provide necessary information and documentation so
that LESSOR may determine the correct commodity classification for
the stored products as defined by the Unified Building Code/1991,
Unified Fire Code, and applicable NFPA (National Fire Protection
Association) Specifications.
b) any applications for State air quality permits or any other permits
required for Lessee-supplied equipment that will be operated by the
building occupant.
c) supply and installation of LESSEE-specific signage (including
permit application), material handling equipment (including
conveyors), security systems, battery chargers, racking, shelving,
furnishings, fire extinguishers, and lockers.
WARRANTY:
---------
CONTRACTOR warrants that all materials and equipment furnished for this project
shall be new unless otherwise specified and that all work will be of good
quality, free from faults and defects and
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EXHIBIT G
JANUARY 30, 1998
in conformance with the plans and specifications. Substitutions not properly
agreed to by the parties may be considered defective.
CONTRACTOR shall, at its sole expense, remedy any defect in workmanship or
materials of the building, provided that such defect shall be called to its
attention in writing by the LESSEE on or before the first anniversary of the
substantial completion of the project or, with respect to each punch list item,
one year form the date of completion of such punch list item.
CONTRACTOR shall extend and/or assign any and all warranties to LESSEE which
CONTRACTOR has received from any manufacturer, dealer or installer in connection
with any equipment or other mechanical systems installed in the project. A
fifteen (15) year labor and materials warranty shall be provided for the roofing
system by the manufacturer of the roofing materials and the authorized
installer.
02000 SITE WORK
A preliminary site plan showing the buildings location, site boundaries and site
improvements is attached with this proposal.
The site work comprises the on-site soil conservation measures, clearing and
stripping of topsoil, mass excavation, soil stabilization via moisture injection
under the building pad ( if required ), placement of crushed stone base, site
drainage, water service for fire protection and domestic supply, sewer service,
paving, re-top soiling, landscaping, and exterior concrete work. All site work
will be done in compliance with State and local established standards. Key
features of the site work include the following:
BUILDING PAD:
-------------
The proposed site is moderately sloped and contains soils that range from
weathered limestone, to mildly expansive pecan gap soils; however, the soils at
the site are well suited for office/warehouse development if handled correctly.
Any extremely "fat" or expansive soil found in the top strata will be removed,
and the sub-grade strata will be cut and filled to form the building pad. All
sub-grade and building pad work will be done in conformance with the
recommendations of the project geologist or soils engineer. A layer of crushed
stone base may be placed between the floor slab and the select sub-grade if
required by the engineer.
PAVEMENT DESIGN AND CONSTRUCTION:
---------------------------------
Construction of pavement for vehicular and truck traffic will be designed and
constructed in accordance with expected traffic volumes and local soil
conditions. A six (6) inch concrete apron constructed with 4,000psi concrete,
will be poured within 50 feet of the loading dock wall adjacent to the warehouse
dock doors as shown on the approved site plan. Two (2) inch asphalt paving (220
lbs. per sq. yd.) placed on a 12 inch granular compacted base is planned for the
exterior paved services
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subject to truck traffic. A seven (7) inch cement stabilized base or eight (8)
inch asphalt stabilized base may be substituted in lieu of the 12 inch compacted
base.
Parking areas for vehicular traffic will be constructed with 1 1/2 inches of
asphaltic paving (165 lbs. Per sq. yd.)surface on a minimum of six (6) inches of
compacted granular base. Concrete curbing will be installed along the edge of
all asphaltic paving. All paved areas utilized for vehicular parking shall be
designed in accordance with CBR(California Bearing Ratio) tests. All pavements
will be installed over sub-grade compacted to a minimum of 90% standard ▇▇▇▇▇▇▇
density. Where possible on-site materials will be used for sub-grade. All
access drives for vehicular traffic will be a minimum of 25 feet wide. Driveway
entrances that are used by heavy truck traffic will be 30 feet wide.
TRUCK MANEUVERING AREA:
-----------------------
A 120 ft. wide truck maneuvering area will be provided along the north side of
the building adjacent to the truck loading docks as shown on the approved site
plan. This area will serve two (2) 4ft. high loading docks and one (1) 2ft.
high loading dock. A concrete ramp twelve (12) feet wide will be installed from
the truck area to serve a 10' (w) x 10' (h) overhead door.
Pipe bollards will be installed in the concrete ramp to prevent vehicular access
into the warehouse. If possible, pipe bollards will be designed to be removal
by tenant.
A six (6) inch concrete pavement section, 50' in width, will be installed
adjacent to the loading docks.
All unpaved areas within 120 feet behind the adjacent space will be paved by
Lessor at no additional cost to Lessee, subject to execution of a lease for
adjacent space. If the adjacent space is utilized for warehouse, Lessee may
request pavement consistent with the existing truck maneuvering area which would
include concrete and heavier pavement designs. If the space is used for office
use, the area may be paved to accommodate vehicular parking.
FENCING:
--------
The truck maneuvering area will be enclosed with a six (6) foot industrial grade
chain link security fence with three (3) strands of ▇▇▇▇ wire along the top.
The fencing will be constructed with 9 ga. galvanized fabric, 1 5/8" - 2.27 # /
ft. top railing, 1 7/8"- 2.72 # / ft. line posts, and 2 7/8" - 5.79 #/ft.
terminal posts. A 30 foot access gate on a mechanical roller mechanism will be
installed at the truck access points.
REQUIRED PARKING:
-----------------
Parking for 290 cars (including six handicap spaces) will be provided.
Approximately 1.18 acres adjacent to the north boundary of the site(as shown on
the approved site plan) will be reserved, as provided in the lease, to
accommodate an additional eighty (80) parking spaces. Forty (40) parking spaces
in excess of the additional eighty spaces are also available on the adjacent
site to the west. All additional parking in excess of the 290 spaces will be
funded by the LESSEE in accordance with the Lease.
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Parking spaces will be sized at 9' wide by 18' deep. All asphaltic parking
areas will be bound with six (6) inch concrete curbing, and will include all
paint striping and handicap signage required for such spaces.
SIDEWALKS:
----------
Sidewalks will be placed along the south face, east face of the building, and a
portion of the north face, in an area between the parking lot and the building
as shown on the approved site plan. Sidewalks will be constructed with concrete
and shall have a minimum width of four (4) feet.
Concrete sidewalks will also be constructed along the streets as required by
municipal codes.
A concrete paved pad area will be constructed at the location shown on the
approved site plan. The pad will be approximately 25 feet wide by 30 feet long
and paved with concrete. A metal covering, approximately 25 feet wide and 20
feet long will be constructed over a portion of this pad.
DUMPSTER PAD:
-------------
A concrete dumpster pad approximately 15 feet wide and 15 feet long will be
provided in the area shown on the approved site plan. Landscaped screening will
be provided to comply with the Business Park Covenants.
LANDSCAPING:
------------
Landscaping including berms, trees, shrubs and lawn sprinklers will be provided
adjacent to the main office and parking areas in accordance with the City of San
Antonio landscape ordinance.
Twenty (20) Oaks or Cedar Elms (minimum 1 1/2" caliper) will be planted along
the street and Loop 1604 as shown on the site plan and five (5) Oaks or Cedar
Elms (minimum 1 1/2" caliper) will be planted in various areas adjacent to the
building.
Landscaped areas adjacent to the building and within 200 feet of the building
entrance will be fully sodded with Bermuda grass. Approximately 700 square
yards of sodding is included in this proposal. All other disturbed areas within
the building site will be hydro mulched with Bermuda or Rye grass.
One hundred eighty (180) 5 gallon shrubs will be planted for adjacent to the
building and parking lots. Planting beds will also be placed at two (2) parking
lot entrances and at the entrance to the building.
A lawn sprinklering system will be installed for all landscaped areas adjacent
to south and west sides (street frontage) of the building, which are between the
building and the parking lots, and between the parking lots and the adjacent
streets. Portions of the southeast corner of the site may be landscaped,
sprinkled and maintained by the Business Park Association.
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FIRE LINE:
----------
A fire department connection will be provided in accordance with the
requirements of the local Fire Marshal.
WATER AND SEWER SERVICE:
------------------------
A two (2) inch domestic water service line will be provided for water service to
the interior of the building. A separate two (2) inch water service will be
provided for the lawn sprinkler system.
A six (6) inch sanitary sewer lateral will be provided, sufficient to serve the
toilet facilities for 340 employees. Some additional waste water generated by
future expansions has been considered.
03000 CONCRETE
Concrete for foundations and footings will be a minimum design mix of 3,000 psi
compressive strength tested at 28 days.
The interior floor slabs will utilize 4,000 psi design mix and will have a
minimum thickness of 6" in warehouse areas. All construction joints will use an
American Concrete Institute approved keyway. All interior floors will be
finished with steel trowels until a hard burnished surface is achieved, and
either wet-cured or cured with a "cure and seal" product complying with the
requirements of ASTM C-309.
Flatness and levelness will meet requirements as determined by Business Partner
Solutions, and ▇▇▇▇▇ Contractors for Face Floor Profile Numbers (F-Numbers) as
determined by ASTM E 1155 for random traffic floors. This method of specifying
floor flatness/levelness provides information which can be compared with actual
field measurements taken using a floor profilometer and will ensure that the
floor is flat and level enough for use of a specific type of lift equipment.
▇▇▇▇▇ Contractors will perform occasional flatness and levelness testing for
random traffic paths, however should the Lessee require comprehensive testing of
the floor slabs this could be performed at additional cost.
The exterior slabs on grade will utilize 4,000 psi. design mix. All
construction joints will use an American Concrete Institute approved keyway.
All exterior concrete drive ramps or paving pads (if any) will be constructed
utilizing 3000 psi design mixed and reinforcement as determined by the engineer.
The exterior walls will be load-bearing reinforced concrete tilt-up panels
utilizing a minimum 4,000 psi. design mix. Panel thicknesses and sizes will be
determined by the structural engineer. All exterior wall surfaces will be
smooth with some architectural rustication.
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04000 MASONRY
No masonry block construction is anticipated in this project.
05000 METALS
STRUCTURAL STEEL, JOINTS & ROOF DECK:
-------------------------------------
The structural system of the building will be a conventional steel structure
using either standard "H sections" or square tubes for columns. The roof
structure will be open-web bar-joist and joist-girder construction with a 22
gauge Type B metal deck with a white baked enamel visible from inside the
building.
The minimum clear height under roof steel in all warehouse storage areas will be
28 feet.
The interior bay sizes for the main building area will be @ 40 feet by 60 feet.
The partition wall placement may reduce the area between columns, and interior
wall locations.
STEEL STAIRS:
-------------
Steel stairways with hand rails will be provided at all exit doors from the
warehouse to the truck maneuvering area.
ROOF ACCESS LADDER:
-------------------
One roof access ladder will be provided. The roof access ladder will be placed
within the warehouse, and will access the roof through a 4' by 4' roof hatch.
COVERED PARKING:
----------------
Fourteen (14) covered parking spaces will be provided adjacent to the executive
office area, with one space reserved for access to the building. Covered
parking spaces will be equipped with lights below the roof covering.
06000 WOOD AND PLASTIC
BLOCKING:
---------
Blocking, nailers and backing strips, will be installed as required for toilet
partitions, urinals, lavatories, built-ins and doors as shown on the plans.
WINDOW ▇▇▇▇▇:
-------------
Wood window ▇▇▇▇▇ in the finished office area will be finish grade pine or fir
with a clear varnish or enamel painted finish. The contractor, at its option,
may upgrade the window ▇▇▇▇▇ to plastic laminate covered board. LESSEE may
select the laminate color subject to the contractor's approval.
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07000 THERMAL AND MOISTURE PROTECTION
ROOFING:
--------
The roofing will be a mechanically fastened single-ply membrane (from an
approved manufacturer) over a 2 inch thick rigid polyisocyanurate board (R-14).
The roof will be designed to comply with the Unified
Building Code/1997 and will carry a full 15 year warranty on labor and
materials. All roof slopes will be a minimum of 1/4 inch per foot. The roofing
system will have a Class A fire resistance rating. Roofing installation will
be thoroughly inspected by the roof manufacturer's representative.
ROOF HATCH:
-----------
One insulated, galvanized, steel roof access hatch (4' x 4') will be provided at
the roof access ladder location. The hatch will be designed to allow for
locking from the interior of the warehouse.
HEAT AND SMOKE VENTS:
---------------------
Heat and smoke vents will be provided in the warehouse area as required by the
Uniform Fire Code and Local fire department requirements. The vents will be
Underwriters Laboratory listed with either a dome top metal lid or a dome
acrylic lid. One (1) 4' x 8' vent with an acrylic lid shall be installed, when
acceptable under local codes, in each 40' x 60' warehouse bay, adjacent to the
truck loading areas. Four (4) acrylic lid vents are planned in the warehouse
area. The heat and smoke vents shall be manufactured by Naturalite (model UFV-
55102) or approved equal.
08000 DOORS AND WINDOWS
OVERHEAD DOORS:
---------------
Four (4) overhead doors @( 10'W x 10'H) will be located at the dock area. The
overhead doors will be manually operated with a chain hoist, vertical lift,
foam-filled (R-7 minimum), sectional steel (minimum 25 gauge exterior skin)
doors with a single insulated view window. Overhead door finishes will be
factory-applied baked enamel paint (white). The doors will be manufactured by
Clopay (model 3200), Overhead Door (model 426), or approved equal.
Pipe bollards will be placed at the exterior location of the grade level ramp
access door to the warehouse. The bollards will be designed and placed to
prevent vehicular access through the ramp door.
FOLDING GUARD GATES:
--------------------
A folding guard gate will be provided at each 10' x 10' warehouse door opening.
The gates shall be manufactured by Folding Guard Corporation or approved equal.
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EXTERIOR DOORS AND FRAMES:
--------------------------
Store front glass entrance doors will be provided at five (5) entrances to the
office areas. Entrances will include four (4) dual 3' x 7' doors and two (2)
single 3' x 7' doors. Two (2) of the dual doors and one of the single doors
will be installed as exit only doors.
Hollow metal doors will be provided in exterior walls along the dock area as
required. The doors will be 3' x 7' and constructed with 16 ga. steel, 1 3/4"
polyurethane cores and installed with 16 ga. door frames. The doors will be
manufactured by CECO, ▇▇▇▇ Steel or approved equals. Egress hardware and closers
will be installed on each door as specified below.
EXTERIOR DOOR HARDWARE:
-----------------------
Heavy duty commercial hardware (grade 1) will be used on entrance doors to the
office areas. The finish will match the door finish as specified by Lessee.
The door levers will be manufactured by Arrow (series B) or Schlage (series D).
Door closers will be installed on all exterior doors from the office area. The
closers will be manufactured by Norton (model 8501), LCN (model 1461) or
approved equal. Door hinges will be heavy weight, high frequency hinges with
non-removable pins and a brass finish over stainless steel. Hinges will be
manufactured by ▇▇▇▇▇ (model BB 1199) or approved equal.
Heavy duty commercial hardware (grade 1) with a satin chrome finish will be used
on exterior hollow metal doors. A rim exit device with outside lever and key
will be installed as manufactured by Arrow (model 3808xSl08) or approved equal.
Door hinges will be heavy weight, high frequency hinges with non-removable pins
and a satin chrome finish. Hinges will be manufactured by ▇▇▇▇▇ (model BB 1168)
or approved equal.
INTERIOR DOORS AND FRAMES:
--------------------------
Two (2) dual - 3' x 7' store front glass doors will be provided in the main
lobby and waiting area.
Interior office doors will be 3' x 9'(except as otherwise specified in this
section) with a plastic laminate exterior to be selected by LESSEE from the
manufacturers standard colors. Interior office doors shall be constructed with
particle core (ANSI type A208.1LD-2) except where fire rated doors are required,
and shall be manufactured by Marlite (type PC-HPDL), or approved equal.
Interior door frames shall be satin clear aluminum as manufactured by Rayco,
Altura or approved equal. This proposal includes eighty (80) single office doors
and four (4) dual office doors.
Sliding closet doors will be provided in the training rooms. These doors will
be 2 1/2' x 7' with plastic laminate exterior matching the office doors.
Closet doors shall be hollow core as manufactured by Marlite (type SHC) or
approved equal. This proposal includes sixteen (16) closet doors.
Hollow metal doors 3' x 7',(18 ga.) 16 ga. hollow metal door frames and
hardware, will be installed within the warehouse and between the warehouse and
office areas. The doors connecting office areas
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with the warehouse, will be constructed with glass kits. Three (3) single doors
and one (1) double door are included in the proposal.
INTERIOR DOOR HARDWARE:
-----------------------
Standard commercial grade hardware (grade 2) with a bright chrome finish will be
installed on all interior doors except as specified below. Interior office door
levers will be manufactured by Arrow (series M), Schlage (series AL) or approved
equal.
Heavy duty commercial hardware (grade 1) with a satin chrome finish will be used
on interior hollow metal doors between the waiting area and hallways, and the
office hallways and the warehouse. A rim exit device with outside lever and
key(except on doors which are designated for exit only) will be installed as
manufactured by Arrow (model 3808xSl08) or approved equal. Door hinges will be
heavy weight, high frequency hinges with non-removable pins and a satin chrome
finish. Hinges will be manufactured by ▇▇▇▇▇ (model BB 1168) or approved equal.
Door hinges for hollow metal doors between the warehouse and office areas will
be heavy weight, high frequency hinges with non-removable pins and a satin
chrome finish over steel. These hinges will be manufactured by ▇▇▇▇▇ (model
BB1168) or approved equal. Door hinges for interior office doors will be
standard weight, medium frequency hinges, with a satin chrome finish over steel.
These hinges will be manufactured by ▇▇▇▇▇ (model 1279) or approved equal.
EXTERIOR WINDOWS:
-----------------
The exterior shell of the building will be designed to allow for exterior glass
as shown on the approved elevation. No exterior windows will be placed in the
integration and lab tech areas. Exterior windows will be constructed with 1/4
inch bronze tinted monolithic glass and tempered as required by code. Window
frames will be bronze aluminum (1 3/4" x 4").
INTERIOR GLASS:
---------------
All interior glass will be clear, tempered as required by code, and installed in
aluminum frames with a satin chrome finish, except for interior glass installed
in glass kits for hollow metal doors or glass frames exposed to the warehouse.
Glass exposed to the warehouse will be installed in hollow metal frames.
Each interior office shall be constructed with clear single sheet glass adjacent
to the door. The glass will be 16" wide by 8' high. The break room will include
three (3), 4' x 5' glass windows. The computer room will include seven (7), 4'
x 5' glass windows. The integration and lab tech room will include two (2), 4'
x 5' glass windows. One director and three manager offices will include one
(1), 4' x 5' glass window in each. The total interior finish will include 832
square feet of interior glass.
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09000 FINISHES
The Exterior face of concrete walls will be painted with a weather resistant
textured paint. The underside of exposed metal roof deck in the warehouse area
will be factory-painted white.
Interior space planning and architectural services for the interior space will
be included as part of the base rent. The orientation of this space will be
mutually acceptable to Business Partner Solutions, Inc. and ▇▇▇▇▇ Contractors.
INTERIOR STUD WALLS AND DRYWALL:
--------------------------------
Metal studs and drywall shall be installed in conformance with the office layout
as shown on drawing CP-1, prepared by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Associates, dated
12/12/97, or approved modifications thereto.
The interior partition wall will be full height, constructed to the bottom of
the roof deck. The partition wall will be constructed with 6" metal studs, will
have sheet rock on both sides, and will be taped and spackled, within the leased
space. Insulation shall be placed in the partition wall to the ceiling height
of the adjacent areas used as offices.
Metal studs (4") and drywall (5/8" thickness) will be used within the following
areas and installed to the specified ceiling heights:
AREA CEILING HEIGHT (FT.)
---- --------------------
Main Lobby 16'
Work Station Areas 14'
Main Hallways 12'
Integration and Lab Tech 12'
Break Room 12'
Training Rooms 1 & 2 12'
Computer Room/Guest Services 12'
Executive Area 10'
All Other Areas 9'
Insulation shall be placed in the interior walls surrounding all offices,
conference rooms, restrooms, the computer room, training rooms, the break room
wall adjacent to the hall, and in all exterior walls.
TAPE AND SPACKLE DRYWALL:
-------------------------
All drywall surfaces, shall be taped, spackled, and prepared for painting.
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INTERIOR PAINTING:
------------------
All interior drywall surfaces shall be painted with commercial grade latex paint
(eggshell sheen). All interior wood surfaces shall be stained or painted with an
oil based satin or semi-gloss paint. All interior metal surfaces with the office
areas (excluding prefinished aluminum door and window frames) shall be painted
with latex eggshell or semi-gloss paint.
The paint shall be roller or brush applied in conformance with the manufacturers
specifications for the paint. The paint manufacturer shall be ▇▇▇▇▇ (Wonder
tones) or an approved equal. The LESSEE may select the paint color for various
areas from the standard paint colors provided by the manufacturer, subject to
the approval of the color by the Contractor.
EXTERIOR PAINTING:
------------------
All exterior concrete surfaces shall be painted with commercial grade weather
resistant textured paint. The paint shall be a high build latex textured
coating as manufactured by ▇▇▇▇▇ (Spra-Max) or approved equal. The exterior
paint shall be spray applied in conformance with the manufacturers
recommendations. Paint colors will be selected by the CONTRACTOR subject to
LESSEE's approval.
OFFICE CEILING:
---------------
Office ceilings shall be installed with lay-in ceiling support grids on a 2' x
4' grid spacing. The grids will be attached to the roof framing via wire tie
connections. The suspension system will be designed to support insulation (if
required), lighting, diffusers and all other grid mounted equipment, and will be
installed at the heights listed under the stud and drywall section. The ceiling
tiles shall be white and manufactured by ▇▇▇▇▇▇▇▇▇ (style: Second Looks II) or
approved equal.
OFFICE FLOORS:
--------------
The following floor finishes and quantities are included in this proposal for
the areas listed. The anticipated unit costs for the flooring is shown for
reference.
OFFICE FLOOR APPROX. UNIT
AREA COVERING AREA (SF) COST(PSF)
----------------------------- ------------------ --------- ---------
Entry and Waiting Quarry Tile 1,985 $6.50
Hallways High Endurance 3,970 $2.50
Vinyl
Break Room High Endurance 1,520 $2.50
Vinyl
Executive Area Nylon Carpet 3,275 $1.50
36 oz. Cut Pile
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BUSINESS PARTNER SOLUTIONS, INC.
EXHIBIT G
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OFFICE FLOOR APPROX. UNIT
AREA COVERING AREA (SF) COST(PSF)
----------------------------- ------------------ --------- ---------
Computer Room Computer Raised
Flooring 845 $7.00
Integration/Lab Tech. Anti -Static VCT 5,772 $4.00
Executive Storage/File/Work VCT 152 $1.15
Accounting File Room VCT 1,233 $1.15
Accounting Work/Copy VCT 289 $1.15
Mail Room VCT 616 $1.15
Phone/Utility Areas VCT 300 $1.15
Storage VCT 100 $1.15
Janitor VCT 42 $1.15
Admin. Storage/Food Prep. VCT 640 $1.15
Sales Files Storage VCT 520 $1.15
Prod. Group & Tech Support VCT 352 $1.15
Bathrooms 2"x2" Ceramic Tile 860 $6.50
Other Areas Carpet 33,689 $1.40
----------------------------- ------------------ ------- -----
56,160 SF
This proposal also includes 7,550 linear feet of rubber cove base, materials,
labor, taxes, permits, and other charges related to the installation by a
commercial flooring supplier and installer.
LESSEE will be allowed to select floor finishes and colors for product types
provided by CONTRACTOR; however, if the cost of such finishes exceeds the
allowance, LESSEE shall pay the difference prior to installation.
OFFICE BATHROOMS, FLOORING AND WALLS:
-------------------------------------
All bathrooms within the office area shall be finished with 2' x 2' ceramic tile
on the floors with 4" trim to match the walls, and 4" x 4" ceramic tile from the
floor to a height of eight (8) feet above the floor, along the wet walls. Floor
tiles may be selected by LESSEE from Group 1 or Group 2 colors. Wall tile may
be selected by LESSEE from Group 2 colors. Ceramic tile will be manufactured by
Dal-Tile or approved equal.
All other walls in the bathroom space shall be painted drywall, unless otherwise
specified by Owner.
WAREHOUSE FLOORS:
-----------------
The following floor finishes and quantities for the warehouse areas are included
in this proposal for the listed areas.
WAREHOUSE FLOOR APPROX.
AREA COVERING AREA (SF)
----------------- --------------- ---------
Secure Storage Anti-Static VCT 800
Toilet Room VCT 48
All Other Areas Concrete
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EXHIBIT G
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010000 SPECIALTIES
FLAGPOLES:
----------
One (1) flagpole shall be installed at the exterior of the building in a
location acceptable to LESSEE. The pole shall be commercial grade, 35 feet in
height, with a natural anodized aluminum finish, and a gold anodized finial, as
manufactured by Sentry or approved equal.
TOILET PARTITIONS:
------------------
Toilet partitions shall be installed for each water closet provided more than
one water closet is located in a bathroom. The partitions shall be floor
braced, pre-finished with standard colors and installed with heavy duty
chrome/stainless steel hardware. Partitions and urinal screens will be
manufactured by the ▇▇▇▇▇ Company (series 500), Global (Regal Model) or approved
equal.
WASHROOM ACCESSORIES:
---------------------
Washroom accessories shall be commercial grade stainless steel with a satin
finish as manufactured by ▇▇▇▇▇▇▇ or approved equal.
Each bathroom shall be equipped with the following: One (1) model 234 towel
dispenser/waste receptacle, one (1) model 5234 double roll toilet tissue holder
for each water closet, a 36" and 42" grab bar (series 812) for each handicap
water closet, and one (1) soap dispenser (model 6324) per lavatory.
Women's bathrooms will include the model 5263 toilet tissue dispenser in lieu of
the model 5234. Women's bathrooms will also include one (1) napkin disposal
unit (model 4781) within each water closet location.
011000 EQUIPMENT
The following dock equipment will be provided:
Two (2) 6 ft. x 1 ft. 20,000 lb. mechanical dock levelers (Edge O Dock type)
with bumpers. The cost of the dock equipment will be included in the warehouse
finish out allowance on 4'docks.
012000 FURNISHINGS
COUNTER TOPS, CABINETS AND VANITIES:
------------------------------------
Counter tops, cabinets, vanities, and other built-ins (collectively called
built-ins) will be provided as shown on the approved plans and as described
below:
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BUSINESS PARTNER SOLUTIONS, INC.
EXHIBIT G
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AREA TYPE OF BUILT-IN LINEAR FEET COMMENTS___________
--------------------------- --------------------------- ------------------- -----------------------------------------------------
Bathrooms Vanities 48' One sink in each bathroom will allow for handicap
access.
Break Room Base w/ Counter Top 16'
Upper Cabinets (30") 16'
1/2 wall with 12" Counter Tops 22' location and orientation to be approved by Lessor.
1/2 wall with 12" Counter Tops 22' location and orientation to be approved by Lessor.
Sales File Storage Base w/ Counter Top 8'
Upper Cabinet 8'
Production Group& 36" Table Top(Against Wall) 48' 36"above finished floor,
Tech Support open underneath
Upper Bookshelf 48' 30"above table top
Training Room #1 Base w/ Counter Top 28'
Training Room #2 Base w/ Counter Top 24'
Executive Conf. Base w/ Counter Top 22'
Executive Break Base w/ Counter Top 16'
Upper Cabinets (30") 8'
Integration&Lab Tech. 40" Table Tops 225' 4'above finished floor, open underneath
(Free Standing)
12" Shelf 225' 2' above table tops
Guest Services 2'x4' Phone Banks 32' 32" above finished floor
3'x4' Laptop & Phone Banks 32' 32" above finished floor
All built-ins will be constructed to commercial standards, with colors and
laminates selected by the LESSEE from the manufacturers standard colors.
Laminates may be selected from standard colors provided by Wilsonart, Pionite,
Formica, Nevamai or approved equal. LESSEE may request additional built-ins,
provided LESSEE shall pay the difference prior to installation.
Closets will be constructed along one wall of each training room. The closets
will be constructed using studs and drywall with 2 1/2'x 7' sliding access
doors. The bottom area of the closets will be open and sized to allow for
stacked storage of chairs. A shelve (18" in width) will be installed at 6'
above the floor running the full length of each closet.
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BUSINESS PARTNER SOLUTIONS, INC.
EXHIBIT G
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013000 SPECIAL CONSTRUCTION
No special construction is anticipated for this project.
014000 CONVEYING SYSTEMS
No conveying systems are anticipated in this project.
015000 MECHANICAL SYSTEMS
PLUMBING:
---------
Toilet room facilities sufficient to handle 340 employees will be provided in
accordance with the Unified Plumbing Code general standards assuming 60% of the
employees are women and 40% are men. Plumbing fixtures will be commercial grade
(American Standard, Kohler, or a equal) and will include the following:
AREA FIXTURE QUANTITY TYPE
------------------------ ------------ ------------------ -------------------------------------
Mens Toilet Room #1 Water Closet 3 Power Flush
(East Office) Urinal 2
Lavatory 2 Drop-In
Faucets 2 Single Lever ADA
Floor Drain 1
Mens Toilet Room #2 Water Closet 4 Power Flush
(South Office) Urinal 3
Lavatory 3 Drop-In
Faucets 3 Single Lever ADA
Floor Drain 1
Women's Toilet Room #1 Water Closet 8 Power Flush
(East Office) Lavatory 4
Faucets 4 Single Lever ADA
Floor Drain 2
Women's Toilet Room #2 Water Closet 5 Power Flush
(South Office) Lavatory 2 Drop-In
Faucets 2 Single Lever ADA
Floor Drain 1
Executive Break Room Sink 1 18 ga. Stainless Steel-8" single bowl
Ice Maker 1 Under counter type
Water Line Outlet 1 With connection for coffee maker
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BUSINESS PARTNER SOLUTIONS, INC.
EXHIBIT G
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Break Room Sink 1 18 ga. Stainless Steel-8" double bowl
Ice Maker 1 Under counter type
Dish Washer 1
Water Line Outlet 1 With connection for coffee maker
Janitor's Room Mop Sink 1 Molded Stone Type
Faucet 1
Floor Drain 1
Warehouse Toilet Water Closet 1
Sink 1 Wall Mounted
Faucet 1 Single Lever ADA type
Floor Drain 1
Other Hot Water Heaters 3 Low Boy Style-120V
Drinking Fountains 4
Water closets, urinals, and lavatories will be manufactured by American
Standard, Kohler, or an approved equal. Flush valves will be manufactured by
▇▇▇▇▇(Regal Model). Bathroom faucets will be manufactured by American
Standard(Reliant Plus Series), Kohler(Coralias), ▇▇▇▇(▇ ▇▇▇▇), ▇▇▇▇▇(▇ 520), or
an approved equal. Sinks will be manufactured by Elkay(LR Series 3322)and(LR
Series-A D 2522-65-3) or an approved equal. The mop sink and faucet will be
manufactured by Fiat(sink-MSB-2424, faucet-830-AA)or approved equal. Hot water
heaters will be manufactured by ▇▇ ▇▇▇▇▇, Rheem, or approved equal. Drinking
fountains will be manufactured by Elkay ( EB-FSA-8) or approved equal. Ice
makers will be under counter types as manufactured by Scotsman or an approved
equal.
No special tanks (including grease separators and acid neutralizers), showers or
eyewash stations have been included. Gas piping to heating units will be
installed in accordance with local and State codes.
HVAC:
-----
Rooftop single package HVAC units will be used in the finished office area to
provide heating and air conditioning. The system will be designed to provide 68
degrees F when the outside ambient temperature is 30 degrees F, and the air
conditioning will be designed to provide 78 degrees F when the outside air is at
100 degrees F and 30% relative humidity. A fiberglass duct system and standard
2' x 2' perforated diffusers will be sized to supply air circulation in the
office area. HVAC units will be high efficiency units with a minimum standard
energy efficiency rating (SEER) of 11.0 as manufactured by York(sunline 2000
series);Carrier, Trane or approved equal.
▇▇▇▇▇ Contractors will prepare an HVAC layout, showing HVAC unit locations,
thermostat locations and zones. This HVAC plan will be submitted to Business
Partners Solutions (BPS) for review and approval prior to finalizing the design
and proceeding with construction.
Heating will be provided in the warehouse utilizing a single gas indirect fired
radiant heater as manufactured by ▇▇▇▇▇▇▇ or E.R. Camplell, or by direct fired
gas units as provided by Reznor, Modine, Trane, or approved equal.
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EXHIBIT G
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Exhaust fans will be provided in the finished office area including bathrooms,
to meet code requirements. Exhaust fans will be manufactured by ▇▇▇▇, Greehack,
▇▇▇▇▇▇. or approved equal.
FIRE SUPPRESSION SPRINKLERING:
------------------------------
The finished office area will be provided with an automatic wet sprinkler system
throughout, designed in accordance with NFPA 13 and subject to approval by
reviewing agencies. Occupancy will be Class I (light hazard) use. Ceiling
height will vary from approximately 9'-0" above floor to 16'-0" above the floor.
Office sprinklers will be designed to provide a density of 0.15 g.p.m. per
square foot over any remote 1500 square feet using concealed pendent heads in
all areas excluding the warehouse.
The warehouse sprinkler system will be designed to accommodate class 3
commodities in storage heights, not to exceed 28' above the finished floor.
The pump room for the fire pump will be situated in the adjacent space at the
north west corner of the building. The area required for the fire pump and
operating expense will be included in the common area costs for the building.
Interior hose stations, flow and tamper switches, alarm bells, fire
extinguishers, signs, backflow preventers and fire department connections will
be provided as required by code. Sprinkler risers may be equipped with inside
control valves. All systems will be hydraulically calculated to provide the
required flow at the minimum needed sprinkler discharge pressure. All sprinkler
system piping (underground and overhead) will be installed and tested in
accordance with the requirements of NFPA 13, 231C and 24. The installation will
also conform to all State and local requirements.
016000 ELECTRICAL
All work will be done in accordance with the Unified Electrical Code and all
local requirements.
The building service will be 480V, 3 phase, and sized to handle the anticipated
loads.
ELECTRICAL WORK:
----------------
The electrical work will include service to the building, interior transformers
for the warehouse and office, materials, labor, taxes, permits, and other
charges related to the installation of the items included in this section.
SITE LIGHTING:
--------------
Site Lighting will be provided such that all drives, car parking and loading
dock areas are illuminated in accordance with local standards. Seven (7) pole-
mounted lights (400 watt, metal halide) will be installed on 25 ft. high
laminated wood, steel or aluminum poles in the car parking areas as shown on the
approved site plan. Wall-mounted lights
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EXHIBIT G
JANUARY 30, 1998
(400 watt or 250 watt as required) will be installed around the perimeter of the
building in the location shown on the approved elevation plan. This proposal
includes twenty four (24) wall lights.
Each exit door will have an exterior wall-mounted light above it, unless a site
lighting is located in the immediate vicinity. All exterior lights shall be
controlled by photo-cell.
WAREHOUSE LIGHTING:
-------------------
Warehouse lighting fixtures will be 400 watt, metal halide high-bay lights
spaced at 25' center to center in the racking aisles. An additional four (4)
lights will be placed above each interior staging area (40' x 40') adjacent to
the loading docks. A total of 85 light fixtures are planned in the warehouse.
Emergency exit lights will be provided at the exit doors in accordance with code
requirements.
OFFICE LIGHTING:
----------------
Finished office area lighting will be provided by a 2ft. by 4ft. drop-in
flourescent lights with electronic ballast and parabolic lenses. Office
lighting will be designed to allow for a minimum of 50 foot candles at desk
height.
Recessed lighting, complete with dimmer switches will be used to supplement the
parabolic lighting in both training rooms, and the board room. Approximately
one (1) recessed light will be spaced along every eight feet of wall within
these rooms.
Bathroom lighting will be provided by a 2ft. by 4ft. drop-in fluorescent
lighting with acrylic lenses to provide 30 foot-candle at floor level.
SWITCHES, RECEPTACLES, AND MODEM/TELEPHONE DROPS:
-------------------------------------------------
Switches and duplex receptacles are planned for each of the following areas as
indicated below. In addition, this proposal includes conduits for modem,
computer wiring, and telephone lines from the wall location shown on the
approved plans, to a point above the ceiling. ▇▇▇▇▇ Contractors will submit a
drawing to Business Partner Solutions, Inc. (BPS) showing the location of all
switches, standard receptacles, computer receptacles and conduit drops. BPS
shall have the right to review and approve such plan prior to final design and
construction. Any additional conduit, unless specified in this section, will be
the responsibility of the LESSEE.
EQUIPMENT PER AREA
------------------ COMPUTER
NUMBER STANDARD COMPUTER MODEM/TELEPH.
AREA OF AREAS SWITCHES RECEPTACLE RECEPTACLE DROP(S) OTHER
----------------------- -------- -------- ----------- ---------- ---------- ----------
GENERAL OFFICE AREAS:
--------------------
Entrance Doors 5 3 0 0 0
Waiting 1 4 8 0 1
Reception 1 2 1 2 1
Main Hallways 1 26 22 0 0
Guest Serv. 1 2 4 8 4
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EXHIBIT G
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EQUIPMENT PER AREA
------------------ COMPUTER
NUMBER STANDARD COMPUTER MODEM/TELEPH.
AREA OF AREAS SWITCHES RECEPTACLE RECEPTACLE DROP(S) OTHER
----------------------- -------- -------- ----------- ---------- ---------- ----------
GENERAL OFFICE AREAS:
--------------------
Computer Room 1 2 1 10 4 Four(4)-208V-30A
Break Room 1 6 11 3 2
Training Rooms 2 3 8 8 12 One(1) Floor Plug
Acct. Files 1 2 10 3 3
Acct.Ops/Work Copy 1 3 9 4 4
Phone Utility Room 1 1 3 1 1
Shipping Receiving 1 3 3 1 4
Admin. Storage 1 2 9 2 2
Sales Files/
Storage/Copy 1 2 8 2 8
Phone/Utility Room 1 1 3 1 1
Library 1 2 4 4 4
Mkt./Display/Stor. 1 2 7 2 0
Prod. Group/
Tech. Support 1 2 4 4 4
EXECUTIVE:
---------
Waiting 1 4 6 2 2
Hall 1 2 3 0 0
Board Room 1 3 6 4 4 Two(2)floor plugs
Exec. Conf. 1 2 4 1 1
Files 1 1 4 0 1
Break 1 2 2 0 0
OFFICE/CONF. ROOMS:
------------------
Executive 4 2 4 1 1
Sales VP/Director 8 1 3 1 1
Managers 34 1 2 1 1
IBM ▇▇▇▇▇▇ ▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 7 1 3 1 1
WORKSTATION AREAS:
-----------------
Workstations 283 0 By Lessee By Lessee Power Poles by Lessee
Exterior Wall 1 0 10 10 20
Interior Walls 1 7 29 0 0
Filing Areas 3 1 1 1 1
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EXHIBIT G
JANUARY 30, 1998
NUMBER OF COMPUTER
AREAS SWITCHES STAND. COMPT. MODEM/TELEPH. OTHER
--------- -------- ------ ------ ------------- ----------------
INTEGRATION & LAB TECH:
-------------------------
Work Tables 3 0 0 10 2 Ten(10)-208V-30A
Work Tables 2 0 0 15 2
Exterior Walls 1 4 5 0 3
Interior Walls 1 4 12 2 2
WAREHOUSE:
-------------------------
Secure Storage 1 2 4 0 0
Janitor/Whs. Toilet 1 1 1 0 0
Air Compression 2 1 0 0 0 1 Dedicated 220V
Packaging 1 1 0 0 0 1 Dedicated 110V
Overhead Doors 4 0 1 0 0
Exit Doors 2 2 1 0 0
Interior Walls 1 0 10 0 0
Partition Doors 2 2 1 0 0
------------------------- --- --- --- --- ---
Totals 188 357 200 162
The LESSEE will provide workstations complete with receptacles, wiring within
the workstation to a power pole. LESSEE will also provide power poles capable of
connecting all circuitry, modem and telephone lines from the workstations to a
connections box above a 14 foot ceiling. Workstations adjacent to walls will not
require power poles. LESSEE will be responsible for providing all power and
circuitry to the workstation power poles.
LESSOR will be responsible for the power poles to the ceiling, in the
workstation areas, except where workstations are located adjacent to walls in
which case LESSOR will be responsible for the whip connections.
Computer receptacles will be provided in the locations shown on the approved
plan and further described above. No more than eight (8) computer receptacles
will be placed on a circuit, unless the workstation wiring within the
workstations will not allow for a reduced receptacle count on specific circuits.
Floor conduit and floor plugs will be provided in the training rooms and board
rooms as specified by the LESSEE, and shown on the approved plan.
Wiring for telephone, computer communication, CCTV, and security systems are not
included in this specification, and are the responsibility of LESSEE.
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