EXHIBIT 10.34
LAND LEASE
This Lease is made as of the first day of September, 2001, by and
between MOTIVA ENTERPRISES LLC, a Delaware limited liability company, whose
mailing address for purposes of this Lease is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, hereinafter called Lessor, and eMissions Testing, Inc whose mailing
address for purposes of this Lease is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ hereinafter called Lessee.
W I T N E S S E H
ARTICLE I
1.1 LEASED PREMISES. Subject to and upon the terms and conditions set forth
herein, and in consideration of the duties, covenants and agreements of the
other hereunder, Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor the real property designated on Exhibit "A" attached hereto (the "Leased
Premises") located on a larger parcel of real property (the "Grounds") at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, designated on Exhibit "B"
attached hereto. Lessee acknowledges that there are buildings on the Grounds, in
which buildings a retail sales facility is presently operated, which any include
a convenience store, care wash or quick serve restaurant (collectively the "Food
Mart").
1.2 USE IN COMMON. Subject to and upon the terms and conditions set forth
herein, the use and occupancy of the Leased Premises shall include a
nonexclusive license for ingress and egress of vehicular and pedestrian traffic
over and across the Grounds and around the pump islands located on the Grounds;
provided that Lessee's use of such access shall not restrict the flow of traffic
around the pump islands, ingress and egress to and from the Grounds, or
otherwise interfere with the operation of the Food Mart or such pump islands.
1.3 PARKING. Subject to and upon the terms and conditions set forth herein,
Lessee is also granted the nonexclusive license to use the two parking spaces
designated on Exhibit "B" for employee parking and the nonexclusive license to
use other parking spaces on the Grounds, as long as Lessee's use of all such
parking spaces does not impair the availability of parking for motor fuel
customers or the other customers at the Food Mart.
ARTICLE II
2.1 TERM.
(a) Unless sooner terminated as hereinafter provided, the term of this
Lease shall begin on the date set forth above ("Commencement Date") and shall
end at the expiration of one (1) year following the date ("Rental Commencement
Date") certain improvements hereinafter provided for are completed by Lessee,
which date shall be established in writing. If the Rental Commencement Date has
not occurred prior to the expiration of six (6) months after the Commencement
Date, then this Lease shall immediately terminate.
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(b) Provided Lessee is not in breach of this lease, the term of this
Lease may be extended for five (5) successive periods of one (1) year, upon the
same terms and conditions contained in this Lease, by Lessee's sending written
notice to Lessor at least ninety (90) days prior to the expiration of the
current term.
2.2 BASE LEASE. The term of this Lease shall be subject to the condition
that if Lessor is holding the Grounds under lease from a third party, which
lease expires ________ the term of this Lease shall not continue beyond the date
of Lessor's tenancy. Lessor's tenancy may terminate by failure to renew or
extend the term of its lease at the expiration or cancellation thereof or by a
voluntary surrender of Lessor's rights, it being understood that Lessor shall
have full and complete freedom to refuse to renew or extend its tenancy without
the consent of Lessee, and shall be under no obligation to exercise any option
it may have to renew or extend the term of any lease, under which it holds or
may hold the Grounds, or to exercise any option of purchase of the Grounds which
it may hold.
2.3 LESSOR'S AND LESSEE'S RIGHT TO TERMINATE.
(a) Notwithstanding any other provisions of this Lease, Lessor shall have
the right to terminate the Lease, in its sole discretion, at any time after the
Rental Commencement Date, upon ninety (90) days' written notice to Lessee
[EITHER].
[(b) INTENTIONALLY DELETED]
ARTICLE III
3.1 RENTAL.
(a) In consideration for the lease herein provided, Lessee agrees to pay
Lessor each month as "Rent" an amount equivalent to EIGHTEEN HUNDRED DOLLARS
($1,800.00) per month [INTENTIONALLY DELETED]. The Rent shall be paid on or
before the 5th day of each month for sales made during the previous month and
shall be prorated for any portion of a month. [INTENTIONALLY DELETED]. All of
the rental payments shall be payable without notice or demand and without
setoff, by Lessee to Lessor at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or, if
Lessor so designates, via Lessor's Electronic Fund Transfer (EFT) system, or any
other place or method as Lessor in its sole discretion may designated by written
notice to Lessee from time to time.
[(b) INTENTIONALLY DELETED]
ARTICLE IV
4.1 CONDITIONS PRECEDENT - RIGHT TO TERMINATE.
(a) Lessee will have the right to terminate if the following conditions
precedent ("Conditions Precedent") are not satisfied:
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i. PERMITS. Lessee has entered into this Lease with the expectation of
obtaining, after the expiration of all applicable appeal periods, variances,
special use permits, licenses, permissions or other authorizations (collectively
called "Permits") necessary for the construction and operation of an auto
emission testing facility (including, without limitation, curb cuts in
connection with such facility deemed necessary or desirable by Lessee).
Lessee agrees to apply for permits without unreasonable delay after the
last execution of this Lease.
Lessor agrees to cooperate with Lessee, at no cost to Lessor, in the
pursuit of the Permits required for the construction and operation of Lessee's
facility.
ii. EVIDENCE OF TITLE. Within thirty (30) days from the date of last
execution of this Lessee, Lessee may apply for leasehold title insurance. If the
report on title, title binder or commitment discloses any conditions,
restrictions, liens, encumbrances, easements or covenants which, in Lessee's
reasonable opinion, would affect Lessee's use and enjoyment of the Leased
Premises, following thirty (30) days from the date Lessee notifies Lessor of
such defects Lessor shall have the right but not the obligation to make a good
faith effort to cure such defects and to furnish a title report, binder or
commitment showing such defects cured or removed. If such defects in title are
not so cured within thirty (30) days, Lessee may, as its sole option, terminate
this Lease.
iii. SURVEY. Lessee may order a current certified topographical survey
by a licensed surveyor within thirty (30) days from the date of last execution
of this lease.
If the survey discloses unsuitable or interfering easements, party wall
agreements or encroachments, or that the location, area, dimensions or shape of
the Leased Premises are not suitable for Lessee's facility, in Lessee's
reasonable opinion, then Lessee shall have the right, as its sole remedy, to
terminate this Lease and declare it null and void and of no further force and
effect.
Lessor grants to Lessee, its agents and contractors, the right to enter upon the
Leased Premises to make the soil tests and surveys, provided that Lessee and
said agents and contractors (1) first provide Motiva with a certificate of
insurance evidencing coverage in form and substance acceptable to Motiva, and
(2) indemnify, defend and hold harmless Motiva from any damages, claims,
liabilities, penalties, costs and expenses (including attorney's fees)
(Collectively, "Damages") arising from any such entry, soil tests and surveys.
iv. ENVIRONMENTAL MATTERS:
(1) Lessee shall have the option, at its own cost and expense, to
conduct environmental, engineering, and/or other test or formal inspections of
its own on the Leased Premises, subject to the following conditions: (1) Lessee
shall indemnify, defend and hold Lessor harmless from any Damages arising from
entry into the Demised Premises and any such environmental, engineering and/or
other test, (2) Lessee and its agents and contractors shall first provide Lessor
with a certificate of insurance evidencing coverage in form and substance
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acceptable to Lessor, and (3) Lessee shall promptly furnish Lessor with a copy
of any testing or other reports that Lessee obtains in connection with such
testing or inspection.
(2) Lessor agrees to indemnify and save Lessee and its successors and
assigns harmless from any and all liability or loss Lessee and its successors
and assigns may sustain as a result of any claim, demand, cost, liability, or
judgement, including court costs or attorney's fees, arising out of the
condition of the Leased Premises as it relates to petroleum hydrocarbon
environmental contamination, except for those claims that may result form
actions of Lessee, its employees, agents or contractors.
vi. UTILITIES. If the water and gas mains, telephone lines, electric
power line and sanitary and storm sewers are not located, available and adequate
for Lessee's intended use, then Lessee, as its sole remedy, may declare this
Lease to be null and void and of no further force and effect.
vii. ZONING. Lessee, shall, if necessary, use its good faith efforts to
obtain the approval of all public and governmental authorities as to all matters
relating to zoning, subdivision, lot splits, lot ties, replats or similar
requirements for use of the Leased Premises in accordance with Lessee's plans
and specifications. Lessee agrees to pay the expense in application and
engineering and other incidental costs relating to such approval or the
recordation of a final parcel map or plat. Lessor may, at its sole discretion,
dedicate or grant easements for public ways or pay for improvements located off
the Leased Premises required as a condition for approval and recordation of the
final parcel map or subdivision plat.
Lessee or Lessor may (but shall not be obligated to) terminate this Lease
if the Conditions Precedent set forth about are not satisfied within one hundred
twenty (120) days after the execution of this Agreement.
If Lessor elects to termite this Lease pursuant to this paragraph, Lessee shall
have ten (10) days after receiving Lessor's written notice of termination to
waive, in writing, the Conditions Precedent, or this Lease will termite and be
of no further force and effect ten (10) days after Lessee receipt of Lessor's
notice.
4.2 CONSTRUCTION OF FACILITY. Lessee hereby covenants and agrees to
construct or cause to be constructed at Lessee's sole expense upon the Leased
Premises a modern facility which will be completed in accordance with the plans
and specifications furnished by Lessee and incorporated herein as Exhibit "C".
[LESSOR TO REMOVE CARWASH EQUIPMENT.]
Lessee agrees, at Lessee's expense, to make application for and to secure
the necessary permits for erection and operation of the facility to be
constructed on the Leased Premises. Lessor agrees to reasonably cooperate with
Lessee in securing said permits, but all expenses shall be borne by Lessee.
All improvements shall be in compliance with the Americans with
Disabilities Act, the regulations thereunder and similar state laws
(collectively, "ADA"). As between Lessor
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and Lessee, with respect to the Leased Premises Lessee shall be responsible for
compliance with the ADA.
In the event Lessee fails to complete construction of the facility within
120 days from commencement, Lessor may, in its sole discretion, terminate this
Lease and consider any improvements in process shall be deemed to be abandoned
by Lessee. Lessor may then, at its sole discretion, complete the improvements
for its own account with no further obligation to Lessee, or demolish and remove
the incomplete improvements.
4.3 PERMITTED USE. The Leased Premises are to be used by Lessee solely for
the purposes of constructing and operating an automobile emission testing
facility as provided herein. Without limited the generality of the foregoing,
Lessee shall not (i) sell gasoline, motor oil, beer, wine or liquor, or (ii) use
the Leased Premises for any unlawful or offensive purpose.
4.4 SIGNS. Lessee shall be entitled to install such exterior signs as are
set forth in Exhibit "D", provided that the installation of such signs shall in
no way affect the allowable exterior square footage of signs permitted at the
service action and Food Mart. Any other exterior signs of Lessee must be
approved in writing by Lessor prior to installation, however, Lessor's approval
will not be unreasonably withheld.
ARTICLE V
5.1 EVENTS OF DEFAULT. Each of the following shall constitute an "Event of
Default" by Lessee under this Lease:
a) The failure of Lessee to make any rental payment due Lessor under the
terms of this Lease or of any other amount owed by Lessee to Lessor; or
b) If any attachment, garnishment, execution or other legal process or
proceeding is levied or begun by anyone other than Lessor against or involving
the Leased Premises; or
c) If Lessee assigns this Lease or sublets the Leased Premises, or attempts
to do so, or suffers any lien to attach to Lessor's fee interest in the Leased
Premises or the Grounds; or
d) If Lessee dies or, if Lessee is a partnership, the partnership
terminations, or if Lessee is a corporation, liquidation or dissolution
proceedings are begun; or
e) The failure of Lessee to fulfill or perform any other covenant or
obligation contained in this Lease, which failure or nonperformance continues
for a period of ten (10) days after written notice thereof has been given by
Lessor to Lessee; provided, however, that if Lessee commences to correct any
such failure or nonperformance within such ten (1) day period and thereafter
diligently continues to endeavor to correct the same but the same cannot be
fully corrected with such ten (1) day period for reasons other than the
inability of Lessee to pay money, the such failure or nonperformance shall not
constitute an "Event of Default" so long as Lessee is diligently continuing the
work of correcting the same.
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5.2 REMEDIES. Upon the occurrence of any Event of Default, as enumerated
above, the improvements on the Leased Premises shall remain on the Leased
Premises and become the property of Lessor at no additional cost. Further, in
addition to all other remedies and courses of action now or hereafter provided
by law, Lessor may reenter the Leased Premises and remove all persons and
personal property, trade fixtures, equipment and signage therefrom, and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of, Lessee, all without service or resort to legal
process and without being deemed guilty of trespass, or becoming liable for any
loss or damage which may be occasioned thereby. Lessee shall promptly reimburse
Lessor for all costs and expenses associated with such removal.
5.3 REENTRY. Should Lessor elect to reenter, as provided above, or should
Lessor take possession of the Leased Premises pursuant to legal proceedings or
pursuant to any notice provided by law, Lessor may elect to terminate this
Lease, or elect to make from time to time hereafter such alterations and repairs
as may be necessary in order to relet the Leased Premises, and Lessor may relet
the Leased Premises or any part thereof for such term or terms and for such
rental or rentals and upon such other agreements and conditions as Lessor in its
sole discretion may deem advisable; and upon such reletting, all rentals
actually received by Lessor from such reletting shall be applied, first, to the
payment of any sum other than rental due and unpaid hereunder; second, to the
payment of any cost and expense of reletting, including brokerage fees,
attorney" fees and the cost of alternations and repairs; third, to the payment
of any rental due hereunder and unpaid; and finally, the residue, if any, shall
be held by Lessor and applied in payment of future rent, as the same may become
due and payable hereunder. If such rentals received from such reletting during
any month be less than the agreed to be paid hereunder by Lessee during that
month, Lessee shall pay any such deficiency to Lessor upon notice thereof from
Lessor. No such reentry shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Lessee or unless the
termination be decreed by a court of competent jurisdiction.
5.4 TERMINATION. Notwithstanding any prior election not to terminate this
Lease, Lessor may at any time subsequent to such reentry elect to terminate this
Lease on account of such previous breach, and in the event of any such
termination, whether subsequent to reentry or contemporaneous therewith, in
addition to any other remedy Lessor may have, Lessor may recover from Lessee all
damages incurred by reason of such breach, including reasonable attorney's fees
and actual costs incurred in recovering possession of the Leased Premises, and
including a sum equal to the amount of rental reserved in this Lease from the
remainder of the term of this Lease, all of which amounts shall be immediately
due and payable from Lessee to Lessor.
ARTICLE VI
6.1 ASSIGNMENT AND SUBLETTING. This Lease shall not be assigned, in whole
or part, by operation of law or otherwise, nor any portion of the Leased
Premises subleased without the prior written consent of Lessor which shall not
be unreasonably withheld. In the event of any assignment or sublease, Lessee
agrees that any monthly rent paid by the assignee or sublessee that exceeds the
monthly rent due under this Lease shall be for the account of Lessor and shall
be promptly paid to Lessor.
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6.2 CONDITION OF PREMISES. Lessor makes no warranties or representations
expressed or implied, with respect to the present condition of the Leased
Premises nor its suitability for Lessee's permitted use, and Lessee has caused
said Leased Premises to be inspected and accepts same "as is" in its present
condition and state of repair.
6.3 INDEMNIFICATION.
A. DEFINITIONS:
1. "INDEMNIFIED PART" OR "INDEMNIFIED PARTIES" MEANS LESSOR, ITS
PARTIES, AFFILIATE AND SUBSIDIARY COMPANIES, AND THE RESPECTIVE
PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF THE
FOREGOING.
2. "DAMAGES" MEANS ALL CLAIMS, DEMANDS, CAUSES OF ACTION, SUITS,
DAMAGES, LIABILITIES, FINES, PENALTIES, ASSESSMENTS,
ENVIRONMENTAL RESPONSIBILITY COSTS OR INJUNCTIVE OBLIGATIONS,
JUDGEMENTS, LOSSES AND EXPENSES, COSTS OR ATTORNEY'S FEES
INCURRED FOR ANY INDEMNIFIED PARTY'S PRIMARY DEFENSE OR FOR
ENFORCEMENT OF ITS INDEMNIFICATION RIGHTS).
B. LESSEE, SUBJECT TO SECTION 4.1(A)(IV)(2) BUT OTHERWISE TO THE
MAXIMUM EXTENT PERMITTED BY LAW, SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD
HARMLESS INDEMNIFIED PARTIES FROM AND AGAINST ANY DAMAGES (INCLUDING, WITHOUT
LIMITATION DAMAGES RESULTING FROM PERSONAL INJURY, DEATH, PROPERTY DAMAGE,
MONETARY DAMAGES, OR CONTRACTUAL BREACH) WHICH MAY BE INCURRED BY OR ASSERTED
AGAINST ANY INDEMNIFIED PARTY ON ACCOUNT OF, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE LEASE OR THE LESSEE'S USE OF THE PREMISES, INCLUDING DAMAGES
CAUSED BY OR ATTRIBUTABLE TO:
1. (i) THE SOLE NEGLIGENCE OF LESSEE, ITS CONTRACTORS, INVITEES OR
SUPPLIERS (INCLUDING WITHOUT LIMITATION THE RESPECTIVE EMPLOYEES
OR AGENTS OF THE FOREGOING); (ii) THE CONCURRENT OR CONTRIBUTORY
NEGLIGENCE OF ANY INDEMNIFIED PARTY, LESSEE, ITS CONTRACTORS,
INVITEES OR SUPPLIERS, OR THIRD PARTIES (INCLUDING WITHOUT
LIMITATION THE RESPECTIVE EMPLOYEES OR AGENTS OF THE FOREGOING);
OR (iii) WHERE LIABILITY WITH OR WITHOUT FAULT IS STRICTLY
IMPOSED BY OPERATION OF LAW, OR
2. ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT OF LESSEE
CONTAINED HEREIN.
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C. THOSE MATTERS WHICH ARE DETERMINED BY A FINAL NONAPPEALABLE JUDGMENT
TO BE A RESULT OF THE SOLE NEGLIGENCE OR FAULT OF AN INDEMNIFIED PARTY AND NOT
CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OR FAULT OF LESSEE, ITS CONTRACTORS,
SUPPLIERS, INVITEES, OR THIRD PARTIES, SHALL BE EXCLUDED FROM LESSEE'S DUTY TO
INDEMNIFY THE INDEMNIFIED PARTIES, HOWEVER, IT IS THE INTENTION OF THE PARTIES
THAT THE INDEMNITY OBLIGATIONS OF LESSEE ARE WITHOUT REGARD TO WHETHER THE
NEGLIGENCE, GROSS NEGLIGENCE, FAULT OR STRICT LIABILITY OF AN INDEMNIFIED PARTY
IS A CONCURRENT OR CONTRIBUTORY FACTOR, AND SUCH OBLIGATIONS ARE INTENDED TO
PROTECT THE INDEMNIFIED PARTIES AGAINST THE CONSEQUENCES OF THEIR OWN
NEGLIGENCE, GROSS NEGLIGENCE, FAULT OR STRICT LIABILITY. LESSOR EXPRESSLY
RESERVES THE RIGHT TO PARTICIPATE IN ITS DEFENSE WITH COUNSEL OF ITS OWN
CHOOSING. LESSEE'S INDEMNIFY OBLIGATIONS SHALL SURVIVE THE EXPIRATION,
TERMINATION OR NONRENEWABLE OF THIS LESE.
D. LESSEE SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE
INDEMNIFIED PARTIES AGAINST ALL LIENS, CLAIMS AND DEMANDS (INCLUDING WITHOUT
LIMITATION EXPENSES, COSTS OR ATTORNEY'S FEES INCURRED FOR ANY INDEMNIFIED
PARTY'S PRIMARY DEFENSE OR FOR ENFORCEMENT OF ITS INDEMNIFICATION RIGHTS) WHICH
ARISE IN CONNECTION WITH THE LEASE OR LESSEE'S USE OF THE PREMISES AND, UPON
REQUEST BY LESSOR, LESSEE SHALL FURNISH LESSOR WITH ANY AFFIDAVITS, RECEIPTS,
WAIVERS, RELEASES, STATEMENTS, OR OTHER EVIDENCE THAT LESSOR MAY REQUIRE TO
SATISFY ITSELF THAT ALL SUCH CLAIMS, LIENS OR DEMANDS HAVE BEEN PAID AND
DISCHARGED.
LESSEE'S INDEMNITY OBLIGATIONS SHALL NOT LIMIT AND SHALL NOT BE LIMITED BY THE
INSURANCE COVERAGES (INCLUDING WITHOUT LIMITATION LESSOR'S ADDITIONAL INSURED
STATUS) SET FORTH HEREIN.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE, THIS SECTION 6.3 SHALL
SURVIVE THE EXPIRATION OR TERMINATION OF THIS LEASE.
6.4 INSURANCE AND FINANCIAL COMPLIANCE REQUIREMENTS.
(a) Lessee shall maintain, at its sole cost, at all times during the term
of this Lease and any extensions, the following insurance coverage and financial
guarantees with providers satisfactory to Lessor with limits not less than but
not limited to those limits set forth below (the "Insurance"):
1. Commercial General Liability insurance amended or Comprehensive
General Liability insurance with Broad Form CGL endorsement with
limits of not less than $1,000,000 each occurrence and $1,000 ,000
general aggregate. Limits in excess of $1,000,000 may be provided by
Excess Liability or Umbrella Liability coverage.
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2. Business Automobile Liability covering all vehicles used in the
operations of Lessee with limits of not less than: Bodily injury
$1,000,000 each person $,000,000 each accident: Property damage
$1,000; or a combined Single Limit of $1,000,000 for bodily injury and
property damage, such policy to be endorsed with MCS-90 when hazardous
material transportation is involved.
3. Workers' Compensation Insurance as required by laws and regulations
applicable to and covering employees of Lessee.
4. Employers' Liability protecting Lessee against common law
liability, in the absence of statutory liability, for employee bodily
injury arising out of the master-servant relationship with a limit of
not less than $500,000 each accident, $500,000 Disease-Policy Limit:
$500,000 Disease - Each Employee.
5. If Lessee owns, leases or operates underground storage tank systems
(as defined in applicable federal and state laws and regulations, and
hereinafter referred to as ("UST's "); Lessee shall comply with all
applicable federal, state and local laws, regulations and ordinances
governing UST's (hereinafter referred to as "Laws"), including but not
limited to financial responsibility requirements of such Laws for
UST's through mechanism provided for in said Laws such as, by way of
example, guarantees, surety bonds, insurance and state reimbursement
funds.
6. Garage Insurance with limits of not less than $1,000,000 each
occurrence and Garagekeepers Legal Liability Insurance with a limit of
not less than $50,000 each occurrence. (Only required for lessees
engaged in automotive repairs).
In accordance with the law, Insurance policies shall provide a waiver of
subrogation in favor of Lessor, allow for the separation of insureds and give
written notice of cancellation or material change. Notice of cancellation or
change shall not affect the Insurance until thirty (3) days after written notice
is received by Lessor. Any deductible or retention of insurance risks shall be
for the Lessee's account.
(b) The insurance required in this section and each certificate evidencing
the Insurance issued to Lessee shall name Lessor (and its affiliates to the
extent of their interest in Lessor) an additional insured (except for Sections
6.4(a) 2, 3, 4, and 5) without regard to the allocation of liability provisions
contained in this Lease, to the extent of any claim, loss or liability within
the scope of the required insurance. It is the intention of the parties that the
status of Lessor (and its affiliates to the extent of their interest in Lessor)
as an additional insured shall not be limited. Lessee shall secure from its
insurance companies, for all required insurance (except for Sections 6.4(a) 2,
3, 4 and 5) and additional insured endorsement, with terms equivalent to the
attached Exhibit E.
(c) Failure of Lessee to provide certificates evidencing the requirements
in or purchase insurance coverage in compliance with this section shall not
relieve Lessee of its obligation in this section. Failure of Lessee to comply
with this section shall constitute a breach
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of this Lease, and Lessor shall have the right, in addition to any other rights,
to cancel and terminate this Lease without further cost to Lessor.
ARTICLE VII
7.1 UTILITIES. Lessor shall at Lessor's sole cost and expense, and subject
to the conditions and limitations of this Lease, secure and pay for all desired
public utility service to the Leased Premises.
7.2 MAINTENANCE ALTERNATIONS.
(a) Lessee shall, at Lessee's sole cost and expense, maintain the entire
Leased Premises, inside and out, including all equipment, personal property and
fixtures covered by this Lease, in good repair and in a clean, neat, safe,
sanitary , operative, and orderly condition during the term of this Lease. The
maintenance responsibilities of Lessee shall include, but shall not be limited
to, necessary repair, maintenance and other appropriate action in connection
with the following:
(i) building; replace any broken or cracked windows, light
fixtures and bulbs, broken doors or door hardware, damage to building
siding or facial, repaint as needed. Building interior including all
public places shall be kept in clean, safe, and healthful manner.
(ii) Exterior: Lessee shall, on a routine basis, maintain all
driveways, shrubs, grass, and curbing to the same level of standards
exhibited by Lessor on the Grounds. There shall not be stored upon the
Leased Premises at any time any junk, used equipment or accessories or
automobiles other than those currently being services.
(b) In the event of Lessee's failure to repair or maintain the Leased
Premises, after receiving written notice from Lessor, Lessor may make, or cause
to be made, the necessary repairs or maintenance. Lessor in such event may
charge Lessee for the cost of such repairs or maintenance. Lessor agrees to pay
such charges within thirty (30) days of invoice date.
(c) Lessee shall not erect any improvements on Leased Premises or make
any changes, alternations or additions thereto, other than as herein provided,
without the written consent of Lessor.
7.3 COMPLIANCE WITH LAW. Lessee represents and warrants to Lessor that
Lessee currently (i) has all necessary licenses, permits and/or other
authorizations (including those related to environmental, health or safety
matters) required for Lessee's permitted use, occupancy and operation of the
Leased Premises and the Grounds; and (ii) is in compliance with all laws,
statutes, ordinances, rules, regulations, orders, decisions and decrees of any
federal, state or local governmental authority, including without limitation,
those related to protection or pollution of the environment, health, safety,
storage, handling or disposal of wasters, or air, soil (surface and subsurface)
or water pollution or contamination (collectively "Laws and
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Regulations") currently applicable to Lessee or its operations. Lessee shall, at
Lessee's sole cost and expense, (i) obtain and maintain in full force and effect
all necessary licenses, permits and/or other authorizations (including those
related to environmental, health or safety matters) required for Lessee's
permitted use, occupancy and operation of the Leased Premises and the Grounds,
during the term of this Lease and any extensions or renewals thereof; and (ii)
fully comply with, or cause to be complied with, all Laws and Regulations
applicable to Lessee, its use, occupancy or operations of the Leased premises or
the Grounds, or any of its other operations, during the term of this Lease and
any extensions or renewals thereof. If there are or will be one or more
underground storage tanks on the Leased Premises, Lessee covenants that it will
comply with all provisions of this Section 7.3 with respect to such tank(s).
7.4 CERTAIN ENVIRONMENTAL, HEALTH AND SAFETY MATTERS. If Lessee's use of
the Leased Premises will include the handling and disposing of substances
considered to be environmental or regulated in any environmental law.
regulation, statute or ordinance, generated, used, handles or stored on the
Leased Premises by Lessee, its business or customers, and properly dispose of
same according to all applicable Laws and Regulations. Lessee shall not permit
the discharge or release of any waste, pollutant, contaminant or hazardous or
toxic material, substance or waste, including without limitation, used oil and
battery acid or fluids, on, in, or into the Leased Premises or the Grounds.
Lessee shall immediately notify Lessor of any such discharge or release and will
fully remediate any contamination associated with such discharge or release as
required by applicable Laws and Regulations and to the reasonable satisfaction
of Lessor.
7.5 SURRENDER; ABANDONMENT. Upon the termination of this Lease, for any
reason, Lessee shall peaceably and quietly leave and surrender the Leased
Premises unto Lessor. Subject to Section 2.3 and Article V, Lessor shall have
the option, at is sole discretion, of requiring Lessee to surrender the
improvements on the Leased Premises, or to remove the improvements. If Lessor
requires Lessee to surrender the improvements, Lessee shall at the termination
of this Lease, remove all of its personal property, trade fixtures, signage and
equipment at Lessee's sole cost and expense and surrender the improvements in
good condition, less reasonable wear and tear. If Lessor requires Lessee to
remove the improvements, then Lessee at Lessee's sole cost and expense and no
later than thirty (30) days after termination of this Lease, shall cause all of
the Lessee's personal property, trade fixtures, signage and equipment place by
Lessee on the Leased Premises to be removed and the building to be removed and
the Leased Premises restored to its condition as it existed at the commencement
of this Lease. In the event Lessee shall fail to comply with the above
requirements within the time provided, Lessor shall have the right, for Lessee's
account and Lessee's sole cost and expense, to remove said personal property,
trade fixtures, signage and equipment and improvements if applicable and dispose
of same in any manner is shall deem proper, free and clear of all claims and
interest of Lessee, and to cause the Leased Premises to be restored.
Should the Lessee for any reason abandon the Leased Premises or
improvements at any time during the term of this Lease or any extension thereof,
Lessee shall forfeit any right or title to the improvements and this Lease shall
become null and void, however, Lessor shall be entitled to any rentals due under
this Lease and reimbursement by Lessee of any costs associated with demolitions
and restoration of the Leased Premises should Lessor elect to remove the
improvements.
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7.7 EMINENT DOMAIN. In the event of any taking or damaging during the term
hereof of all or any part of the Leased premises or any interest therein by
reason of any exercise of the power of eminent domain, whether by condemnation
proceeding or otherwise, or any voluntary transfer (the right to make the same
being hereby reserved to Lessor without liability of any sort or nature to
Lessee) of all or any part of the Leased Premises or any interest therein made
in lieu or avoidance of any exercise of the power of eminent domain (any such
taking, damaging or transfer being hereinafter referred to as an
"appropriation"), if all of the Leased Premises are taken, this Lease, if no
sooner terminated under other provisions hereof, shall automatically terminate
by limitation and be of no further force or effect as of the dated the Leased
Premises are actually physically occupied by the condemnor. In the event of an
appropriation of less than all of the Leased Premises, and by reason thereof
Lessee's permitted use of the Leased Premises is materially interfered with,
either party may terminate this Lease by written notice thereof to the other
party within thirty (30) days after such partial taking. In the event this Lease
is not so terminated by reason of an appropriation of less than all of the
Leased Premises, such appropriation shall not alter, impair or otherwise affect,
in any way, the liability of Lessee to pay the full rental and to perform all of
the covenants and comply with all of the conditions contained in this Lease. All
sums awarded or agreed upon between Lessor and the condemning authority for the
taking of the interest of Lessor, whether as damages or as compensation, will be
the Property of Lessor. All sums awarded or agreed upon between the Lessee and
the condemning authority for the taking of the interest of the Lessee whether as
damaged or as compensation will be the property of Lessee; provided that any
portion of an award that if paid to lessee, would reduce or diminish the total
award otherwise paid to Lessor, shall instead be paid to Lessor.
7.8 CASUALTY. If at any time during the term of this Lease the Leased
Premises shall be damaged or destroyed by fire or other casualty, then Lessor
shall have the election to terminate this Lease or to require the Lessee to
repair and reconstruct the Leased Premises to the condition in which it existed
immediately prior to such damage or destruction. If Lessor has elected to
require the Lessee to repair and restore the Leased Premises, this Lease shall
continue in full force and effect and such repairs will be made within a
reasonable time thereafter. Rental shall not ▇▇▇▇▇ during any period that the
Leased Premises are unfit for use by Lessee. In the event that this Lease is
terminated as herein permitted, Lessor shall refund to Lessee the prepaid rent
(unaccrued as of the date of damage or destruction) less any sum then owing
Lessor by Lessee.
7.9 RIGHT OF ENTRY. Lessor, its agents and representatives, shall have the
right to enter upon the Leased Premises at such times as Lessor may deem
necessary to inspect same for compliance with this Lease. Lessor, its agents,
representatives, employees, invitees and licensees shall also have a right of
entry over and across the Leased Premises in connection with operating and
patronizing the businesses operated on the Leased Premises and the Grounds.
7.10 TAXES. Lessor shall pay all real property taxes and assessments that
may be levied by any lawful taxing authority against the Leased Premises.
However, should any taxing authority include in such taxes the value of Lessee's
improvements, machinery, equipment, fixtures, inventory or other personal
property assets or business operations, the Lessee shall be responsible for
paying such taxes attributable to such items. Any taxes shall be prorated for
years partially within the term of this Lease.
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7.11 FIRST OFFER. In the event that, at the termination of this Lease, (i)
Lessee is not in default, (ii) Lessor intends to lease the Leased Premises to
another person or entity, and (ii) the material terms of the succeeding lease
have been agreed to by the parties, then Lessor shall offer to Lessee for a
period of thirty (30) days the right to lease the Leased Premises on the same
terms and conditions as those in the proposed succeeding lease.
7.12 HEALTH AND SAFETY INFORMATION.
(a) Pursuant to the OSHA Hazard Communication Standard ("HCS") 29 CFR
1910.1200, Lessee and its employees are advised of the Material Safety Data
Sheets ("MSDS") for the location and the Food Mart's Hazard Communication Plan
("Plan"). The food Mart manager can advise you of the MSDSs and Plan's location.
(b) The MSDS's and Plan advise Lessee of (i) the hazards which may be
present, including but not limited to the flammability of Texaco products, and
the eye or skin irritation which may be associated with various products in use
at the location; (ii) how to protect themselves from these potential hazards
during normal operating conditions and in foreseeable emergencies; and (iii) how
the location labels containers containing hazardous chemicals which do not
display a manufacturer's label.
(c) Lessee must provide a current and complete MSDS for any hazardous
chemical(s) it brings onto the Grounds. The MSDS's must be provided to the Food
Mart manager, BEFORE the hazardous chemical(s) is brought onto the Grounds.
Lessee shall not leave or dispose of any hazardous chemical(s), including their
empty containers, on the Grounds overnight unless Lessor provides prior written
approval of such items.
(d) Prior to starting any work, Lessee is responsible for item employees
and agents becoming aware of all potential hazards and taking the necessary
precautionary measures. Precautionary measures include, but are not limited to
the use of appropriate personal protective equipment, such as suitable gloves,
eye protection, as may be appropriate.
7.12 SUBSTANCE ABUSE. Lessee shall have in effect before commencing
operations on the Leased Premises a comprehensive substance abuse program for
Lessee's employees working on the Leased Premises. Lessee further agrees that
its substance abuse program shall, consistent with federal, state and local law,
subject its employees (I) to rules of conduct relating to substance abuse, (ii)
to preemployment drug screening and to substance abuse search and drug/alcohol
testing procedures; and (iii) to removal from the Leased Premises if they fail
to comply with Lessee's substance abuse program.
7.13 TRADE FIXTURES, MACHINERY AND EQUIPMENT. Lessor agrees that all trade
fixtures, machinery leased, equipment, furniture or other personal property of
whatever kind and nature kept or installed in the Leased Premises by Lessee
shall not become the property of Lessor or a part of the realty, and may be
removed by Lessee. Lessor shall execute and deliver a landlord's lien waiver, in
form and substance acceptable to Lessor, setting forth that Lessor waives its
lien, claim, interest or right superior to that of vendors, lessors, chattel
mortgagees or owners. Lessor
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shall further acknowledge that property covered by such waiver is personal
property and is not to become a part of the realty, and that such property may
be removed form the Leased Premises by the vendors, lessors, chattel mortgagees
or owners upon default by the Lessee in the terms of any financing of such
property, free and clear of any claim or lien of Lessor. If any such personal
property is removed from the Leased Premises, Lessee shall repair any damage
done by the removal of these items.
ARTICLE VIII
8.1 NOTICES. Notices from Lessee to Lessor shall be effective when received
if personally delivered to Lessor, or three days after being placed in the
United States mail, postage prepaid, addressed to the Lessor at the address
shown in the preamble to this lease or such other address as may be designed by
Lessor. Notices from the Lessor to Lessee shall be effective three days after
being placed in the United States mail, postage prepaid, addressed to Lessee's
place of business as shown in this lease. Addresses for notices may be changed
upon written notification to the other party.
8.2. HOLDOVER. Upon the termination of this Lease, any subsequent holdover
by Lessee with the consent of Lessor shall not, in the absence of a written
agreement to the contrary, create a tenancy for a term in excess of month to
month. Any holdover, regardless of its duration, in the absence of a written
agreement to the contrary, shall be subject to all of the other terms, and
conditions of this Lease.
8.3 WAIVER. It is agreed that the waiver by Lessor of any breach of any
covenant, condition or stipulation contained herein shall not be considered to
be a waiver of any subsequent breach of the same or any other covenant,
condition or stipulation of this Lease nor affect or prejudice any of Lessor's
rights or remedies hereunder.
8.4 ENTIRE AGREEMENT. No prior stipulation, agreement or understanding,
verbal or otherwise, of the parties or their agents shall be valid or
enforceable unless embodied in the provisions of this Lease.
8.5 NOT BINDING ON LESSOR. This Lease shall not be binding on Lessor until
a copy thereof, executed by a duly authorized officer or employee of Lessor, has
been delivered to Lessee.
8.6 SURVIVAL. Any representation, warranty, covenant or agreement contained
herein which contemplates performance after the expiration or termination of
this Lease shall be deemed to survive such expiration or termination.
8.7 CHOICE OF LAW. This Lease shall be construed and enforced in accordance
with the laws of the state in which the Leased Premises is situated, without
regard to the conflicts of laws principles thereof.
8.8 MODIFICATIONS. No variations, modifications or amendments to this Lese
shall be binding upon any party hereto unless in written form executed by both
parties hereto.
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8.9 HEADINGS. The headings, paragraph numbers and article numbers appearing
in this Lease are inserted for convenience only and in no way define, limit,
construe or describe the scope or intent of such paragraphs or article, nor in
anyway affect this Lease.
8.10 SEVERABILITY. If any provision, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision, covenant or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each provision, covenant or condition of this Lease shall be valid
and shall be enforced to the fullest extent permitted by law.
8.11 CUMULATIVE PROVISIONS. All representations, warranties, covenants and
obligations of Lessee under this Lease, and all terms and conditions set forth
in this Lease, are cumulative of, in addition to, and not in limitation of each
other. All rights and remedies of Lessor under this Lease are cumulative of, in
addition to, and not in limitation of each other.
8.12 FOOD MART. Any reference herein to the Food Mart shall include future
expansions of, and future operations in, the Food Mart.
8.13 SUBORDINATION. This Lease is subject to all covenants and restrictions
contained in any deed or lease conveying or leasing the Leased Premises to
Lessor, and is made subject to all other deed restrictions, zoning laws,
easements and encumbrances.
8.14 MEMORANDUM OF LEASE. Upon the request of either party, Lessor and
Lessee agree to execute, acknowledge and record a short form Memorandum of
Lease. The cost of all documentary stamps, conveyancing or transfer taxes and
recording fees shall be paid for by the party requesting recording.
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EXECUTED as of the date set forth above.
LESSOR:
MOTIVA ENTERPRISES LLC
By: /s/ ▇▇▇▇▇ ▇. Stysinger
----------------------------
Name: ▇▇▇▇▇ ▇. Stysinger
-------------------------
Title: Attorney in Fact
-------------------------
LESSEE:
EMISSIONS TESTING, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Controller
--------------------------
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EXHIBIT "A"
Description of the Leased Premises
Car Wash Building along with the building access driveways
[Attach either a legal description or a
diagram clearly designating the Leased Premises]
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EXHIBIT "B"
Description of Grounds
[Attach a legal description or a diagram clearly
designating the MOTIVA ENTERPRISES LLC parcel and
showing spaces designated for Lessee's employee
parking.]
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EXHIBIT "C"
Facility
[Attach facility plans and specifications]
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