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HomeMy WebLinkAboutREsolution 8312 RESOLUTION NO. 8312 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPROVING A LEASE AGREEMENT WITH EBENEZER MANAGEMENT SERVICES FOR OFFICE SPACE AT THE MOUNDS VIEW COMMUNITY CENTER WHEREAS, Ebenezer Management Services ("Ebenezer") desires to lease office space at the Mounds View Community Center for a short period of time commencing on or before November 1, 2014; and, WHEREAS, there is one office space of 209 square feet available at this time which has been deemed suitable by Ebenezer; and, WHEREAS, the duration of the Lease Agreement would be for a minimum of four months with automatic month to month extensions, at the rate of$500 per month; and, WHEREAS, the City Council has reviewed the attached Lease Agreement and would agree to lease such space to Ebenezer as described and as stipulated therein. NOW, THEREFORE BE IT RESOLVED THAT the Mounds View City Council does hereby approve the Lease Agreement with Ebenezer Management Services for four months with automatic monthly extensions thereafter at the rate of$500 per month. Adopted this 13th day of October, 2014. / •oe Flaherty, - ATTEST: CUYYL 6 James Ericson, City Administrator (seal) DRAFT LEASE AGREEMENT By and Between City of Mounds View, And Ebenezer Management Services 416585v5 SJR MU210-35 DRAFT LEASE AGREEMENT This Lease is made effective as of , 2014, by and between the City of Mounds View, a Minnesota municipal corporation ("Landlord") and Ebenezer Management Services, a Minnesota limited liability company ("Tenant"). DATA SHEET The legal significance of the terms set forth in this Data Sheet is governed by references to such terms in the remainder of this Lease. • BUILDING. That certain building situated on the following described real estate: Commonly known as MOUNDS VIEW COMMUNITY CENTER • PREMISES. That space in the Building, as designated on Exhibit A annexed hereto, consisting of approximately 209 square feet measured from the exterior surface of the exterior walls to the center of the interior walls and Tenant's proportionate share of the Common Areas. The street address of the Premises is 5394 Edgewood Drive in the City of Mounds View. • LANDLORD: City of Mounds View, 2401 County Road 10, Mounds View, MN 55112. • TENANT: Ebenezer Management Services, 2722 Park Avenue, Minneapolis, MN 55407. 1. PREMISES: Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the term and upon the conditions hereinafter provided, the Premises described in the Data Sheet. 2. TERM: The Term of this Lease shall commence on the 1st day of November, 2014, and shall terminate on the 28th day of February, 2015 (the "Initial Term"), unless earlier terminated as hereinafter provided. After the Initial Term of this Lease, and absent thirty (30) days' advance written notice from either party to the other party to terminate the Term of this Lease at the end of the Initial Term, this Lease shall be automatically extended on a month to month tenancy which may be terminated by either party at the end of any calendar month, upon thirty (30) days' advance written notice to the other party of such termination of this Lease and all further rights or obligations hereunder for any reason. 1 416585v5 SJR MU210-35 DRAFT 3. RENT: Tenant agrees to pay Landlord, at 2401 County Road 10, Mounds View, MN 55112, or such other place as Landlord may from time to time designate in writing, four months of Rent due on or before November 1, 2014. Monthly Rent is due on or before the 1st day of each month commencing March 1, 2015. The monthly Rent shall be $500, plus an Internet charge should tenant avail itself to such service. 4. USE OF PREMISES: Tenant will use and occupy the Premises solely for general office purposes. Tenant will not use or occupy the Premises for any unlawful purpose, and will comply with all present and future laws, ordinances, regulations and orders of all governmental units having jurisdiction over the Premises. Tenant will not use or occupy the Premises for overnight accommodations. Tenant may have access to the Premises from 6:00 a.m. — 11:00 p.m., seven days per week, including holidays. Tenant shall not cause or permit any unusual noise, vibrations, odors or nuisance in or about the Premises and the Building and grounds nor shall Tenant permit any debris, property or merchandise of Tenant, its officers, employees or agents to be placed or left upon the grounds; and Tenant, its officers and employees shall observe all reasonable rules and regulations adopted by Landlord for the general safety, comfort and convenience of Landlord, Tenant and other Tenants including the reasonable assignment of parking spaces for the exclusive use of Tenant or other tenants of Landlord or the Building. In the event Tenant shall cause or permit any unusual noise, odor or nuisance or the storage of any debris, property or merchandise of Tenant, its officers, employees or agents, in or about the Premises, the Building or grounds in violation of the terms of this Section, landlord shall be entitled to take any steps it deems reasonably necessary to correct or remove such violation and Tenant shall pay Landlord, as additional rent hereunder, all costs and expenses incurred in such correction or removal including all costs and expenses incurred in ascertaining which Tenant is responsible for such violation. Landlord disclaims any warranty that the Premises are suitable for Tenant's use and Tenant acknowledges that it has had a full opportunity to make its own determination in this regard. Landlord warrants,to the best of their knowledge,that the building is in compliance with the Americans with Disabilities Act (ADA). In the event that the premises is found not to be in compliance, Landlord shall be responsible for all construction or alteration of the premises to render the premises in compliance with ADA. Tenant will not conduct or permit to be conducted any activity, or place any equipment in or about the Premises, which will in any way increase the rate of fire insurance or other insurance on the building; and if any increase in the rate of fire insurance or other insurance is stated by any insurance company or by the applicable Insurance Rating Bureau to be due to activity or equipment of Tenant in or about the Premises, such statement shall be conclusive evidence that such increase in such rate is due to such activity or equipment and, as a result thereof, Tenant shall be liable for such increase and shall reimburse Landlord therefore and, 2 416585v5 SJR MU210-35 DRAFT further, shall discontinue or cause the discontinuance of such conduct or shall remove such equipment upon Landlord's demand made at any time thereafter. Tenant shall not install, use, generate, store or dispose of in or about the Premises any hazardous substance, toxic chemical, pollutant or other material regulated by the Comprehensive Environmental Response, Compensation and Liability Act of 1985 or the Minnesota Environmental Response and Liability Act or any similar law or regulation, including without limitation any material containing asbestos, PCB, CFC or HCFC (collectively "Hazardous Materials") without Landlord's written approval of each Hazardous Material. Landlord shall not unreasonably withhold its approval of use by Tenant of immaterial quantities of Hazardous Materials customarily used in business operations so long as Tenant uses such Hazardous Materials in accordance with all applicable laws. Upon expiration or termination of this Lease Tenant shall remove all Hazardous Materials installed, used, stored or disposed of in the Premises by Tenant. Tenant shall indemnify, defend and hold Landlord harmless from and against any claim, damage or expense arising out of Tenant's installation, use, generation, storage, or disposal of any Hazardous Materials, regardless of whether Landlord has approved the activity. 5. ASSIGNMENT AND SUBLETTING: Tenant will not assign, transfer, mortgage or encumber this Lease or sublet or rent or franchise or permit occupancy or use of the Premises, or any part thereof by any third party; nor shall any assignment or transfer of this Lease be effectuated by operation of law or otherwise, (any of the foregoing being hereinafter referred to as an "Assignment") without in each such case obtaining the prior written consent of Landlord, which consent shall be subject to Landlord's sole discretion. The consent by Landlord to any Assignment shall not be construed as a waiver or release of Tenant from the terms of any covenant or obligation under this Lease, nor shall the collection or acceptance of rent from any transferee under an Assignment constitute an acceptance of the Assignment or a waiver or release of Tenant or any transferee of any covenant or obligation contained in this Lease, nor shall any Assignment be construed to relieve Tenant from the requirement of obtaining the consent in writing of Landlord to any further Assignment. In conjunction with any requested assignment of this Lease, Landlord may require Tenant to execute a reaffirmation of Tenant's liability hereunder, with waiver of defenses based solely on suretyship. If, at any time during the Term of this Lease, Tenant(and/or the guarantor, if any) is: (i) a corporation or a trust (whether or not having shares of beneficial interest) and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees, or other persons exercising like functions and managing the affairs of Tenant, or (ii) a partnership, limited liability company or association or otherwise not a natural person (and is not a corporation or a trust) and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant, 3 416585v5 SJR MU210-35 DRAFT such change shall be deemed to be an Assignment. This Section shall not apply if Tenant(and/or guarantor, if any) named herein is a corporation and the outstanding voting stock thereof is listed on a recognized national securities exchange. Whether or not Landlord has consented to assignment or sublease, Tenant shall pay directly to Landlord the amount by which the rent or other payments received by Tenant pursuant to such assignment or sublease exceeds, in any month, the Rent and additional rent payable by Tenant to Landlord Hereunder. 6. MAINTENANCE AND REPAIRS: Tenant agrees to keep, maintain and repair the Premises and the fixtures and equipment therein in first class, properly functioning, safe, orderly and sanitary condition, will make all necessary replacements thereto, will suffer no waste or injury thereto, and will at the expiration or other termination of the Term of this Lease, surrender the same with all improvements in the same order and condition in which they were on the commencement date of this lease, or in such better condition as they may hereafter be put, excepting ordinary wear and tear as well as casualty damage to the extent such casualty damage is covered by insurance excepted. Notwithstanding anything apparently to the contrary in this Section, any cost of repairs or improvements to the Building, to the Premises or to any common areas which are occasioned by the negligence or default of Tenant, its officers, employees, agents or invitees, or by requirements of law, ordinance or other governmental directive and which arise out of the nature of Tenant's use and occupancy of the Premises or the installations of Tenant in the Premises shall be paid for by Tenant. 7. ALTERATIONS; SIGNS; EQUIPMENT; MOVING: Tenant will not make or permit anyone to make any alterations, decorations, additions or improvements, structural or otherwise, in or to the Premises or the Building without the prior written consent of Landlord. As a condition precedent to consent of Landlord hereunder, Tenant agrees to obtain and deliver to Landlord such security against mechanic's liens as Landlord shall reasonably request. If any mechanic's lien is filed against any part of the Building for work claimed to have been done for, or materials claimed to have been furnished to Tenant, such mechanic's lien shall be discharged by Tenant within ten days thereafter, at Tenant's sole cost and expense, by the payment thereof or by making any deposit required by law. Regardless of whether Landlord's consent is required or obtained hereunder: (i) all alterations shall be made in accordance with applicable laws, codes and insurance guidelines, and shall be performed in a good and workmanlike manner, (ii) if the construction or installation of Tenant's alterations or fixtures causes any labor disturbance, Tenant shall immediately take any action necessary to end such labor disturbance, and (iii) Tenant shall furnish to Landlord as-built plans in such format as Landlord may reasonably require. All alterations, which become permanent fixtures to the Premises shall become the property of Landlord upon expiration of the Term and shall remain upon and be surrendered with the Premises as a part thereof without disturbance or injury, unless Landlord requires specific items thereof to be removed by Tenant at Tenant's sole expense, in which event Tenant shall do so prior to the expiration of the Term at its expense, and shall repair any damage caused thereby. 4 416585v5 SJR MU210-35 DRAFT Tenant shall not place or maintain any sign, advertisement or notice on any part of the outside of the Premises or the building except (i) such place, number, size, color and style as has been approved in writing by Landlord and (ii) in accordance with the sign criteria to be developed by Landlord. Any such signs shall be at the sole expense of Tenant. Tenant shall remove all signs at the expiration or termination of this Lease and restore the affected area to its original condition. Tenant shall not install any equipment containing Hazardous Materials nor any equipment which will or may necessitate any changes, replacements or additions to, or in the use of, the heating, ventilating or air-conditioning system, or other building system of the Premises or the Building without first obtaining the prior written consent of Landlord. Equipment belonging to Tenant which causes noise or vibration that may be transmitted to the structure of the Building or to any space therein to such a degree as to be objectionable to Landlord or to any tenant in the Building shall be installed and maintained by Tenant, at Tenant's expense, on vibration eliminators or other devices sufficient to eliminate noise and vibration. Landlord shall have the right at any time to limit the weight and prescribe the position of safes, concentrated filing systems and other heavy equipment or fixtures. All moving of furniture, equipment and other material shall be done under the direct control and supervision of Landlord who shall, however, not be responsible for any damage to or charges for moving the same unless damage is the direct result of Landlord's sole and gross negligence. Any and all damage or injury to the premises or the Building caused by moving the property of Tenant in or out of the Premises, or due to the same being on the Premises, shall be repaired by, and at the sole cost of, Tenant. No deliveries or pickups shall be left unattended at the loading dock. 8. RIGHT OF ENTRY: Tenant will furnish to Landlord at all times a master key to the Premises and permit Landlord, or its representative, to enter the Premises to examine, inspect and protect the Premises, and to make such alterations, renovations, restorations and/or repairs as in the judgment of Landlord may be deemed necessary or desirable for the Premises, for any other premises in the Building, or the Building itself(including access to distribution systems above the ceiling of the Premises), or to exhibit the same to prospective tenants during the last year of the Term of this Lease or during any period Tenant is in default hereunder, or to prospective purchasers or lenders at any time. Landlord shall use reasonable efforts to not unreasonably interfere with the conduct of Tenant's business, but Landlord shall in no event be liable to Tenant for any damages in connection with such entry or installation. Landlord shall have the right of immediate entry, without notice, for emergencies provided Tenant shall be notified as soon after such entry as possible. Landlord reserves the right to impose such reasonable security restrictions in the common areas as it deems appropriate from time to time. 5 416585v5 SJR MU210-35 DRAFT 9. SERVICES AND UTILITIES: Landlord agrees to pay all charges for utility services to the Premises during the term of this Lease including, but not limited to, gas, electric, sewer, water, sprinkler alarm system, security systems and rubbish removal. Tenant shall not commit waste or use any of the utilities in excess of ordinary and reasonable use. 10. PROTECTION FROM SUBROGATION: Anything in this Lease to the contrary notwithstanding, neither Landlord nor Tenant shall be liable to the other for any business interruption or any loss or damage to property or injury to or death of persons occurring on the Premises or the adjoining properties, mall areas, sidewalks, streets or alleys, or in any manner growing out of or connected with Tenant's use and occupation of the Premises, or the condition thereof or of mall areas, sidewalks, streets or alleys adjoining, caused by the negligence or other fault of Landlord, or Tenant or of their respective agents, employees, subtenants, licensees or assignees to the extent that such business interruption or loss or damage to property or injury to or death of person is covered by or indemnified by proceeds received from insurance carried by other party (regardless of whether such insurance is payable to or protects Landlord or Tenant or both) or for which such party is otherwise reimbursed; and Landlord and Tenant each hereby respectively waive all rights of recovery against the other, its agents, employees, subtenants, licensees and assignees, for any such loss or damage to property or injury to or death of persons to the extent the same is covered or indemnified by proceeds received from any such insurance, or for which reimbursement is otherwise received. Landlord's and Tenant's respective policies of insurance shall each contain a waiver of subrogation provision incorporating the above covenant and providing that the insurance shall not be invalidated by the insured's written waiver prior to a loss of any or all right of recovery against any party for any insured loss. It is expressly understood that Landlord shall not be liable to Tenant for any damages incurred by the latter as a result of the above and foregoing events; save and except as to any such damages caused by the willful or wanton conduct of Landlord, its agents or employees, provided such damages are not recoverable by Tenant pursuant to the insurance policies required to be provided by Tenant under this Lease or otherwise. 11. WAIVER AND INDEMNITY: Notwithstanding anything apparently to the contrary in this Lease, Landlord and its partners, officers and employees and property manager shall not be liable to Tenant, and Tenant hereby releases such parties from all damage, compensation or claims from any cause other than the intentional misconduct of Landlord or its partners, officers or employees or property manager arising from: loss or damage to personal property or trade fixtures in the Premises including books, records, files, computer equipment, computer data, money, securities, negotiable instruments or other papers; lost business or other consequential damage arising out of interruption in the use of the Premises; and any criminal act by any person other than Landlord or its partners, officers or employees. Furthermore, Tenant agrees that Landlord, its officers, agents, partners, and employees shall not be liable to Tenant or those claiming through or under Tenant for any injury, death or property damage occurring in, on or about the Premises, the Building or grounds. 6 416585v5 SJR MU210-35 DRAFT Tenant agrees to indemnify, defend and hold Landlord and its partners, officers and employees and property manager harmless from and against any claim, loss or expense arising out of injury, death or property loss or damage occurring by reason of Tenant's use of the Premises, except only to the extent caused by the negligent act or intentional misconduct of Landlord or its partners, officers or employees or property manager. Nothing in this Lease shall constitute a waiver or limitation of the Landlord's immunities or limitations on liability as set froth in Minnesota Statutes, Chapter 466. 12. INSURANCE: Tenant agrees to purchase, in advance, and to carry in full force and effect the following insurance: (a) "All risk" property insurance covering the full replacement value of all of Tenant's leasehold improvements, trade fixtures and personal property within the Premises. Landlord shall be named as loss payee under all such policies. (b) Commercial general liability insurance, providing coverage on an "occurrence" rather than a "claims made" basis, which policy shall include coverage for Bodily Injury, Property Damage, Personal Injury, Contractual Liability (applying to this Lease), and Independent Contractors, in current Insurance Services Office form or other form which provides coverage at least as broad. Tenant shall maintain a combined policy limit of at least $2,000,000 aggregate $1,000,000 per occurrence applying to Bodily Injury, Property Damage and Personal Injury, which limit may be satisfied by Tenant's basic policy, or by the basic policy in combination with umbrella or excess policies so long as the coverage is at least as broad as that required herein. Such liability for property damage and fire legal liability shall not be less than $500,000.00 Such liability, umbrella and/or excess policies may be subject to aggregate limits so long as the aggregate limits have not at any pertinent time been reduced to less than the policy limit stated above, and provided further that any umbrella or excess policy provides coverage from the point that such aggregate limits in the basic policy become reduced or exhausted. Landlord shall be named as additional insured under all such policies. At least ten (10) days prior to entry by Tenant on the Premises, Tenant shall deliver to Landlord evidence that the insurance required by this Lease is in full force and effect. At least thirty (30) days prior to expiration of any such coverage, Tenant shall deliver evidence that the coverage in question will be renewed or replaced upon expiration. Such evidence of insurance shall be in writing signed by a party authorized to bind the insurer, authorize Landlord to rely thereon, and shall contain sufficient information to enable Landlord to determine whether Tenant's insurance complies with the requirements of this Lease. Upon request, Tenant shall also furnish insurer-certified copies of all pertinent policies. All polices used to provide the coverage required by this Lease shall (i) be endorsed to require the insurer to provide at least thirty (30) days notice to Landlord prior to cancellation or non-renewal, and (ii) be issued by financially sound companies having an A.M. Best Company rating of at least A:VII. 7 416585v5 SJR MU210-35 DRAFT 13. FIRE OR OTHER CASUALTY: If the Premises or the Building shall be damaged by fire or other cause Landlord shall at its option either (a) undertake to restore such damage with all due diligence, or (b) in the event the Premises or the Building are damaged by fire or other cause to such extent that damage cannot, in Landlord's sole judgment, be economically repaired within 90 days after the date of such damage (taking into account the time necessary to effectuate a satisfactory settlement with any insurance company and using normal construction methods without overtime or other premium), terminate this Lease, by notice given to Tenant within 60 days after the date of the damage. Any termination hereunder by reason of damage to the Premises shall be effective as of the date of the damage. Any termination by reason of damage to the Building but not the Premises shall be effective as of the date notice is given. If Landlord elects to restore, Landlord shall not be obligated to restore any improvements in the Premises which were not owned and constructed by Landlord. Upon substantial completion by Landlord of its work, Tenant shall undertake to restore its leasehold improvements and trade fixtures with all due diligence. This Lease shall, unless terminated by Landlord, remain in full force and effect following such damage, and, in the case of damage to the Premises, the Rent, prorated to the extent that the Premises are rendered untenantable, shall be equitably abated until such repairs are completed; provided, however, that if Tenant does not restore its leasehold improvements and trade fixtures with due diligence, abatement shall cease as of the date restoration could have been completed using due diligence. 14. CONDEMNATION: If the whole or any substantial part of the Premises shall be taken or condemned or purchased under threat of condemnation by any governmental authority, then the Term of this Lease shall cease and terminate as of the date when the interference with the possession, enjoyment or value of the Premises occurs and Tenant shall have no claim against the condemning authority, Landlord or otherwise, for any portion of the amount that may be awarded as damages as a result of such taking or condemnation or for the value of any unexpired Term of the Lease, provided, however, that landlord shall not be entitled to any separate award made to Tenant for loss of business, relocation costs or the value of the cost of removal of stock and trade fixtures and any such award is hereby condemned to the extent that it cannot, in Landlord's sole judgment, be economically restored within a reasonable time, Landlord shall have the option by notice given to Tenant within 30 days after the date of interference with possession,to terminate this Lease as of the date of such interference with possession. 15. DEFAULT: Any one of the following events shall constitute an Event of Default: (i) Tenant shall fail to pay any monthly installment of Rent as herein provided; (ii) Tenant shall violate or fail to perform any of the other conditions, covenants or agreements herein made by Tenant and such default shall continue 8 416585v5 SJR MU210-35 DRAFT for 30 days after notice from Landlord; provided, however, that if the nature of such default is such that Tenant can cure the default, but not within fifteen (15) days, then the Event of Default shall be suspended for a period not in excess of thirty (30) additional days so long as Tenant commences cure within fifteen (15) days and thereafter diligently and continuously prosecutes the curing of the default, and so long as continuation of the default does not create material risk to the Building or to persons using the Building; (iii) Tenant shall file or have filed against it or any guarantor of this Lease any bankruptcy or other creditor's action, or make an assignment for the benefit of its creditors. If an Event of Default shall have occurred and be continuing, Landlord may at its sole option by written notice to Tenant terminate this Lease. Neither the passage of time after the occurrence of the Event of Default nor exercise by Landlord of any other remedy with regard to such Event of Default shall limit Landlord's rights. If an Event of Default shall have occurred and be continuing, whether or not Landlord elects to terminate this Lease, Landlord may enter upon and repossess the Premises (said repossession being hereinafter referred to as "Repossession") by force, summary proceedings, ejectment or otherwise, and may remove Tenant and all other persons and property therefrom. From time to time after Repossession of the Premises, whether or not this Lease has been terminated, Landlord may, but shall not be obligated to, attempt to relet the Premises for the account of Tenant in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) and for such terms (which may include concessions or free rent) and for such uses as Landlord, in its uncontrolled discretion, may determine, and may collect and receive the rent therefore. Any rent received shall be applied against Tenant's obligations hereunder, but Landlord shall not be responsible or liable for any failure to collect any rent due upon any such reletting. No termination of this Lease and no Repossession of the Premises pursuant to this Section or otherwise shall relieve Tenant of its liabilities and obligations under this Lease, all of which shall survive any such termination or Repossession. In the event of any such termination or Repossession, whether or not the Premises shall have been relet, Tenant shall pay to Landlord the Rent and other sums and charges to be paid by Tenant up to the time of such termination or Repossession, and thereafter Tenant, until the end of what would have been the Term in the absence of such termination or Repossession, shall pay to Landlord, as and for liquidated and agreed current damages for Tenant's default, the equivalent of the amount of the Rent and such other sums and charges which would be payable under this Lease by Tenant if this Lease were still in effect, less the net proceeds, if any, of any reletting effected pursuant to the provisions of this Section after deducting all of Landlord's expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, attorneys' fees, alteration costs, and expenses of preparation for such reletting. Tenant shall pay such current damages to Landlord monthly on the days on which the Rent would have been payable under this Lease if this Lease were still in effect, and 9 416585v5 SJR MU210-35 DRAFT Landlord shall be entitled to recover the same from Tenant on each such day. At any time after such termination or Repossession, whether or not Landlord shall have collected any current damages as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default, an amount equal to the then present value of the excess of the Rent and other sums or charges reserved under this Lease from the day of such termination or Repossession for what would be the then unexpired term if the same had remained in effect, over the amount of rent Tenant demonstrates that Landlord could in all likelihood actually collect for the Premises for the same period, said present value to be arrived at on the basis of a discount of four percent (4%) per annum. In addition to all other remedies of Landlord, Landlord shall be entitled to reimbursement upon demand of all reasonable attorneys fees incurred by Landlord in connection with any Event of Default. Landlord shall in no event be considered to be in default of Landlord's obligations hereunder until the expiration of a reasonable time after notice of default from Tenant. 16. SUBORDINATION: For the purposes of this Section, the term "Mortgage" shall mean at any time, any mortgage of record now or hereafter placed against the Building, any increase, amendment, extension, refinancing or recasting of a Mortgage and, in the case of a sale or lease and leaseback by Landlord of all or any part of the Building, the lease creating the leaseback. For the purposes hereof, a Mortgage shall be deemed to continue in effect after foreclosure thereof until expiration of the period of redemption therefrom. This Lease is subject and subordinate to the lien of any Mortgage which may now or hereafter encumber the Building or any development of which the Building is a part. In confirmation of such subordination, Tenant shall, at Landlord's request from time to time, promptly execute any certificate or other document requested by the holder of the Mortgage. Tenant agrees that in the event that any proceedings are brought for the foreclosure of any Mortgage, Tenant shall immediately and automatically attorn to the purchaser at such foreclosure sale, as the landlord under this Lease, and Tenant waives the provisions of any statute or rule of law, now or hereafter in effect, which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease or the obligations of Tenant hereunder in the event that any such foreclosure proceeding is prosecuted or completed. Neither the holder of the Mortgage (whether it acquires title by foreclosure or by deed in lieu thereof) nor any purchaser at foreclosure sale shall be liable for any act or omission of Landlord occurring prior to date of acquisition of title, nor subject to any offsets or defenses which Tenant might have against Landlord nor bound by any prepayment by Tenant of more than one month's installment of Rent nor by any modification of this Lease made subsequent to the granting of the Mortgage unless consented to by the holder of the Mortgage. Notwithstanding anything to the contrary in this Section, so long as Tenant is not in default under this Lease, this Lease shall remain in full force and effect and the holder of the Mortgage and any purchaser at foreclosure sale thereof shall not disturb Tenant's possession hereunder. 10 416585v5 SJR MU210-35 DRAFT 17. SALE OR MORTGAGE OF THE BUILDING: In the event of a sale of the Building, Landlord shall be relieved of all liability under this Lease accruing from and after the date of sale provided Landlord has obtained the written agreement of its transferee or assignee to assume and carry out all of the covenants and obligations of the Landlord hereunder. The Tenant agrees at any time and from time to time, upon not less than ten days prior written request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying that the Lease is not modified (or modified, stating the modification) that the Lease is in full force and affect, stating the dates to which the Rent has been paid in advance and stating whether the Landlord is in default hereunder. It is intended that any such statement may be relied upon by any prospective purchaser of the fee or mortgagee or assignee of any mortgage upon the Building or real estate. 18. WAIVER: One or more waivers of any covenant, term or condition of this Lease by either party shall not be construed by the other party as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval of either party to or of any act by the other party of a nature requiring consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. The failure or delay on the part of either party to enforce or exercise at any time any of the provisions, rights or remedies in this Lease shall in no way be construed to be a waiver thereof, nor in any way to affect the validity of this Lease or any part thereof, or the right of the party to thereafter enforce each and every such provision, right or remedy. 19. RULES AND REGULATIONS: Tenant shall use the Premises and the common areas of the Building in accordance with the terms of this Lease and such additional rules and regulations as may from time to time be reasonably made by Landlord for the general safety, comfort and convenience of the Landlord, occupants and tenants of the Building, and Tenant shall use its best efforts to cause Tenant's customers, employees and invitees to abide by such rules and regulations. Landlord shall in no event be responsible to Tenant for enforcement of such rules and regulations against other tenants. These Rules and Regulations shall be in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the covenants and conditions of any lease of the Premises. If any provision of these rules and regulations conflicts with any provision of the Lease,the terms of the Lease shall prevail. 20. COVENANT OF QUIET ENJOYMENT: Landlord covenants that it has the right to make this Lease for the term aforesaid and covenants that if Tenant shall pay the rent and perform all of the covenants, terms and conditions 11 416585v5 SJR MU210-35 DRAFT of this Lease to be performed by Tenant, Tenant shall, during the Term hereby created, freely, peaceably and quietly occupy and enjoy the full possession of the Premises. 21. NO REPRESENTATIONS BY LANDLORD: Neither Landlord nor any agent or employee of Landlord has made any representations or promises with respect to the Premises or the Building except as herein expressly set forth, and no right, privileges, easements or licenses are acquired by Tenant except as herein expressly set forth. No exhibit attached to this Lease nor any other materials provided by Landlord shall constitute a warranty or agreement as to the configuration of the Building or the occupants thereof. Landlord reserves the right from time to time to modify the Building, including common areas, appurtenances and rentable areas, without in any case reducing the obligations of Tenant hereunder. Tenant has no right to light or air over any premises adjoining the Building. Tenant, by taking possession of the Premises, shall accept the same "as is" except as expressly provided in this Lease and such taking of possession shall be conclusive evidence that the Premises and the Building are in good and satisfactory condition at the time of such taking of possession. In addition to and without limitation of the immediately preceding sentence, Tenant agrees that it is leasing the Premises on an "AS IS", "WHERE IS" and "WITH ALL FAULTS" basis, based upon its own judgment, and hereby disclaims any reliance upon any statement or representation whatsoever made by Landlord. LANDLORD MAKES NO WARRANTY WITH RESPECT TO THE PREMISES, THE BUILDING OR ANY PART THEREOF, EXPRESS OR IMPLIED, AND LANDLORD SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE PREMISES, THE BUILDING OR ANY PART THEREOF. 22. NOTICES: All notices or other communications hereunder shall be in writing and shall be effective if hand delivered or sent by registered or certified first-class mail, postage prepaid, or by overnight express service which maintains confirmation of delivery, (i) if to Landlord at Landlord Address set forth in the Data Sheet, and (ii) if to Tenant, at the Premises, unless notice of a change of address is given pursuant to the provisions of this Section. The day notice is given by mail shall be deemed to be the day following the day of mailing. If acceptance is refused, as evidenced by the records of the Postal Service or overnight delivery service, notice shall be deemed given on the date acceptance is refused. 23. SURRENDER; HOLDING OVER: Upon the expiration of this Lease or the earlier termination of Tenant's right to possession, Tenant shall immediately vacate the Premises, remove all of its property therefrom and leave the Premises in the condition required by this Lease. Any property not removed shall be deemed abandoned, and Tenant shall be liable for all costs of removal and Tenant shall indemnify, defend and hold Landlord harmless from any cost or liability due to disposition of any property in the Premises in which a person other than Tenant has an interest. Should Tenant fail to surrender the Premises in the condition required by the Lease, Landlord shall be entitled to 12 416585v5 SJR MU210-35 DRAFT take whatever steps may, in Landlord's sole discretion, be required to restore the Premises to said condition and Tenant agrees that it shall pay to Landlord all costs incurred by Landlord in so restoring the premises. Should Tenant continue to occupy the Premises, or any part thereof, after the expiration or termination of the Term, whether with or without the consent of Landlord, such tenancy shall be from month to month and Tenant shall pay Landlord the (i) the rent last in effect plus 3 percent, for the first six months of any such period of holding over and (ii) following such six month holdover period rent shall continue until a new rental rate is agreed upon. 24. LANDLORD REPRESENTATIONS: Landlord agrees to be bound by the terms and conditions of this Lease. 25. MISCELLANEOUS: (a) The captions in this Lease are for convenience only and are not a part of this Lease. (b) If more than one person or entity shall sign this Lease as Tenant, the obligations set forth herein shall be deemed joint and several obligations of each such party. (c) Time is of the essence. (d) If any provision of this Lease is invalid or unenforceable to any extent, then such provision and the remainder of this Lease shall continue in effect and be enforceable to the fullest extent permitted by law. (e) This Lease contains the entire agreement of the parties hereto with respect to the Premises and Building. This Lease may be modified only by a writing executed and delivered by both parties. (f) Nothing contained in this Lease shall be deemed or construed to create a partnership or joint venture of or between Landlord and Tenant, or to create any other relationship between the parties other than that of landlord and tenant. (g) This Lease shall be binding upon and inure to the benefit of the parties hereto and, subject to the restrictions and limitations herein contained, their respective heirs, successors and assigns. (h) This is governed by and shall be construed according to the laws of the State of Minnesota. 26. TAX COMPLIANCE AND STATUS OF PREMISES: 13 416585v5 SJR MU210-35 DRAFT It is the intention of the parties hereto that nothing contained in this Lease or through the performance of this Lease shall any change occur in the tax status of the Premises that existed prior to the entering into of this Lease and that in lieu of each clause, term or provision of this Lease that is illegal, invalid, unenforceable, or not in compliance with property tax requirements, there be added as part of this Lease a clause, term, provision, or requirement similar to such illegal, invalid or unenforceable clause, term, provision, or property tax requirement as may be possible and would be legal, valid, and enforceable, to retain the property tax status of the Premises that existed prior to the entering into of this Lease. In the event that the property tax status for the Premises is changed by any taxing jurisdiction and cannot be returned to the tax status that existed prior to the entering into of this Lease by modification of the terms of this Lease, the Tenant shall be responsible for any tax payments or payments in lieu of taxes should the Premises, or a portion thereof, be deemed taxable property for any reason by any taxing jurisdiction as a result of this Lease or the use being made thereof of the Premises, and the Tenant shall immediately remit any required payments to the appropriate taxing jurisdiction. 27. [INTENTIONALLY BLANK] 28. ADDITIONAL HAZARDS: Tenant covenants and agrees that it will not do or permit anything to be done in or upon the Premises or bring in anything or keep anything therein which shall cause the cancellation of Landlord's insurance policies, or increase the rate of insurance, on the Building, above the standard rate on said premises and buildings as rental property for similar uses. Tenant further agrees that in the event it shall do anything to so increase the insurance rate, Tenant shall promptly pay to Landlord on demand any such increase resulting therefrom, which shall be due and payable as "additional rent" hereunder. At Tenant's request, Landlord shall make available for Tenant's inspection during regular business hours, all documents pertaining to Landlord's calculation of Tenant's "additional rent" required under this section. Said "additional rent" shall be due and payable as billed by Landlord. 29. INVALIDATION OF PARTICULAR PROVISIONS: If any clause, term or provision of this Lease, or the application thereof to any person or circumstance shall to any extent, be invalid, unenforceable, or not in compliance with state bond financed property requirements as set forth in Paragraph 30, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause, term or provision of this Lease that is illegal, invalid, unenforceable, or not in compliance with state bond financed property requirements, there be added as part of this Lease a clause, term, provision, or state bond financed property requirement similar to such illegal, invalid or unenforceable clause, term, provision, or state bond financed property requirement as may be possible and would be legal, valid, and enforceable. 14 416585v5 SJR MU210-35 DRAFT 30. STATE BOND FINANCE PROPERTY ACKNOWLEDGEMENT AND COMPLIANCE: The Landlord and Tenant acknowledge that funding for a portion of the Premises was obtained through a grant from the State of Minnesota's Department of Children, Families and Learning, and as such, the Premises is considered state bond financed property. Landlord states and Tenant, to the best of it's knowledge, without inquiry agrees that the following requirements contained within this Lease are included to satisfy the state bond finance property requirements of Minnesota Statutes Section 16A.695 for Use Agreements, to comply with the requirements contained in the G.O. Compliance statutes, and pursuant to the Commissioner's Order. (a) ENTITY STATUS. The Landlord is defined as a public entity organized as a charter city pursuant to Minnesota Statutes Chapter 410, and is thus, a Minnesota municipal corporation. (b) DEMISED PREMISES OWNERSHIP. The Premises is owned solely and completely by the Landlord, the City of Mounds View. (c) AGREEMENT AUTHORITY. The Landlord has entered into this Lease with the Tenant pursuant to Minnesota Statutes Section 471.15 and the City of Mounds View Municipal Charter and Municipal Code. (d) GOVERNMENTAL PROGRAM. This Lease is (i) being executed and entered into to carry out a Governmental Program, (ii) such Governmental Program is the City of Mounds View Parks and Recreation Program, including the operation of the Community Center and its accompanying facilities, as well as the parks within the City and general recreational programming within the City; and (iii) such Governmental Program constitutes the Mounds View Parks and Recreation Program and is authorized pursuant to Municipal Charter Section 6.02, Subdivision 1, Municipal Code Section 106.05 and Chapter 405, and Minnesota Statutes Section 471.15. (e) GOVERNMENTAL PROGRAM OVERSIGHT. The Landlord has accepted financing through a Government Bonding Program. If required by the State for compliance purposes, Tenant will provide the State the right to inspect and audit Tenant's books and records for its operations at the Premises, with each such review to show the program budget, revenues and expenses. (f) TERM OF THE USE AGREEMENT. As the Premises consists of land and buildings, the term of this Lease as provided herein relating to the building and improvements, and including all renewals which are solely at the option the Tenant, is for a period of time which is less then 50% of the useful life of the Premises. (g) TERMINATION OF THE USE AGREEMENT. This Lease allows for termination by the Landlord, pursuant to Section 13.2, in the event of default hereunder by the Tenant. The termination of this Lease is also allowed by the Landlord, pursuant to Section 16.13, in the event that the Governmental Program is terminated or changed. 15 416585v5 SJR MU210-35 DRAFT (h) COST OF OPERATION OF THE FACILITY ("PREMISES"). The Landlord possesses specific statutory authority pursuant to Minnesota Statutes Section 471.15, the City's Municipal Charter Section 6.02, Subdivision 1, and the City's Municipal Code Section 106.05 and Chapter 405, to expend monies to operate and maintain the Premises. (i) RECEIPT OF MONIES/COMPLIANCE WITH TAX CODE. It is contemplated and understood by the parties to this Lease, that the Landlord's operation of the Premises is in compliance with the tax code. (j) SALE OF THE FACILITY(PREMISES). (i) This Lease is free of any provisions which would require the Landlord to sell the Premises for an amount less than the fair market value if it is to be sold to a non-public entity. (ii) This Lease is free of any provisions which would allow the Landlord to sell the facility (Premises) without the Landlord first determining, by official action, that the Premises is no longer usable or needed to carry out the Governmental Program. (iii) This Lease is free of any provisions which would require the Landlord to sell the Premises without first obtaining the written consent of the Commissioner of Finance, pursuant to Minn. Statutes Section 16A. 695, Subdivision 3, and the Commissioner's Order. (iv) This Lease is free of any provisions which would cause the matter of distribution of the proceeds of the sale of the Premises, which is not provided for nor contemplated in this Lease, to violate the provisions contained in the G.O. Compliance Bill and the Commissioner's Order (Minn. Statutes Section 16A.693, Subdivision 3 and the Commissioner's Order). (v) This Lease contains no provisions concerning the sale of the Premises or the termination of the Governmental Program. [The remainder of this page intentionally blank] 16 416585v5 SJR MU210-35 DRAFT Ebenezer Management Services, as Tenant of the Building and Premises herein, hereby agrees to the terms of this Lease. EBENEZER MANAGEMENT SERVICES By: Its: The City of Mounds View, as Landlord of the Building and Premises herein, hereby agrees to the terms of this Lease. CITY OF MOUNDS VIEW By: Joe Flaherty Its: Mayor By: James Ericson Its: City Administrator 17 416585v5 SJR MU210-35 DRAFT EXHIBIT A Floorplan Layout of the Ebenezer Management Services Area (209 Square Feet) 0, '----,7-7-77 `i.// / // . // 1/4/ i7v/'. /".1.././. I / I A// / e� JA 1. „3.412.,- CORR1001 _J 1130. id1A �� - f �, !r✓.sr afawr0..s' _'_`...t!._ f,..,._ /5/ + i._ _ t .,` s ti�h� 'l tN r1 ii STORAGE STORAGE i WO EN „,,,..-41E" * MEN a ,, - /r ./ FiCE OF ICE' CONFERENCE „... im A A1tO ,iii ! I ;1 tle , 1` 4. 4,4* , ` �'- 4.4..". d ., w;; KITCHEN CONFERENCE. STORAGE f*RA - J., / // '�J' s-.0 1�i.20 M(}�+. 4 li" `ry - +,,, ,�.Ig s 1 . .�._., .Nrl _ '' ,, 1 _g` CHANGE! '/ r /� ., t *Atj" " 6- iai4 z' 3,IIEt �. . `�r r, w,x •r x- Pt. /k! /(' 4 i° / - ✓, . a TORAG STORAGE `:: � ---( Os( ns0eAR6 CHILD E( 1 ,� 01�C •, m ROM (A10St.i s I 'CLASSROOM 1 } ' tM 03A i ,CLASSROOM At i �. 14 I CLAS ROOM I (A1O5f* VES;TI8ULE , ro AIOIA O , 1-1 • A-1 416585v5 SJR MU210-35