OFFICE/WAREHOUSE LEASE
THIS INDENTURE of lease, entered into this 14 day of April, 1997, by and between
AMBERJACK, LTD., an Arizona corporation, hereinafter referred to as "Lessor",
and MANUFACTURER'S SERVICES LIMITED - ROSEVILLE, INC., a Minnesota corporation,
hereinafter referred to as "Tenant".
DEFINITIONS:
"Property" - That certain real property located in the City of Arden Hills,
County of Xxxxxx and State of Minnesota and legally described on Exhibit A
attached hereto and made a part hereof, including all buildings and site
improvements located thereon all in accordance with the site plan thereof
attached hereto and incorporated herein as Exhibit B.
"Premises" - All of that certain office/warehouse building to be constructed by
Lessor as set forth herein and, upon completion, containing in the aggregate
approximately 154,264 square feet located upon the Property, consisting of
approximately 105,364 square feet of production area, 30,000 square feet office
space and 18,900 square feet of warehouse space, as measured from the outside
walls of the Premises. The Premises includes exclusive access to and exclusive
use of all parking areas, driveways, truck docks and landscaped areas on the
Property, and all licenses and easements appurtenant to the Property. The
Premises are to have the direct and unrestricted legal right of access on foot,
by private and commercial vehicles and trucks to the public ways for ingress and
egress.
W I T N E S S E T H:
TERM:
1. For and in consideration of the rents, additional rents, terms, provisions
and covenants herein contained, Lessor hereby lets, leases and demises to Tenant
the Premises for the initial term of one hundred twenty (120) months commencing
thirty (30) days after Lessor has provided written notice to Tenant that
"Lessor's Work" and the "Tenant Improvements" (as hereinafter defined) are
substantially complete, accompanied by a temporary or permanent certificate of
occupancy that permits the Tenant's manufacturing operations (sometimes called
the "Commencement Date") and expiring at the end of the tenth (10th) "Lease
Year," as hereinafter defined (the "Expiration Date"). If the Certificate of
Occupancy delivered by Lessor is temporary only, Lessor shall within a
reasonable period procure a permanent certificate of occupancy for Tenant at no
cost to Tenant. At the time the actual Commencement Date is determined, the
parties agree to confirm in writing the specific Commencement Date and
Expiration Date, which written confirmation shall become a part of this Lease.
As used herein, the term "Lease Year" shall mean each successive period of
twelve (12) consecutive calendar months, commencing on each anniversary of the
Commencement Date during the Lease Term or, if the Commencement Date falls on a
day
1
other than the first day of the month, each anniversary of the first day of the
first full calendar month following the Commencement Date.
OPTIONS TO RENEW:
2. (a) Options. In addition to the initial Lease Term, and provided that no
"Material Tenant Default" (as hereinafter defined) shall have occurred and
be then continuing, Tenant shall have the option ("Renewal Option") to
extend the term of the Lease for up to two (2) additional terms of five
(5) years each (the "Option Periods") immediately following the initial
term of this Lease. Each Renewal Option shall expire on the later of (i) a
date two hundred seventy (270) days prior to the expiration of the initial
lease term or the then current Option Period as applicable, or (ii) ten
(10) days after written reminder notice from the Lessor given not earlier
than thirty (30) days prior to the date set forth in subsection (i) above,
unless prior to such date, Tenant shall give Lessor written notice of its
unconditional election to exercise the Renewal Option (the "Notice to
Extend"). Upon exercise as required hereunder, the Lease Term shall
thereupon be deemed to be automatically renewed and extended for the
Option Period without the need for further act by Lessor or Tenant upon
all the same terms and conditions except as to Base Rent which shall be at
the then current "Market Rate", determined as set forth in subsection (b)
below. The initial term of this Lease and, if each Renewal Option is
exercised, the Option Periods are hereby collectively referred to herein
as the "Lease Term." If Tenant fails to exercise the first five year
Renewal Option, the second Renewal Option shall lapse and be of no further
force and effect. The Renewal Options are personal to Tenant and may not
be assigned to, and shall not be exercisable by, any third party. For
purposes of this Section 2(a), the term "Material Tenant Default" shall
mean a Tenant Default (as defined in Section 2.0 hereof) in any way
relating to (i) the payment of any Base Rent, Additional Rent or any other
amount payable by Tenant hereunder; (ii) Tenant's obligations hereunder
with respect to the care and maintenance of the Property or the Premises;
or (iii) any of Tenant's obligations under Section 14 (Use), 18 or 19
(Insurance), 24 (Assignment and Subletting) or 37 (Hazardous Material).
(b) Market Rate During Option Period. The term "Market Rate" shall mean
the rental per annum per square foot (net of any share of Operating
Expenses or Real Estate Taxes payable by Tenant) prevailing at the time in
arms-length industrial and office warehouse lease transactions in
comparable Class A, full-service industrial and office warehouse buildings
in the Minneapolis-St. Xxxx metropolitan area, taking into account all
relevant factors with respect to the Option Period, including length of
term, tenant creditworthiness, size of the premises, extent of leasehold
improvements, the basis for tenant payment of taxes, operating expenses,
utilities, parking, allowances, age of the facility, and other factors
affecting rent in the market.
Within thirty (30) days of receipt by Lessor of the Notice to Extend,
Lessor shall provide Tenant with Lessor's good faith estimate of the
Market Rate payable during the applicable Option Period. If Tenant agrees
with Lessor's estimate of the Market Rate, or if Lessor and Tenant reach
an agreement that a different figure more accurately reflects the Market
Rate, then such agreed sum shall constitute the Market Rate during such
applicable Option
2
Period. If Lessor and Tenant have not agreed on the Market Rate at least
six (6) months prior to the expiration of the then current Lease Term,
then Tenant may require evaluations by licensed real estate professionals
to determine the Market Rate by delivering written notice ("Evaluation
Notice") to Lessor at least six (6) months prior to the Expiration Date or
at least six (6) months prior to expiration of the then current Option
Period, as applicable. Failure of Tenant to require such evaluations
shall, in the absence of a different agreement by Lessor and Tenant at the
time, result in a forfeiture of the Renewal Option. Upon delivery of such
Evaluation Notice to Lessor, both Lessor and Tenant shall be bound to the
Option Period and to the Market Rate as determined by the evaluation by
the licensed real estate professional as hereinafter provided in paragraph
(c) of this Section 2.
(c) Evaluation Procedure. Within ten (10) days after Tenant notifies
Lessor that it is requiring evaluations as stated above, each party at its
cost and by giving notice to the other party, shall appoint a licensed
commercial real estate professional ("Real Estate Professional") with at
least ten (10) years experience leasing similar commercial industrial and
office warehouse building properties in the Minneapolis-St. Xxxx
metropolitan area to evaluate the Market Rate at that time. If either
party fails to appoint a Real Estate Professional within the allotted
time, the single Real Estate Professional appointed by the other party
shall be the sole Real Estate Professional. If a Real Estate Professional
is appointed by each party and the Real Estate Professionals so appointed
area unable to agree upon the Market Rate within thirty (30) days after
the appointment of the second, the two Real Estate Professionals shall
appoint a third similarly qualified Real Estate Professional within five
(5) days after the expiration of that thirty (30) day period. The third
Real Estate Professional shall be a person who has not previously been
employed by Tenant or Lessor in any capacity. The third Real Estate
Professional shall complete his evaluation within fifteen (15) days after
appointment. The Market Rate determined by a majority of the three Real
Estate Professionals shall be the "Market Rate" during such applicable
Option Period. If a majority are unable to agree within the allotted time,
the two evaluations of Market Rate that are nearest to one another in
amount shall be added together and divided by two (2), and the resulting
quotient shall be the agreed Market Rate. Notwithstanding anything
contained herein to the contrary, the Market Rate shall in no event be
less than the Annual Base Rent payable in the last Lease Year of the then
current term of the Lease. Tenant shall pay the fees of the Real Estate
Professional it appoints; Lessor shall pay the fees of the Real Estate
Professional it appoints; and the fees of any third Real Estate
Professional shall be paid equally by Lessor and Tenant. If only one Real
Estate Professional serves, the costs and fees shall be paid equally by
Lessor and Tenant.
Both Lessor and Tenant shall be bound by the decision of the aforesaid
Real Estate Professional as to the Market Rate.
LESSOR'S WORK:
3. Lessor shall construct, at its cost and expense and with no right of
reimbursement from Tenant other than the charges provided for in Sections 4, 5
and 6 of this Lease, all
3
improvements set forth and described on the Outline Specifications dated March
26, 1997 prepared by Welsh Construction Corp. ("Contractor"), a copy of which is
attached hereto as Exhibit C and made a part hereof ("Lessor's Work"). Lessor
and Tenant have each approved those certain plans and specifications listed and
described as Exhibit C-1 attached hereto and incorporated herein ("Lessor's Work
Plans"). Any reasonable changes in Lessor's Work which are necessary in order to
comply with applicable laws, rules, regulations, orders or requirements of any
governmental body having jurisdiction, or of the local board of Fire
Underwriters or other local bodies exercising similar functions, shall not
require the approval of Tenant, nor shall any such changes affect, change or
invalidate this Lease. Notwithstanding the foregoing, any such change which
materially or adversely limits, restricts or diminishes Tenant's use and
enjoyment of the Premises for the purposes specified herein shall require
Tenant's approval, such approval shall not be unreasonably withheld, delayed or
conditioned. Lessor shall in any event provide written notice of any and all
such changes required by applicable law, whether or not Tenant's consent thereto
is required. Lessor represents and warrants that no utility easements over
abutting lands are required to bring utilities from public right of way to the
Property.
TENANT IMPROVEMENTS:
4. Attached hereto as Exhibit D is a copy of the Outline Specifications dated
February 3, 1997 prepared by Contractor and relating to all work other than
Lessor's Work required to be constructed or performed on the Premises necessary
to render the Premises ready for occupancy by Tenant (the "Tenant
Improvements"). Attached hereto as Exhibit D-1 is a description of plans and
specifications which have been approved by Lessor and Tenant for the Tenant
Improvements (the "Tenant Improvement Plans"). Any material changes in the
Tenant's Improvement Plans shall require the prior written approval of Tenant
and Lessor. Lessor's Work and the Tenant Improvements shall be performed in a
good and workmanlike manner, using new, first class materials, and in compliance
with all applicable laws and regulations of the federal, state and municipal
governments, or any department of division thereof.
Lessor shall complete Lessor's Work and the Tenant Improvements (collectively,
the "Project"), along with all driveways, parking areas and other improvements
to the Property described and depicted on Exhibit B hereto and deliver the same,
in operational and broom clean condition, along with a temporary certificate of
occupancy to Tenant that permits Tenant's manufacturing operations, on or before
August 1, 1997 (the "Target Date"), subject to "Force Majeure", as defined in
Section 38 hereof. Upon completion of Lessor's Work and the Tenant Improvements,
the Premises shall be in conformance with all applicable ordinances, statutes,
regulations and other laws. Lessor shall provide to Tenant periodic written
reports of the status of completion of Lessor's Work and Tenant Improvements and
updates on the projected Target Date, given not less frequently than once per
month.
In the event that Lessor shall fail to complete the Project and deliver the same
to the Tenant as required hereunder as of December 1, 1997, the Tenant shall be
entitled to a credit of one (1) day of free Base Rent, allocable at the
beginning of the Lease Term, for each day beyond December 1, 1997 until the
Project is delivered to Tenant as required under this Section 4,
4
excluding any days of delay either (i) due to Force Majeure, and (ii) caused by
Tenant, its agents, employees and contractors, subject to a maximum of one full
month of free Base Rent.
Notwithstanding anything contained herein to the contrary, in the event that,
for reasons other than Force Majeure, or delays caused by Tenant, its agents,
employees and contractors, Lessor fails to complete the Project and deliver the
same to the Tenant as required hereunder on or before March 31, 1998, Tenant
shall be entitled to terminate this Lease by written notice to the Lessor given
prior to February 1, 1998. Such termination shall be effective if Lessor falls
to deliver to Tenant prior to March 31, 1998 at least a temporary certificate of
occupancy which permits manufacturing operations at and from the Premises. If
Lessor falls to do so, this Lease shall be terminated and neither party shall
have further liability to the other hereunder. Without limiting the generality
of the foregoing, upon such termination Lessor shall have no obligation to
return or repay to Tenant any previously paid installments of Tenant's TI
Contribution.
Lessor shall assign to Tenant all guarantees and warranties in connection with
Lessor's Work and Tenant Improvements, including without limitation a one (1)
year warranty of Lessor's Work and the Tenant Improvements from Contractor, to
the extent such guarantees and warranties relate to portions of the Property
which are required to be maintained and repaired by Tenant herein. Attached
hereto as Exhibit E is a list of all warranties which Lessor shall require in
connection with the Project. Lessor shall use reasonable efforts to obtain all
applicable warranties from contractors performing work under the Tenant
Improvement Plans. Tenant acknowledges that, subject to Lessor's repair and
maintenance obligations set forth herein, Lessor makes no warranties to Tenant
of any nature whatsoever hereunder with respect to the Premises. Lessor agrees
to cooperate reasonably with Tenant in assigning any claims Lessor may have
against Lessor's Architect or the Contractor as to any negligence or willful
misconduct of such parties to the extent Tenant is damaged thereby.
Upon any dispute between Tenant and Lessor with respect to the completion of
Lessor's Work, and/or the Tenant Improvements or the compliance thereof with
applicable laws and with Exhibits C-1 and D-1 as the same may be amended by
written agreement of Lessor and Tenant, such dispute shall be submitted to
Genesis Architecture ("Lessor's Architect") and The Tegra Group ("Tenant's
Architect") for their joint decision, which joint decision shall be final and
binding on both Lessor and Tenant. If any such dispute shall not be resolved by
such architects, such dispute shall be submitted to arbitration, to be conducted
by and in accordance with the rules of the American Arbitration Association.
Lessor's Work and the Tenant Improvements shall be completed by Contractor.
Based on the approved Tenant Improvement Plans, the total cost of constructing
the Tenant Improvements is Two Million Seven Hundred Thousand Seven Hundred
Forty Seven Hundred Forty and 00/100 Dollars ($2,700,740.00), of which Lessor
agrees to pay the sum of One Million Fifteen Thousand Seven Hundred Forty and
00/100 Dollars ($1,015,740.00). The balance of the cost of constructing the
Tenant Improvements of One Million Six Hundred Eighty-Five Thousand and 00/100
Dollars ($1,685,000.00) shall be paid by Tenant ("Tenant's TI Contribution") in
accordance with the following schedule:
5
(i) The sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) shall be paid on May 31, 1997;
(ii) The additional sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) shall be paid on June 30, 1997;
(iii) The additional sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) shall be paid on July 31, 1997; and
(iv) The balance shall be paid within five (5) days after delivery to
Tenant of at least a temporary certificate of occupancy which
permits manufacturing operations at and from the Premises.
Each payment required above shall be conditioned upon receipt from Lessor's
Architect of written certification that the Lessor has theretofore incurred
costs for the Tenant Improvements in an amount equal to 1.6 (i.e., $2,700,740
divided by $1,685,000) times the amount of the payment then due from Tenant plus
all previous payments made to Lessor as part of Tenant's TI Contribution, and
approval of such certification from Tenant's Architect, which approval shall not
be unreasonably withheld, delayed or conditioned.
Lessor shall consider in good faith any change orders requested by Tenant in
writing, whether to Lessor's Work or the Tenant Improvements, so long as (i)
Tenant pays to Lessor in cash any extra design or construction cost arising
therefrom and (ii) either Lessor determines that such change orders shall not
delay completion of Lessor's Work or the Tenant Improvements or Tenant consents
in writing to delays caused thereby.
In order to secure the payment of Tenant's TI Contribution, Tenant agrees,
within thirty (30) days of the date hereof, to provide to Lessor an irrevocable
letter of credit in the amount of $1,700,000 from a recognized lending
institution, and on terms, acceptable to Lessor in its reasonable discretion.
BASE RENT:
5. Tenant agrees to pay to Lessor, at the address stated in Section 7 below, or
otherwise as requested by Lessor in writing, as base rent ("Base Rent"),
exclusive of any other charge provided for in this Lease to be paid by Tenant,
the following sums for the following periods. Base Rent shall be payable in
equal monthly installments, in advance, commencing on the Commencement Date and
continuing on the first day of each subsequent month during the Lease Term. In
the event the Commencement Date occurs on a day other than the first day of a
month, or terminates on a day other than the last day of a month, the rent
payable during such first or last month shall be adjusted on a pro rata basis.
Monthly
Applicable Period Base Rent
----------------- ---------
(a) From Commencement Date through $63,633.90
last day of fifth Lease Year
6
(b) From first day of sixth Lease Year $70,190.12
through last day of tenth Lease Year
It is expressly agreed and understood that the full amount of the Base Rent
pursuant to this Section 5 hereof shall be absolutely payable to Lessor by
Tenant at the time and in the manner specified herein without any set off,
deduction, or abatement of any nature whatsoever except as otherwise expressly
set forth in this Lease, without regard to whether Tenant occupies the Premises
during all or any part of the Lease Term.
ADDITIONAL RENT:
6. Tenant shall pay to Lessor throughout the term of this Lease the
following:
(a) Tenant shall pay a sum equal to one hundred percent (100%) of the Real
Estate taxes. The term "Real Estate Taxes" shall mean all real estate
taxes, all assessments and any taxes in lieu thereof which may be levied
upon or assessed against the Property and all Improvements thereon.
Tenant, in addition to all other payments to Lessor by Tenant required
hereunder shall pay to Lessor, in each year during the term of this Lease
and any extension or renewal thereof, such real estate taxes and
assessments which are payable in such year, in the manner and at the times
set forth below. Lessor agrees that all special assessments shall be
amortized over the longest period allowed by law. There are no special
assessments levied or pending with respect to the Property as of the date
hereof. The Property constitutes a separate tax parcel and is not taxed
together with other land of the Lessor.
Any tax year commencing during any Lease Year shall be deemed to
correspond to such Lease Year. In the event the taxing authorities include
in such real estate taxes and assessments the value of any improvements
(excluding Tenant Improvements) made by Tenant, or of machinery,
equipment, fixtures, inventory or other personal property or assets of
Tenant, and indicate the same in writing, then Tenant shall pay all the
taxes attributable to such items in addition to its proportionate share of
said aforementioned real estate taxes and assessments. A photostatic copy
of the tax statement submitted by Lessor to Tenant shall be sufficient
evidence of the amount of taxes and assessments assessed or levied against
the Property of which the Premises are a part. Lessor shall have the
right, but not the obligation, to contest the amount or validity, or
otherwise seek a reduction or abatement, of any Real Estate Taxes or a
reduction in the assessed valuation of the Property. Any savings or
rebates received by or awarded to Lessor in any such proceedings, net of
appraiser fees, attorneys' fees and other costs and expenses incurred by
Lessor in connection therewith (all of which shall be reimbursed to Lessor
out of such savings or award, or, if such award relates to future Real
Estate Taxes, in conjunction with and at the time of payment of the next
due installment thereof) shall inure to the benefit of Tenant.
Tenant shall have the right, at Tenant's sole expense, to contest the
amount or validity, or otherwise seek a reduction or abatement, of any
real estate taxes or a reduction in
7
the assessed valuation of the Property, by appropriate proceedings
diligently conducted in good faith, provided that Tenant shall first have
notified Lessor of its intention to do so and Lessor shall have failed to
notify Tenant, within fifteen (15) days of receipt of such notice that
Lessor intends to contest the same in its own name. If Tenant proceeds
with any such contest, Lessor shall cooperate in good faith therewith and
execute any reasonable documents necessary to enable Tenant to pursue such
contest. Any such contest, whether by Lessor or Tenant, shall not delay or
defer Tenant's obligation to timely reimburse Lessor for payment of each
installment of real estate taxes.
(b) A sum equal to one hundred percent (100%) of the annual aggregate
"Operating Expenses" reasonably and in good faith incurred by Lessor in
the operation, maintenance and repair of the Property. The term "Operating
Expenses" shall be limited to those items and categories of expenses
listed on Exhibit G.
(c) The payment of the sums set forth in this Section 6 shall be in
addition to the Base Rent payable pursuant to Section 5 of this Lease. The
sums due under this Section 6, along with all other amounts to be paid by
Tenant to Lessor hereunder other than Base Rent shall hereinafter be
referred to as "Additional Rent." All sums due pursuant to Exhibit G shall
be due and payable within thirty (30) days of delivery of written
certification by Lessor setting forth the computation of the amount due
from Tenant and including all reasonable detail, invoices, paid receipts
and other backup documentation. If Tenant disputes in good faith its
obligation to pay any such Operating Expense billed by Lessor, Tenant
shall notify the Lessor in writing, stating the basis for such dispute and
such dispute shall be timely submitted to binding arbitration to be
conducted by and in accordance with the Rules of The American Arbitration
Association. Tenant shall not be deemed in default hereunder for failure
to pay the disputed portion of any item of Operating Expense until the
dispute is resolved. In the event the Lease Term shall begin or expire at
any time during the calendar year, the Tenant shall be responsible for his
pro-rata share of Additional Rent under subdivisions a. and b. during the
Lease and/or occupancy time.
Prior to commencement of this Lease and prior to the commencement of each
calendar year thereafter commencing during the term of this Lease or any
renewal or extension thereof, Lessor may estimate for each calendar year
(i) the total amount of Real Estate Taxes; and (ii) the total amount of
Operating Expenses. Said estimates will be in writing and will be
delivered or mailed to Tenant.
The amount of Real Estate Taxes and Operating Expenses payable during each
calendar year, so estimated, shall be payable as Additional Rent, in equal
monthly installments, in advance, on the first day of each month during
such calendar year at the option of Lessor. In the event that such
estimate is delivered to Tenant before the first day of January of such
calendar year, said amount, so estimated, shall be payable as Additional
Rent in equal monthly installments, in advance on the first day of each
month during such calendar year. In the event that such estimate is
delivered to Tenant after the first day of January of such calendar year,
said amount, so estimated, shall be payable as Additional Rent in equal
monthly installments, in advance, on the first day
8
of each month over the balance of such calendar year, with the number of
installments being equal to the number of full calendar months remaining
in such calendar year.
Upon completion of each calendar year during the term of this Lease or any
renewal or extension thereof, Lessor shall cause its property manager to
determine the actual amount of the Real Estate Taxes, and Operating
Expenses payable in such calendar year and deliver a written certification
of the amounts thereof to Tenant. If Tenant has underpaid Real Estate
Taxes or Operating Expenses for such calendar year, Tenant shall pay the
balance due within twenty (20) days after the receipt of such statement.
If Tenant has overpaid Real Estate Taxes or Operating Expenses for such
calendar year, Lessor shall credit such excess against the most current
monthly installment or installments due Lessor for its estimate of Real
Estate Taxes and Operating Expenses for the next following calendar year.
A pro rata adjustment shall be made for a fractional calendar year
occurring during the term of this Lease or any renewal or extension
thereof based upon the number of days of the term of the Lease during said
calendar year as compared to three hundred sixty-five (365) days and all
additional sums payable by Tenant or credits due Tenant as a result of the
provisions of this Section 6 shall be adjusted accordingly.
Tenant shall have the right, during reasonable business hours and upon
five (5) days prior notice to Lessor, to inspect all of Lessor's books and
records with respect to Operating Expenses for the Property, which
inspection shall be held at the office of Lessor's property manager. If
any such inspection discloses that the amount paid by Tenant in any
calendar year was overstated, Lessor shall refund such excess amounts to
Tenant within ten (10) days after receipt of Tenant's demand therefor,
unless Lessor shall, within said ten (10) day period, notify that Lessor
disputes the correctness of such inspection. In the event that Lessor
questions or disputes the correctness of such inspection, the accountant
employed by Tenant and Lessor's property manager shall endeavor to
reconcile the question or dispute within thirty (30) days thereafter. If
such parties are unable to resolve such dispute or question within said
thirty (30) day period, then either party shall be free to submit the
matter to a court of competent jurisdiction.
COVENANT TO PAY RENT:
7. Except as otherwise expressly set forth in Section 35 hereof, the covenants
of Tenant to pay the Base Rent and the Additional Rent are each independent of
any other covenant, condition, provision or agreement contained in this Lease.
All rents are payable to Lessor at:
AmberJack, Ltd.
c/o Welsh Companies, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
or at such other address of which Lessor shall notify Tenant in writing.
9
UTILITIES:
8. Tenant shall pay, when due, all charges for sewer usage or rental, garbage
disposal, refuse removal, water, electricity, gas, fuel oil, L.P. gas, telephone
and/or other utility services or energy source furnished to the Premises during
the term of this Lease, or any renewal or extension thereof. If Lessor elects to
furnish any of the foregoing utility services or other services furnished or
caused to be furnished to Tenant, then the rate charged by Lessor shall not
exceed the rate Tenant would be required to pay to a utility company or service
company furnishing any of the foregoing utilities or services. The charges
thereof shall be deemed Additional Rent in accordance with Section 6.
CARE AND REPAIR OF PROPERTY:
9. (a) Tenant shall, at all times throughout the term of this Lease,
including renewals and extensions, and at its sole expense, keep and
maintain the Premises in a clean, safe, sanitary and good condition,
reasonable wear and tear (as defined in Section 30 hereof) and damage by
fire or other casualty against which Lessor is required to insure
hereunder or taking by eminent domain excepted, and in compliance with all
applicable laws, codes, ordinances, rules and regulations. Tenant's
obligations hereunder shall include but not be limited to the maintenance,
repair and replacement (subject to the provisions of subsection 9(b) of
this Lease relating to Lessor's obligation with respect to certain
replacements), if necessary, of heating, air conditioning fixtures,
equipment, and systems, all lighting and plumbing fixtures and equipment,
fixtures, motors and machinery, all interior walls, partitions, doors and
windows, including the regular painting thereof, all exterior entrances,
windows, doors and docks and the replacement of all broken glass (except
in the case of gross negligence or willful misconduct by Lessor, its
agents, servants and contractors). Tenant shall obtain and maintain during
the term of the Lease a maintenance contract with a reputable HVAC
contractor acceptable to the Lessor in its reasonable discretion for the
servicing, maintenance and repair of the heating, ventilation and air
conditioning system serving the Premises (the "HVAC System") and shall
provide a copy of such contract to Lessor for its approval. Tenant shall
cause all regularly scheduled servicing and maintenance of the HVAC System
thereunder to be performed in a timely manner and shall, upon request,
provide evidence thereof to the Lessor. Tenant shall keep and maintain the
HVAC System in good condition and repair throughout the term of the Lease,
including without limitation all repairs to and replacements thereof as
necessary. When used in this provision, the term "repairs" shall include
replacements or renewals when necessary, and all such repairs made by the
Tenant shall be equal in quality and class to the original work. Tenant
shall also repair, at its expense, any damage to the Property or the
Premises caused by the negligence or willful act of Tenant, its agents,
employees, contractors or licensees. Notwithstanding anything in the
foregoing to the contrary, Tenant's obligations under this Section 9(a)
shall exclude any repairs or replacements which are Lessor's express
responsibility under this Lease.
If Tenant fails, refuses or neglects to maintain or repair the Premises as
required in this Lease after notice shall have been given Tenant, in
accordance with Section 33 of this
10
Lease, not less than fifteen (15) days in advance (except in the care of a
bona fide emergency, in which case no such notice is necessary) Lessor may
make such repairs without liability to Tenant for any loss or damage that
may accrue to Tenant's merchandise, fixtures or other property or to
Tenant's business by reason thereof (except in the case of negligence or
willful misconduct by Lessor, it agents, servants and contractors) and
upon completion thereof, Tenant shall pay to Lessor all costs plus 15 %
for overhead incurred by Lessor in making such repairs upon presentation
to Tenant of a xxxx therefor. Notwithstanding the foregoing, the Lessor
shall endeavor in good faith to minimize any interference with the conduct
of Tenant's business at and from the Premises when making any such
repairs.
(b) Lessor shall repair, at its sole expense (and without reimbursement
from Tenant as Operating Expenses), the structural portions of the
Premises and all utility lines serving the Premises up to the exterior
walls thereof, provided however where structural repairs or repairs to
utility lines are required to be made by reason of the negligence or
wrongful acts of Tenant, its agents, employees, contractors, invitees or
visitors, the costs thereof shall be borne by Tenant and payable by Tenant
to Lessor upon demand. Lessor shall also, at its expense, when necessary
replace theroof on the Premises; provided, however, that the cost of
repairs (as opposed to replacement) to the roof, to the extent not covered
by any roof warranty or guaranty, shall constitute Operating Expenses. The
Lessor shall also maintain and repair as necessary, subject to
reimbursement thereof from Tenant as Operating Expenses, the parking and
driveway areas of the Property and all landscaped areas on the Property.
Lessor shall also, at its expense (and without reimbursement from Tenant),
repair in a good and workmanlike manner all damage to the Property caused
by the negligence or wrongful act of Lessor, its agents, employees,
contractors or licensees.
All maintenance which is the responsibility of the Lessor shall be
provided promptly and diligently, upon the condition that the Lessor shall
not be liable for damages for failure to do so due to causes beyond its
control.
Notwithstanding the foregoing to the contrary, the Tenant shall not be
responsible for any maintenance or repairs which are (i) covered by any
warranties or guarantees running in favor of Lessor which are not assigned
to Tenant hereunder, or (ii) required as a result of any negligence or
wrongful acts or omissions of Lessor, it being agreed that Lessor shall be
responsible at its sole cost for the items set forth in subsections
(i)-(ii) above.
(c) All capital improvements which are required to be made after the date
of this Lease to the Premises in order to comply with any governmental law
or regulation in force as of the Commencement Date shall be borne by
Lessor.
(d) Any and all capital improvements to be made to the Premises from and
after the date hereof by virtue of the specific use and activity being
conducted thereon by Tenant (as opposed to general use of similar
commercial real estate) shall be borne exclusively by Tenant.
11
(e) Any and all other capital improvements required to be made to the
Premises from and after the date hereof that are required under any
governmental statute, ordinance, rule, regulation and other law which was
not applicable to the Premises at the time it was constructed, shall be in
the first instance performed by Lessor, subject to the terms set forth
below. Upon completion of such capital improvements, Tenant shall
reimburse Lessor for a portion of the cost of any such capital improvement
based upon a fraction, the numerator of which is the number of full
calendar months remaining in the then current term of the Lease and the
denominator of which is the number of months in the reasonably useful life
of such capital improvement. Upon exercise of any Renewal Option, Tenant
shall pay to Lessor an additional portion of the cost of any such capital
improvement based upon the number of calendar months in said renewal term.
SIGNS:
10. Any sign, lettering, picture, notice or advertisement installed on or in any
part of the Property and visible from the exterior of the Premises, shall be
approved (which approval shall not be unreasonably withheld, delayed or
conditioned) and installed by Lessor at Tenant's reasonable expense. In the
event of a violation of the foregoing by Tenant, Lessor may, if Tenant does not
remedy such violation within fifteen (15) days after written notice from Lessor,
remove the same without any liability and may charge the reasonable expense
incurred by such removal to Tenant. Attached hereto and incorporated herein as
Exhibit F is a copy of Tenant's initial sign proposal and criteria, which Lessor
hereby approves.
ALTERATIONS, INSTALLATION, FIXTURES:
11. Except for those repair and maintenance obligations set forth elsewhere in
this Lease, Tenant shall not make any exterior or structural alterations in any
portion of the Premises, without, in each instance, first obtaining the written
consent of Lessor. Lessor shall not unreasonably withhold, delay or condition
such consent so long as Tenant provides to Lessor in advance a surety bond or
other adequate security for the payment of all costs to be incurred in
connection with such alterations and so long as the proposed alterations in
Lessor's reasonable judgment (i) will not in any way impair or otherwise alter
the structural integrity of the Premises; (ii) will not adversely affect any
utility lines, pipes or equipment lying outside of the exterior walls of the
Premises; (iii) will not in any way decrease the fair market value of the
Property and (iv) will not involve any change in use of the Property. Tenant
shall be permitted to (i) repaint the interior of the Premises, replace any
carpeting or wall covering in the Premises, all without regard to cost, or (ii)
make other interior non-structural alterations and improvements without Lessor's
prior consent, provided, however, that in any event, Tenant shall give to Lessor
prior written notice of, and plans relating to, any such alteration or
improvements. Within fifteen (15) days after receipt of any such plans and
specifications, Lessor shall notify Tenant in writing as to whether Lessor
expects Tenant to remove the proposed alterations or improvements at the
expiration of the Lease Term and restore the Premises to their prior condition.
In connection with any alterations, Tenant shall provide lien waivers, evidence
of appropriate insurance and sworn construction statements if such items are
12
reasonably requested by Lessor or its lender. Without cost or expense to Lessor,
Lessor shall cooperate with Tenant in the obtaining of any and all licenses,
building permits, certificates of occupancy or other governmental approvals
which may be required in connection with any such alterations, and Lessor shall
execute, acknowledge and deliver any documents reasonably required in
furtherance of such purposes. In the event alterations are required by any
governmental agency by reason of the specific use and occupancy of the Premises
by Tenant (i.e., as opposed to being applicable generally to similar commercial
facilities within the subject jurisdiction), Tenant shall make such alterations
at its own cost and expense after first obtaining Lessor's approval of plans and
specifications therefor. Lessor shall see to it that at the time of the delivery
of the Premises and the Property, the same will be in full compliance with the
Americans With Disabilities Act of 1990 ("ADA") or similar statutes or law and
regulations as of the Commencement Date, including, without implied limitations,
in compliance with all accessibility guidelines, to the extent that the
provisions thereof relate to similar commercial facilities generally. Subject to
the preceding sentence, thereafter, the Tenant shall be responsible for
improvements or modifications to the Premises required or necessary to comply,
as it expressly applies to Tenant, with the ADA or similar statutes or law.
POSSESSION:
12. Except as hereinafter provided, Lessor shall deliver possession of the
Premises to Tenant in the condition required by this Lease on or before the
Commencement Date. The rentals herein reserved shall commence on the
Commencement Date; provided, however, that if Tenant assumes occupancy of the
Premises prior to the Commencement Date and commences manufacturing operations
therein, the terms of such occupancy shall in all respects be the same as that
of a Tenant under this Lease, including without limitation the obligation to pay
Base Rent and Additional Rent based upon that portion of the Premises in which
Tenant has assumed occupancy and commenced manufacturing operations. Lessor
shall have no responsibility or liability for loss or damage to fixtures,
facilities or equipment installed or left on the Premises.
SECURITY AND DAMAGE DEPOSIT:
13. Tenant contemporaneously with the execution of this Lease, has deposited
with Lessor the sum of Seventy-Four Thousand Eight Hundred Eighteen and
04/100 Dollars ($74,818.04), receipt of which is acknowledged hereby by
Lessor, which deposit is to be held by Lessor, without liability for
interest, as a security and damage deposit for the faithful performance by
Tenant during the term hereof or any extension hereof. Prior to the time
when Tenant shall be entitled to the return of this security deposit,
Lessor may co-mingle such deposit with Lessor's own funds and to use such
security deposit for such purpose as Lessor may determine. Notwithstanding
the foregoing to the contrary, in the event Lessor transfers title to the
Property to a party with a tangible net worth of less than Five Million
and 00/100 Dollars ($5,000,000.00), Lessor shall require such transferee
to segregate the security deposit in a separate account and agree in
writing not to co-mingle said security deposit with such transferee's own
funds. In the event Lessor transfers title to the Property to a party with
a tangible net worth of Five Million and 00/100 Dollars ($5,000,000.00)
13
and such transferee wishes to co-mingle such deposit with its own funds,
such transferee shall, as a condition thereto, provide to Tenant such
transferee's most recent financial statement, which shall have at least
been reviewed by independent certified public accountants, in order to
substantiate such transferee's then current tangible net worth. Any such
writing shall name Tenant and its assigns as third party beneficiaries.
Lessor shall provide to Tenant an executed original of any such writing.
In the event of the failure of Tenant to keep and perform any of the
terms, covenants and conditions of this Lease to be kept and performed by
Tenant during the term hereof or any extension hereof, then Lessor either
with or without terminating this Lease, may (but shall not be required to)
apply such portion of said deposit as may be necessary to compensate or
repay Lessor for all losses or damages sustained or to be sustained by
Lessor due to such breach on the part of Tenant, including, but not
limited to overdue and unpaid rent, any other sum payable by Tenant to
Lessor pursuant to the provisions of this Lease, damages or deficiencies
in the reletting of Premises, and reasonable attorney's fees incurred by
Lessor. Should the entire deposit or any portion thereof, be appropriated
and applied by Lessor, in accordance with the provisions of this
paragraph, Tenant upon written demand by Lessor, shall remit forthwith to
Lessor a sufficient amount of cash to restore said security deposit to the
original sum deposited, and Tenant's failure to do so within five (5) days
after receipt of such demand shall constitute a breach of this Lease. Said
security deposit shall be returned to Tenant, less any depletion thereof
as the result of the provisions of this paragraph, at the end of the term
of this Lease or any renewal thereof, or upon the earlier termination of
this Lease. Tenant shall have no right to anticipate return of said
deposit by withholding any amount required to be paid pursuant to the
provision of this Lease or otherwise.
In the event Lessor shall sell the Property, or shall otherwise convey or
dispose of its interest in this Lease, Lessor may assign said security deposit
or any balance thereof to Lessor's assignee, whereupon Lessor shall be released
from all liability for the return or repayment of such security deposit and
Tenant shall look solely to the said assignee for the return and repayment of
said security deposit. Said security deposit shall not be collaterally assigned
or encumbered by Tenant without the written consent of Lessor, and any
assignment or encumbrance without such consent shall not bind Lessor. In the
event of any rightful and permitted assignment of this Lease by Tenant, said
security deposit shall be deemed to be held by Lessor as a deposit made by the
assignee, and Lessor shall have no further liability with respect to the return
of said security deposit to the Tenant.
USE:
14. The Premises shall be used and occupied by Tenant for office and warehouse
purposes and for light manufacturing for assembly and storage of electronic
components and related uses, so long as such use is permissible under all
applicable laws, ordinances and governmental regulations affecting the Property.
The Premises shall not be used in such manner that, in accordance with any
requirement of law or of any public authority, Lessor shall be obliged on
account of the purpose or manner of said use to make any addition or alteration
to or in the Premises. Tenant shall occupy the Premises, conduct its business
and control its agents, employees, contractors, invitees and visitors in such a
way as is lawful and will not permit or create any nuisance, unreasonable noise
or odor, or otherwise interfere with or disturb any
14
other tenant or occupant of any adjacent property in its normal business
operations. Tenant's use of the Premises shall conform to all reasonable rules
and regulations relating to the use of the Property, as may be adopted from time
to time, which, in any event, shall be uniformly applicable to and enforced
against the tenants of any other adjacent or contiguous property owned by
Lessor. To the extent the same is done in a manner consistent with all
applicable laws, ordinances and governmental regulations, Lessor consents to
Tenant's storage on the Property outside of the Premises of loaded and unloaded
trailers and nitrogen and other gas tanks; provided, however, that by so
consenting Lessor assumes no liability with respect to such stored property.
Tenant acknowledges that the site plan attached hereto as Exhibit B, which site
plan has been approved by Tenant, includes not more than 411 parking spaces on
the Property.
ACCESS TO PREMISES:
15. The Tenant agrees to permit the Lessor and the authorized representatives of
the Lessor to enter the Premises, upon reasonable advance notice (other than in
the case of a bona fide emergency in which case Lessor shall be required to give
only such notice, telephonic or otherwise, as is practicable and reasonable
under the circumstances) at all times during usual business hours for the
purpose of inspecting the same and making any necessary repairs to the Premises
and performing any work therein that may be necessary to comply with any laws,
ordinances, rules, regulations or requirements of any public authority or of the
Board of Fire Underwriters or any similar body or that the Lessor may reasonably
deem necessary to prevent material waste or deterioration in connection with the
Premises. Nothing herein shall imply any duty upon the part of the Lessor to do
any such work which, under any provision of this Lease, the Tenant may be
required to perform and the performance thereof by the Lessor shall not
constitute a waiver of the Tenant's default in failing to perform the same. The
Lessor may, during the progress of any work in the Premises, keep and store upon
the Premises all necessary materials, tools and equipment; provided, however,
that Lessor shall do so, if at all, in a manner intended to minimize, to the
extent possible, any interference with, inconvenience to or disturbance of
Tenant's business. The Lessor shall not in any event be liable for
inconvenience, annoyance, disturbance, loss of business, or other damage of the
Tenant by reason of making repairs or the performance of any work in the
Premises, or on account of bringing materials, supplies and equipment into or
through the Premises during the course thereof and the obligations of the Tenant
under this Lease shall not thereby be affected in any manner whatsoever.
Lessor reserves the right to enter upon the Premises at any time in the event of
an emergency and at reasonable hours to exhibit the Premises to prospective
purchasers or others; and to exhibit the Premises to prospective Tenants and to
the display "For Lease" or similar signs on the Property adjacent to abutting
public roadways during the last nine (9) months of the term of this Lease, all
without hindrance or molestation by Tenant.
15
EMINENT DOMAIN:
16. In the event of any eminent domain or condemnation proceeding or sale to the
condemning authority in lieu thereof in respect to the Property during the term
thereof, the following provisions shall apply:
(a) If the whole of the Property shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, then the term of
this Lease shall cease and terminate as of the date possession shall be
taken in such proceeding and all rentals shall be paid up to that date.
(b) If any part constituting less than the whole of the Property shall be
acquired or condemned as aforesaid, and in the event that such partial
taking or condemnation shall materially affect the Premises so as to
render the Premises unsuitable for the business of the Tenant, in the
commercially reasonable opinion of either Lessor or Tenant, then the term
of this Lease shall cease and terminate as of the date possession shall be
taken by the condemning authority and rent shall be paid to the date of
such termination. In the event that either Lessor or Tenant desire to
terminate this lease as aforesaid, such party shall give written notice of
termination within thirty (30) days after, as to Lessor, the effective
date of such taking or, as to Tenant, receipt of written notice of the
effective date of such taking.
In the event of a partial taking or condemnation of the Property, as a
result of which this Lease is not terminated as set forth in the preceding
paragraph, this Lease shall continue in full force and effect but with a
proportionate abatement of the Base Rent and Additional Rent based on the
portion, if any, of the Premises taken. Lessor reserves the right, at its
option, to restore the Premises to substantially the same condition as
they were prior to such condemnation. In such event, Lessor shall give
written notice to Tenant, within thirty (30) days following the date
possession shall be taken by the condemning authority, of Lessor's
intention to restore. Upon Lessor's notice of election to restore, Lessor
shall commence restoration and shall restore the Premises with reasonable
promptness, subject to delays beyond Lessor's control and delays in the
making of condemnation or sale proceeds adjustments by Lessor; and Tenant
shall have no right to terminate this Lease except as herein provided.
Upon completion of such restoration, the rent shall be adjusted based upon
the portion, if any, of the Premises restored.
(c) In the event of any condemnation or taking as aforesaid, whether whole
or partial, the Tenant shall not be entitled to any part of the award paid
for such condemnation and Lessor is to receive the full amount of such
award, the Tenant hereby expressly waiving any right to claim to any part
thereof.
(d) Although all damages in the event of any condemnation shall belong to
the Lessor whether such damages are awarded as compensation for diminution
in value of the leasehold or to the fee of the Premises, Tenant shall have
the right to claim and recover from the condemning authority, but not from
Lessor, such compensation as
16
may be separately awarded or recoverable by Tenant in Tenant's own right
on account of any and all damage to Tenant's business by reason of the
condemnation and for or on account of any cost or loss to which Tenant
might be put in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment, and for the unamortized portion of
Tenant's TI Contribution (based on full amortization thereof over a
presumed ten year lease term) and subsequent alterations or improvements
paid for by Tenant, amortized over the unexpired balance of a presumed ten
(10) year lease term. However, Tenant shall have no claim against Lessor
or make any claim with the condemning authority for the loss of its
leasehold estate, any unexpired term or loss of any possible renewal or
extension of said lease or loss of any possible value of said lease, any
unexpired term renewal or extension of said Lease.
DAMAGE OR DESTRUCTION:
17. In the event of any damage or destruction to the Premises by fire or other
cause during the term hereof, Tenant shall in any event promptly notify Lessor
thereof, and the following provisions shall apply:
(a) If the cost of restoration as reasonably estimated by Lessor will
equal or exceed seventy-five percent (75%) of said replacement cost of the
Premises, then either Lessor or Tenant may, no later than the forty-fifth
(45th) day following the damage, give the other party written notice of
election to terminate this Lease.
(b) If the cost of restoration as estimated by Lessor shall amount to less
than seventy-five percent (75%) of said replacement cost of the Premises,
or if, despite the cost, neither party elects to terminate this Lease,
Lessor shall restore the Premises, including the Tenant Improvements, but
excluding, unless Lessor otherwise consents in writing in advance, any
leasehold improvements constructed by or on behalf of Tenant after
completion of the initial construction of the Premises, and all trade
fixtures, contents and personal property of Tenant, all of which Tenant
shall separately insure, with reasonable promptness, subject to delays
beyond Lessor's control and delays in the making of insurance adjustments
by Lessor. Lessor agrees to make and pursue resolution, on commercially
reasonable terms, of any insurance claim diligently and in good faith.
(c) In the event of either of the elections to terminate, this Lease shall
be deemed to terminate on the date of the receipt of the notice of
election and all rents shall be paid up to that date. Notwithstanding
termination of the Lease, Lessor shall allow Tenant a reasonable
opportunity, not exceeding thirty (30) days from the effective date of
termination, to remove its trade fixtures and other Tenant property from
the Premises. Tenant shall have no claim against Lessor for the value of
any unexpired term of this Lease.
(d) In any case where damage to the Premises shall materially affect the
Premises so as to render them unsuitable in whole or in part for the
purposes for which they are demised hereunder, then, unless such
destruction was caused by the negligence or
17
breach of the terms of this Lease by Tenant, its agents, employees,
contractors, invitees or visitors, a portion of the Base Rent and
Additional Rent based upon the extent to which the Premises or the parking
areas on the Property are rendered unsuitable shall be abated until
repaired or restored. If the destruction or damage was caused by
negligence or breach of the terms of this Lease by Tenant as aforesaid and
if Lessor shall elect to rebuild, the rent shall not xxxxx and the Tenant
shall remain liable for the same. For purposes of this Section 17(d),
Lessor acknowledges that Lessor's property manager shall not be deemed to
be an agent, employee, contractor, invitee or visitor of Tenant.
(e) Notwithstanding the foregoing to the contrary, in the event that
Lessor has, for reasons within its reasonable control, not completed
restoration of the Premises within one hundred eighty (180) days after the
date of such damage or destruction, or, for reasons not within of Lessor's
reasonable control, including without limitation delays in the making of
insurance adjustments by Lessor, within sixteen (16) months after the date
of such damage or destruction, Tenant may terminate this Lease on sixty
(60) days advance written notice unless, within such 60 day period, Lessor
shall complete restoration or repair of the Premises, in which case this
Lease shall not be terminated.
CASUALTY INSURANCE:
18. (a) Lessor shall at all times during the term of this Lease, at its
expense, maintain at commercially reasonable cost a so-called "all risk"
policy or policies of insurance with premiums paid in advance issued by an
insurance company licensed to do business in the State of Minnesota
insuring the Premises, including without limitation all Tenant
Improvements but excluding, unless Lessor otherwise consents in writing,
any leasehold improvements constructed by or on behalf of Tenant after the
completion of initial construction of the Premises, in an amount equal to
its full insurable value on a full replacement cost basis against loss or
damage by fire, explosion or other insurance hazards and contingencies,
provided that Lessor shall not be obligated to insure any furniture, trade
fixtures, equipment, machinery, goods or supplies not covered by this
Lease which Tenant may bring upon the Premises.
(b) Tenant shall not carry any stock of goods or do anything in or about
the Premises which will in any way impair or invalidate the obligation of
the insurer under any policy of insurance required by this Lease;
provided, however, that Tenant in lieu of removing such goods or ceasing
such activities provide to Lessor a substitute insurance policy acceptable
to Lessor in its reasonable discretion.
(c) Lessor hereby waives and releases all claims, liability and causes of
action against Tenant and its agents, servants and employees for loss or
damage to, or destruction of, the Property or any portion thereof,
including the buildings and other improvements situated thereon, resulting
from fire, explosion and other perils included in standard "all risk"
insurance, whether caused by the negligence of any of said persons or
otherwise. Likewise, Tenant hereby waives and releases all claims,
liabilities and causes of action against Lessor and its agents, servants
and employees for
18
loss or damage to, or destruction of, any of the improvements, fixtures,
equipment, supplies, merchandise and other property, whether that of
Tenant or of others in, upon or about the Property resulting from fire,
explosion or the other perils included in standard extended coverage
insurance, whether caused by the negligence of any of said persons or
otherwise. The waiver shall remain in force whether or not the Tenant's
insurer shall consent thereto.
(d) If Tenant installs any electrical equipment that overloads the power
lines to the building or its wiring, Tenant shall, at its own expense,
make whatever changes are necessary to comply with the requirements of the
insurance underwriter, insurance rating bureau and governmental
authorities having jurisdiction.
PUBLIC LIABILITY INSURANCE:
19. Tenant shall during the term hereof, keep in full force and effect at its
expense a policy or policies of public liability insurance with respect to the
Property, including the Premises and the business of Tenant, on terms with
companies approved in writing by Lessor, which approval shall not be
unreasonably withheld, delayed or conditioned, in which both Tenant and Lessor
shall be covered by being named as insured parties under reasonable limits of
liability not less than $2,000,000 in the aggregate. Such policy or policies
shall provide that thirty (30) days written notice must be given to Lessor prior
to cancellation thereof. Tenant shall furnish evidence satisfactory to Lessor at
the time this Lease is executed that such coverage is in full force and effect.
Lessor may, at its option, maintain additional or supplemental public liability
insurance in its own name with respect to the Property, and the reasonable cost
thereof shall be reimbursed to Lessor by Tenant as Operating Expenses.
DEFAULT OF TENANT:
20. (a) For purposes of this Lease, any of the following shall constitute a
"Tenant Default": (i) any failure of Tenant to pay any Base Rent or any
installment of Tenant's TI Contribution due hereunder within ten (10) days
after written notice of default (provided, however, that if Lessor shall
give three such notices in any twelve month period, no notice of any
further default shall be required during the balance of the twelve month
period commencing the first date of such notice); or (ii) any failure of
Tenant to pay any Additional Rent which is not being contested in good
faith pursuant to the provisions of Section 6(c) hereof within ten (10)
days after written notice of default; or (iii) any failure of Tenant to
perform any other of the terms, conditions or covenants of this Lease to
be observed or performed by Tenant for more than thirty (30) days after
written notice of such failure shall have been given to Tenant; provided,
however, that if such default cannot with due diligence be wholly cured
within such thirty (30) days, Tenant shall have such longer period as may
be reasonably necessary to cure the default, so long as Lessor proceeds
promptly to commence the cure of same within such thirty (30) day period
and diligently prosecutes the cure to completion, or (iv) if Tenant or any
guarantor of this Lease shall file or have filed against it any petition
or claim for relief under any federal or state law relating to bankruptcy
or insolvency or for reorganization or for the appointment of a receiver
or trustee of all or
19
a portion of Tenant's or any such guarantor's property (and, as to
involuntary proceedings only, such petition or claim is not dismissed in
one hundred twenty (120) days), or (v) if Tenant or any such guarantor
makes an assignment for the benefit of creditors, or petitions for or
enters into an arrangement, or if Tenant shall abandon the Premises or
suffer this Lease to be taken under any writ of execution or (vi)
Manufacturer's Services Ltd., a Delaware corporation ("Guarantor") shall
otherwise be in default in the performance of any covenant or agreement
under the Lease Guaranty of even date herewith signed by Guarantor in
favor of Lessor (the "Lease Guaranty") and such default shall continue for
a period of thirty (30) days after written notice thereof shall have been
given to Tenant. Upon the occurrence of a Tenant Default, then Lessor, in
addition to its rights of remedies it may have, shall have, with judicial
process, the immediate right of re-entry and may remove all persons and
property from the Premises and such property may be removed and stored in
a public warehouse or elsewhere at the cost of, and for the account of
Tenant, all without being guilty of trespass or becoming liable for any
loss or damage which may be occasioned thereby. Notwithstanding the
foregoing to the contrary, no further notices of default under subsections
(i) and (ii) above shall be required hereunder this Section 20(a) if
Tenant willfully and persistently fails to pay Base Rent hereunder in such
a manner that a reasonable person would conclude that Tenant is not
performing its payment obligations hereunder in good faith and in a timely
manner.
(b) Should Lessor elect to re-enter the Premises as herein provided, or
should it take possession of the Premises pursuant to legal proceedings,
it may either terminate this Lease or it may from time to time, without
terminating this Lease, make such alterations and repairs as may be
necessary in order to relet the Premises, and relet the Premises or any
part thereof upon such term or terms (which may be for a term extending
beyond the term of this lease) and at such rental or rentals and upon such
other terms and conditions as Lessor in its sole discretion may deem
advisable. Lessor shall make reasonable efforts to mitigate damages but
shall under no circumstances be obligated to prefer the Property in its
marketing and leasing efforts over other available property owned,
operated or managed, in whole or in part, by Lessor. Upon each such
reletting all rentals received by the Lessor from such reletting shall be
applied first to the payment of any indebtedness other than rent due
hereunder from Tenant to Lessor; second, to the payment of any costs and
expenses of such reletting, including brokerage fees (prorated based on a
fraction, the numerator of which is the number of days remaining in the
then current Lease term hereunder and the denominator of which is the
number of days in the initial lease term for the substitute tenant) and
attorney's fees and a portion of the cost of such alterations and repairs,
prorated based on a fraction calculated as set forth immediately above;
third, to the payment of the rent due and unpaid 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 that to be paid during
that month by Tenant hereunder, Tenant, upon demand, shall pay any such
deficiency to Lessor. No such re-entry or taking possession of the
Premises by Lessor shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without
20
termination, Lessor may at any time after such re-entry and reletting
elect to terminate this Lease for any such breach, in addition to any
other remedies it may have, it may recover from Tenant all damages it may
incur by reason of such breach, including the cost of recovering the
Premises, reasonable attorney's fees, and including the worth at the time
of such termination of the excess, if any, of the amount of rent and
charges equivalent to rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Premises for the
remainder of the stated term, all of which amounts shall be immediately
due and payable from Tenant to Lessor. In the event of termination of this
Lease after a Tenant Default, Lessor shall under no circumstances be
obligated to return or repay to Tenant any previously paid installments of
Tenant's TI Contribution.
(c) In the event suit shall be brought for recovery of possession of the
Premises, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant
herein contained on the part of Tenant to be kept or performed, and a
breach shall be established, Tenant shall pay to Lessor all reasonable
expenses incurred therefor, including a reasonable attorney's fee,
together with interest on all such expenses at the rate of four percent
(4%) per annum in excess of the "base" or "prime" rate of interest (or
equivalent successor rate) as may be set or announced by Norwest Bank
Minnesota, National Association, Minneapolis, Minnesota, as the same
changes from time to time (the "Default Rate"), from the date of such
breach of the covenants of this Lease.
(d) Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Lessor
obtaining possession of the Premises, by reason of the violation by Tenant
of any of the covenants or conditions of this Lease, or otherwise. Tenant
also waives any demand for possession of the Premises, and any demand for
payment of rent and any notice of intent to re-enter the Premises, or of
intent to terminate this Lease, other than the notices above provided in
this section, and waives any and every other notice or demand prescribed
by any applicable statutes or laws.
(e) No remedy herein or elsewhere in this Lease or otherwise by law,
statute or equity, conferred upon or reserved to Lessor or Tenant shall be
exclusive of any other remedy, but shall be cumulative, and may be
exercised from time to time and as often as the occasion may arise.
COVENANTS TO HOLD HARMLESS:
21. Except in case of fire or other casualty against which Lessor is required to
insure hereunder, or damage or loss caused by the exercise of eminent domain,
unless the liability for damage or loss is caused by the negligence of Lessor,
its agents, contractors or employees or is due to Lessor's default in the
performance of any of its obligations, duties, covenants, representations or
warranties hereunder, Tenant shall hold harmless Lessor from any liability for
damages to any person or property in or upon the Premises and the Property,
including the
21
person and the property of Tenant and its employees and all persons in the
Premises at its or their invitation or sufferance, and from all damages
resulting from Tenant's failure to perform the covenants of this Lease. In the
event of any claim or assertion of liability against Lessor in any manner
covered by Tenant's indemnification obligation set forth in the foregoing
sentence, Tenant may contest such claim or assertion of liability so long as it
proceeds diligently and in good faith with respect thereto and, in connection
therewith, shall employ competent counsel acceptable to Lessor (the approval of
which shall not be unreasonably withheld, delayed or conditioned). Lessor agrees
to give prompt notice to Tenant of any such claim or assertion of liability. If
Tenant so engages counsel acceptable to Lessor as aforesaid, Tenant's indemnity
hereunder shall not include reimbursement to Lessor of any separate fees for
Lessor's independent legal counsel. All property kept, maintained or stored on
the Premises shall be so kept, maintained or stored at the sole risk of Tenant.
Tenant agrees to pay all sums of money in respect of any labor, service,
materials, supplies or equipment furnished or alleged to have been furnished to
Tenant in or about the Property, and not furnished on order of Lessor, which may
be secured by any Mechanic's, Materialmen's or other lien to be discharged at
the time performance of any obligation secured thereby matures, provided that
Tenant may contest such lien so long as (i) Tenant proceeds with such contest
diligently and in good faith, and (ii) Tenant provides to the Lessor a surety
bond or other security acceptable to Lessor in an amount equal to 125% of the
amount of such lien within ten (10) days after receipt by Tenant of notice of
such lien, but if such lien is reduced to final judgment and if such judgment or
process thereon is not stayed, or if stayed and said stay expires, then and in
each such event, Tenant shall forthwith pay and discharge said judgment and
lien. Lessor shall have the right to post and maintain on the Premises, notices
of non-responsibility under the laws of the State of Minnesota.
NON-LIABILITY:
22. Except in the case of fire or other casualty against which Lessor is
required to insure hereunder or damage or loss caused by the exercise of eminent
domain, Lessor shall not be liable for damage to any property of Tenant or of
others located on the Property, nor for the loss of or damage to any property of
Tenant or of others by theft or otherwise. Lessor shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow or leaks from any part of
the Property or from the pipes, appliances, or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any such
damage caused by other Tenants or persons in the Property, occupants of adjacent
property, of the buildings, or the public or caused by operations in
construction of any private, public or quasi-public work. All property of Tenant
kept or stored on the Premises shall be so kept or stored at the risk of Tenant
only and Tenant shall hold Lessor harmless from any claims arising out of damage
to the same, including subrogation claims by Tenant's insurance carrier.
SUBORDINATION:
23. Lessor warrants that the Property is not encumbered by any Mortgage (as
defined below) as of the date hereof. In the event that the Property becomes
encumbered by a Mortgage prior
22
to the earlier of (i) Commencement Date, or (ii) the date on which a Memorandum
of Lease is recorded with the Xxxxxx County Recorder pursuant to Section 29
hereof, Lessor shall cause the mortgagee thereunder to execute and deliver to
Tenant a subordination, nondisturbance and attornment agreement as required
below in this Section 23. This Lease shall be subject and subordinate to the
lien of any and all Mortgages (as defined below) hereafter encumbering the
Premises and placed thereon by Lessor, its successor or assigns, and to
renewals, modifications, replacements and extensions of such Mortgages;
provided, however, that the subordination herein contained shall not be
effective with respect to any Mortgage unless the holder of such Mortgage (the
"Mortgagee") shall execute and deliver a subordination, nondisturbance and
attornment agreement providing that, in the event the Mortgage shall be
foreclosed, the Mortgagee shall accept a deed in lieu thereof, or the Mortgagee
shall be or become a mortgagee-in-possession of the Property (any of which
events shall be a "Foreclosure"), so long as no Tenant Default shall have
occurred and be construing, and so long as Tenant shall attorn to Mortgagee or
purchaser upon Foreclosure, (i) the Lease shall not terminate by any reason of
such Foreclosure, (ii) Tenant's possession of the Premises shall not be
disturbed, (iii) the Mortgagee or purchaser upon such Foreclosure, its or his
successors or assigns, shall recognize Tenant and all its rights hereunder and
shall be obligated to fully and completely perform Lessor's duties and
obligations under this Lease arising from and after the date of such
Foreclosure, and (iv) Tenant shall not, unless otherwise required by applicable
law, be named as a party in any action for Foreclosure. For purposes hereof, the
term "Mortgage" shall mean any mortgage, deed of trust or similar consensual
lien on the Property securing loans made to Lessor, its successors and assigns,
by any bank, savings bank, savings and loan association, trust company,
insurance company, pension fund, any lending affiliate of any of the foregoing,
or any other institutional lender.
ASSIGNMENT OR SUBLETTING:
24. So long as no Tenant Default shall have then occurred and be continuing, and
subject to the terms and limitations set forth below, Tenant shall have the
right to assign this Lease or sublet the Premises (to no more than three (3)
subtenants in the aggregate at any one time) or any portion thereof only with
the prior written consent of Lessor, which consent shall not be unreasonably
withheld if (i) as to an assignment or as to a sublease of more than 30,000
square feet, the proposed assignee or subtenant is reasonably creditworthy, (ii)
the proposed assignee or subtenant assumes, in a written assumption agreement in
form and substance acceptable to Lessor in its commercially reasonable
discretion, Tenant's obligations hereunder (as to subtenants, excluding the
obligation as to pay Base Rent or Additional Rent) and otherwise agrees to be
bound by the terms hereof, from and after the date of assignment of this Lease.
Notwithstanding the foregoing, under no circumstances will Tenant be released
from any obligations hereunder, nor will Guarantor be released from its
obligations under the Lease Guaranty, upon any such assignment or sublease,
including without limitation any "Intracorporate Transfer" or space sharing
arrangement as contemplated below in this Section 24. Should Tenant sublease in
accordance with the terms of this Lease, any increase in rental received by
Tenant over the per square foot rental rate which is being paid by Tenant (after
reimbursement to the Tenant of reasonable costs incurred in consummating such
sublease, including, without implied limitation, attorneys' fees, brokerage
commissions and the cost of making changes by reason thereof in the Premises
such commissions and costs of
23
changes in the Premises to be amortized of the term of occupancy of the Premises
by the assignee or sublessee) shall be forwarded to and retained by Lessor,
which increase shall be in addition to the Base Rent and Additional Rent due
Lessor under this Lease.
Notwithstanding the above, Tenant may, without the approval of Lessor, assign
the Lease, or any part thereof, or sublease the Premises, in whole or in part,
to any of the following (collectively, "Intracorporate Transfers"): (a) a parent
or affiliate of Tenant; or (b) any corporation a majority of whose voting stock
is owned by Tenant; or (c) any corporation in which or with which Tenant, its
corporate successors or assigns, is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of corporation, so
long as the liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or created by
such consolidation; or (d) any corporation acquiring this Lease and all or
substantially all of Tenant's assets; or (e) any corporate successor to a
successor corporation becoming such by either of the methods described in
subsections (c) or (d). For purposes of this section, the term "affiliate" shall
mean any entity directly controlled by Tenant, under the direct (through one or
more levels or entities) control of tenant or under the common direct control
with Tenant. In no event shall Tenant be permitted to use, in a step
transaction, a series of one or more of such Intracorporate Transfers to
"spin-off" this Lease to independent third parties, that is, if the assignment
to such independent third party would not otherwise be permitted hereunder. As
an example of the foregoing, Tenant shall not assign this Lease to an affiliate
corporation whose assets consist solely of this Lease and the rights granted
herein and thereafter sell the stock of such affiliate corporation to an
independent third party.
Any assignment of this Lease or subletting of the Premises permitted under this
Lease shall be subject to the following conditions:
(1) that the initial Tenant and any assignee(s) of Tenant which has
assumed such obligations in a writing with Lessor shall remain liable for
the full performance of all Tenant obligations hereunder during the entire
term of this Lease; and
(2) that any sublease shall be subject and subordinate to this Lease, and
the subtenant shall comply with all the terms and conditions of this Lease
(excepting the rental provisions contained herein), including without
limitation of all restrictions upon the use of the Premises contained
herein; and
(3) a copy of the document of the assignment or subletting is delivered to
Lessor within fifteen (15) days after the full execution thereof by both
parties thereto; and
(4) any assignee shall assume in writing all of the Tenant's obligations
arising from and after the date of assignment under this Lease.
Notwithstanding the foregoing to the contrary, the foregoing limitation shall
not prevent Tenant from allocating space within the Premises (not exceeding
twenty percent (20%) of the aggregate square feet on the Premises, all without
creation of separate entrances to the Premises, to joint venture partners or
associated entities with whom Tenant is engaged in work
24
in the ordinary course of Tenant's business, so long as (i) each such party
agrees in a writing directed to Lessor to be bound by the terms of this Lease
(other than the obligation to pay Base Rent or Additional Rent), (ii) Tenant
provides immediate written notice to Lessor of such space sharing arrangement,
(iii) the activities being conducted at and from the Premises by such party do
not, in Lessor's reasonable judgment, increase Lessor's insurance premiums
(unless such increase is paid by Tenant) or its risk of incurring liability,
damages or costs for environmental hazards. No such space sharing arrangement,
with or without Lessor's consent, shall in any way whatsoever relieve Tenant of
any of its obligations, duties or liabilities hereunder.
Notwithstanding the foregoing to the contrary, in the event of any proposed
assignment of this Lease or subletting, of space within the Premises (other than
an Intracorporate Transfer), the Lessor shall, for a period of ten (10) business
days after receipt of written request for approval of such assignment or
sublease from the Tenant, have the right to terminate this Lease as to the
portion of the Premises proposed to be sublet by written notice to Tenant
("Lessor's Termination Notice"). Upon receipt of Lessor's Termination Notice,
Tenant shall have -period of ten (10) business days in which to rescind its
request for approval of assignment this Lease or subletting of the Premises. If
Tenant fails to deliver to Lessor written notice rescission of such request
within said ten (10) business day period, this Lease shall be deem terminated on
a date sixty (60) days after receipt of Lessor's Termination Notice (unless
Lessor and Tenant otherwise agree in writing). If this Lease is terminated as to
a portion the Premises only, Base Rent and Additional Rent shall be prorated on
an equitable basis.
ATTORNMENT:
25. In the event of a sale or assignment of Lessor's interest in the Property,
or the Premises or this Lease, or if the Property come into custody or
possession of a mortgagee or any other party whether because of a mortgage
foreclosure, or otherwise, Tenant shall attorn to such assignee or other party
and recognize such party as Lessor hereunder; provided, however, Tenant's
peaceable possession will not be disturbed so long as Tenant performs its
obligations under this Lease. Tenant shall execute, on demand, any commercially
reasonable attornment agreement, as determined by Tenant in its reasonable
judgment, required by any such party to be executed, containing such provisions
and such other provisions as such party may reasonably require.
NOVATION IN THE EVENT OF SALE:
26. In the event of the bona fide sale of the Property in an arm's length
transaction, Lessor shall be and hereby is relieved of all of the covenants and
obligations created hereby accruing from and after the date of sale (other than
the obligation to complete the Project as required by Section 4 hereof, and such
sale shall result automatically in the purchaser assuming and agreeing to carry
out all the covenants and obligations of Lessor herein. Notwithstanding the
foregoing provisions of this section, Lessor, in the event of a sale of the
Premises, shall cause to be included in this agreement of sale and purchase a
covenant whereby the purchaser of the Premises assumes and agrees to carry out
all of the covenants and obligations of Lessor herein,
25
and identifies Tenant as an intended third party beneficiary of such agreement.
Lessor agrees to provide to Tenant an executed original counterpart of any such
agreement.
The Tenant agrees at any time and from time to time upon not less than fifteen
(15) business days prior Written request by the Lessor to execute, acknowledge
and deliver to the Lessor a statement in writing certifying that this Lease is
unmodified and in full force and effect, or if modified, stating the
modifications, that there are no outstanding defaults or, if that not be the
case, specifying any defaults then in existence, and the dates to which the Base
Rent, acceptable to Tenant in its reasonable discretion and other charges have
been paid in advance, if any, it being intended that any such statement
delivered pursuant to this paragraph may be relied upon by any prospective
purchaser of the fee or mortgagee or assignee of any mortgage upon the fee of
the Premises. The failure of Tenant to do so within fifteen (15) days after
written request by the Lessor shall constitute a Tenant Default, without any
requirement of further demand or notice to Tenant. Tenant hereby appoints Lessor
as its attorney-in-fact for the purpose of executing, in the name of Tenant, any
statement required to be executed by Tenant under this Section 26 upon the
failure of Tenant to do so within the time frame specified above.
SUCCESSORS AND ASSIGNS:
27. The terms, covenants and conditions hereof shall be binding upon and inure
to the successors and assigns of the parties hereto.
QUIET ENJOYMENT:
28. Lessor warrants that it has full right to execute and to perform this Lease
and to grant the estate demised, and that Tenant, upon payment of the rents and
other amounts due and the performance of all the terms, conditions, covenant and
agreements on Tenant's part to be observed and performed under this Lease, may
peaceably and quietly enjoy the Premises for the business uses permitted
hereunder, subject, nevertheless, to the terms and conditions of this Lease,
without hindrance, molestation or disturbance by Lessor or persons claiming
through, under or over Lessor.
RECORDING:
29. Promptly upon execution hereof, Lessor and Tenant agree to join in the
execution of a Memorandum of Lease for the purposes of recordation. Said
Memorandum of Lease shall describe the parties, the Premises and the term of the
Lease and shall incorporate this Lease by reference.
SURRENDER:
30. On the Expiration Date or upon the termination of this Lease or Tenant's
right to possession of the Premises upon a day other than the Expiration Date,
Tenant shall peaceably surrender the Premises broom-clean in good order,
condition and repair, excepting only reasonable wear and tear, damage by fire or
other casualty to be insured against by Lessor
26
hereunder, and any taking by eminent domain. For purposes of this Lease, the
term "reasonable wear and tear" shall be based on the presumptions that: (i)
Tenant shall have conducted its business at and from the Premises for not more
than ten (10) hours per day, five (5) days per week in the office area and
twenty-two (22) hours per day seven (7) days per week in the production area,
and (ii) the HVAC System will be operated for twenty-four (24) hours per day
seven (7) days per week to ensure a controlled environment in the production
area. The Tenant shall surrender the HVAC System in good working order and
condition. Not later than thirty (30) days following the Expiration Date or
earlier date of termination of this Lease or Tenant's right to possession of the
Premises, Tenant shall provide to Lessor an inspection report with respect to
the HVAC System performed by a registered engineer or HVAC contractor acceptable
to Lessor certifying to Lessor, in form and substance acceptable to Lessor in
its reasonable discretion, that the HVAC System is in good working order and
condition and that all necessary maintenance of and repairs to the HVAC System
have been completed. On or before the Expiration Date or upon termination of
this Lease on a day other than the Expiration Date, Tenant shall, at its
expense, remove all trade fixtures, personal property and equipment from the
Premises; any property not so removed by Tenant shall be deemed to have been
abandoned. Tenant shall also remove, at its expense, all alterations and
improvements which Lessor has given notice in writing to Tenant to remove
pursuant to the provisions of Section 11 hereof; provided, however, that Tenant
shall have no obligation to remove the Tenant Improvements described in Section
4 hereof. Any damage caused in the removal of such items shall be repaired by
Tenant and at its expense prior to the expiration of the Lease Term or earlier
termination of this Lease or Tenant's right to possession of the Premises. All
alterations, additions, improvements and fixtures (other than trade fixtures)
which shall have been made or installed by Lessor or Tenant upon the Premises
and all floor covering so installed (other than alterations which Lessor has
given notice in writing to Tenant to remove pursuant to the provisions of
Section 11 hereof) shall remain upon and be surrendered with the Premises as a
part thereof, without disturbance, molestation or injury, and without charge, at
the expiration of termination of this Lease. Tenant shall promptly surrender all
keys for the Premises to Lessor at the place then fixed for payment of rent and
shall inform Lessor of combinations of any locks and safes on the Premises.
Tenant's obligations under this Section 30 shall be continuing obligations and
shall survive termination of this Lease or the expiration of the Lease Term.
HOLDING OVER:
31. In the event of a holding over by Tenant after expiration or termination of
this Lease without the consent in writing of Lessor (excluding any period during
which Lessor and Tenant are both negotiating in good faith an extension of the
Lease Term), Tenant shall pay rent for such occupancy at the rate of one hundred
twenty-five percent (125%) of the last-current Base Rent, prorated for the
entire holdover period. Tenant shall also pay all Additional Rent accruing
during the holdover period. Except as otherwise agreed in writing, any holding
over with the written consent of Lessor shall constitute Tenant a month-to-month
tenant.
27
CONSENTS:
32. Whenever provision is made under this Lease for either party securing the
consent or approval by the other, such consent or approval shall only be in
writing. No such consent by either party shall be unreasonably withheld, delayed
or conditioned.
NOTICES:
33. Any notice required or permitted under this Lease shall be given or secured
if personally delivered or sent by registered or certified return receipt mail
to Manufacturers' Services Limited, with a copy to Tenant at the Premises and to
Lessor at Xxx Xxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, Attention:
Investment Real Estate E-10, with a copy to the address then fixed for the
payment of rent as provided in Section 7 of this Lease, and either party may by
like written notice at any time designate a different address to which notices
shall subsequently be sent or rent to be paid. Any mailed notice shall be deemed
given if refused when received or tendered for delivery.
LESSOR SELF HELP:
34. Except as otherwise provided herein, the Tenant covenants and agrees that if
it shall any time fail to take out, pay for, maintain or deliver any of the
insurance policies above required, or, subject to Tenant's right to contest in
good faith disputed items of Additional Rent as set forth in Section 6(c)
hereof, fail to make any other payment or perform any other act on its part to
be made or performed as in this Lease provided and such default shall continue
beyond applicable notice and grace periods, then the Lessor may, but shall not
be obligated so to do, upon not less than ten (10) days prior notice to the
Tenant (other than payments necessary to obtain or maintain insurance coverages
required hereunder or to avoid the imposition of penalties, in which case no
such notice is required) and without waiving or releasing the Tenant from any
obligations of the Tenant in this Lease contained, pay any such cost or expense,
effect any such insurance coverage and pay premiums therefor, and may make any
other payment or perform any other act on the part of the Tenant to be made and
performed as in this Lease provided, in such manner and to such extent as the
Lessor may deem desirable, and in exercising any such right, to also pay all
necessary and incidental costs and expenses, employ counsel and incur and pay
reasonable attorneys' fees. All reasonable sums so paid by Lessor and all
reasonable, necessary and incidental costs and expenses in connection with the
performance of any such act by the Lessor, together with interest thereon at the
Default Rate from the date of making of such expenditure by Lessor, shall be
deemed Additional Rent hereunder, and shall be payable to Lessor on demand.
Tenant covenants to pay any such sum or sums with interest as aforesaid and the
Lessor shall have the same rights and remedies in the event of the nonpayment
thereof by Tenant as in the case of default by Tenant in the payment of the Base
Rent payable under this Lease.
LESSOR'S DEFAULT:
35. Any of the following occurrences, conditions or acts by Lessor shall
constitute a "Lessor Default": (a) Lessor's failure to make any payments of
money due Tenant hereunder
28
within ten (10) days after the receipt of written notice from Tenant that same
is overdue; or (b) Lessor's failure to perform any non-monetary obligation of
Lessor hereunder within thirty (30) days after receipt of written notice from
Tenant to Lessor specifying such default and demanding that the same be cured;
provided that, if such default cannot with due diligence be wholly cured within
such thirty (30) days, Lessor shall have such longer period as may be reasonably
necessary to cure the default, so long as Lessor proceeds promptly to commence
the cure of same within such thirty (30) day period and diligently prosecutes
the cure to completion and provided further that in the case of an emergency,
Tenant shall be required to give only such notice as is reasonable under the
circumstances.
Upon the occurrence of a Lessor Default, at Tenant's option, in addition to any
other remedies which it may have, and without its actions being deemed a cure of
Lessor's default, Tenant may (i) pay or perform such obligations and offset all
reasonable sums so paid by Tenant and all reasonable necessary and incidental
costs and expenses paid or incurred by Tenant in connection therewith against
the Base Rent, Additional Rent and other charges due Lessor hereunder unless, by
written notice to Tenant, Lessor contests whether a Lessor Default has occurred
or is continuing, in which case such right of offset shall only be effective if
final, non-appealable judgment against Lessor shall have been entered by a court
of competent jurisdiction; or (ii) xxx for damages. Any amounts so determined to
be due from Lessor to Tenant hereunder shall bear interest at the Default Rate
from the date such costs or expenses were incurred.
GENERAL:
36. The Lease does not create the relationship of principal agent or of
partnership or of joint venture or of any association between Lessor and Tenant,
the sole relationship between the parties hereto being that of Lessor and
Tenant.
No waiver of any default of Tenant or Lessor hereunder shall be implied from any
omission by Lessor or Tenant to take any action on account of such default if
such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and that only for
the time and to the extent therein stated. One or more waivers by Lessor or
Tenant shall not then be construed as a waiver of a subsequent breach of the
same covenant, term or condition. The consent to or approval by Lessor of any
act by Tenant requiring Lessor's consent or approval shall not waive or render
unnecessary Lessor's consent to or approval of any subsequent similar act by
Tenant shall be construed to be both a covenant and a condition. No action
required or permitted to be taken by or on behalf of Lessor under the terms or
provisions of this Lease shall be deemed to constitute an eviction or
disturbance of Tenant's possession of the Premises so long as, in taking such
action, Lessor acts in a manner consistent with its obligations hereunder. All
preliminary negotiations are merged into and incorporated in this Lease. The
laws of the State of Minnesota shall govern the validity, performance and
enforcement of this Lease.
This Lease and the exhibits, if any, attached hereto and forming a part hereof,
constitute the entire agreement between Lessor and Tenant affecting the Premises
and there are no other agreements, subsequent alteration, amendment, change or
addition to this Lease shall be
29
binding upon Lessor or Tenant unless reduced to writing and executed in the same
form and manner in which this Lease is executed.
If any agreement, 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 agreement, 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 agreement,
covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
The responsibility of either Lessor or Tenant hereunder is only to perform the
respective covenants, duties and obligations of such party hereunder. In the
event of the failure of either party to do so, the defaulting party shall be
liable to the non-defaulting party only for the direct losses, damages, costs
and expenses from such default, along with other costs and expenses expressly
set forth herein, and shall not be liable for loss of profits, indirect or
consequential damages.
HAZARDOUS MATERIAL:
37. (a) Tenant covenants through the Lease Term, at Tenant's sole cost and
expense, promptly to comply strictly with all laws and ordinances and the
orders, rules and regulations and requirements of all federal, state and
municipal governments and appropriate departments, commission, boards, and
officers thereof, relating to the use, handling, storage, transport or
disposal of "Hazardous Material," as defined below.
(b) In the event any Hazardous Material (hereinafter defined) is brought
or caused to be brought into or onto the Property or the Premises by
Tenant, its agents, contractors, employees or invitees, Tenant shall
handle any such material in compliance with all applicable federal, state
and/or local regulations. For purposes of this section, "Hazardous
Material" means and includes any hazardous, toxic or dangerous waste,
substance or material defined as such in (or for purposes of) the
Comprehensive Environmental Response, Compensation, and Liability Act, any
so-called "Superfund" or "Superlien" law, or any federal, state or local
statute, law, ordinance, code, rule, regulation, order decree regulating,
relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or materials, as now or at
any time hereafter in effect. Tenant shall submit to Lessor on or before
January 15 of each calendar year during the term hereof copies of its
approved hazardous materials communication plan, OSHA monitoring plan, and
permits required by the Resource Recovery and Conservation Act of 1976, if
Tenant is required to prepare, file or obtain any such plans or permits,
all Material Data Safety Sheets prepared by, for or on behalf of Tenant
and any and all reports, log sheets or other documentation which Tenant
submits or provides to any governmental agency or entity in connection
with the use, handling, storage, transport or disposal of any Hazardous
Material (all of the foregoing being hereinafter collectively referred to
as "Tenant Environmental Documentation." Lessor shall have the right, at
reasonable times and on reasonable advance notice, to inspect (and, if
Lessor so desires, copy) any or all
30
Tenant Environmental Documentation and Tenant shall cooperate in good
faith with Lessor in connection with any request for inspection thereof.
In addition, at any time that Lessor shall have any reasonable cause to
believe that a release of any Hazardous Material has occurred in violation
of any applicable law either on the Property or affecting the Property,
Lessor may enter the Property and the Premises at reasonable times and on
reasonable advance notice to conduct any inspections or tests which
Lessor, in its commercially reasonable discretion, deems necessary or
advisable to determine the existence, nature, extent or cause of such
release. Lessor shall conduct all such inspections and testing in a manner
intended to minimize any interference with the business of Tenant. Tenant
agrees to cooperate in good faith in connection with any such inspection
or test. The costs of all such inspections and testing shall be borne by
Lessor; provided, however, that Tenant shall reimburse Lessor for the
costs of all such inspections and testing if the identified release was
caused by Tenant, its agents, employees or contractors. Subject to the
limitations set forth in Section 36 above concerning loss of profits,
indirect or consequential damages, Tenant will indemnify and hold harmless
Lessor from any losses, liabilities, damages, costs or expenses (including
reasonable attorneys' fees) which Lessor may suffer or incur as a result
of any introduction, spill or release of any kind or nature whatsoever
caused by Tenant, its agents, employees, contractors, or licensees into or
onto the Property or the Premises, or any adjacent property, of any
Hazardous Material at any time during the Lease Term. This section shall
survive the expiration or sooner termination of this Lease. By way of
clarification and not limitation, the parties agree that the Lessor's
property manager from time to time or said property manager's employees,
agents, contractors or licensees are not employees, agents, contractors or
licensees of Tenant.
(c) Tenant acknowledges receipt of (i) a certain Phase 1 Environmental
Site Assessment Update dated August 29, 1996 prepared by Xxxxx Intertec
Corporation with respect to the Property; and (ii) a certain Phase 1
Environmental Site Assessment prepared by Nova Environmental Services,
Inc. Dated March 22, 1990 with respect to the Property (collectively, the
"Environmental Reports"). Even though Landlord may otherwise have no
responsibility or liability to any party therefor (due to lack of
association with any pre-existing condition or due to the off-site
source(s) thereof), and subject to the limitations set forth in Section 36
above concerning loss of profits, indirect or consequential damages,
Landlord hereby agrees that it will hold harmless and defend Tenant from
any costs, liabilities or expenses to which Tenant may be exposed in
connection with governmentally required remediation or cleanup of any
pre-existing Hazardous Material conditions at the Property which are
referred to in the Environmental Reports. This section shall survive the
expiration or sooner termination of this Lease.
(d) The Tenant shall provide to Landlord immediate notice of any (A)
notice of any violation, proposed violation, claim, administrative or
judicial complaint, order or proposed order, relating to the Property
alleging violations of any federal, state or local environmental law or
regulation requiring Lessor or Tenant to take any action in connection
with the release of any Hazardous Material or (B) any notice from a
federal, state or local governmental agency or private party alleging that
Lessor or Tenant may
31
be liable or responsible for costs associated with a response or cleanup
of a release of any Hazardous Material.
FORCE MAJEURE:
38. Either party's failure to perform the terms and conditions of this Lease, in
whole or in part, shall not be deemed a breach or a default hereunder or give
rise to any liability of such party to the other if such failure is attributable
to any unforeseeable event beyond such party's reasonable control and not caused
by the negligent acts or omissions or the willful misconduct of such party,
including, without limitation, flood, drought, earthquake, storm, pestilence,
lightning, and other natural catastrophes and acts of God; epidemic, war, riot,
civic disturbance or disobedience, and act of the public enemy; fire, accident,
wreck, washout, and explosion; strike, lockout, labor dispute, and failure,
threat of failure, or sabotage of such party's facilities; delay in
transportation or car shortages, or inability to obtain necessary labor,
materials, components, equipment, services, energy, or utilities through such
party's usual and regular sources at usual and regular prices; and any law,
regulation, order or injunction of a court or governmental authority, whether
valid or invalid and including, without limitation, embargoes, priorities,
requisitions, and allocations or restrictions of facilities, equipment or
operations. In the event of the occurrence of such a Force Majeure event, the
party unable to perform promptly shall notify the other party.
CAPTIONS:
39. The captions are inserted only as a matter of convenience and for reference,
and in no way define, limit or describe the scope of this Lease nor the intent
or any provision thereof.
LESSOR ESTOPPEL:
40. Lessor shall, upon receipt of a request from Tenant therefor, execute and
deliver to Tenant or to any proposed lender or purchaser of Tenant, or its
assets, a certificate certifying that this Lease is in full force and effect and
that there are no outstanding defaults and if that not be the case, specifying
any defaults then in existence and containing such other reasonable information
as is customarily included in Lessor Estoppel Certificates which, in any event,
shall be acceptable to Lessor in its reasonable discretion.
ATTACHMENTS:
41. See also Exhibits A through inclusive, which Exhibits are attached hereto
and made a part hereof.
Exhibit Description
------- -----------
Exhibit A Legal Description
Exhibit B Site Plan of Premises
Exhibit C Outline Specification for Lessor's Work
Exhibit C-l List of Approved Plans for Lessor's Work
32
Exhibit D Outline Specification for Tenant Improvements
Exhibit D-l List of Approved Plans for Tenant Improvements
Exhibit E List of Warranties
Exhibit F Tenant's Sign Criteria
Exhibit G List of Operating Expenses
SUBMISSION:
42. Submission of this instrument to Tenant or proposed Tenant or his agents or
attorneys for examination, review, consideration or signature does not
constitute or imply an offer to lease reservation of space, or option to lease,
and this instrument shall have no binding legal effect until execution hereof by
both Lessor/Owner and Tenant or its agents.
REPRESENTATION:
43. It is agreed and understood that Xx. Xxxxx Xxxxx, agent or broker with Welsh
Companies, Inc., is representing Lessor, and that Xx. Xxxxxxx Xxxxx, agent of
Welsh Companies, Inc. is representing Tenant, and all leasing or brokerage
commissions payable to Welsh Companies, Inc. (including the above-named agents)
shall be paid by Lessor. Tenant represents and warrants that it has not engaged
the services of any other sales or leasing representative or broker in
connection with this Lease or the Premises.
SUBMISSION OF LEASE:
44. Submission of this Lease to Tenant prior to execution hereof by Lessor does
not constitute and shall not be interpreted as, an offer by Lessor. This Lease
shall become a binding contract only upon execution hereof by both Lessor and
Tenant. However, this Lease shall be null and void in all respects if the same
has not been signed by both Lessor and Tenant, and executed original
counterparts thereof delivered to each such party, by 5:00 p.m., Central
Standard Time on April ___, 1997.
33
IN WITNESS WHEREOF, the Lessor and the Tenant have caused these presents to be
executed in form and manner sufficient to bind them at law, as of the day and
year first above written.
Tenant: Lessor:
MANUFACTURER'S SERVICES LIMITED - AMBERJACK, LTD.
ROSEVILLE, INC.
By: /s/ Xxxxxxx X. Cammavano By: /s/ Xxxx X. Xxxxx
-------------------------------- ---------------------------------
Its: Division V.P. Its: President
------------------------------- --------------------------------
And: Xxxxxx X. O'Dell
--------------------------------
Its: Assistant Secretary
--------------------------------
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNIPIN )
On this 14 day of April, 1997, personally came before me, a Notary Public
within and for said County, Xxxxxx, the Division VP of Manufacturer's Service,
Limited - Roseville, Inc., a Minnesota corporation, and acknowledged that he
executed the same as his free act and deed on behalf of such corporation.
/s/ Xxxx X. Xxxxxxxx
[NOTARY SEAL] -------------------------------------
Notary Public
My commission expires: 1/31/2000
--------------
STATE OF ILLINOIS )
) ss:
COUNTY OF XXXXXX )
On this 16th day of April, 1997, personally came before me, a Notary Public
within and for said County, Xxxx X. Xxxxx and Xxxxxx O'Dell, being respectively
the, President and Assistant Secretary of AmberJack, Ltd., an Arizona
corporation, acknowledged that they executed the same as their free act and deed
on behalf of such corporation.
/s/ Xxxx Xxxxxxx
-------------------------------------
Notary Public
My commission expires:
--------------
[NOTARY SEAL]
34
EXHIBIT A
(Legal Description)
Parcel 1:
The South 30 acres of the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 00, Xxxxx
00, except the West 884 feet thereof and except the following:
Beginning at the point on the South line of said 30 acres, 2033.0
feet East of the Southwest corner thereof; thence East to the
Southeast corner thereof; thence North to the Northeast corner
thereof; thence West along the North line of said 30 acres to a
point 1768.0 feet East of the Northwest corner thereof; thence South
28 degrees 41 minutes East 559.7 feet, more or less, to the point of
beginning, except part deeded to State of Minnesota in Book "1729"
RCR, page 988 and Book "2033" RCR, page 528:
Parcel 2:
That part of the South 30 acres of the South Half of the Northwest Quarter
of Section 21, Township 30 North, Range 23 West, Xxxxxx County, Minnesota,
described as follows:
Beginning at a point on a line run parallel with and distant 33 feet
Easterly of Line 1 described below, distant 200 feet Northerly of
its intersection with the East and West quarter line of said
Section 21; thence run Southeasterly to a point on said East and
West quarter line, distant 220 feet Easterly of said intersection;
thence run Westerly along said East and West quarter line for 141.92
feet; thence deflect to the right on a non-tangential curve, concave
to the Northeast, having a delta angle of 57 degrees 43 minutes 04
seconds, a radius of 167 feet and a chord azimuth of 335 degrees 03
minutes 51 seconds, for 168.23 feet, more or less, to an
intersection with said 33 foot parallel line; thence run northerly
on said 33 foot parallel line for 52.28 feet to the point of
beginning;
Line 1: Beginning at a point on the North line of said Section
21, distant 1180 feet East of the Northwest corner
thereof; thence run Southerly at an angle of 75 degrees
28 minutes 41 seconds from said North section line
(measured from West to South) for 1105.99 feet; thence
deflect to the left at an angle of 17 degrees 04 minutes
13 seconds for 167.08 feet; thence deflect to the right
on an 00 degree 44 minute 14 second curve (delta angle
07 degrees 08 minutes 33 seconds) for 968.91 feet;
thence on a tangent to said curve for 600 feet and there
terminating.
together with
That part of the South 30 acres of the South Half of the
Northwest Quarter of Section 21, Township 30 North,
Range 23 West, Xxxxxx County, Minnesota, described as
follows:
Parcel 2 (continued)
From a point on Line 1 described above, distant 499.53
feet North of its point of termination, run Easterly at
right angles to said Line 1 for 33 feet to the point of
beginning; thence continue Easterly on the last
described course for 33 feet; thence run Northerly
parallel with said Line 1 for 170.53 feet, more or less,
to the North line of said South 30 acres; thence run
West on said North line to its intersection with a line
run parallel with and distant 33 feet East of said Line
1; thence run South on said 33 foot parallel line for
167.76 feet, more or less, to the point of beginning.
Note: Parcel designations are for convenience of reference only and do not
constitute an integral part of the legal description.
EXHIBIT B
[GRAPHIC]
[OFFICE/WAREHOUSE FACILITY SITE PLAN]
EXHIBIT C
OUTLINE SPECIFICATION FOR
THE DESIGN AND CONSTRUCTION OF
Office/Warehouse
Arden Hills Interstate Center
Phase I
Arden Hills, Minnesota
Prepared by:
Welsh Construction Company
March 26, 1997
2
TABLE OF CONTENTS
01000 GENERAL CONDITIONS 3
02000 SITE WORK 6
03000 CONCRETE 8
04000 MASONRY 9
05000 METALS 9
06000 CARPENTRY AND MILLWORK 9
07000 THERMAL AND MOISTURE PROTECTION 9
08000 DOORS AND WINDOWS 10
09000 FINISHES 11
10000 SPECIALTIES 11
11000 EQUIPMENT 11
15000 MECHANICAL 11
16000 ELECTRICAL 12
ALLOWANCES 13
QUALIFICATIONS 14
LIST OF EXHIBITS 15
3
01000 GENERAL CONDITIONS
1. INTENT
This outline specification and the preliminary drawings outline the
general scope of work for the design and construction of a 154,264 square
foot office/warehouse facility in Arden Hills, Minnesota. Contractor shall
provide all design, supervision, labor, materials, equipment, and general
requirements necessary for the complete and timely construction of the
project specified herein.
2. DESIGN
A. Architecture and Engineering: Contractor shall prepare a complete
set of working drawings and specifications in accordance with these
outline documents, applicable building codes and zoning
requirements, and the requirements of the owner. Additions or
deletions to the scope of work incorporated into the final drawings
and specifications at the direction of the owner will result in an
appropriate adjustment to the contract price.
3. SUPERVISION
A. Project Manager Contractor shall assign a project manager to this
project who shall be responsible for the complete execution of all
work. The project manager's responsibilities shall include
interfacing the project as required with the owner and the developer
throughout the entire design and construction process, obtaining the
required building permits, and managing the construction process
through completion of the project.
B. Superintendent: Contractor shall assign a superintendent to this
project who shall be responsible for the supervision of all field
construction in progress. The superintendent's responsibilities
shall include the scheduling and direct supervision of field
construction forces, interfacing as required with building
inspection officials, and ensuring compliance of work in place with
drawings and specifications.
4. CONSTRUCTION SCHEDULE
Contractor shall prepare a progress schedule for the project. This
schedule shall indicate the dates for starting and completion of the
various stages of construction, and shall be updated on a regular basis to
reflect the actual progress of the work.
This proposal is based upon a five-month construction schedule with
construction commencing on or about February 15, 1997. No winter weather
costs are included in the contract price. Utility costs are projected to
be the responsibility of the owner on/or about June 1,1997.
4
5. TEMPORARY CONSTRUCTION
Contractor shall provide all required temporary construction, temporary
facilities and temporary utilities required to complete project
construction including heated weathertight enclosures, temporary roadways
and parking areas, erosion control structures, material storage areas,
enclosures for tools and other equipment, a heated and air-conditioned
field office, temporary utility services for construction use, and
temporary toilet facilities as required.
6. CLEAN-UP
Contractor shall be responsible for construction trash removal services
and shall at all times keep the building and site free from accumulation
of debris. Upon completion, the building shall be turned over to owner in
a "broom clean" condition.
7. WARRANTY
Contractor warrants that all materials and equipment shall be new unless
otherwise specified, and shall be free from defects for a period of one
year from the date of substantial completion of the work. Any extended
warranties obtained from suppliers or subcontractors shall be passed on to
the owner.
8. INSURANCE
Contractor shall maintain Worker's Compensation insurance, Comprehensive
Public Liability insurance, and Builder's Risk insurance, "All Risk" form,
for this project for the duration of the work. Deductible losses shall be
the responsibility of the owner.
9. QUALITY ASSURANCE
Contractor shall prepare and implement a Quality Assurance project for
this project. The Quality Assurance program shall include independent
agency testing and observation of soils, bituminous paving, roofing, steel
connections, and cast-in-place concrete, as well as inspection of work in
progress by project designers. The owner will have the right to perform
inspections and independent tests at any time.
10. ITEMS FURNISHED BY THE OWNER
The following items shall be furnished by the owner prior to commencement
of design work by contractor. If requested by the owner, the contractor
shall assist in the selection of agencies to perform these services.
A. Property Survey: The owner will retain a registered land surveyor to
prepare a survey for the proposed site. The survey will conform to
the "Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys" jointly established and adopted in 1992 by the American
Land Title Association and the American Congress on Surveying and
Mapping, meeting the accuracy requirements of an urban class survey,
showing as additional items, the land area and the contours of
5
the project site, building setbacks, the location of all utilities
service the project site which are on or adjacent to the project
site, and all easements. Owner shall obtain all easements necessary
for access to the project site, including easements for installation
and maintenance of utilities, and (as necessary) easements, leases
or licenses for the use of area outside the project site for the
storage of materials or equipment used or useful in the performance
of the project.
B. Hazardous Materials Reports: When there is reason to suspect the
presence of hazardous materials on the site or within an existing
structure, or when such materials are discovered during
construction, the owner will retain an independent testing agency to
perform investigation and testing and to prepare a Hazardous
Materials Report. Removal, containment, disposal or other procedures
required for dealing with such materials will be the responsibility
of the owner, and the contract time will be extended by the
resulting period of delay, if any.
11. SOIL REPORT
Contractor shall retain an independent testing agency to perform
subsurface exploration (soil borings) and prepare and engineered
foundation report (Soil Report) for the proposed project. The building
design and site preparation shall conform to the requirements of the soil
report. Soil conditions encountered during excavation substantially
different from those described in the Soil Report may result in an
equitable adjustment to the contract price, as documented and necessary,
(up or down, as applicable) subject to Owner's reasonable approval, which
shall not be unreasonably withheld or denied.
12. PERMITS AND FEES
Contractor shall pay for all required building permits necessary for the
construction of the project. An allowance of $ 28,500.00 is included for
SAC (and WAC) charges. Park dedication fees and other assessments will be
paid by the owner,
13. BONDS
A. Performance & Payment Bond: If requested by the owner, contractor
shall furnish a surety company's payment and performance bond in the
amount equal to the full amount of the contract. The bond shall be
issued by a financially responsible surety company. All costs for
furnishing a bond (including those applicable to change orders) will
be the responsibility of the owner as an extra cost to the contract.
B. Site Improvement & Landscaping Bond: The owner will provide any site
improvement or landscaping bonds required by the local governmental
authority. Contractor shall assist the owner and/or the developer in
preparing any required documentation for the bonds.
6
14. RECORD DOCUMENTS
Upon completion of the project, contractor shall provide the owner with a
complete set of record documents including record drawings, a list of
subcontractors used on the project, manufacturer's warranties, operation
and maintenance manuals for major pieces of equipment, and instruction
manuals when appropriate for building systems.
15. PROGRESS PAYMENTS
This proposal is based upon contractor receiving monthly progress
payments. Contractor shall submit an Application for Payment to the owner
on or about the 5th of each month for work completed during the previous
month. Payment will be due to the contractor within (30) days of owner's
receipt of Application for Payment.
A retainage equal to 10% of each Application for Payment shall be withheld
until the project reaches 50% completion, after which, no additional
retainage shall be withheld. No retainage to be held on General
Conditions.
It is the owner's responsibility to secure adequate financing for the
project.
16. EQUAL EMPLOYMENT OPPORTUNITY POLICY
Contractor shall comply with all current Federal, State and local laws
governing Equal Employment Opportunity.
02000 SITEWORK
1. EARTHWORK
The contractor shall provide all required site clearing, mass excavation
and filling, structural excavation and backfill and fine grading as
required for the proposed building structure, paved areas, and proper site
drainage.
Topsoil shall be stockpiled during construction from on-site materials and
spread over disturbed areas to be landscaped with sod, seed or other plant
materials.
For proposal purposes, the contractor has included earthwork required for
a complete project contingent upon the following conditions:
A. A balanced site not requiring imported or exported materials.
B. Existing soil conditions suitable for 3000 PSF spread footings at
normal footing depths, pavement subgrades, and utility installations
without soil correction.
C. Ground water levels lower than planned excavations for foundations
and utilities.
Actual soil conditions differing from those stated above will result in an
appropriate adjustment to the contract price
7
2. UTILITIES
The contractor shall provide on-site utility work required for connection
to utility services, contingent upon adequate utility services located
immediately adjacent to the site via publicly accessible utility
easements. Fees imposed by serving utility companies for the installation
of on-site electrical, telephone, or gas mains arc not anticipated and are
not included in the contract price.
A. Sanitary sewer: Sanitary sewer service shall be provided complete
including connection to the sewer main in the street and an on-site
sewer main to the building.
B. Water: Water service shall be provided to the building for domestic
water and fire protection systems complete including connection to
the water main in the street and on-site water main to the building.
Water mains and tire hydrants shall be provided for fire service as
required by the local fire xxxxxxxx.
C. Storm Drainage: Provisions shall be made for the proper drainage of
storm water from roof, parking, drive and landscaped areas.
D. Electrical: Electrical service to the building shall be provided by
the serving utility company.
E. Gas: Gas service to the building shall be provided by the serving
utility company.
F. Telephone: Telephone service to the building shall be provided by
the serving utility company.
3. LANDSCAPING
Site landscaping shall be designed and installed in accordance with the
requirements of the City of Arden Hills and as approved by the owner. An
allowance of $ 59,341 has been included to cover seeding, sodding,
imported topsoil, trees, mulch, edging and shrubbery noted on the contract
documents. An allowance of $15,450.00 has been included for irrigation
systems to support the landscaping design.
4. BITUMINOUS AND CONCRETE PAVING
Bituminous and concrete paving shall be provided complete including curb
cuts and driveways as indicated on the site plan.
Paved areas subject to truck traffic shall consist of 10" of aggregate
base and 4" of MNDOT #2341 bituminous wearing surface. Paved areas subject
to car traffic shall consist of 6" of aggregate base and 3" of MNDOT #2341
bituminous wearing surface.
Concrete dolly pads shall be provided at the truck docks and shall consist
of 8" of granular base and 6" of 4000 PSI air entrained concrete,
reinforced with welded wire or fiber mesh. Open, sawcut control joints
shall be provided for the control of shrinkage cracking. A dolly strip
15-ft wide and 520-ft long is included in the contract price.
8
The bituminous and concrete design indicated are included for proposal
purposes. As a part of the final design work for this project, the soil
testing agency will make recommendations for engineered paving designs
based on actual soil conditions and proposed usages. Actual paving designs
differing from those stated above will result in an appropriate adjustment
to the contract price.
Cast-in-place concrete curbs and gutters shall be provided at the
perimeter of all paved parking and drive areas.
Parking area striping and traffic markings shall be provided as indicated
on the drawings.
5. SITE LIGHTING
Parking and drive areas shall be lighted with (8) each, 25-ft high,
pole-mounted metal halide fixtures mounted on concrete bases with
timeclock control. Building mounted fixtures will be utilized where
possible.
03000 CONCRETE
1. CONCRETE FOUNDATIONS
Concrete foundations shall be spread footings consisting of strip
footings, pads, piers, and cast-in-place walls constructed with concrete
and reinforcing steel as required by the final structural design.
2. CONCRETE SLABS
The interior slab on grade shall be constructed of 6" thick 4000 PSI
concrete. Slabs shall be reinforced with welded wire or fiber mesh cast in
place on a 6" (+/- 1") sand cushion.
Smooth dowel connections shall be provided at slab on grade construction
joints. Sawcut control joints shall be provided for the control of
shrinkage cracking. These sawcut joints are not assumed to be caulked.
Concrete slabs shall be treated with liquid applied curing compound.
3. PRE-CAST CONCRETE
Exterior walls shall be 12" thick. Insulated, pre-cast concrete panels
with a flat exterior finish.
4. SIDEWALKS
Sidewalks shall be constructed with 3000 PSI, air entrained,
non-reinforced concrete. Sidewalks shall be broom finished unless
indicated otherwise on the drawings.
9
04000 MASONRY
1. CONCRETE BLOCK
Interior walls at the warehouse area shall be constructed of concrete
block where indicated on the drawings.
05000 METALS
1. STRUCTURAL STEEL
The structural framing system for the building shall consist of steel
columns, beams or truss girders, bar joists, and white primed metal roof
deck with column locations as indicated on the drawings.
A minimum clear height of 24-ft shall be provided under the steel
structure in warehouse areas.
2. MISCELLANEOUS METALS
Steel tread dock stairs, access ladders and concrete filled pipe bollards
shall be provided as indicated on the drawings. Steel casings shall be
provided at overhead door openings.
06000 CARPENTRY AND MILLWORK (Per scope indicated in the contract drawings)
1. MISCELLANEOUS CARPENTRY
Roof cants, curbs and other miscellaneous blocking shall be provided as
required.
07000 THERMAL AND MOISTURE PROTECTION
1. BUILDING INSULATION
The overall building thermal envelope shall conform to the requirements of
the Minnesota Energy Code.
A. Exterior pre-cast walls: Exterior pre-cast wall panels shall include
2-1/2" of expanded polystyrene insulation to provide an approximate
overall R value of 12.
B. Perimeter subgrade Walls: Perimeter masonry or concrete subgrade
foundation walls shall be insulated from top of footing (or frost
line) to bottom of slab with 2" of extruded polystyrene insulation
applied to the inside face of the wall.
C. Roof insulation: Roof areas shall be insulated with rigid insulation
installed over metal deck to provide an approximate overall R value
of 22. A thermal barrier shall be provided on the metal roof deck
where required by fire or building codes.
10
2 ROOFING SYSTEM
The roofing system shall consist of a 3-ply built-up asphalt bituminous
membrane over rigid insulation. Roof edge fascia and other visible
flashings shall be pre-finished metal. Roof areas shall drain to interior
roof drains. The roofing system shall be guaranteed free from defects for
a period of 10 years by the roofing manufacturer.
A ship's ladder and roof hatch shall be provided for roof access.
08000 DOORS AND WINDOWS (Per scope indicated in the contact drawings)
1. PEDESTRIAN DOORS
Warehouse area doors shall be flush hollow metal doors set in hollow metal
frames.
A. Hollow Metal Doors: Hollow metal doors shall be 3'-0" x 7'-0", flush
face panel design. Exterior hollow metal doors shall be insulated
and weatherstripped. Hollow metal doors shall be painted.
B. Hollow Metal Frames: Hollow metal frames shall be painted.
C. Finish Hardware: Door hardware shall be manufactured by Schlage,
Yale, Xxxxxx or approved equal commercial grade, US26D finish, with
its function appropriate for its intended use. The keying system
shall allow doors to be keyed alike within a given area and tied
into a building master.
2. OVERHEAD DOORS
Overhead doors shall be manually operated 8'-0" x 10'-0" and 12'-0" x
14'-0" insulated steel sectional doors with high lift track and
weatherstripping as noted on the contract drawings.
3. WINDOW SYSTEM
Windows shall be 1" thick thermal panes set in clear anodized aluminum
frames with a thermal-break design. Areas behind glass spandrel sections
shall be insulated.
Entrance door frame finish shall match the style of window framing system.
Aluminum thresholds shall be provided for exterior doors. Panic devices
shall be provided at entrance doors where required by code.
11
09000 FINISHES (Per scope indicated in the contact drawings.)
1. Building Finishes: Building exterior finishes to be painted pre-cast
concrete and prefinished sheet metal flashings.
2. Painting: Door frames, metal doors, and miscellaneous metals shall be
painted unless provided with factory finish. Ferrous metals shall be
painted, unless provided with a factory-applied finish. Paint materials
and coverage shall be acceptable for each application and exposure.
10000 SPECIALTIES (Per scope indicated in the contract drawings)
Fire extinguishers shall be provided as required by local fire codes and
shall be housed in painted metal cabinets in finished areas, and
surface-mounted in unfinished areas.
2. SIGNS
Code required building and site signs shall be provided for handicapped
parking signs and traffic control signs.
11000 EQUIPMENT
1. DOCK BUMPERS
Dock bumpers shall be provided at each dock door.
15000 MECHANICAL (Per scope indicated on the contract drawings)
1. PLUMBING
A piped, interior roof drainage system shall be provided from roof drains
to connections with the exterior storm drainage system. Above grade,
horizontal portions of the drain pipes shall be insulated. Provisions
shall be made for emergency overflow drainage of ponded roof water, in
accordance with buiding code requirements.
2. HEATING, VENTILATION, AND AIR CONDITIONING
Heating only in the warehouse area is included assuming 123,411 sq ft.
Office areas shall be heated cooled and ventilated to normal office
conditions in accordance with ASHRAE design standards by means of
roof-mounted packaged mechanical units which are to be installed as part
of the tenant improvement and are excluded from this scope of work.
A wall-mounted electric cabinet unit heater shall provide supplementary
heat in the electrical room.
12
Warehouse areas shall be heated by means of gas-fired unit heaters to
maintain an average temperature of 55(degrees)F based on ASHRAE design
conditions.
3. FIRE PROTECTION SPRINKLER SYSTEM
A complete ESFR wet automatic fire protection system shall be provided for
the facility in accordance with the requirements of applicable codes, NFPA
standards and the local fire xxxxxxxx. The area assumed for this system is
123,411 sq ft. Smoke evacuation systems are excluded.
16000 ELECTRICAL (Per the scope identified on the contract drawings)
1. POWER DISTRIBUTION
A complete electrical system shall be provided in accordance with
applicable codes from a 120/208V, 3-phase 3600-amp service to panelboards
with circuit breakers and distribution as required to provide power for
building systems, lighting, and convenience outlets.
2. LIGHTING
A. Warehouse and dock areas: Fluorescent fixtures will be installed to
provide an average of 15 food candles.
B. Exterior building mounted lights: Wall-mounted high pressure sodium
or metal halide fixtures will be installed at each loading dock
door.
C. Exit and emergency lighting: As required by code.
3. COMMUNICATIONS
A telephone service entrance conduit shall be provided from the telephone
terminal room to a point 3-feet outside the building for use by the
telephone company.
4. FIRE DETECTION
Monitoring of the fire protection flow switch system only is included in
the contract price.
13
ALLOWANCES
The following allowances shall be included for the total installed cost (labor,
material, freight, and taxes) of each item indicated unless specified otherwise:
1. An allowance of $7,500 is included for exterior building signage including
monument signs.
2. An allowance of $59,341 is included for landscaping as described.
3. An allowance of $15,450.00 is included for landscaping as described
herein.
4. An allowance of $28,500 is included for SAC/WAC charges as described
herein.
14
QUALIFICATIONS
The following items are not included in the scope of work proposed herein:
1. Interim financing costs.
2. Special permit fees such as park dedication fees, acreage fees and other
special assessments.
3. Removal of hazardous materials from site.
4. Soil correction work.
5. Winter construction costs (November 1, 1996 through March 31, 1997)
6. Off-site utility and street work, other than utility connections, curb
cuts and driveways indicated on the drawings.
7. Tenant improvements
8. Draperies or other window treatments.
9. Special fire protection systems such as in-rack sprinklers, pre-action
systems, halon or dry sprinkler systems.
10. Water treatment or conditioning.
11. Telephone equipment, telephones or communication wiring.
12. Security systems and fire alarm systems, other than code-required systems.
13. Central station monitoring of fire or security systems.
14. Smoke evacuation systems.
15. Dedicated electrical circuits or other special computer wiring.
15
LIST OF EXHIBITS
The following exhibits, together with this outline specification, form the basis
for this proposal:
Drawings as follows:
1. As prepared by Genesis Architecture:
Drawing No Drawing Title Date
---------- ------------- ----
A-1 Site plan/index 1/14/97
A-2 Overall floor plan 1/14/97
A-3 Partial plan - west 1/14/97
A-4 Partial plan - east 1/14/97
A-5 Roof plan 1/14/97
A-6 Elevations 1/14/97
A-7 Elevations 1/14/97
A-8 Wall section 1/14/97
A-9 Wall section/details 1/14/97
A-10 Partial plans/elev/details 1/14/97
A-11 Details 1/14/97
A-12 Details 1/14/97
2. As prepared by HKS Associates Inc.:
Drawing No Drawing Title Date
---------- ------------- ----
C-1 Existing conditions 1/8/97
boundary survey
C-2 Site/layout plan 1/8/97
C-3 Grading, drainage, 1/8/97
erosion
C-4 Utilities plan 1/8/97
C-5 General details 1/8/97
C-6 General details 1/8/97
L-1 Landscape development 1/8/97
L-2 Landscape area detail 1/8/97
L-3 Landscape detail 1/8/97
3. As prepared by the XxXxxxxx Group Inc:
Drawing No Drawing Title Date
---------- ------------- ----
S-1 Title sheet 1/7/97
S-2 Foundation plan 1/7/97
S-3 Foundation plan 1/7/97
S-4 Roof framing plan 1/7/97
S-5 Roof framing plan 1/7/97
S-6 Sections and details 1/7/97
S-7 Sections and details 1/7/97
S-8 Sections and details 1/7/97
EXHIBIT C-1
(APPROVED PLANS FOR LESSOR'S WORK)
The following plans dated January 8, 1997 prepared by Genesis Architecture:
Sheet Plan
----- ----
C-1 Existing Conditions and Boundary Survey
C-2 Site/Layout Plan
C-3 Grading, Drainage, Erosion Plan
C-4 Utilities Plan
C-5 General Details
C-6 General Details
C-7 General Details
L-1 Landscape Development Plan
L-2 Landscape Area Detail Sheet
L-3 Landscape Detail Sheet
A-1 Site Plan - Index & Code Review
X-0 Xxxxxxx Xxxxx Xxxx
X-0 Partial Plan - West
A-4 Partial Plan - East
A-5 Roof Plan
A-6 Elevations
A-7 Elevations
A-8 Wall Section
A-9 Wall Section - Details
A-10 Partial Plans/Elev. Details
A-11 Details
A-12 Details
S-1 Title Sheet
S-2 Foundation Plan
S-3 Foundation Plan Cont.
S-4 Roof Framing Plan
S-5 Roof Framing Plan Cont.
S-6 Sections & Details
S-7 Sections & Details
S-8 Sections & Details
EXHIBIT D
OUTLINE SPECIFICATION FOR
THE DESIGN AND CONSTRUCTION OF
MSL TENANT IMPROVEMENTS
Arden Hills Interstate Center
Phase I
Arden Hills, Minnesota
Prepared by:
Welsh Construction Company
February 3, 1997
2
TABLE OF CONTENTS
01000 GENERAL CONDITIONS 3
03000 CONCRETE 5
05000 METALS 5
06000 CARPENTRY AND MILLWORK 6
08000 DOORS AND WINDOWS 6
09000 FINISHES 7
10000 SPECIALTIES 7
11000 EQUIPMENT 8
15000 MECHANICAL 8
16000 ELECTRICAL 12
ALLOWANCES 15
QUALIFICATIONS 16
ALTERNATES AND UNIT PRICES 17
LIST OF EXHIBITS 18
3
01000 GENERAL CONDITIONS
1. INTENT
This outline specification and the preliminary drawings outline the
general scope of work for the design and construction of a 154,264 square
foot office/warehouse facility in Arden Hills, Minnesota. Contractor
shall provide all design, supervision, labor, materials, equipment, and
general requirements necessary for the complete and timely construction of
the project specified herein. General conditions are based on performing
this project concurrently with the base building construction.
2. DESIGN
A. Architecture and Civil/Structural Engineering: Contractor shall
prepare a complete set of working drawings and specifications in
accordance with these outline documents, applicable building codes
and zoning requirements, and the requirements of the owner.
Additions or deletions to the scope of work incorporated into the
final drawings and specifications at the direction of the owner will
result in an appropriate adjustment to the contract price.
B. Mechanical and Electrical Engineering: The tenant and contractor
shall produce outline electrical and mechanical specifications
describing the scope of work and incorporating the items defined in
Division 15 and 16 herein.
3. SUPERVISION
A. Project Manager: Contractor shall assign a project manager to this
project who shall be responsible for the complete execution of all
work. The project manager's responsibilities shall include
interfacing the project as required with the owner and tenant
throughout the entire design and construction process, obtaining the
required building permits, and managing the construction process
through completion of the project.
B. Superintendent: Contractor shall assign a superintendent to this
project who shall be responsible for the supervision of all field
construction in progress. The superintendent's responsibilities
shall include the scheduling and direct supervision of field
construction forces, interfacing as required with building
inspection officials, and ensuring compliance of work in place with
drawings and specifications.
4. CONSTRUCTION SCHEDULE
Contractor shall prepare a progress schedule for the project. This
schedule shall indicate the dates for starting and completion of the
various stages of construction, and shall be updated on a regular basis to
reflect the actual progress of the work.
This proposal is based upon a five-month construction schedule with
construction commencing on or about February 15, 1997 and completing on or
about July 30, 1997. No
4
winter weather costs or overtime costs are included in the contract price.
A copy of the preliminary construction schedule is attached to this
proposal.
5. TEMPORARY CONSTRUCTION
Contractor shall provide all required temporary construction, temporary
facilities and temporary utilities required to complete project
construction including heated weathertight enclosures, temporary roadways
and parking areas, erosion control structures, material storage areas,
enclosures for tools and other equipment, a heated and air-conditioned
field office, temporary utility services for construction use, and
temporary toilet facilities as required.
6. CLEAN-UP
Contractor shall be responsible for construction trash removal services
and shall at all times keep the building and site free from accumulation
of debris. Upon completion, the building shall be turned over to owner in
a "broom clean" condition.
7. WARRANTY
Contractor warrants that all materials and equipment shall be new unless
otherwise specified, and shall be free from defects for a period of one
year from the date of substantial completion of the work.
8. INSURANCE
Contractor shall maintain Worker's Compensation insurance, Comprehensive
Public Liability insurance, and Builder's Risk insurance, "All Risk" form,
for this project for the duration of the work.
9. QUALITY ASSURANCE
Contractor shall prepare and implement a Quality Assurance project for
this project. The Quality Assurance program shall include independent
agency testing and observation of soils, bituminous paving, roofing, steel
connections, and cast-in-place concrete, as well as inspection of work in
progress by project designers.
10. HAZARDOUS MATERIALS REPORTS
When there is reason to suspect the presence of hazardous materials on the
site or within an existing structure, or when such materials are
discovered during construction, the owner will retain an independent
testing agency to perform investigation and testing and to prepare a
Hazardous Materials Report. Removal, containment, disposal or other
procedures required for dealing with such materials will be the
responsibility of the building owner.
5
11. SOIL REPORT
Contractor shall retain an independent testing agency to perform
subsurface exploration (soil borings) and prepare and engineered
foundation report (Soil Report) for the proposed project. Building design
and site preparation shall conform to the requirements of the soil report.
12. PERMITS AND FEES
Contractor shall pay for all required building permits necessary for the
construction of the project.
03000 CONCRETE
1. CONCRETE SLABS
Concrete dolly pads shall be provided at the truck docks and shall
consist of 8" of granular base and 6" of 4000 PSI air entrained concrete,
reinforced with welded wire or fiber mesh. Open, sawcut control joints
shall be provided for the control of shrinkage cracking. Nitrogen tank pad
and a compactor slab have been included as part of the tenant
improvements.
Cast-in-place concrete curbs and gutters shall be provided at the
perimeter of all paved parking and drive areas as part of the base
building package.
Slab on grade shall consist of 4" thick 4000 PSI concrete in the proposed
office areas and 6" thick 4000 PSI concrete in the manufacturing area.
Slabs shall be reinforced with welded wire or fiber mesh in the proposed
warehouse areas, cast in place on a 6" (+/- 1") sand cushion. The
mezzanine slab shall be as designed by the structural engineer and placed
on metal decking.
Smooth dowel connections shall be provided at slab on grade construction
joints. Sawcut control joints shall be provided for the control of
shrinkage cracking. These sawcut joints are not assumed to be caulked.
Concrete slabs shall be treated with liquid applied curing compound.
Curing compounds will be reviewed to ensure compatibility with the
conductive floor system.
05000 METALS
1. STRUCTURAL STEEL
The structural framing system for the building shall consist of steel
columns, beams or truss girders, bar joists, and white primed metal roof
deck with column locations as indicated on the drawings.
A minimum clear height of 24-ft shall be provided under the steel
structure in warehouse areas. The mezzanine area will be constructed on
the east end of the building and has been
6
assumed to be constructed at the same time as the remainder of the
structural steel. Costs exceeding $6.45/sq ft for the mezzanine structure
shall be treated as a change in scope.
2. MISCELLANEOUS METALS
Stairs, handrail, steel tread dock stairs, access ladders and concrete
filled pipe bollards shall be provided as indicated on the drawings and in
the manufacturing area adjacent to the dock enclosures. Steel casings
shall be provided at overhead door openings.
06000 CARPENTRY AND MILLWORK (Per scope indicated in the contract drawings)
1. MISCELLANEOUS CARPENTRY
Roof cants, curbs and other miscellaneous blocking shall be provided as
required.
2. FINISH CARPENTRY
An allowance has been made for the finish carpentry and millwork in the
entry area and for the installation of shelving and rods in the closets.
08000 DOORS AND WINDOWS (Per scope indicated in the contract drawings)
1. DOORS
A. Interior suite doors shall be 3'-0" x 7'-0" solid core plane-sliced
red oak veneer doors. Doors accessing the warehouse area shall be
hollow metal of the appropriate fire rating. Doors shall be stained,
sealed, or painted.
B. Finish hardware: All interior door hardware to be Schlage "S series
or equal, and exterior door hardware shall be Schlage "D" series or
equal. Locksets are included at suite access doors only.
C. Frames: All wood swing doors shall be set in painted 18 gauge hollow
metal frames. Exterior door frame to be 16 gauge hollow metal frame.
Office and conference room door frames will have a 1' x 7' sidelight
attached to the frame.
2. OVERHEAD DOORS
Overhead doors shall be manually operated 8'-0" x 10'-0" insulated steel
sectional doors with high lift track and weatherstripping as noted on the
contract drawings.
3. WINDOW SYSTEM
Windows shall be 1" thick thermal panes set in clear anodized aluminum
frames with a thermal-break design. Areas behind glass spandrel sections
shall be insulated.
7
Entrance door frame finish shall match the style of window framing system.
Aluminum thresholds shall be provided for exterior doors. Panic devices
shall be provided at entrance doors where required by code.
09000 FINISHES (Per scope indicated in the contract drawings.)
1. Exterior Building Finishes: Building exterior finishes to be painted
pre-cast concrete and prefinished sheet metal flashings. Door frames,
metal doors, and miscellaneous metals shall be painted unless provided
with factory finish. Ferrous metals shall be painted, unless provided with
a factory-applied finish. Paint materials and coverage shall be acceptable
for each application and exposure.
2. Interior Building Finishes:
a. Ceilings: Ceilings throughout the office shall be 2' x 4' with
Xxxxxxxxx Second Look II acoustical ceiling tile or equivalent
installed in the building standard exposed grid system at a height
of 9'-0" above finished concrete floor. The ceiling grid will be
installed continuous throughout the suite, except as noted on the
contract drawings. The warehouse area ceilings shall be exposed
prime white painted structural steel and metal deck.
b. Floors: The typical floor finish in office areas shall be carpet. A
carpet allowance of $10.00/sq yd is included for direct-glue
installation. Four-inch carpet base is included throughout the
office. Toilet rooms shall receive ceramic tile floor or equivalent.
The floor in the entry vestibule shall receive quarry tile. The
warehouse area floor shall be existing concrete floor. The
production area shall receive an allowance for Forbo AS2000
conductive floor tile.
x. Xxxxx: Typically, interior partition walls throughout the suite will
be constructed of 3-5/8" metal studs at 24" on center with on layer,
each side of 5/8" drywall and shall extend to the underside of the
acoustical ceiling grid. Exterior walls in finished areas shall be
furred out, insulated if needed, and receive one layer of 5/8"
drywall. Partition walls in demising locations and warehouse
demising and separation walls shall be built to the underside of the
roof deck above. All demising walls to deck will include insulation
in the stud cavity. Toilet room walls shall be built to 12-ft AFF
and will include insulation in the stud cavity. A 4-ft high wainscot
of ceramic tile on plumbing walls shall be provided extending 2-ft
past fixtures on all sidewalls. All walls in the office area will be
taped and sanded smooth and shall receive two finish coats of
eggshell latex paint. The warehouse walls shall be finished and
painted white.
10000 SPECIALTIES (Per scope indicated in the contract drawings)
1. FIRE EXTINGUISHERS
Fire extinguishers shall be provided as required by local fire codes and
shall be housed in painted metal cabinets in finished areas, and
surface-mounted in unfinished areas.
8
2. TOILET ROOM SIGNAGE
One restroom sign indicating handicap accessibility shall be included for
each restroom as required by code.
3. TOILET ROOM ACCESSORIES
Toilet accessories include mirror, handicap grab bars as required by code,
toilet paper holders, soap dispensers, and paper towel dispensers.
11000 EQUIPMENT
1. DOCK EQUIPMENT
Dock bumpers shall be provided at each dock door. Five dock levelers, dock
seals, and draft curtains have been included. The dock leveler capacity
will be 20,000 lbs.
15000 MECHANICAL
1. PLUMBING
A piped, interior roof drainage system shall be provided from roof drains
to connections with the exterior storm drainage system. Above grade,
horizontal portions of the drain pipes shall be insulated. Provisions
shall be made for emergency overflow drainage of ponded roof water, in
accordance with building code requirements. Domestic hot and cold water
will be installed to accommodate handicapped toilets, urinals, lavatories,
sinks, and mop basins.
The following systems are included:
a. Install (1,140) ft of waste piping
b. Install (45) floor drains
c. Install (510) ft of cold and hot water piping
d. Install (625) ft of air mains
e. Install (1,375) ft of air branch piping
f. Install (93) air drops to 4-ft off finished floor with a valve
g. Provide connection to (1) owner's air compressor
h. Install (625) ft of vacuum mains
i. Install (760) ft of vacuum branch piping
j. Install (53) vacuum drops to 4-ft off finished floor
k. Install (540) ft of nitrogen mains
l. Install (665) ft of nitrogen branch piping
m. Install (53) nitrogen drops to 4-ft off finished floor with valve
n. Provide connection to (1) tank header
o. Install (625) ft of DI water mains
p. Install (650) ft of DI water branch lines
q. Install (53) DI water drops to 4-ft off finished floor with valve
r. Provide connection to (1) DI tank
9
s. Provide connection to (1) vacuum pump
t. Install (10) handicap tank-type toilets
u. Install (16) elongated tank-type toilets
v. Install (9) urinals
w. Install (19) lavatories
x. Install (5) electric water coolers
y. Install (2) double-compartment kitchen sinks
z. Install (3) mop basins
aa. Install (3) 6-gallon electric water heaters
bb. Install (1) 40-gallon electric water heater
cc. Provide pipe insulation
dd. Permits are included
ee. Plumbing plans are included
Service drop locations will be coordinated with the tenant's equipment.
Areas to be served are noted on the MSL provided layout drawing.
2. HEATING, VENTILATION, AND AIR CONDITIONING
The following is included within this scope of work:
a. Install (1) 3-ton rooftop heat/cool unit with economizer to serve
the two conference rooms on the northeast side of the building.
b. Install (1) 3-ton rooftop unit with low ambient controls to serve
the computer room.
c. Install (2) 7.5-ton rooftop heat/cool unit with economizer to serve
the breakroom.
d. Install (1) 750 CFM power roof ventilator to serve the breakroom.
e. Install (2) 7.5-ton rooftop heat/cool units with economizers to
serve the west side of the office area, including the conference
rooms, lobby, and restrooms.
f. Install (4) 20-ton rooftop heat/cool units with economizers to serve
open office area.
g. Install (1) 800 CFM power roof ventilator to serve the restrooms and
janitor closet.
h. Install (1) 1.5KW electric entry heater to serve the west entry
area.
i. Install (1) 2KW electric entry heater to serve the main entry area.
j. Install (2) restroom exhaust fans to serve restrooms on east side by
the conference rooms.
k. Install (1) 6-ton rooftop heat/cool unit with economizer to serve
the locker and meeting room areas.
l. Install (1) 1,000 CFM power roof ventilator to serve the locker room
area.
m. Install (1) 1.5KW electric entry heater to serve the locker area
entry.
n. Install (3) 20-ton rooftop heat/cool units with economizers to serve
the main process line area.
o. Install (5) 20-ton rooftop heat/cool units with economizers to serve
the east side of the production area.
p. Install (3) 20-ton rooftop heat/cool units with economizers to serve
the west side of the production area.
q. Provide main and branch spiral ductwork from all 20-ton rooftop
units serving the production and process areas.
r. Install (1) 75 MBH unit heaters to serve the shipping and receiving
areas.
10
s. Install (1) 500 CFM power roof ventilator to serve the solder pot
area. Re-hang existing hood.
t. Install (1) 1,600 CFM power roof ventilators to serve the two-wash
machine. This fan will be epoxy coated. Plastic exhaust ductwork
from wash machine to PRVs.
u. Install (2) 1,600 CFM power roof ventilators to serve the process
machines. Exhaust ductwork from process machines to PRVs. Note: We
assume tenant will be moving his equipment and the blast gates that
are on the equipment now.
v. Install (2) 1,200 CFM power roof ventilators to serve the wave
solder machines. Note: These PRVs are the upblast type.
w. Install (1) 700 CFM explosion-proof power roof ventilator to serve
the chemical storage room. This fan will be epoxy coated. Exhaust
ductwork to within one foot of the floor, with high and low air
intakes. One air transfer with a fire damper. Note: The exhaust
quantities are our best guess without exact CFM ratings from the
tenant.
x. Install (1) 4,000 CFM power roof ventilator to serve the compressor
room. Install (1) 30 x 24, 2-position motorized intake damper for
air transfer into the room. This fan will be controlled by a
thermostat. Note: This damper will be mounted on the high side wall
with a duct drop to the floor to eliminate noise transfer
y. Install (11)38 LB/HR steam humidifier mounted in each of the 20-ton
rooftop units serving the production and process area.
x. Provide vent piping from one test oven to the outside. Note: Assume
oven has its own fan built-in.
z. Install (2) branch supplies and one return air transfer to serve the
security room. These will have special registers and grills that are
tamper proof and used in correctional facilities.
aa. Provide main and branch supply ductwork in the office area.
bb. Provide unit heater vent piping.
cc. Provide exhaust fan vent piping.
dd. Provide gas piping.
ee. Provide steam piping.
ff. Provide (4) 250 MBH unit heaters to serve the warehouse area, last
(3) bays.
Equipment
---------
1 - GCS16-413 Lennox rooftop unit with economizer
1 - GCS16-513 Lennox rooftop unit with low ambient controls
1 - GCS24-713 Lennox rooftop unit with economizer
4 - GCS24-953 Lennox rooftop unit with economizers
15 - LGA24OS Lennox rooftop units with economizers
1 - LF24-75 Lennox unit heater
4 - XX00-000 Xxxxxx xxxx xxxxxx (xxx xxxxxxxxx xxxx)
11 - VMl6 Dri-Steam humidifiers
2 - 362 Broan exhaust fans
1 - 2E437 Dayton electric entry heater
2 - 2E878 Dayton electric entry heaters
1 - XX000-0 Xxxxxxxxx power roof ventilators
1 - CUBE160-7 Greenheck power roof ventilator - epoxy coated
2 - CUBE140-4 Greenheck power roof ventilators
11
2 - CUBE 160-5 Greenheck power roof ventilators
1 - GB100-4 Greenheck explosion-proof power roof ventilator - epoxy
coated
1 - GB180-15 Greenheck power roof ventilator
1 - GB8O-4 Greenheck power roof ventilator
2 - GB9O-4 Greenheck power roof ventilators
3 - LGA24OS Lennox rooftop units with economizers
1 - GB9O-4 Greenheck power roof ventilator
1 - GB8O-4 Greenheck power roof ventilator.
1 - GB8O-4 Greenheck power roof ventilator
1 - CUBE160-7 Greenheck power roof ventilator
3 - VM16 Dri Steam humidifiers
Steam Piping
The contractor shall install steam piping for humidifiers.
Vent Piping
The contractor will install vent piping from exhaust fans and unit
heaters. Installation of vent piping from the process equipment to the new
power roof ventilators is included.
Registers, Grilles, and Diffusers
Install 2-ft linear supply diffusers above the windows and 2 x 2 lay-in
supply diffusers for the interior areas in the office areas. Aluminum
eggcrate for returns is included.
Ductwork and Dampers
Install main and branch supply ductwork in the office area, expose spiral
ductwork in the production and process areas. Provide exhaust ductwork to
the power roof ventilators.
Ductwork Insulation
Supply ductwork in office areas will be insulated with 1-inch duct liner.
Engineered Drawings
The contractor will provide engineered drawings for this project as
required by Minnesota State Statute's 326.02 to 326.15.
System Start-up
The new system will be started and tested for proper operation.
Last Three Bays of Building
a. Install (3) 20-ton rooftop heat/cool units with economizers.
b. Install exposed spiral ductwork with duct-mounted supply registers.
12
Smoking Room
a. Install (1) 840 CEM power roof ventilator
b. Install exhaust ductwork for smoking room.
c. Install air transfer ductwork. Note: This is based on 14 people in
the room.
Fuji Production Line Exhaust
a. Install (1) 500 CFM power roof ventilator with exhaust ductwork
connected to exhaust outlets on machine. Note: This CFM quantity is
our best guess. No actual exhaust quantities have been given.
Wave Solder Machine Exhaust
a. Install (1) 1,200 CFM power roof ventilator with exhaust ductwork
connected to outlets on machine. Note: This is an up-blast type PRV.
Humidification for Last Three Bays
a. Install (3) 39 Lb/Hr steam humidifiers mounted to serve each of the
three 20-ton rooftop units serving this space.
3. FIRE PROTECTION SPRINKLER SYSTEM
A complete ESFR wet automatic fire protection system shall be provided for
the manufacturing area in accordance with the requirements of applicable
codes, NFPA standards and the local fire xxxxxxxx. Smoke evacuation
systems are excluded. The office and other non-manufacturing areas will be
protected by a light hazard system.
16000 ELECTRICAL
1. POWER DISTRIBUTION
a. Wire and install (66) single pole switches
b. Wire and install (14) 3-way switches
c. Wire and install (140) duplex general-duty receptacles
d. Wire and install (2) 4-plex dedicated phone board receptacles
e. Wire and install (2) electric water cooler receptacles
f. Wire and install (4) vending machine receptacles
g. Wire and install (3) coffee maker receptacles
h. Wire and install (3) microwave receptacles.
i. Wire process line Fuji #1 (conveyors, MPM UP2000, Fuji GL-V, 2- Fuji
CP VI, Fuji IP III, MTU, Xxxxxx 18000S, Wave Solder, and Post Wave
assembly area)
j. Wire process line #2 (conveyors, glue dispenser, MPM 1050,
Quad QSP-2. Quad IVC, Xxxxxx 1700S, Wave Input Module, Solder
machine, water wash and assembly area)
13
k. Wire process line #3 and #4 (conveyors, glue dispenser, MPM 1050,
Quad QSP-2, Quad IVC, Xxxxxx 1700S and task modules)
l. Wire line #5 (PTH area)
m. Wire and install (14) 20A, 120V cord drops
n. Wire (15) 20A, 120V connections in the main component store/kitting
area
o. Install (100) telephone/data openings (no wiring included)
p. Wire and install (20) rooftop GFl protected receptacles
q. Increase building service to 2500A, 480V, 3-phase
r. Furnish and install (320) ft of 100A and 200A, 208V bussduct over
process lines.
2. LIGHTING
a. Furnish and install (629) 2 x 4 lay-in fixtures with acrylic lens
and electronic ballasts.
b. Furnish and install (300) 400-xxxx XX high bay fixtures.
c. Furnish and install (10) 2 x 4 fixtures with plaster frames
d. Furnish and install (24) exit signs with emergency lights
e. Furnish and install (2) 300-watt incandescent explosion-proof
fixtures and switch
f. Furnish and install (14) 8-ft 2-lamp strip fixtures
g. Furnish and install (20) fluorescent recessed cans in the main lobby
3. SERVICE
a. Wire (20) sets of office furniture.
b. Wire (1) elevator
c. Wire (2) 6-gallon water heaters.
d. Wire (1) large lockerroom water heater
e. Wire pre-work area
f. Wire (21) cubicles in the area of process lines #2, #3 and #4.
g. Wire computer room [(5) 208V, 30A 3-phase connections, (10) 20A,
120V connections]
h. Wire Tool Shop equipment [(5) 208V, 30A single-phase connections,
(10) 20A, 120V connections)
i. Wire receiving area [(10) 20A, 120V connections]
j. Wire shipping area [(1) shrink wrap, (1) floor scale, (1) lift
table, (6) 20A, 120V connections]
k. Wire (2) 20A, 120V connections and (1) 30A, 208V single-phase
connections in the BBN mech. assembly/test area.
l. Wire (1) Vista oven, 150A, 480V
m. Wire (1) ESS oven, 100A, 480V
n. Wire (1) system test area compressor
o. Wire (1) thermal cycle chamber
p. Wire approximately 150 HP of air compressors
q. Wire (1) analytical/calibration labs
r. Wire (1) x-xxx
x. Wire (2) overhead door operators
t. Wire (1) trash compactor
u. Wire liquid nitrogen task controls
14
v. Wire (1) vacuum pump
w. Wire (1) Industriever 2000
x. Ground VCT flooring
y. Wire (2) 3-ton HVAC units
z. Wire (1) 6-ton HVAC unit
aa. Wire (4) 7.5-ton HVAC units
bb. Wire (1) 8.5-ton HVAC unit
cc. Wire (15) 20-ton HVAC units
dd. Wire (11) humidifiers
ee. Wire (5) unit heaters
ff. Wire (4) entry heaters
gg. Wire (10) PRVs
hh. Wire (2) exhaust fans
ii. Wire (1) explosion-roof XXX
xx. Furnish and install (40) ceiling fans (switched from breakers)
kk. Disconnect equipment at old facility
ll. Wire (1) fire pump
3. COMMUNICATIONS
A telephone service entrance conduit shall be provided from the telephone
terminal room to a point 3-feet outside the building for use by the
telephone company.
15
ALLOWANCES
The following allowances shall be included for the total installed cost (labor,
material, freight, and taxes) of each item indicated unless specified otherwise:
1. An allowance of $20,000 is included for building permits for the tenant
improvements.
2. Entryway millwork and reception desk: We have included an allowance of
$7,500.00 for millwork and drywall soffits in the reception area.
3. Wallcovering allowance: We have included an allowance of $3,000.00 for the
installation of wallcovering in the entryway.
4. Building signage allowance: We have included a $3,000.00 allowance for the
installation of interior signs.
5. Conductive flooring allowance: We have included an allowance of
$409,500.00 for 97,500 sq ft of Xxxxx AS2000 flooring.
6. Food service allowance: We have included $15,360.00 for the installation
of a food service area on the 2nd floor mezzanine level.
7. Window treatment allowance: We have included a $12,250.00 allowance for
the installation of window treatments throughout the building.
8 Elevator allowance: An allowance of $40,000.00 has been included for the
installation of a hydraulic elevator to service the mezzanine level.
9 Security/Fire Alarm systems: An allowance of $15,000.00 has been included
for the installation of a security/fire alarm system as required to meet
MSL's requirements.
16
QUALIFICATIONS
The following items are not included in the scope of work proposed herein:
1. Special fire protection systems such as in-rack sprinklers, pre-action
systems, halon or dry sprinkler systems.
2. Water treatment or conditioning other than those noted in this
specification.
3. Telephone equipment, telephones or communication wiring.
4. Central station monitoring of fire or security systems.
5. Smoke evacuation systems other than smoke vents.
6. Overtime has not been included in this proposal.
7. Muzak or interoffice communications systems.
8. Office furniture, moveable partitions.
9. Relocation of existing equipment including de-ionized water tanks and
controls, compressors, laboratory equipment, ovens, fume hoods, process
equipment, etc.
17
ALTERNATES AND UNIT PRICING
1. Upgrade carpet to $12.00/sq yd. $11,180.00
2. Painting of exposed precast walls in the manufacturing area: $ 6,772.00
3. Painting of exposed joist to match prefinished decking in the $18,744.00
manufacturing area.
4. Paracube light fixture unit price: $32.10/each
5. Wire additional (4) 00-xxx XXX00XX Lennox rooftop units for $25,200.00
additional mezzanine area.
6. Install (4) 00-xxx XXX00XX Lennox rooftop units with $65,100.00
economizers for the additional mezzanine area.
7. Eye wash stations. $525.00/ea
8. Provide (26) power tank toilets in lieu of standard. $3,425.00
18
LIST OF EXHIBITS
The following exhibits, together with this outline specification, form the basis
for this proposal:
Drawings as follows:
1. As prepared by Genesis Architecture:
Drawing No Drawing Title Date
---------- ------------- ----
A-1 Floor plan 12/16/96
A-1 Site plan - index & code review 1/6/97
A-2 Overall floor plan 1/6/97
A-3 Partial plan - west 1/6/97
A-4 Partial plan - east 1/6/97
A-5 Roof plan 1/6/97
A-6 Elevations 1/6/97
A-7 Elevations 1/6/97
A-8 Wall section 1/6/97
A-9 Wall section - details 1/6/97
A-10 Partial plans - elev. details 1/6/97
A-11 Details 1/6/97
A-12 Details 1/6/97
2. As prepared by MSL:
Drawing No Drawing Title
---------- -------------
SK-2 Equipment layout plan (attached)
3. As prepared by Welsh Construction:
Schedule dated February 2, 1997.
EXHIBIT D-l
(TENANT IMPROVEMENT PLANS)
Floor Plans dated December 15, 1996 prepared by Genesis Architecture.
EXHIBIT E
Warranties
Welsh Construction Corp. will furnish a one-year warranty per Paragraph 7 of the
Outline Specification for the Design and Construction of Office/Warehouse, Arden
Hills Interstate Center, Phase I, Arden Hills, Minnesota.
In addition, the following warranties shall be assigned to AmberJack, Ltd.:
- Roofing: 10 year manufacturer's warranty
- Insulated window units: 10 year manufacturer's warranty
- Window Frames: 1 year manufacturer's warranty
- Precast Panels: 1 year manufacturer's warranty
- Electrical Equipment: 1 year warranty as to workmanship, and as provided
by manufacturer as to materials
- HVAC Equipment: 1 year warranty as to workmanship, and as provided by
manufacturer as to materials
- Asphalt Paving: 1 year warranty
- Landscaping: 1 year warranty
EXHIBIT F
(TENANT'S SIGN CRITERIA)
1) Monument Sign - Lessor's Cost
- As shown on Details Plan A-11 dated 01/04/97
2) Tenant Sign - Lessee's Cost
- 36" height x 20" long sign
- Limited maximum sign surface
- Mounted letters
- Tenant graphics locations shown on Extension Elevations Plan A-10
dated 01/04/97
3) Address Sign-Lessor's Cost
- 36" height entrance address number surface mounted center on doors,
as shown on Exterior Elevation Plan A-6 dated 01/04/97
EXHIBIT G
ATTACHED TO AND MADE PART OF
LEASE DATED APRIL 14, 1997
BY AND BETWEEN AMBERJACK, LTD.,
AS LESSOR
AND MANUFACTURER'S SERVICES LIMITED-ROSEVILLE, INC.
A MINNESOTA CORPORATION
AS TENANT
The following items are identified as the Operating Expenses necessary to
maintain and operate the Property.
1. Water and Sewer Services: The City water and sewer service to property, to
include any irrigation water supply.
2. Building Maintenance: To include sprinkler monitoring, two inch drain
test, plumbing repair and maintenance, electrical repair and maintenance,
window washing, roof repair, seasonal inspections of roof deck and
flashings, other building repairs (excluding any repairs specified in the
Lease to be performed by Lessor at its expenses and without reimbursement
from Tenant), pest control and other utilities not paid directly by
Tenant.
3. Repair Maintenance Parking Lots: Sweeping of parking lot, restripe of all
parking stalls and miscellaneous asphalt parking lot repairs.
4. Landscape Maintenance: Monthly contract service for all grounds and
landscaping.
5. Snow Removal: Snow removal costs for all parking lot and sidewalk areas.
6. Insurance: Property and casualty insurance and Lessor's public liability
insurance.
7. Administrative Fee: Monthly management fees in an amount equal to 1.75% of
the aggregate amount of Base Rent, Real Estate Taxes and Operating
Expenses payable to Lessor for such month.
The Tenant reserves the right to contract directly with vendors of its own
choosing for the services to be rendered for the benefit of the Property and
described at numbers 2 through 5 above. Tenant shall do so only upon at least
thirty (30) days prior written notice to Lessor and shall be entitled to
continue such direct contracts with such vendors so long as the Property is
being maintained in accordance with the standards set forth in Section 9(a) of
the Lease.
