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EXHIBIT 10.11
SUPPLEMENT TO LEASE AGREEMENT
(Construction of Improvements)
This agreement ("Agreement") is made as of December 30, 1996 between
CarrAmerica Realty, L.P., a Delaware Limited Partnership ("Landlord") and X.X.
Xxxxxxx & Company, a Colorado corporation ("Tenant").
RECITALS
A. Landlord has purchased from Tenant that certain real property
located in the City and County of Denver, Colorado described in Exhibit A
attached hereto (the "Land"; the Land together with the improvements and other
property located or to be constructed on the Land are collectively referred to
in this Agreement as the "Property") pursuant to that certain Agreement of
Purchase and Sale dated as of December 11, 1996 between Landlord and Tenant
("Purchase Contract").
B. As the prior owner, Tenant had commenced, but as of the closing
under the Purchase Contract had not completed, construction on the Land of a
multi-story office building and related improvements and structures.
C. Landlord and Tenant have executed a lease agreement ("Lease") of
even date with this Agreement pursuant to which Tenant has leased all or a
portion of the Property (the "Premises") from Landlord. Landlord shall provide
funds under this Agreement, which supplements the terms of the Lease, in order
for Tenant to complete the Improvements. Tenant shall be responsible to cause
the completion of the Improvements and shall pay for the cost to achieve such
completion to the extent that the funds that Landlord is obligated to provide
hereunder are insufficient. The rent commencement date ("Rent Commencement
Date") under the Lease will be the earlier of availability of the Premises for
occupancy (as provided in the Lease) and October 1, 1997, as Tenant is bearing
the risk of any delay in the construction of the Improvements. Rent under the
Lease will be calculated under this Agreement to achieve a certain stated
return to Landlord on the funds provided by Landlord pursuant to this
Agreement.
The foregoing provisions are the general intentions of the parties and
are governed by the specific provisions set forth below.
AGREEMENT:
THEREFORE, for valuable consideration, the parties agree as follows:
ARTICLE 1: CONSTRUCTION OF IMPROVEMENTS
1.1 Definitions. In addition to terms defined elsewhere in this
Agreement, for purposes of this Agreement, the terms shown below in this
Paragraph 1.1 shall have the following meanings:
(a) Access Road means the "Access Road", as such term is
defined in the Purchase Contract, and as shown in the Plans and Specifications,
providing ingress and egress between the Property and adjacent public roads,
which access shall be in compliance with all applicable Governmental
Requirements and private covenants, conditions and restrictions of record.
(b) Architects' Agreements means the agreements between each
of the Project Architects and Tenant, each dated as of May 1, 1996, as amended
prior to the date of this Agreement and as amended from time-to-time hereafter
in accordance with the requirements of this Agreement.
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(c) Base Rent means the "Base Rent" payable under the Lease,
as determined pursuant to this Agreement.
(d) Budget means the detailed line item construction budget
for completion of the Improvements attached to this Agreement as Exhibit B.
(e) Escrow Agent means Land Title Guarantee Company.
(f) Expansion has the meaning provided in Paragraph 5.1.
(g) Expansion Commencement Date has the meaning provided in
Paragraph 5.1.
(h) Expansion Notice has the meaning provided in Paragraph
5.4.
(i) Expansion Land has the meaning provided in Paragraph 5.1.
(j) Expansion Option has the meaning provided in Paragraph
5.1.
(k) Final Approvals means all governmental approvals and
certificates required for use and occupancy of the Project, including, without
limitation, a certificate of occupancy issued by the City and County of Denver,
and a Certificate of Compliance issued by the Architectural Control Committee
for the Denver Technological Center.
(l) Financing Fee has the meaning provided in Paragraph 4.1.
(m) General Contractor means Xxxxxx Xxxxxx Construction
Company.
(n) General Construction Contract means the guaranteed maximum
price construction contract for the Improvements between Tenant and General
Contractor, dated as of May 1, 1996, as amended prior to the date of this
Agreement and as amended from time-to-time hereafter in accordance with this
Agreement.
(o) Governmental Requirements means all laws, ordinances,
codes, regulations and governmental requirements applicable to the
construction, completion, use and occupancy of the Property.
(p) Improvements means the multistory office building and all
other improvements to be constructed on the Land as contemplated by the Plans
and Specifications, including the Access Road, surface parking, parking garage,
driveways, storm water and utility facilities and landscaping.
(q) Owner's Title Policy means the owner's policy of title
insurance insuring Landlord's interest in the Land, issued at the closing under
the Purchase Contract.
(r) Plans and Specifications means the plans and
specifications for the Improvements identified on attached Exhibit C, as such
modified from time-to-time hereafter in accordance with the General
Construction Contract and the requirements of this Agreement.
(s) Project Agreements means the Architects' Agreements, the
General Construction Contract and all other contracts and agreements for the
design and construction of the Property, including the contracts and agreements
identified on attached Exhibit D.
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(t) Project Architects means X.X. Xxxxxxxx, X.X. Xxxxxxxx and
Associates, P.C. (core and shell) and VOA Associates Incorporated (interiors).
(u) Project Close-Out has the meaning provided in Paragraph
1.2.
(v) Project Manager means Schal Bovis Inc.
(w) Project Management Agreement means the agreement between
Tenant and the Project Manager dated as of May 1, 1996.
(x) Project Schedule means the line-item schedule for
completion of the Improvements attached to this Agreement as Exhibit E.
(y) Substantial Completion means "substantial completion" of
the Improvements as such term is defined in the General Construction Contract.
(z) Title Company means the title company which issued the
Owner's Title Policy.
(aa) Total Expansion Cost has the meaning provided in Paragraph
5.1.
(bb) Total Project Cost has the meaning provided in Paragraph
4.1.
1.2 Construction. Tenant shall at its sole cost and expense, except
to the extent funds are to be provided by Landlord as provided herein, shall
cause Substantial Completion and Project Close-Out to be achieved by September
30, 1997 and December 15, 1997, respectively; provided that such dates shall be
extended for any Landlord's Delays (as such term is defined in Paragraph 1.4).
Tenant shall cause the Improvements to be constructed in accordance with the
Plans and Specifications, and all applicable Governmental Requirements and
private covenants, conditions and restrictions of record. "Project Close-Out"
shall have occurred when (1) the Project Architects, the Project Manager and
the General Contractor have each issued and delivered to Landlord a
certification that the Improvements have been completed in accordance with the
Plans and Specifications and in compliance with all applicable Governmental
Requirements; (2) all Final Approvals have been obtained; (3) all contractors,
subcontractors, supplies, architects and others who supplied services, labor,
equipment, furnishing, supplies or materials with respect to the Improvements
have been paid in full and have executed affidavits of final payment and
unconditional lien releases and any liens filed against the Property in
connection with completion of the Improvements have been released; (4) all
landscaping and other exterior items have been completed and paid for or
provision for completion and payment has been made for seasonal items; (5) all
punchlist items for all the Improvements have been completed in accordance with
the requirements of the applicable plans and specifications therefor and the
applicable Project Agreements; and (6) written warranties and guaranties from
all subcontractors and suppliers as required by the General Construction
Contract and subcontracts, as-built plans, record drawings, and all project
files have been delivered to Landlord. Tenant shall pay or cause to be paid at
no expense or liability to Landlord, and shall indemnify, defend and hold
harmless Landlord with respect to, any expense or claim incurred by or asserted
against Landlord or the Property and shall reimburse Landlord for any cost or
expense incurred by Landlord that is necessary to achieve Project Close-Out
that is in excess of amounts which Landlord is obligated to fund under this
Agreement, including any such liability, cost or claim resulting from non-
compliance of the Improvements or the Access Road with applicable Governmental
Requirements or private covenants, conditions and restrictions of record.
Tenant shall be entitled to any payment or credits owed or payable by the
General Contractor as a result of delay in completion of the Project.
1.3 Status of Construction. Tenant shall keep Landlord apprised of
the status of construction of the Improvements, and shall provide copies to
Landlord, as and when received by Tenant, of: (i) all requests for
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information; (ii) applications for payment and invoices for payment under the
Project Agreements together with supporting documentation and certificates for
payment; (iii) prior to agreeing thereto, proposed Change Orders, Construction
Change Directives, Addenda, Change Orders and Modifications (as such terms are
defined in document forms prepared by the American Institute of Architects);
(iv) project meeting minutes; (v) inspection certifications and correspondence
relating thereto; (vi) any claims for additional compensation or an extension
in time for performance under any of the Project Agreements; (vii) any notices
of any violations of any legal or regulatory requirements applicable to the
performance of the work; (viii) any schedule modifications; (ix) all shop
drawings and other submittals; and (x) any other material matters relating to
the completion of the Improvements. Landlord shall be entitled to have a
representative present at all project meetings and Tenant shall provide
reasonable advance notice of such meetings to Landlord or its designated
representative.
1.4 Changes. No amendment or modification shall be made to the
Architects' Agreements, the General Construction Contract, the Project
Management Agreement, the Budget or the Project Schedule and no material extra
work or materials or material change in the Plans and Specifications shall be
ordered, authorized or approved by Tenant without, in each case, the prior
written consent of Landlord; provided, however, Landlord shall not unreasonably
withhold its consent to changes in the work or in the Plans and Specifications
(and corresponding Change Orders) which individually or in the aggregate do not
increase or decrease the guaranteed maximum price under the General
Construction Contract by more than $50,000.00; and do not, in Landlord's
reasonable opinion, adversely affect the structure, systems, or equipment, or
appearance of the Improvements or the marketability of the Improvements for
future sale or office leasing. The procedures and time periods for approval of
changes are set forth on attached Exhibit G. As used herein, "Landlord's
Delays" means delays in construction or completion of the Initial Improvements
resulting from Landlord's failure to respond to requests for approvals required
from Landlord hereunder within any time periods specified in Exhibit G for such
response (or if no such period is specified, within a reasonable time).
1.5 Tenant Acts as Principal. With respect to the contracts for
labor, materials and professional services for the construction of the
Improvements, Tenant acts as principal and not as the agent of Landlord.
Landlord expressly disclaims liability for the cost of labor performed for or
supplies or materials furnished to Tenant, except as set forth in this
Agreement. Landlord may post one or more "notices of non-responsibility" for
Tenant's work on the Property. Tenant agrees to indemnify, defend and hold
Landlord and the Property, harmless from all claims (including all costs and
expenses of defending against such claims) arising or alleged to arise from any
act or omission of Tenant or Tenant's agents, employees, contractor,
subcontractors, suppliers, materialmen, architects, designers, surveyors,
engineers, consultants, laborers, or invitees ("Tenant Contractor"), or arising
from any bodily injury or property damage occurring or alleged to have occurred
incident to any of the work to be performed by Tenant or any Tenant Contractor
with respect to the Property. Tenant shall, upon Landlord's request, at
Tenant's expense, resist and defend such action, suit or proceeding, or cause
the same to be resisted and defended by counsel designated by Tenant and
approved in writing by Landlord unless Tenant shall elect to pay or settle any
such claims out of its own funds or proceeds of insurance; Tenant shall
promptly notify Landlord of each action, suit or proceeding threatened or
commenced as a result of injury, damage or liability occurring in, on or about
the Property (whether or not Landlord is named or threatened to be named as a
party), and Tenant shall, upon Landlord's request, at Tenant's expense, resist
and defend such action, suit or proceeding, or cause the same to be resisted
and defended by counsel designated by Tenant and approved in writing by
Landlord unless Tenant shall elect to pay or settle any such claims out of its
own funds or proceeds of insurance. Tenant shall have no authority to place
any lien upon the Property, or any portion thereof or interest therein, nor
shall Tenant have any authority in any way to bind Landlord, and any attempt to
do so shall be void and of no effect. If, because of any actual or alleged act
or omission of Tenant, or Tenant's Contractor, any Tenant Contractor, any lien,
affidavit, charge or order for the payment of money shall be filed against
Landlord or the Project, or any portion thereof or interest therein, whether or
not such lien, affidavit, charge or order is valid or enforceable, Tenant
shall, at its sole cost and expense, cause the same to be discharged of record
by payment, bonding or otherwise no later than 15 days after notice to Tenant
of the filing thereof, but in any event prior to
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the foreclosure thereof. While any such sum remains unpaid, the obligations of
Tenant under this paragraph shall not apply to any claim for payment or lien to
the extent such claim or lien results solely from a failure by Landlord to pay
any sum which Landlord is required to disburse under the terms of this
Agreement.
1.6 Insurance Requirements. Tenant shall cause the General
Contractor to carry, during all such times as the Tenant's work is being
performed, all insurance required to be carried by the General Contractor under
Article 11 of the General Conditions to the General Construction Contract,
including, without limitation, (1) a policy of insurance covering commercial
general liability, with a combined single limit for bodily injury and property
damage per occurrence of not less than $2,000,000, automobile liability
coverage (including owned, non-owned and hired vehicles) in an amount not less
than $1,000,000 combined single limit (each person, each accident), and
umbrella liability with limits not less than $25,000,000, and endorsed to show
Landlord as an additional insured, and (2) workers' compensation insurance as
required by law, endorsed to show a waiver of subrogation by the insurer to any
claim the General Contractor may have against Landlord. In addition, Tenant
shall carry, or cause General Contractor to carry, throughout construction of
the Improvements, builder's risk completed value insurance on the Improvements,
in an amount approved by Landlord, which approval shall not be unreasonably
withheld or delayed, and otherwise satisfying the requirements of Section
11.3.1 of the General Conditions to the General Construction Contract. Such
builder's risk insurance shall include interests of Landlord in the
Improvements. All such insurance shall be issued by insurance companies which
are reasonably acceptable to Landlord and shall provide primary coverage to
Landlord (any policy issued to Landlord providing duplicate or similar coverage
shall be deemed excess over the policies required hereunder).
1.7 Inspection. Landlord shall at all times have the right to
inspect the progress and quality of the construction of the Improvements. No
inspection of the work in progress or any review or approval of the Plans and
Specifications or any other matter hereunder by Landlord, or its consultants or
representatives, shall relieve Tenant from its responsibilities under this
Agreement or the Project Architects, the Project Manager or any contractor or
subcontractor from its responsibilities under its respective contract. Any
approval given by Landlord with respect to Tenant's construction or the plans
and specifications therefor, and/or any monitoring of Tenant's work by
Landlord, shall not make Landlord liable or responsible in any way for the
condition, quality or function of such matters or constitute any undertaking,
warranty or representation by Landlord with respect to any of such matters.
Tenant will allow Landlord its representatives or agents, at any time
during normal business hours, upon reasonable notice, access to the records and
books of account, including any supporting or related vouchers or papers, kept
by or on behalf of Tenant, its respective representatives or agents in
connection with the Property, such access to include the right to make extracts
or copies thereof.
1.8 Permits. Tenant shall be solely responsible for obtaining any
permits required for construction of the Improvements and any certificates of
occupancy or business or other license or permit required for the use and
occupancy of the Property and the conduct of Tenant's business at the Property.
1.9 Utilities. Tenant or General Contractor shall be responsible for
all water, gas, electricity, sewer or other utilities used or consumed at the
Property during the construction of the Improvements.
1.10 Ownership of Improvements. The Property and the Improvements are
the property of Landlord and Tenant hereby disclaims any interest therein
(other than Tenant's leasehold interest under the Lease). All property and
materials incorporated into the Improvements shall become the property of
Landlord upon such incorporation, or upon such earlier time as title passes to
the "owner" under the Project Agreements.
ARTICLE 2: DISBURSEMENTS
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2.1 Applications for Payment. On or before the 20th day of each
month during the construction of the Improvements, Tenant shall submit to
Escrow Agent and Landlord a written request for disbursement for costs incurred
in construction of the Improvements using AIA Form G702 and G703, or a form
containing equivalent information and approved by Landlord (an "Application for
Payment"). Subject to the provisions of this Agreement, payment in respect of
a properly submitted Application for Payment shall be made by the 5th day of
the month following submission. Each Application for Payment shall be
accompanied by:
(a) such backup or supporting documentation as Landlord may
reasonably request substantiating the amount requested;
(b) current lien waivers from general or prime contractors and
lien waivers from subcontractors evidencing that they have received amounts
owing to them from the prior month's disbursement;
(c) with respect to amounts owing to the Project Architects in
respect of the Plans and Specifications, evidence reasonably satisfactory to
Landlord that the applicable governmental approvals have been obtained for the
work in progress or final drawings and specifications, as the case may be, for
which payment is requested; and
(d) with respect to amounts owing in respect of construction
costs, a certificate of one or both of the Project Architects (as applicable),
certifying: (A) the percentage of the work on the Improvements completed as of
the date of the subject Application for Payment; (B) that the work completed to
date complies with the Plans and Specifications and Governmental Requirements;
and (C) the contractors and subcontractors requesting payment are entitled to
payment in the amount requested. In no event shall any amount be disbursed in
excess of the amount certified by the Project Architects as aforesaid.
For each properly submitted Application for Payment, and subject to the
conditions herein, Landlord shall deposit the amount of the Application for
Payment in the escrow account established for such purpose with Escrow Agent,
and Escrow Agent shall disburse such amount to the contractors, subcontractors
or third parties entitled to such payments in accordance therewith.
Final payment and the disbursement of retainages shall be made at such
times as (i) the Project Architects and the General Contractor have each
certified to Landlord that all punch list items applicable to the Improvements
have been properly completed and final completion of the Improvements has been
achieved and such certificates have been delivered to Landlord and Escrow
Agent; (ii) Tenant, the Project Manager and Project Architects have each
delivered to Landlord, with a copy to Escrow Agent, a certificate stating that
all other items required for Project Close-Out have been obtained and delivered
to Landlord and, with respect to the final unconditional lien waivers, to
Escrow Agent.
2.2 Dispute. In the event of a dispute relating to any Application
of Payment, Escrow Agent shall give written notice to Landlord and Tenant
("Dispute Notice"). Landlord and Tenant shall deliver joint written
instructions to Escrow Agent within 15 days of the date of the Dispute Notice.
In the event such joint written instructions are not given within said time
period, the parties shall submit the dispute for arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association and
judgment on the award rendered by the arbitrator may be entered into any court
having jurisdiction. The parties to this Escrow Agreement agree that any
arbitration proceedings shall be conducted in the American Arbitration
Association's regional office located in Denver, Colorado. Each party shall
bear its own costs and expenses in connection with the arbitration; provided,
however, that the substantially prevailing party shall be entitled to
reimbursement by the other party for all reasonable costs and expenses
(including attorneys' fees and costs) that such prevailing party incurred in
the arbitration. Tenant shall continue to perform its obligations under this
Agreement during the pendency of any arbitration.
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2.3 Conditions to Payment. Before any deposit by Landlord in the
escrow account and payment by the Escrow Agent and as a condition to each such
deposit and payment:
(a) No Damage. There shall be no substantial unrepaired
damage to the Improvements by fire or other casualty which is not in Landlord's
judgment adequately covered by collectible proceeds of insurance. If such
proceeds exceed $50,000.00, all proceeds shall be paid to Landlord and shall be
disbursed by it, subject to the terms and provisions of this Agreement. If
such proceeds are less than $50,000.00, all proceeds shall be paid to Tenant
and applied by it to repair any such damages.
(b) Construction Report. Landlord shall have received a
report from the Project Manager dated not earlier than the Application for
Payment to the effect that construction of the Improvements to the date of such
certificate has been in accordance with Governmental Requirements and the Plans
and Specifications.
(c) No Default. No Event of Default shall have occurred and
remain uncured, nor shall any circumstance exist which would, in the reasonable
judgment of Landlord, with the giving of notice or the passage of time, or
both, constitute an Event of Default. At the time of making each disbursement
there shall be delivered to Landlord a certificate, dated as of the date of the
disbursement and signed by Tenant, attesting to the truth of the facts set
forth in the foregoing sentence.
(d) Later Date Title Endorsements. The Title Company is
prepared to endorse the Owner's Title Policy to insure its coverage effective
as of the date of making the disbursement, to include the amount of the
disbursement without exception for any intervening lien, claim of lien or other
encumbrance, in the form of endorsement attached hereto as Exhibit F.
(e) No Mechanic's Liens. No mechanic's or material supplier's
liens shall have been recorded against the Land.
(f) Materials. Landlord shall have received evidence that all
materials for the Improvements to be paid for from such disbursement have been
installed in the Improvements or properly stored on the Property.
2.4 Deficiency. If Landlord reasonably concludes at any time that
the Total Project Cost, including all expenses and charges of every kind and
nature, whether or not described in the Budget, of completion of the
Improvements will exceed $28,000,000.00, after allocation of any realized
savings, there shall be deemed to be a deficiency (herein sometimes called the
"Deficiency"). In the event of any Deficiency within 10 business days after
written demand by Landlord and as a condition to further payment by Landlord
hereunder, Tenant shall deposit the amount of such Deficiency (or an
irrevocable, direct pay letter of credit in such amount issued by a financial
institution reasonably acceptable to Landlord) with the Escrow Agent (such
amount to be disbursed prior to any further disbursements by Landlord), or
otherwise satisfy such Deficiency in a manner reasonably acceptable to
Landlord.
2.5 Dispute with Contractors and Right to Contest. No Application
for Payment shall include amounts which are in dispute between Tenant and any
contractor or between a contractor and any subcontractor. Notwithstanding any
other provisions to the contrary contained in this Agreement, if no Event of
Default has occurred and is continuing, and if Tenant notifies Landlord prior
to any disbursement by Landlord under Paragraph 3.3 for payment of any lien
encumbering the Property that Tenant intends to contest same, Tenant shall have
the right to diligently contest any mechanic's or other lien claim encumbering
the Property (provided that the Tenant shall deposit, with the Title Company, a
sum sufficient (or other security or indemnity acceptable to the Escrow Agent)
to cause the Title Company to insure over such lien claims) assessed against
the Property.
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2.6 Landlord's Maximum Obligation. Landlord's obligation to make
payments with respect to the Improvements under this Agreement (including the
purchase price and costs paid or reimbursed to Tenant at Closing under the
Purchase Contract, real estate taxes, insurance costs and any other payments to
the extent included in the definition of Total Project Cost in Paragraph 4.1)
is limited to a maximum aggregate amount of $28,000,000.00. Any costs in
excess of $28,000,000.00 shall be paid by Tenant.
2.7 Conditions to Escrow Agents Duties. Acceptance of the Escrow
Agent of its duties under this Agreement is subject to the following terms and
conditions:
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the provisions of this Agreement and the Escrow Agent
shall not be liable to any party except for the performance of such duties and
obligations as are specifically set out in this Agreement;
(b) Tenant and Landlord will jointly and severally reimburse
and indemnify the Escrow Agent for, and hold it harmless against, any loss,
liability or expense, including, but not limited to, court costs and attorneys'
fees incurred without gross negligence or willful misconduct on the part of the
Escrow Agent, and arising out of, or in connection with, any dispute arising
under this Agreement, as well as the costs and expense of defending against any
claim or liability arising out of, or relating to, this Agreement, provided
that any reimbursement shall not prejudice the right of Tenant and Landlord to
recover from the other.
(c) The Escrow Agent shall be fully protected in acting on and
relying upon any written notice, instruction, direction or other document which
the Escrow Agent, in good faith, believes to be genuine and to have been signed
or presented by the proper party or parties;
(d) The Escrow Agent shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it in good faith, or
for any mistake in fact or law, or for anything which it may do or refrain from
doing in connection herewith, except its own gross negligence or willful
misconduct;
(e) The Escrow Agent may seek the advice of legal counsel in
the event of any dispute or question as to the construction of any of the
provisions of this Agreement or its duties hereunder, and it shall incur no
liability and shall be fully protected in respect of any action taken or
suffered by it in good faith in accordance with the opinion of such counsel;
(f) The Escrow Agent may resign and be discharged from its
duties hereunder at any time by giving written notice of such resignation to
each of the parties specifying a date, not less than fifteen (15) days after
the date of such notice. No resignation shall be effective until a substitute
Escrow Agent selected by Landlord and Tenant or if they cannot agree, by Escrow
Agent, has agreed in writing to act as the Escrow Agent hereunder. Any
substitute Escrow Agent must be a United States title company authorized to
insure title to real property in all states. Upon the effective date of such
resignation, the Escrow Agent shall deliver any funds in its escrow account to
the substitute Escrow Agent and upon such delivery and the assumption by the
substitute Escrow Agent of its duties hereunder, the Escrow Agent shall be
relieved of all duties and liabilities thereafter accruing under this
Agreement. Landlord and Tenant shall have the right, at any time, to
substitute a new escrow agent by giving joint notice thereof to the Escrow
Agent then acting;
(g) Nothing contained in this Agreement shall in any way
affect the right of the Escrow Agent to have, at any time, a judicial
settlement of its accounts as Escrow Agent under this Agreement.
(h) Escrow Agent waives all rights of offset and disclaims any
security or other interest in the Escrow Funds except for fees and expenses to
Escrow Agent hereunder for which Escrow Agent is not
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reimbursed as provided herein.
(i) The fee of Escrow Agent for its services hereunder, if
any, shall be paid by Landlord and included in Total Project Costs.
ARTICLE 3: DEFAULT
3.1 Events of Default. Each of the following shall constitute an
"Event of Default" under this Agreement:
(a) Any Event of Default by Tenant that occurs under the Lease
(after expiration of any applicable cure period);
(b) Tenant fails to keep or perform any obligation or
condition which this Agreement obligates Tenant to keep or perform, and such
failure continues for 10 consecutive days after written notice thereof from
Landlord to Tenant, as the case may be;
(c) Any representation, warranty or certification, made or
given in or pursuant to this Agreement or otherwise made by Tenant in writing
in connection with or as contemplated by this Agreement, proves to be untrue in
any material respect at any time when such representation, warranty or
certification is operative or applicable hereunder;
(d) Either of the Architects' Agreements, the General
Construction Contract or any other Project Agreement to which Tenant is a party
is modified or amended in any material respect without the prior written
consent of Landlord; or
(e) The construction of the Improvements is abandoned or
discontinued for a period of 10 consecutive days or more and such delay is not
due to Landlord's Delays or any cause which would permit extension of the
Contract Time under Section 8.3 of the General Conditions to the General
Construction Contract, other than a delay caused by Tenant or its employees; or
(f) Tenant fails to substantially comply with (or to bond or
indemnify Landlord to its satisfaction with regard to) any Governmental
Requirement within 20 consecutive days after Tenant has notice of such
requirement; or
(g) Tenant: makes an assignment for the benefit of creditors;
or petitions or applies to any tribunal for the appointment of a trustee or
receiver for itself or for any substantial part of its assets, or commences any
proceedings under any bankruptcy, arrangement, insolvency, readjustment of debt
or reorganization statute or law of any jurisdiction, whether now or hereafter
in effect; or if any such petition or application is filed or any such
proceedings are commenced, and any such person or entity by any act indicates
any approval thereof, consent thereto or acquiescence therein, or an order is
entered appointing any such trustee or receiver, or adjudicating any such
person or entity bankrupt or insolvent, or approving the petition in any such
proceedings; or if any petition or application for any such proceeding or for
the appointment of trustee or receiver is filed by any third-party against any
such person or entity or any of the aforesaid proceedings is not dismissed
within 90 days of its filing; or
(h) Proceedings are commenced by any public or quasi-public
body to acquire the Property or any material interest in or part thereof by
eminent domain and such proceedings are not dismissed within 90 days; or
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(i) Tenant enters into any financing agreements or
arrangements of any kind whatsoever directly or indirectly secured or purported
to be secured by the Property, or any part thereof; or
(j) Any lien or notice of lien for the performance of work or
the supplying of materials is filed or served against the Property, or any part
thereof, and remains unsatisfied and if the Escrow Agent fails to insure over
it at the time of any request for disbursement or for a period of 30
consecutive days after the date of filing or serving thereof; or
(k) There is an attachment, execution or other judicial
seizure of any portion of the Property and such seizure is not discharged
within 30 consecutive days after such attachment, execution or other judicial
seizure, as the case may be; or
(l) Any order or decree is entered by any court of competent
jurisdiction directly enjoining the construction or completion of the
Improvements or enjoining or prohibiting Tenant, or Landlord from substantially
performing any of its obligations or rights under or as contemplated by this
Agreement, and such order or decree is not stayed or vacated, or the
proceedings out of which such order or decree arose are not dismissed, within
30 consecutive days after the granting of such decree or order; or
(m) Any Deficiency is not satisfied in a manner reasonably
satisfactory to Landlord in its discretion (whether such Deficiency is existing
or anticipated by Landlord), within 10 business days;
provided, however, that except for a default under subparagraph (a), the time
limit for curing defaults as set forth in the foregoing clauses shall be
extended for a period of not more than an additional 90 consecutive days if the
ability to cure the subject default within the time limits specified in such
clauses is not within the reasonable control of Tenant (lack of funds shall not
be deemed a matter beyond the reasonable control of any such party) and
provided Tenant promptly and in good faith undertakes the curing of such
default and diligently thereafter in good faith pursues the curing thereof to
completion.
3.2 Remedies. After the occurrence of any Event of Default, Landlord
shall have the right in addition to all the remedies conferred upon Landlord by
law or equity or the terms of this Agreement or the Lease, to do any one or
more of the following, concurrently or successively, without notice to Tenant:
(a) Terminate Landlord's obligations under this Agreement to
make any further payments hereunder; and
(b) To the extent and in the manner permitted by applicable
law, and without terminating the Lease, enter upon, take possession of, and use
the Property, and all parts thereof, and all material, equipment and supplies
thereon and elsewhere which were ordered for or appropriated to the
construction of the Improvements, for the purpose of continuing the
construction of the Improvements, and do anything which in its sole judgment is
necessary or desirable to fulfill, pay, settle or compromise the obligations of
Tenant hereunder or to complete the Improvements, including, without
limitation, availing itself or through others of and procuring performance of
the Architects' Agreements, the Project Management Agreement and the General
Construction Contract or letting new contracts with the General Contractor, the
Project Manager or the Project Architects or others. All sums whatsoever paid
or incurred for the construction, completion and equipping of the Improvements,
pursuant to the provisions of this paragraph or otherwise, and all other
payments made or liabilities incurred by Landlord shall constitute
disbursements pursuant to this Agreement. Landlord and its designees,
representatives, agents, licensees and contractors shall be entitled to such
entry, possession and use without the consent of any party and without any
other condition precedent whatsoever. Tenant acknowledges that any denial of
such entry, possession and use by Landlord after Landlord shall be entitled
thereto in the manner permitted by law will cause irreparable injury and
damages to Landlord and Landlord shall be entitled to
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injunctive relief to obtain such entry.
3.3 Action by Landlord. To implement the rights of Landlord under
Paragraph 3.2 hereof, Tenant hereby constitutes and appoints Landlord its true
and lawful attorney-in-fact with full power of substitution in the premises to,
at its election, after an Event of Default, take possession of the Property
without terminating the Lease and to make such corrections, additions, changes
and modifications in the Plans and Specifications as may be necessary or
desirable in the opinion of Landlord to pursue such construction of the
Improvements; to employ such contractors, subcontractors, employees, agents,
architects, engineers, watchmen, managers, consultants and inspectors as
Landlord may deem appropriate; to pay, settle or compromise all existing bills
and claims which may be or become liens against the Property, or any part
thereof, or as may be necessary or desirable in the opinion of Landlord for
pursuing such construction or for the clearance of title; to prosecute and
defend all actions and proceedings in connection with pursuing such
construction or in connection with title to the Property; to execute all
applications, certificates, or instruments in the name of Tenant which in the
opinion of Landlord may be or are required by any governmental authority or
contract to pursue construction of the Improvements; and to do any and every
act which Tenant might do in its own behalf to pursue construction of the
Improvements. Such power of attorney is coupled with an interest and is
irrevocable. Landlord as such attorney-in-fact shall also have the power, at
its election, after an Event of Default, to prosecute and defend all actions
and proceedings in connection with such construction, and to take such action
and require such performance under any surety bond or other obligation, and to
execute in the name of Tenant such further bonds or obligations, as Landlord
may require in connection with the work.
Funds disbursed by Landlord in the exercise of its judgment that the
same are needed to complete the Improvements or to protect the Property or to
fulfill any of Tenant's obligations hereunder or under the Lease are to be
added to the Total Project Cost.
ARTICLE 4: CALCULATION OF RENT
4.1 Calculation of Base Rent under the Lease. Effective on the Rent
Commencement Date, annual Base Rent shall equal the product of (x) the Total
Project Cost and (y) the Annual Rate of Return. "Annual Rate of Return" means:
an annual rate equal to 9.70%, provided that such rate shall be reduced by one
basis point for each whole $100,000 by which the amount of $27,000,000.00
exceeds the Total Project Cost, up to a maximum reduction of 20 basis points.
For example: if the Total Project Cost is $26,750,000.00, then the Annual Rate
of Return shall be reduced by two basis points to 9.68%. The obligation of
Tenant to pay Base Rent shall commence on the Rent Commencement Date whether or
not the Improvements have been completed and Tenant agrees that the risk of
late completion of the Improvements shall be borne by Tenant. If the Total
Project Cost has not been determined as of the Rent Commencement Date, Base
Rent shall be determined by Landlord based upon Total Project Cost incurred to
date plus a reasonable estimate of remaining amounts to be disbursed by
Landlord hereunder. A final calculation of Base Rent shall be made upon
Project Close-Out (which Base Rent shall be effective retroactively to the Rent
Commencement Date) and Tenant shall (i) remit any underpayment to Landlord
together with the installment of Base Rent next due, or (ii) receive a credit
against Base Rent next due in the amount of any overpayment. "Total Project
Cost" shall mean the sum of (A) the purchase price paid by Landlord under the
Purchase Contract to purchase the Property (without regard to adjustments or
prorations made thereunder), (B) costs incurred by Tenant in connection with
design and construction of the Improvements paid or reimbursed by Landlord
pursuant to Paragraph 6.1(b) of the Purchase Contract, (C) costs disbursed by
Landlord pursuant to this Agreement; (D) real estate taxes and assessments
accrued or assessed for the period from and after the Closing Date under the
Purchase Contract through the date of commencement of Tenant's obligation to
pay real estate taxes under the Lease (whether or not due and payable); (E) any
other amounts specifically included in the Total Project Cost under the terms
of this Agreement or the Purchase Agreement; (F) Landlord's average cost of
coverage for liability insurance during the period ending on Project Close-Out;
(G) the Financing Fee; and (H) imputed interest at the Interest Rate on the
Total Project Cost (imputed interest accrues on actual cost as and when
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disbursed by Landlord, including amounts under clause (B) above paid or
reimbursed at closing under the Purchase Contract, (and for such purposes, the
Financing Fee shall be deemed to have been disbursed on the Closing Date under
the Purchase Contract) up to the Rent Commencement Date, as such term is
defined in the Lease). Total Project Cost shall not include any transaction
costs incurred by Purchaser in connection with the investigation and purchase
of the Property under the Purchase Contract, except as expressly provided in
the Purchase Agreement. "Interest Rate" means an annual rate equal to the rate
as published in the Wall Street Journal for notes maturing one month after
issuance under the caption "Money Rates, London Interbank Offered Rates"
("Libor"), plus 1.6 percent per annum, but not in any event shall such rate
exceed at any time the maximum rate of interest permitted by applicable law.
The Interest Rate shall change on the same day as any change in the Libor rate
as published in the Wall Street Journal. As used in this Agreement, "Financing
Fee" means a fee equal to 50 basis points levied against the total of all other
components of Total Project Cost, as estimated based upon the Budget and
Project Schedule, which fee shall be adjusted at Project Close-Out to reflect
actual disbursements and imputed interest through the date of Project-Close-
Out.
4.2 INTENTIONALLY OMITTED.
4.3 Escalation of Base Rent. Base Rent shall escalate during the
term of the Lease and any extension term, as set forth in the Lease.
ARTICLE 5: INTENTIONALLY OMITTED
ARTICLE 6: MISCELLANEOUS
6.1 No Waiver; Modifications. No delay on the part of Landlord or
Tenant in exercising any rights set forth herein, or failure to exercise such
rights, shall operate as a waiver thereof or of any of their rights under this
Agreement. No modification or waiver of the provisions of this Agreement shall
be effective unless in writing and signed by the party to be charged therewith,
nor shall any waiver be applicable except in the specific instance for which
given.
6.2 Governing Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
6.3 Conflicts. The provisions of this Agreement shall govern over
any conflicting provisions in the Lease or the Purchase Contract.
6.4 Headings. The article and paragraph headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning of
the language hereof.
6.5 Invalidity and Waiver. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed
to be a waiver of such party's right to enforce against the other party the
same or any other such term or provision in the future.
6.6 No Third Party Beneficiary. This Agreement is not intended to
give or confer any benefits, rights, privileges, claims, actions, or remedies
to any person or entity as a third party beneficiary, decree, or otherwise.
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6.7 Entirety and Amendments. This Agreement and the Lease embody the
entire agreement between the parties and supersede all prior agreements and
understandings between the parties relating to the Property other than
provisions of the Purchase Contract which survive the Closing by their terms.
This Agreement may be amended or supplemented only by an instrument in writing
executed by the party against whom enforcement is sought.
6.8 Time of the Essence. Time is of the essence in the performance
of this Agreement.
6.9 Attorneys' Fees. Should either party employ attorneys to enforce
any of the provisions hereof, the party against whom any final judgment is
entered agrees to pay the prevailing party all reasonable costs, charges, and
expenses, including reasonable attorneys' fees, expended or incurred by the
prevailing party in connection therewith.
6.10 Notices. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth below.
Any such notices shall be either (1) sent by overnight delivery using a
nationally recognized overnight courier, in which case notice shall be deemed
delivered one business day after deposit with such courier, (2) sent by
telefax, in which case notice shall be deemed delivered upon transmission of
such notice, or (3) sent by personal delivery, in which case notice shall be
deemed delivered upon receipt or refusal of delivery. A party's address may be
changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice.
Copies of notices are for informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure to give notice.
Tenant Notice Address:
---------------------
X.X. XXXXXXX & COMPANY
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Director of Real Estate
Telephone: 303/000-0000
Facsimile: 303/488-1690
With a copy to: X.X. XXXXXXX & COMPANY
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: 303/000-0000
Facsimile: 303/488-4679
And with a copy to: Xxxxxxx & Xxxxxx, LLC
000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telephone: 303/000-0000
Facsimile: 303/298-0940
Landlord Notice Address:
-----------------------
With a copy to: CARRAMERICA REALTY, L.P.
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Attention: Market Officer
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: 303/000-0000
Facsimile: 303/779-6587
CARRAMERICA REALTY CORPORATION
Attention: Asset Manager
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: 202/000-0000
Facsimile: 202/638-0102
And a copy to: Xxxxx, Xxxxx & Xxxxx
Attn: Xxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Telephone: 505/000-0000
Facsimile: 505/820-7334
6.11 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
6.12 Remedies Cumulative. The remedies provided in this Agreement
shall be cumulative and, except as otherwise expressly provided shall not
preclude the assertion or exercise of any other rights or remedies available by
law, in equity or otherwise.
6.13 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
6.14 Independent Obligations. Tenant acknowledges that the undertakings
of Tenant under this Agreement are a material inducement to Landlord to
purchase the Property under the Purchase Contract and to enter into the Lease
and that Landlord would not purchase the Property or enter into the Lease
without Tenant's undertaking to complete the Improvements. The obligations of
Tenant under this Agreement are independent of and in addition to the Lease and
no default by Landlord under the Lease or defense available to Tenant with
respect to its obligations under the Lease shall constitute or be deemed a
defense to Tenant's obligations hereunder.
[Signature Page Follows]
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SIGNATURE PAGE TO
SUPPLEMENT TO LEASE AGREEMENT
CARRAMERICA REALTY, L.P.
By: CARRAMERICA REALTY GP HOLDINGS, INC.,
a Delaware corporation,
its general partner
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
X.X. XXXXXXX & COMPANY
By:
---------------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President and General Counsel
Escrow Agent accepts its duties pursuant to Paragraph 2.7.
LAND TITLE GUARANTEE COMPANY
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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SUPPLEMENT TO LEASE AGREEMENT
EXHIBITS
A - Legal Description of Land
B - Budget
C - List of Plans and Specifications
D - List of Project Agreements
E - Project Schedule
F - Form of Endorsement
G - Change Order Procedures
17
EXHIBIT A
LEGAL DESCRIPTION OF LAND
PARCEL 1
A PARCEL OF LAND BEING LOCATED IN THE DENVER TECHNOLOGICAL CENTER EAST IN
SECTIONS 8 AND 9, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL
MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF COLORADO, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNER OF SECTION 9; THENCE ALONG THE EAST-WEST
CENTERLINE OF SECTION 9 BEARING SOUTH 89 DEGREES 59 MINUTES 25 SECONDS EAST,
279.73 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 52 DEGREES 41 MINUTES 01 SECONDS WEST, 368.62 FEET; THENCE ALONG A
NON-TANGENT CURVE TO THE RIGHT HAVING AN ARC LENGTH OF 563.61 FEET, A CENTRAL
ANGLE OF 30 DEGREES 04 MINUTES 04 SECONDS, A RADIUS OF 1,074.00 FEET AND A
CHORD WHICH BEARS NORTH 52 DEGREES 23 MINUTES 11 SECONDS EAST, 557.17 FEET;
THENCE SOUTH 27 DEGREES 16 MINUTES 44 SECONDS EAST, 79.29 FEET; THENCE ALONG A
NON-TANGENT CURVE TO THE RIGHT HAVING AN ARC LENGTH OF 413.05 FEET, A CENTRAL
ANGLE OF 23 DEGREES 47 MINUTES 07 SECONDS, A RADIUS OF 995.00 FEET AND A CHORD
WHICH BEARS NORTH 79 DEGREES 41 MINUTES 12 SECONDS EAST, 410.10 FEET TO A POINT
OF NON-TANGENCY;
THENCE NORTH 43 DEGREES 56 MINUTES 35 SECONDS EAST, 67.90 FEET TO THE
RIGHT-OF-WAY LINE OF SOUTH ULSTER STREET PARKWAY;
THENCE ALONG SAID RIGHT-OF-WAY LINE BEING A CURVE TO THE LEFT HAVING AN ARC
LENGTH OF 73.83 FEET, A CENTRAL ANGLE OF 05 DEGREES 13 MINUTES 20 SECONDS, A
RADIUS OF 810.00 FEET AND A CHORD WHICH BEARS SOUTH 48 DEGREES 40 MINUTES 05
SECONDS EAST, 73.80 FEET;
THENCE LEAVING SAID RIGHT-OF-WAY LINE SOUTH 35 DEGREES 51 MINUTES 07 SECONDS
WEST, 95.85 FEET TO POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING AN ARC LENGTH OF 374.78 FEET, A CENTRAL
ANGLE OF 35 DEGREES 36 MINUTES 58 SECONDS, A RADIUS OF 602.79 FEET AND A CHORD
WHICH BEARS SOUTH 18 DEGREES 02 MINUTES 45 SECONDS WEST, 368.70 FEET TO A POINT
OF TANGENCY;
THENCE SOUTH 00 DEGREES 14 MINUTES 25 SECONDS WEST, 243.18 FEET;
THENCE ALONG A NON-TANGENT CURVE TO THE LEFT HAVING AN ARC LENGTH OF 257.58
FEET, A CENTRAL ANGLE OF 45 DEGREES 28 MINUTES 50 SECONDS, A RADIUS OF 324.50
FEET AND A CHORD WHICH BEARS SOUTH 60 DEGREES 03 MINUTES 24 SECONDS WEST, 250.87
FEET;
THENCE NORTH 52 DEGREES 41 MINUTES 01 SECONDS WEST, 379.45 FEET TO THE TRUE
POINT OF BEGINNING.
BASIS OF BEARINGS: ASSUMED ALONG THE SOUTHEASTERLY LINE OF DTC EAST, WHICH IS
SITUATED XXXXX XXX XXXX XX XXXXX XXXXXX XXXXXX PARKWAY, NORTHWEST OF UNION
AVENUE PARKWAY, AND EAST OF INTERSTATE HIGHWAY I-25, AND BEING THE NORTHERLY
18
RIGHT-OF-WAY LINE OF UNION AVENUE PARKWAY, BOOK 29, PAGE 56, AS MONUMENTED BY A
PIN AND CAP PLS 9655 BEING THE EASTERLY CORNER OF PARCEL 1, RECEPTION NO. 92-
0071136 AND A PIN AND CAP PLS 23899, BEARING NORTH 64 DEGREES 49 MINUTES 30
SECONDS WEST, 766.84 FEET.
19
PARCEL 2
A PARCEL OF LAND BEING LOCATED IN THE DENVER TECHNOLOGICAL CENTER IN SECTION 9,
TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE SIXTH PRINCIPAL MERIDIAN, CITY AND
COUNTY OF DENVER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNER OF SECTION 9; THENCE N81 degrees 26'41"E,
808.84 FEET TO THE TRUE POINT OF BEGINNING; THENCE N00 degrees 14'25"E, 17.92
TO A POINT OF CURVATURE; THENCE 10.24 FEET ALONG THE ARC OF A CURVE TO THE
RIGHT HAVING A RADIUS OF 602.79 FEET, A CENTRAL ANGLE OF 00 degrees 58'22", AND
A CHORD WHICH BEARS N00 degrees 43'01"E, 10.24 FEET; THENCE 23.38 FEET ALONG
THE ARCH OF A CURVE TO THE LEFT HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE
OF 53 degrees 35'55", AND A CHORD WHICH BEARS N29 degrees 54'67"E, 22.64 FEET
TO A POINT OF COMPOUND CURVATURE; THENCE 167.63 FEET ALONG THE ARC OF A CURVE
TO THE RIGHT HAVING A RADIUS OF 592.29 FEET, A CENTRAL ANGLE OF 16 degrees
12'58", AND A CHORD WHICH BEARS N11 degrees 13'27"E, 167.07 FEET TO A POINT OF
REVERSE CURVATURE; THENCE 15.26 FEET ALONG THE ARC OF A CURVE TO THE LEFT
HAVING A RADIUS OF 10.00 FEET, A CENTRAL ANGLE OF 87 degrees 25'80", AND A
CHORD WHICH BEARS N24 degrees 23'00"W, 13.82 FEET TO A POINT OF TANGENCY;
THENCE N68 degrees 05'58"W, 0.87 FEET; THENCE 38.35 FEET ALONG THE ARC OF A
NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 602.79 FEET, A CENTRAL ANGLE
OF 03 degrees 38'41", AND A CHORD WHICH BEARS N22 degrees 06'27"E, 38.34 FEET;
THENCE 23.79 FEET ALONG A NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF
20.00 FEET, A CENTRAL ANGLE OF 52 degrees 25'54", AND A CHORD WHICH BEARS
N52'08"18"E, 22.97 FEET TO A POINT OF REVERSE CURVATURE; THENCE 103.01 FEET
ALONG AN ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 592.29 FEET, A CENTRAL
ANGLE OF 09 degrees 57'53", AND A CHORD WHICH BEARS N30 degrees 52'18"E, 102.88
FEET TO A POINT OF TANGENCY; THENCE N35 degrees 51'07"E, 95.39 FEET TO THE
SOUTHWESTERLY RIGHT-OF-WAY LINE OF SOUTH ULSTER STREET PARKWAY; THENCE 44.90
FEET ALONG SAID SOUTHWESTERLY RIGHT-OF-WAY LINE BEING THE ARC OF A CURVE TO THE
LEFT HAVING A RADIUS OF 810.00 FEET, A CENTRAL ANGLE OF 03 degrees 10'35", AND
A CHORD WHICH BEARS S53 degrees 36'39"E, 44.90 FEET; THENCE LEAVING SAID
SOUTHWESTERLY RIGHT- OF-WAY LINE S35 degrees 51'07"W, 32.45 FEET TO A POINT OF
CURVATURE; THENCE 44.40 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A
RADIUS OF 115.00 FEET, A CENTRAL ANGLE OF 22 degrees 07'23", AND A CHORD WHICH
BEARS S45 degrees 54'48"W, 44.13 FEET TO A POINT OF REVERSE CURVATURE; THENCE
35.10 FEET ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 85.00 FEET,
A CENTRAL ANGLE OF 23 degrees 39'28", AND A CHORD WHICH BEARS S46 degrees
08'46"W, 34.85 FEET TO A POINT OF COMPOUND CURVATURE; THENCE 334.44 FEET ALONG
THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 582.29 FEET, A CENTRAL ANGLE
OF 34 degrees 04'43", AND A CHORD WHICH BEARS S17 degrees 16'40"W, 329.53 FEET
TO A POINT OF TANGENCY; THENCE S00 degrees 14'25"W, 16.34 FEET; THENCE 40.54
FEET ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 550.00 FEET, A
CENTRAL ANGLE OF 04 degrees 13'25", S87 degrees 52'54"W, 40.35 FEET TO THE TRUE
POINT OF BEGINNING. SAID PARCEL CONTAINS 0.37 ACRES (10030.87 SQUARE FEET),
MORE OR LESS.
BASIS OF BEARINGS: ASSUMED ALONG THE SOUTHEASTERLY LINE OF DTC EAST, WHICH IS
SITUATED XXXXX XXX XXXX XX XXXXX XXXXXX XXXXXX PARKWAY, NORTHWEST OF UNION
AVENUE PARKWAY, AND EAST OF INTERSTATE HIGHWAY I-25, AND BEING THE NORTHERLY
RIGHT-OF-WAY LINE OF UNION AVENUE PARKWAY, BOOK 29, PAGE 58, AS MONUMENTED BY A
20
PIN AND CAP PLS 9000 BEING THE EASTERLY CORNER OF PARCEL 1, RECEPTION NUMBER
00-0000000 AND A PIN AND CAP PLS 23899 BEARING N64 degrees 49'20"W, 766.84 FEET.
21
EXHIBIT B
BUDGET
22
EXHIBIT C
LIST OF PLANS AND SPECIFICATIONS
(Attached)
23
EXHIBIT D
LIST OF PROJECT AGREEMENTS
1. Project Management Agreement dated May 1, 1996 between X.X. Xxxxxxx &
Company and Schal Bovis, Inc.
2. Contract for Construction dated May 1, 1996 between X.X. Xxxxxxx &
Company and Xxxxxx Xxxxxx Construction Co.
3. Agreement for Interior Design Services dated May 1, 1996 between X.X.
Xxxxxxx & Company and VOA Associates Incorporated.
4. Agreement Between Client and Architect dated May 1, 1996 between X.X.
Xxxxxxx & Company and X.X. Xxxxxxxx X.X. Xxxxxxxx & Associates, P.C.
24
EXHIBIT E
PROJECT SCHEDULE
(Attached)
25
EXHIBIT F
FORM OF ENDORSEMENT
(Attached)
26
EXHIBIT G
PROCEDURES FOR CHANGE ORDERS
(Attached)
