Thomas Road Properties - Oakbrook Subdivision Lease Agreement
LEASE
(Oakbrook Subdivision)
THIS LEASE, for reference purposes only dated /2 ~ 1(9 - g 7 is entered into by
and between THE CITY OF GILROY, a municipal corporation ("Landlord"), and THOMAS
ROAD PROPERTIES, a California Limited Partnership ("Tenant").
RECIT ALS
A. Tenant is the developer of that certain real property development in Gilroy,
California which is the subject of Tract Map dated MAY , '0 hi q q 7 relating to Tract No.
e ~ 26 '()\~e..oo~hown on Exhibit "A" attached hereto (t e "Tract").
B. As a portion of the improvements to be completed pursuant to the development of
the Tract, the Tenant will install certain landscaping and structural elements at the southeast
comer of the intersection of Thomas Road and Luchessa Avenue. The said improvements
("Entry Improvements") are shown on Exhibit "B" attached hereto. Upon completion of the
Entry Improvements, they will be dedicated to the City of Gilroy, subject to acceptance thereof
by the City of Gilroy.
C. When seeking the City of Gilroy's approval of the Entry Improvements, Tenant
requested that it be allowed to install and construct, as part of the Entry Improvements, a
combined retaining wall/sign wall ("Sign Wall") and lighting improvements installed for the
purpose of illuminating the Sign Wall ("Lighting Improvements"). The Sign Wall and Lighting
Improvements are identified as being a portion of the Bid alternate A Entry Features on Exhibit
"B" attached hereto. Landlord was agreeable to such request provided that Tenant agreed that
such Lighting Improvements would be installed only on a temporary basis, to be removed upon
Landlord's request. Landlord and Tenant desire to enter into this Lease to allow the Tenant to
maintain the Lighting Improvements in place for the term of this Lease to illuminate the Sign
Wall and certain other Entry Improvements, on the terms and conditions as set forth in this
Lease.
NOW, THEREFORE, for valuable consideration, the parties agree as follows:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the real property more particularly on Exhibit "c" attached hereto, together with the
Sign Wall and Lighting Improvements (collectively the "Premises"), upon all of the conditions
and agreements set forth in this Lease. The Premises does not include any improvements on th
land other than the Sign Wall and Lighting Improvements.
2. LEASE TERM.
2.1 Term. The tern1 of this Lease ("Term") shall be ten (10) year, ubject to
sooner termination as provided in this Lease, commencing when all of the following have
occurred (i) this Lease has been executed by Landlord and Tenant, and (ii) Tenant has completed
installation and construction of all the Entry Improvements and the City of Gilroy has accepted
the dedication of the Entry Improvements; provided that if the Term has not commenced by J
1, 1998, this Lease shall tenninate effective as of J I, 1998, and Tenant shall be required to
remove the Lighting Improvements, or if such Ligh . 19 Improvements have not yet been
installed, Tenant shall not be allowed to install such Li hting Improvements on the Premises
thereafter. The date of the commencement of the Te 1 is referred to in this Lease as the
"Commencement Date". "Lease Term' 11 mea the expiration or sooner termination of
this Lease.
2.2 Earl Tern1 ation. Notwi tanding Section 2.1 above, at any time
commencing on the second anniversary of the Commencement Date, either Landlord or Tenant
shall have the right to terminate this Lease at any time during the Term by providing the other
party with not less than sixty (60) days prior written notice of termination.
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2.3 Acceptance. Tenant hereby accepts the Premises in its "AS IS" condition
without representation or warranty of any kind, express or implied, and subject to a11 applicable
laws. Landlord shall have no obligation to construct any improvements within the Premises for
the benefit of Tenant. Neither Landlord nor Landlord's agents makes any representation or
warranty as to the suitability of the Premises for Tenant's purposes, the condition of the
Premises, or the use or occupancy which may be made thereof. As the prior owner of the
Premises, Tenant is satisfied that the Premises are and will be suitable for Tenant's intended use
and assumes all risks in connection with the use and lease of the Premises. Without limiting the
foregoing, Tenant assumes all risk and liability in connection with any flooding which may occur
on or about the Premises.
3. RENT.
3.1 Rent. During each year of the Term and extensions thereof, Tenant shall
pay to Landlord as Rent the amount of One Dollar ($1.00). Rent for the first year shall be paid
upon execution of this Lease by Tenant, and thereafter on each anniversary of the
Commencement Date throughout the Term, in advance without offset, deduction, prior notice or
demand. There shall be not proration of rent for partial years.
3.2 Additional Rent. A11 amounts which Tenant is required to pay under this
Lease, and all damages, costs and expenses which Landlord may incur by reason of any default
by Tenant under this Lease shall be deemed to be additional rent hereunder ("Additional Rent").
Upon nonpayment of Additional Rent, Landlord shall have all of the rights and remedies with
respect thereto as Landlord has for the non-payment of Rent. "Rentals" as used in this Lease
shall mean Rent and all Additional Rent. All Rentals shall be paid in lawful money of the United
States to Landlord at the address specified in this Lease for purposes of notice, or to such other
persons or places as may be designated in writing by Landlord from time to time. All Rentals
shall be paid without offset or deduction and, except as otherwise expressly provided in this
Lease, without prior notice or demand.
4. TAXES.
4.1 Real Property Taxes. Tenant shall pay, before the same become
delinquent, all Real Property Taxes imposed against Landlord or Tenant in connection with this
Lease or against the Premises. As used in this Lease, Real Property Taxes means any form of
assessment, license, fee, rent tax, levy or tax (other than net income, estate, successor or
inheritance taxes), now or hereafter imposed by any authority having the direct or indirect power
to tax or by any city, county, state or federal government or any improvement or other district or
division thereof, whether or not now customary or within the contemplation of the parties,
ordinary or extraordinary, general or special, or resulting from increased rate or valuation,
together with any taxes levied or assessed in lieu of, in substitution for, or in addition to existing
taxes and assessments against the Premises, including without limitation any possessory interest
tax. In connection with California Revenue and Taxation Code Section 107.6, Landlord states
and Tenant acknowledges that by entering into this Lease, a possessory interest subject to
property taxes may be created. Tenant or other parties in whom the possessory interest is vested
may be subject to the payment of property taxes levied on such interest.
4.2 Tax on Leasehold or Personality. Tenant shall be responsible for and shall
pay before delinquency a11 municipal, county or state taxes, levies and fees of every kind and
nature including, but not limited to, general or special assessments assessed during the Term
against any leasehold interest or trade fixtures or personal property of any kind, owned or leased
by or used in connection with the Premises by Tenant. Tenant agrees to pay before delinquency
the amount of a11 taxes levied upon or measured by the rent payable hereunder, whether as a so-
ca11ed sales tax, transaction privilege tax, excise tax, or otherwise. If such taxes, levies or fees
are assessed, levied or imposed upon Landlord or any portion of the Premises, Landlord shall
give Tenant a statement of the amount applicable to the Premises. Ifa separate assessment of the
improvements is not available from the appropriate governmental authority, Landlord's good
faith allocation shall be binding on Tenant. In such event, Tenant sha11 pay Landlord on demand
for such taxes, levies and fees applicable to the Premises.
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5. CONDUCT OF BUSINESS BY TENANT.
5.1 Use of the Premises. Tenant sha11 use the Premises solely for the purpose
of illuminating the Sign Wall and other Entry Improvements by means of the Lighting
Improvements, and for no other purposes without the prior written consent of Landlord, which
may be withheld in Landlord's sole discretion.
5.2 Compliance with Law. Tenant, at its expense, shall comply promptly with
all applicable laws regulating the use by Tenant of the Premises, which shall include required
structural alterations. Tenant, at its expense, sha11 take all steps required to cause the Premises to
be kept, maintained, used and occupied in compliance with the Americans With Disabilities Act
of 1990, as the same may be amended from time to time. In the event Tenant becomes aware of
any alterations required by this Section 5.2 above, in lieu of making such required alterations,
Tenant may terminate this Lease by giving written notice of termination to Landlord; provided,
however, that Tenant shall indemnify Landlord from any and all claims, damages, losses,
liabilities or expenses (including without limitation attorneys' fees) arising as a result of Tenant's
failure to make such alterations during the Lease Term. Upon such termination, Tenant shall
comply with the provisions of Section 6.2 of this Lease. In no event shall Tenant allow any
personal property or any other material to be stored upon or to remain unattended on the
Premises. Tenant shall not use or permit the use of the Premises in any manner, that will tend to
create a nuisance or constitute waste. Tenant shall not dump or store waste materials or refuse or
allow such to remain on the Premises. Tenant and Tenant's agents, officers, directors,
employees, contractors, representatives, servants, licensees or invitees (collectively "Tenant's
Agents"), shall not use, store or dispose, or allow the use, storage or disposal of, any Hazardous
Materials on any portion of the Premises. As used in this paragraph, Hazardous Materials means
any chemical, substance or material which has been or is hereafter determined by any federal,
state or local governmental authority to be capable of posing risk of injury to health or safety,
including without limitation, petroleum, asbestos, polychlorinated biphenyls, radioactive
materials and radon gas. Tenant's obligation to defend, hold harmless and indemnify pursuant to
this Paragraph shall survive Lease Termination.
6. MAINTENANCE. REPAIRS AND ALTERATIONS.
6.1 Tenant's Responsibility. Tenant shall, during the Term, keep in good, safe
and clean order, condition and repair the entire Premises; provided that Tenant shall not be
obligated to irrigate the landscaping or maintain the landscaping or improvements located on the
real property comprising the Premises (other than the Sign Wall and Lighting Improvements,
which Tenant shall maintain), except to the extent such landscaping or other improvements are
damaged by Tenant's activities on the Premises. Tenant's obligations pursuant to this Section 6.1
shall include, without limitation, graffiti removal. In no event shall Landlord have any repair or
maintenance responsibility for the Premises, or any portion thereof or any landscaping or other
improvements located on the real property comprising the Premises. Tenant waives the
provisions of California Civil Code section 1941 and 1942 and any similar law now or hereafter
in effect.
6.2 Condition Upon Surrender. On Lease Termination, Tenant shall have
removed the Lighting Improvements , and sha11 have otherwise surrendered the Premises to
Landlord in as good condition as when received by Tenant under this Lease, subject to Section
6.1 as it relates to landscaping, all at Tenant's sole cost and expense. the Commencement
Date, Tenant shall deliver to Landlord a Certificate of Deposit ("CD" a te of at least one
(1) year, evidencing an account established by Tenant in Landlo ' a federally insured
financi~l institution satisfactory to Landlord, which accoupt p . . hdrawals by Landlord
only, 111 the amount of ()V\( H~.{)lj~ 1-ul() VtU\l~WDol r dO. (the
"Account"), as security for Tenant's obligations pursuant to this I n 6.2. Such CD shall
provide for automatic renewal of the tern1 thereof until such time as the holder of the CD notifies
the financial institution not to renew the tenn. All interest accruing on the Account shall remain
on deposit as part of the Account as additional security for Tenant's obligations under this
Section 6.2, although the accrued interest shall for tax purposes be deemed to accrue for the
benefit of Tenant, and Tenant shall be responsible for the payment of all income taxes
attributable to the accrual of interest on such Account. If on Lease Termination, Tenant has failed
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to perform any of Tenant's obligations under this Section 6.2, Landlord shall have the right to
withdraw the funds in the Account to cure Tenant's default (without obligation to do so) and to
compensate Landlord for any damages suffered by Landlord as a result of Tenant's default.
Provided that Tenant has performed all of Tenant's obligations under this Section 6.2 at Lease
Termination, Landlord shall return said Certificate of Deposit to Tenant following Lease
Termination. Landlord shall have no liability to Tenant as the result of any penalties imposed by
the financial institution due to withdrawal of funds from the Account by Landlord pursuant to
this Section 6.2. In no event shall Tenant's liability to Landlord pursuant to this Section 6.2 be
limited to the funds in the Account.
6.3 Improvements by Tenant. Tenant shall not, without prior written consent
of Landlord, which consent may be withheld in Landlord's sole discretion, make any alterations,
improvements, or additions (collectively, "Alterations") to the Premises.
7. INSURANCE AND INDEMNITY.
7.1 Tenant to Maintain. Tenant shall at all times during the Term, at Tenant's
sole cost and expense, maintain in effect workmen's compensation insurance in the minimum
amounts required by law, and comprehensive general liability and property damage insurance in
the minimum amounts of One Million Dollars ($1,000,000) per occurrence and aggregate,
combined single limit for both bodily injury and property damage which includes blanket
contractual liability, broad form property damage, personal injury, completed operations,
products liability, and fire damage legal (the "Liability Policy"). The types of insurance and
minimum limits specified above are the minimum required by Landlord, and Landlord may from
time to time require changes and/or additions thereto to meet changed circumstances, including
without limitation changes in the purchasing power of the dollar and changes consistent with the
standards required by other landlords in the county in which the Premises is located. The
Liability Policy shall specifically insure Tenant's performance of the indemnity, defense and
hold harmless agreements contained in Paragraph 7.4, although Tenant's obligations pursuant to
Paragraph 7.4 shall not be limited to the amount of any insurance required of or carried by
Tenant under this Paragraph 7.1 and Tenant is responsible for insuring that the amount of
liability insurance carried by Tenant is sufficient for Tenant's purposes.
7.2 Landlord Approval. All insurance required to be carried by Tenant
hereunder shall be in companies, on forms and with loss payable clauses satisfactory to Landlord
and copies of policies of such insurance, certi fied by the insurer to be a true and correct copy of
the insurance policies, shall be delivered to Landlord by Tenant prior to the Commencement
Date. A new certified policy shall be delivered to Landlord at least thirty (30) days before
expiration of the old policy. No such policy shall be cancelable except after thirty (30) days'
written notice to Landlord. The Liability Policy to be carried by Tenant under this Lease shall
name Landlord and its agents and designated lenders as additional insureds. All insurance shall
be the primary insurance as respects Landlord and the Liability Policy shall contain a cross
liability endorsement. Such policies shall provide coverage on an occurrence basis and not on a
claims made basis. In no event shall the limits of such policies be considered as limiting the
liability of Tenant under this Lease.
7.3 Waiver of Liability. Landlord and Tenant each hereby waives any and all
rights of recovery against the other or against the employees, representatives and agents of such
other party for loss of or damage to such waiving party or its property or the property of others
under its control, arising from any cause to the extent insured against under any insurance policy
carried by such waiving party and to the extent such waiver is permitted under such insurance
policy and does not prejudice coverage under such policy. Tenant shall obtain and furnish
evidence to Landlord of the waiver by Tenant's insurance carriers of any right of subrogation
against Landlord.
7.4 Tenant to Hold Landlord Harmless. Tenant hereby agrees to defend,
indemnify and hold harmless Landlord and Landlord's employees, representatives and agents
from and against any and all claims, damages, losses, liabilities or expenses (including without
limitation attorneys' fees) due to any cause including without limitation, bodily injury and
property damage, which arises out of or is in any way attributable to the use or occupancy of the
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Premises or any part thereof by Tenant or Tenant's Agents, the acts or omissions of Tenant or
Tenant's Agents or Tenant's breach of this Lease, except to the extent caused by the willful
misconduct or negligence of Landlord. This provision and Tenant's obligation hereunder shall
survive Lease Termination.
7.5 Landlord's Disclaimer. Landlord shall not be liable for injury or damage
which may be sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees, or customers or any other person in or about the Premises caused by or
resulting from fire, steam, electricity, gas, water, flooding or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing or lighting fixtures of the same, or from any other
cause, whether such damage or injury results from conditions arising upon the Premises or from
other sources.
8. REPAIRS AND RESTORATION.
8.1 Damage. If at any time during the Term the Premises are damaged by a
force beyond Tenant's reasonable control, whether partially or entirely, Tenant shall have the
option to either (i) promptly repair such damage or rebuild the Premises at Tenant's sole cost and
expense, in which event this Lease shall continue in full force and effect, or (ii) terminate this
Lease by giving written notice of termination to Landlord within thirty (30) days following the
event of damage, in which event Tenant shall remove the Lighting Improvements and comply
with the other terms and conditions of Section 6.2 of this Lease as to those improvements not
damaged by a force beyond Tenant's reasonable control. If Tenant fails to provide Landlord
with written notice of termination within thirty (30) days after the event of damage, Tenant shall
be deemed to have elected to terminate this Lease on the thirtieth day following the event of
damage pursuant to (ii) of this Paragraph 8.1 above. In no event shall Landlord be obligated to
repair or rebuild the Premises in the event of any damage or destruction to the Premises from any
cause. All repairs by Tenant shall be done in compliance with all applicable laws, permit
requirements and any covenants, conditions or restrictions of record, by a licensed contractor,
and shall be done in a good workmanlike manner. Before commencing repair of the Premises,
Tenant shall submit plans and specifications to Landlord for Landlord's approval, such approval
not to be unreasonably withheld. This provision and Tenant's obligations hereunder shall
survive Lease Termination.
8.2 Notice. Rent Abatement. Refixturing. Tenant shall notify Landlord in
writing immediately upon the occurrence of any damage or destruction to all or any portion of
the Premises. There shall be no abatement of Rent or other Rentals payable hereunder and
Tenant shall have no claim against Landlord for any damage suffered by Tenant by reason of any
such damage, destmction, repair or restoration. In no event shall any damage, destruction,
restoration or repair of any portion of the Premises result in an extension of the expiration date of
the Lease.
9. ASSIGNMENT AND SUBLETTING.
9.1 Landlord's Consent Required. Tenant shall not, either voluntarily,
involuntarily or by operation of law (i) assign, sell or otherwise transfer all or any part of the
Tenant's interest in this Lease or in the Premises, or (ii) permit any part of the Premises to be
sublet, occupied or used by anyone other than Tenant or (iii) pennit any person to succeed to any
interest in this Lease or the Premises, (all of the foregoing being collectively referred to as a
"Transfer"). In no event shall Landlord be required to consent to any Transfer. If Tenant is a
corporation, any dissolution, merger, consolidation or reorganization of Tenant, the transfer,
assignment or hypothecation of any stock or interest in such corporation in the aggregate in
excess of twenty-five percent (25%), or the sale (cumulatively) of fifty percent (50%) or more of
the value of Tenant's assets shall be decmed a Transfer. If Tenant is a partnership, a withdrawal
or substitution of any partner(s) owning twenty-five percent (25%) or more of the partnership
cumulatively), any assignment(s) of twcnty-five percent (25%) or more (cumulatively) of any
interest in the capital or profits of the partnership, the sale (cumulatively) of fifty percent (50%)
or more of the value of Tenant's assets, or the dissolution of the partncrship shall be deemed a
Transfer. If Tenant is a limited liability company, any dissolution, merger, consolidation or
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reorganization of Tenant, the transfer, assignment or hypothecation of a membership, economic
or other interest in the limited liability company in the aggregate in excess of twenty-five percent
(25%), or the sale (cumulatively) of fifty percent (50%) or more of the value of the limited
liability company's asscts shall be deemed a Transfer. In the case of any other entity comprising
Tenant, any transfer, assignment or hypothecation of any interest in such entity in the aggregate
in excess of twenty-five percent (25%), or the sale (cumulatively) of fifty percent (50%) or more
of the value of Tenant's assets shall be deemed a Transfer. In no event shall Tenant hypothecate,
mortgage, pledge or encumber Tenant's interest in this Lease or in the Premises or otherwise use
this Lease as a security devicc in any manner, nor shall Tenant transfer any right appurtenant to
the Lease or the Premises separate from a permitted Transfer. Tenant expressly agrees that the
provisions of this Article are not unreasonable standards or conditions for purposes of
Section 1951.4(b)(2) of the California Civil Code as amended from time to time, under the
federal Bankruptcy Code, or for any other purpose. Any Transfer by Tenant in violation of this
Paragraph 9.1 shall be a default by Tenant undcr this Lease.
10. EMINENT DOMAIN. If a portion of the Premises is taken by power of eminent
domain, which does not result in a termination of this Lease, then this Lease shall continue in full
force and effect as to the part of the Premises not so taken. There shall be no abatement of Rent
or other Rentals payable hereunder and Tenant shall have no claim against Landlord for any
damage suffered by Tenant by reason of any taking of the Premises under the power of eminent
domain. Any award for any taking of all or any part of the Premises under the power of eminent
domain shall be the property of Landlord, whether such award shall be made as compensation for
diminution in value of the leasehold or for taking of the fee. In no event shall Landlord be
obligated to make any repairs or perfonn any restoration or other work required as a result of a
taking. A sale by Landlord to any authority having the power of eminent domain, either under
threat of condemnation or while condemnation proceedings are pending, shall be deemed a
taking under the power of eminent domain for all purposes under this Article.
11. UTILITY SERVICES. Tenant shall arrange for, and shall timely pay directly to
the appropriate utility or service supplier all charges for electricity consumed by the Lighting
Improvements. Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility or service to the Premises and no such unavailability failure or
interruption shall entitle Tenant to terminate this Lease or shall otherwise affect Tenant's
obligations under this Lease. Landlord shall be entitled to cooperate voluntarily and Tenant
agrees to cooperate, with the efforts of governmental authorities or utility suppliers in reducing
energy or other resourcc consumption.
12. DEFAULTS. REMEDIES.
12.1 Defaults. The occurrence of anyone or more of the following events shall
constitute a default hereunder by Tenant:
12.1.1 The failure by Tenant to make any payment required by this Lease
as and when due.
12.1.2 Thc failure by Tenant to timely observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Paragraph 12.1.1.
12.1.3 (a) The making by Tcnant of any general assignment for the
benefit of creditors; (b) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days, or (c) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets located at the Premises
or of Ten ant's interest in this Lease, where seizure is not discharged within thirty (30) days.
12.2 Remedies. Upon a default, Landlord shall have the following remedies, in
addition to all other rights and remedies provided by law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
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12.2.1 Landlord may continue this Lease in full force and effect, and this
Lease shall continue in full force and effect as long as Landlord does not terminate this Lease,
and Landlord shall have the right to collect Rentals when due. No act by Landlord other than
giving written notice to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet
the Premises or the appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right to possession.
12.2.2 Landlord may tern1inate this Lease and Tenant's right to
possession of the Premises at any time if (i) such default is in the payment of Rentals and it is not
cured within three (3) days after written notice from Landlord, or, (ii) with respect to the defaults
referred to in Paragraph 12.1.2 such default is not cured within the fifteen (15) days after written
notice from Landlord; provided, however, that if the nature of Tenant's default is such that more
than fifteen (15) days are reasonably required for its cure, if Tenant does not commence to cure
the default within fifteen (15) day period or does not diligently and in good faith prosecute the
cure to completion within a rcasonable time thereafter, or (iii) with respect to the default
specified in Paragraph 12.1.3, such default is not cured within the respective time specified in
that paragraph. The parties agree that any notice given by Landlord to Tenant pursuant to this
Paragraph 12.2.2 shall be sufficient notice for purposes of California Code of Civil Procedure
section 1161 and Landlord shall not be rcquired to give any additional notice in order to be
entitled to commence any unlawful detainer proceeding. On termination, Landlord has the right
to remove all of Tenant's personal propcrty, signs and trade fixtures (provided that the foregoing
shall not be construed as consent to the maintenance of such property at the Premises) and store
same at Tenant's cost and to recover from Tenant as damages:
12.2.2.1 The worth at the time of award of unpaid Rentals
and other sums due and payable which had been earned at the time of termination; plus
12.2.2.2 The worth at the time of award of the amount by
which the unpaid Rentals and other sums due and payable which would have been payable after
termination until the time of award exceeds the amount of such Rental loss that Tenant proves
could have been reasonably avoided; plus
12.2.2.3 The worth at the time of award of the amount by
which the unpaid Rentals and other sums due and payable for the balance of the Term after the
time of award exceeds the amount of such rental loss that Tenant proves could be reasonably
avoided; plus
12.2.2.4 Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which, in the ordinary course of things, would be likely to result
therefrom, including, without limitation, any costs or expenses incurred by Landlord: (a) in
retaking possession of the Premises; and (b) in maintaining, repairing, preserving, restoring,
replacing, cleaning, altering or rehabilitating the Premises or any portion thereof; plus
12.2.2.5 Such other amounts in addition to or in lieu of the
foregoing as may be permitted from timc to time by the laws of the State of California.
The "worth at thc time of award" of the amounts referred to in Paragraphs 12.2.2.1 and
12.2.2.2 is computed by allowing interest at the Stipulated Rate (defined in Paragraph 15). The
"worth at the time of award" of the amount referred to in Paragraph 12.2.2.3 is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1 %).
12.2.3 No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of any such right or remedy or of any default by Tenant hereunder.
No termination by Landlord pursuant to this Article 12 shall relieve Tenant of any of its
obligations under Section 6.2. of this Lease.
12.3 Default by Landlord. Landlord shall not be deemed to be in default in the
performance of any obligation required to bc performed by it hereunder unless and until it has
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failed to perform such obligation within thirty (30) days after written notice by Tenant to
Landlord specifying wherein Landlord has failed to perform such obligation; provided, however,
that if the nature of Landlord's obligation is such that more than thirty (30) days are required for
its performance then Landlord shall not be deemed to be in default if it shall commence such
performance within such thirty-day period and thereafter diligently prosecute the same to
completion. Notwithstanding any other provision of this Lease, in no event shall Landlord be
liable to Tenant for consequential damages, or loss of or interference with Tenant's business,
including without limitation lost profits.
12.4 Expenses of Prevailing Party. If either party incurs any expense, including
reasonable attorneys' fees, in connection with any action or proceeding instituted by either party
arising out of this Lease, the party prevailing in such action or proceeding shall be entitled to
recover its reasonable expenses including attorneys' fees from the other party.
13. RIGHT OF ENTRY. Landlord and its agents shall have free access to the
Premises at all times for the purpose of examining the same to ascertain if they are in good
repair, protecting the Premises, posting notices of nonresponsibility, and exhibiting the same to
prospective purchasers, lenders or tenants. In addition, notwithstanding any other provision of
this Lease, Landlord reserves the right to enter the Premises at all times to install, maintain and
repair any utilities, services or other public improvements, and for any other public purpose,
provided that such activities do not unreasonably interfere with the illumination of the Entry
Improvements and provided further that the foregoing shall not relieve Tenant of any of Tenant's
obligations under Article 6 of this Lease.
14. TRANSFER OF LANDLORD'S INTEREST. Upon any transfer or transfers of
Landlord's interest in the Premises, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the date of such
transfer, provided that thc transferee is liable for any and all obligations and liabilities on the part
of Landlord accruing from and after the date of such transfer. Tenant shall attorn to any
transferee of Landlord's interest in the Premises.
15. INTEREST. Any amount due from Tenant to Landlord hereunder which is not
paid when due shall bear interest from the due date until paid at an annual rate of interest (the
"Stipulated Rate") equal to the greater of (i) ten percent (10%); or (ii) five percent (5%) plus the
rate established by the Federal Reserve Bank of San Francisco, as of the Twenty-five (25th) day
of the month immediately preceding the due date, on advances to member banks under
Sections 13 and 13(a) of the Federal Reserve Act, as now in effect or hereafter from time to time
amended. Payment of such interest shall not excuse or cure any default by Tenant under this
Lease.
16. MISCELLANEOUS.
16.1 Time of Essence. Time is of the essence with respect to the performance
of every provision of this Lease.
16.2 Captions. The article and paragraph captions contained in this Lease are
for convenience only and shall not be considered in the construction or interpretation of any
provision hereof.
16.3 Entire Agreement and Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Lease,
and no other agreement or understanding pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hcrcto or their respective successors in interest.
16.4 Notice. Any notice required or permitted to be given hereunder shall be in
writing and may be served personally or by mail. If served by mail it shall be addressed as
follows:
IKKS\35571102
72-111504706002
-8-
Landlord:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020-6141
Attn: City Administrator
Tenant:
Thomas Road Properties
c/o Glen Loma Group
7888 Wren Avenue, Ste. D-143
Gilroy, CA 95020
Any notice so given by mail shall be deemed effectively given three (3) days after being
deposited in the United States mail, registered or certified, postage prepaid and addressed as
specified herein. Either party may by written notice to the other specify a different address for
notice purposes. Notwithstanding the foregoing, any Icgal notices required to be sent by one
party to the other (including without limitation, a notice pursuant to California Code of Civil
Procedure section 1161) shall be delivered in the manner required or allowed by law.
16.5 Holdover. This Lease shall terminate without further notice at the
expiration of the Term. Any holding over after Lease Termination with the consent of Landlord
shall be construed to be a tenancy from month to month, but otherwise on the same terms and
conditions set forth in this Lease. If Tcnant remains in possession of the Premises after Lease
Termination without Landlord's consent or fails to surrender the Premises in the condition
required by Paragraph 6.2, Tenant shall indemnify, defend and hold Landlord and Landlord's
employees, representatives and agents harnlless from and against any claims, losses, damages,
expenses or liabilities (including without limitation attorneys' fees) resulting from Tenant's
failure to surrender the Premises in the required condition.
16.6 Brokers. Tenant warrants and represents that it has had no dealings with
any real estate broker or agcnt in connection with the negotiation of this Lease. Tenant agrees to
defend, indemnify and hold Landlord and Landlord's employees, representatives and agents
harmless from and against any and all claims, losses, damages, liabilities or expenses (including
without limitation attorneys' fees) arising out of or in connection with claims made by any other
broker or individual for commissions or fees resulting from Tenant's execution of this Lease.
16.7 Acceptance. Delivery of this Lease, duly executed by Tenant, constitutes
an offer to lease the Premises, and under no circumstances shall such delivery be deemed to
create an option or reservation to lease the Premises for the benefit of Tenant. This Lease shall
only become effective and binding upon full execution hereof by Landlord and delivery of a
signed copy to Tenant.
16.8 Waiver. The waiver by Landlord of any breach of any term, condition or
covenant of this Lease shall not be deemed to be a waiver of such provision or any subsequent
breach of the same or any other tern1, condition or covenant of this Lease. The subsequent
acceptance of Rentals hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach at the time of acceptance of such payment. No covenant, term or condition of
this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing
signed by Landlord.
16.9 Separability. If one or more of the provisions contained herein, except for
the payment of Rentals, is for any reason held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
Lease, but this Lease shall be construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
16.10 Liens. Tenant shall pay for all labor and services performed for, and all
materials used by or furnished to Tenant or Tcnant's Agents and keep the Premises free from any
liens arising out of work performed, materials furnished, or obligations incurred by Tenant or
Tenant's Agents with respect to the Premises. Tenant shall indemnify, hold harmless and defend
Landlord and Landlord's employees, representatives and agents from and against any liens,
\KKS\355711.02
72-111504706002
-9-
demands, claims, judgments or encumbrances (including all attorneys' fees) arising out of any
work or services performed for or materials used by or furnished to Tenant or Tenant's Agents
with respect to Premises. Tenant shall do all things necessary to prevent the filing of any
mechanic's or other liens against the Premises or any part thercof by reason of work, labor,
services or materials supplied or claimed to have been supplied to Tenant, or anyone holding the
Premises, or any part thereof, through or under Tenant. If any such lien shall at any time be filed
against the Premises, Tenant shall either cause the same to be discharged of record within ten
(10) days after the date of filing of the same, or, if Tenant in Tenant's discretion and in good,
faith determines that such lien should be contested, Tenant shall furnish such security as may be
necessary or required to (a) prevcnt any foreclosure proceedings against the Premises during the
pendency of such contest, and (b) cause a mutually satisfactory title company to remove such
lien as a matter affecting title to the Premises. If Tenant shall fail to discharge such lien within
such period or fail to furnish such security, then, in addition to any other right or remedy of
Landlord resulting from Tenant's said default, Landlord may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by procuring the discharge
of such lien by giving security or in such other manner as is, or may be, prescribed by law.
Tenant shall repay to Landlord on demand all sums disbursed or deposited by Landlord pursuant
to the foregoing provisions of this Paragraph 16.10 including Landlord's costs, expenses and
reasonable attorneys' fees incurred by Landlord in connection therewith, with interest thereon at
the Stipulated Rate. Nothing contained herein shall imply any consent or agreement on the part
of Landlord to subject Landlord's estate to liability under any mechanics' or other lien law.
Tenant shall give Landlord adequate opportunity and Landlord shall have the right to post such
notices ofnonresponsibility as are provided for in the mechanics' lien laws of California.
16.11 Tenant's Representation and Warranty Re~arding Encumbrances. Tenant
represents and warrants to Landlord that no portion of the Premises is subject to a mortgage,
deed of trust or other encumbrance resulting from the acts or omissions of Tenant.
16.12 Recording. Concurrently with Tenant's execution and deliver of this
Lease to Landlord, Tenant shall execute and deliver to City the Memorandum attached hereto as
Exhibit "D" acknowledging the existence of the Lease, which may be recorded by City in the
Official Records of Santa Clara County, California upon execution of this Lease by City.
Following Lease Termination, Tenant shall, promptly following demand from Landlord, execute
a quitclaim deed in favor of Landlord quitclaiming all of Tenant's right, title and interest under
this Lease; provided, however, that Tenant's failure to deliver such quitclaim deed when
requested shall not delay or prevcnt, or otherwise affect the expiration or termination of this
Lease.
16.13 Landlord's Right to Perform Tenant's Covenants. If Tenant fails to make
any payment or perform any other act on its part to be made or performed under this Lease,
Landlord may, but shall not be obligated to, and without waiving or releasing Tenant from any
obligation of Tenant under this Lease, make such payment or perform such other act to the extent
Landlord may deem desirable, and in connection therewith, pay expenses and employ counsel.
All sums so paid by Landlord and all penalties, interest and costs in connection therewith shall be
due and payable by Tcnant immediately on demand, togcther with interest at the Stipulated Rate
from the date of payment by Landlord to the date of payment by Tenant to Landlord, plus
collection costs and attorneys' fees.
16.14 Tenant's Remedy. If, because of a default by Landlord under this Lease,
Tenant recovers a money judgment against Landlord, such judgment shall be satisfied only by
way of an offset against any Rent due to Landlord under this Lease. Neither Landlord, nor its
employees, representatives or agents, shall be personally liable for any deficiency. Neither
Landlord's employees, agents, representatives, nor agents, nor any other person or entity other
than Landlord, nor any of their respective assets, shall be liable for Landlord's breach of this
Lease.
16.15 Exhibits. All cxhibits, amendmcnts, riders and addenda attached hereto
are hereby incorporated herein and made a part hereof.
16.16 Conditions. All agreements of Tenant contained in this Lease, whcther
\KKS\35571102
72-111504706002
-10-
expressed as conditions or covenants, shall be construed to be both conditions and covenants,
conferring upon Landlord, in the event of a breach thereof, the right to terminate this Lease.
16.17 No Partnership or Joint Venture. Nothing in this Lease shall be construed
as creating a partnership or joint venture between Landlord, Tenant, or any other party, or cause
Landlord to be responsible for the debts or obligations of Tenant or any other party.
16.18 Constmction. This Lease shall not be construed either for or against
Tenant or Landlord, but shall be construed in accordance with the general tenor of the language.
This Lease shall be construed in accordance with the laws of the State of California.
16.19 Joint and Several Liability. If Tenant consists of more than one (1) person
or entity, the obligations of each Tenant under this Lease shall be joint and several.
16.20 Binding Effect. Subject to the provisions of Paragraph 14 and Article 9,
all of the provisions hereof shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
THIS LEASE is effective as of the date the last signatory necessary to execute the Lease
shall have executed this Lease.
Dated: 1'1 - I 0 - q 1
TENANT:
THOMAS ROAD PROPERTIES, a
Ca . ia Limited Partn
Its:
Dated: ,- 3 c" c \ ~1
LANDLORD:
-'"
,-'":7~{! !lel {~ "-,t:~ ( ( , <'
Rhonda Pcllin, City Clerk
APPROVED AS TO FORM:
~~~
CITY ATTORNEY
\KKS\35571102
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EXHIBIT C
LEGAL DESCRIPTION
LANDSCAPE AREA LEASEBACK
(OAKBROOK- TRACT 8928)
All that certain real property situate in the Las Animas Rancho, in the City of Gilroy, County of
Santa Clara, S tate of California, being a portion of Thomas Road and L uchessa Avenue, as said Road
and A venue are shown on that certain Map entitled "Tract 8928 - California Oakbrook Unit I",
which was filed for Rec'ord on May 16, 1997 in Book 688 of Maps, at Pages 20, 21 and 22, Official
Records of Santa Clara County, California, described as as follows:
Be~nnin~ at a point in the Westerly boundary line of said Thomas Road, also being a comer
common to Lot 9 and Lot 8, as said Lots are shown on said Map of Tract 8928; thence along said
Westerly boundary line of said Thomas Road, also being along the Easterly boundary line of said
Lot 8, South 00 DO' 00" West 28.22 feet; thence leaving said Westerly boundary ILTJe of said Thomas
Road at right angles North 900 DO' 00" East 6.00 feet; thence North 0000' 00" West 142.29 feet to
a point of curvature; thence along a tangent curve to the left with a radius of 10.00 feet, through a
central angle of580 34' 22" an arclength of 10.22 feet; thence North 58034' 22" West 12.74 feet to
a point of curvature; thence along a tangent curve to the left with a radius of 20.00 feet. through a
central angle of 58034' 07" an arc length of20.44 feet; thence along a non-tangent curve to the right
whose radius point bears North 270 08' 28" West 1310.00 feet, through a central angle of 020 43' 32"
an arc length of 62.32 feet to a Northerly comer of said Lot 9, also being in the Southerly boundary
line of said L uchessa A venue; thence along the boundary line of said Luchessa Avenue and said Lot
9, South 580 35' 32" East 99.97 feet to the Northeasterly comer of said Lot 9, also being in the
Westerly boundary line of said Thomas Road; thence along the boundary line common to said Lot
9 and said Thomas Road South 0000' 00" East 50.78 feet to the Point o{B~nnin~.
.
Containing 4,643 square feet or 0.107 acres, more or less.
This legal description of real property was prepared by me, or under my direction. pursuant to the
requirements of the Professional Land Surveyors Act.
;;~ 6. ~~
Frank G. Fong, California R.C.E. N .27852
License Expires on March 31, 1998
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Page 1 of 2
60
LENGTH
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10.22
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UNE TABLE
UNE BEARING LENG1H
11 N5S"34'22"W 12.74
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GILROY,
CALIFORNIA
2 of 2
PLAT TO
LEGAL
ACCOMPANY
DESCRIPTION
For
Landscape Area
Leaseback
100 N. loULPITAS BLVD.. SUITE 160, . IolILPtTAS. CA 95035
PHONE; (408) 9J4-1J88 . F'AX: (408) 9J4-1288
FrJGlrJ~["" . f'LMHJ[R'- . :,IJR'.EYOW-;
SANTA CLARA COUNTY,
DATE:
10-10-97
JOB NO.:
962015-JO-A
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