Agenda Item 7A
June 14,2016
Introduction
MEMORANDUM
June 10,2016
TO:
FROM:
. County Council
Robert H. Drummer, Senior Legislative
Attomey!~
,
',1
(r'-\
SUBJECT:
Introduction:
Expedited Bill 22-16, Sligo Creek Holdings, LLC, - "The Siena
School" - Lease Amendment
Expedited Bill 22-16, Sligo Creek Holdings, LLC, - "The Siena School" - Lease
Amendment, sponsored by Lead Sponsor Council President Floreen at the request of the
Maryland-National Capital Park and Planning Commission, is scheduled to
be
introduced on June
14, 2016. A public hearing followed by action is tentatively scheduled for June 28 at 1:30 p.m.
Bill 22-16 would approve an amendment to a lease between the Maryland-National Capital
Park and Planning Commission (M-NCPPC) and Sligo Creek Holdings, LLC, a Maryland limited
liability company, d/b/a The Siena School, for certain land in Sligo Creek Stream Valley Unit #4
(Siena School). The M-NCPPC leased 1.47 acres of park land to the Siena School on July 29,
2011. (©11-30) The lease was amended on May 30, 2012 (©3l-36) and June 29,2012 (©37-50),
and currently expires on June 29, 2032. The leased property is being used for school staff parking,
student drop-off, and busses in conjunction with the adjacent improved property owned by the
Siena School. The special exception permitting the operation of a private school on the Siena
School property is at ©5l-60. The Siena School requested a lease amendment to add 4 years to
the teon of the lease to support a 20-year loan the school is seeking
to
obtain for capital
improvements. Director of Parks Mike Riley explained the details in his May 31 transmittal
memorandum at ©9-1
O.
The Montgomery County Planning Board resolution approving the lease
amendment, subject to Council approval, is at ©6l.
MD Code, Land Use, §17-204(a)(2)(i) contains the following restriction on a lease of
property by the M-NCPPC:
The term of a lease may not exceed 20 years without the prior approval of the lease
by legislative enactment of the county where the lease property is located.
Expedited Bill 22-16 would approve this proposed lease amendment.
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This packet contains:
Expedited Bill 22-16
Legislative Request Report
May 31 Transmittal Memorandum
July 29, 2011 Lease
May 30, 2012 Lease Amendment
June 29, 2012 Lease Amendment
Special Exception
Planning Board Resolution
Circle
#
1
8
9
11
31
37
51
61
F:\LAw\BILLS\1622 Lease Amendment· Sienna School\Intro Memo.Docx
2
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22-16
Expedited Bill No.
Concerning: Sligo Creek Holdings, LLC,
- liThe Siena School" - Lease
Amendment
1
Revised: May 31. 2016 Draft No.
Introduced:
June 14. 2016
Expires:
December 14. 2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
...:.N~o:.!..!n:'>!..e
_ _ _ _ __
Ch. _ _ Laws of Mont. Co. _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Council President at the request of the Maryland-National Capital Park
and Planning Commission
AN EXPEDITED ACT
to approve amendments to a certain ground lease between the
Maryland-National Capital Park and Planning Commission and Sligo Creek Holdings, LLC, a
Maryland limited liability company, d/b/a The Siena School, for certain land in Sligo Creek Stream
Valley Unit #4.
By adding to
Laws of Montgomery County 2016
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill
by
amendment.
Existing law unaffected by hill.
The County Council for Montgomery County, Maryland approves the following Act:
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exPEDITED BILL
No. 22-16
1
2
Sec.
1.
Lease Approval.
As required by MD Code, Land Use,
§
17­
204, the Council hereby approves the attached amendments to the ground lease for
a period longer than 20 years between the Maryland-National Capital Park and
Planning Commission and Sligo Creek Holdings, LLC, a Maryland limited liability
company, doing business as "The Siena School," for certain land in Sligo Creek
Stream Valley Unit #4.
Sec. 2.
3
4
5
6
7
8
Expedited Effective Date.
The Council declares that this
legislation is necessary for the immediate protection ofthe public interest. This Act
takes effect on the date when it becomes law.
9
10
11
12
Approved:
Nancy Floreen, President, County Council
Date
13
14
Approved:
Isiah Leggett, County Executive
Date
15
This is a correct copy ofCouncil action.
16
Linda M. Lauer, Clerk of the Council
Date
F:\LAW\BILLS\I 622 Lease Amendment - Sienna Schoo)\BiIl 1.Docx
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Contract No. 320135-003
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE (the "Amendment") is made by THE
MARYLAND-NATIONAL CAPITAL PARK
AND
PLANNING COMMISSION, a public
body corporate and agency of the State of Maryland (the "Commission"), and SLIGO CREEK
HOLDINGS, LLC, a Maryland limited liability company, doing business as "The Siena
School" (the "Lessee").
RECITALS:
A.
The Commission and Lessee entered into a Lease Agreement dated July 29, 2011,
with an Addendum to Lease dated May 30,2012 (collectively, the "Agreemenf'), for Lessee's
use of approximately 1.47 acres of Commission property as described in Attachrnent A ("Leased
Premises").
B.
The Agreement has a term of20 years which commenced on June 29, 2012 and
expires on June 28, 2032.
C.
Lessee is the owner of improved property located at 1300 Forest Glen Road,
Silver Spring, Maryland (the "School"), which is adjacent to the Leased Premises. A portion of
the Leased Premises is used for parking by Lessee's school staff, student drop-off, and buses.
D.
Lessee is in the process ofsecuring a 20-year bank loan ("Loan") for the
construction of a new addition to tile School. A condition ofLessee securing the Loan,
scheduled to close on May 24, 2016, among others, is that Lessee's Agreement with the
Commission must remain in effect during the 20-year loan period, in order that the Loan term
and the lease term run concurrently for the same period. The Agreement currently
has
16 years
remaining on the lease term.
E.
To meet the foregoing Loan condition, Lessee made a request to the Commission
on April 25, 2016,
to
modifY the Agreement
to
add four additional years to the lease term, so the
Agreement expires 20 years after the effective date of the Loan.
F.
The Commission is willing to grant Lessee the term modification pursuant to the
terms and conditions herein.
G.
Pursuant to Land Use Article, Section 17-204(a)(2)«(i), the Montgomery County
Council (the "Council") must, by legislative enactment, approve this Amendment as it will cause
the Agreement to exceed a 20-year duration.
NOW THEREFORE, for
and
in consideration ofthe respective covenants, promises and
agreements provided herein the Commission and the Lessee agree as follows:
Incorporation of Recital.
Amendment by reference.
1.
The above Recitals are incorporated into this
Page 1 of4
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Contract No. 320135-003
2.
Term and Rent. Section 3 ofthe Agreement is deleted
in
its entirety and replaced
with the following:
"3.
Term and Rent.
A.
Lease Term. Subject to Section 42 herein, this Lease shall commence on
the date that deed transferring title of the Siena School Property to Lessee is
executed and delivered (the "Lease Commencement Date"), and shall
terminate twenty-four (24) years thereafter, unless the Lease is terminated
earlier
in
accordance with the provisions of this Lease.
Rent. Lessee shall pay the Commission an annual rent of One Dollar and
No Cents ($1.00) ("Base Rent") each and every year for twenty (20) years
beginning on the Lease Commencement Date, payable annually in advance,
without notice or demand, on or before the anniversary of the Lease
Commencement Date. Thereafter, Lessee shall pay an annual rent each and
every year for four (4) years as defined
in
the Rent Table below, payable
annually in advance, without notice or demand, on or before the anniversary
of the Lease Commencement date.
RENT TABLE
Lease Year
Nnmber
21
22
23
24
C.
AnnnalRent
(in
dollars)
$12,000
$12,480
$12,979
$13,498
B.
Late Payment and Retnrned Check Charges. If the Base Rent and/or
other payments due under the Lease is not received by the Commission by
the Fifth day from the date the Base Rent andlor such other payment is due,
the Lessee shall pay the Commission a late charge equal to 10% of any
amount then due. Payment of such late charge shall not excuse or waive the
late payment of the Base Rent andlor other payments due. If the Lessee
presents a check to the Commission that a bank returns unpaid, the
Commission may require the Lessee to make payment by certified check or
money order.
In
addition, the Lessee shall pay to the Commission a returned
check fee of $35.00 for each returned check, plus any other fees, costs,
charges, and expenses incurred in collecting the payment
Holdover.
In
the event Lessee fails to timely vacate and surrender the
Leased
Premises to the Commission upon expiration or termination of the
Lease, Lessee shall pay $1,667 per month, or any prorated amount thereto,
to the Commission as holdover rent for all holdover period until the
Commission regains possession ofthe Leased Premises.
In
the event
Page 2 of4
D.
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ContraetNo.320135-003
Lessee's holdover lasts longer than one year, there
will
be four percent
annual increase in the applicable holdover year from the preceding year's
holdover rent amount.
E.
Rent Pavment Address. Subject to change by written notice from the
Commission, Lessee shall make all payments to the Commission at:
Park Property Management
Montgomery County Department of Parks
Maryland-National Capital Park and Planning Commission
16641 Crabbs Branch Way
Rockville, MD 20855"
3.
Replacement of Attachment "A". Attachment "A" to the Lease is deleted and
replaced with the Attachment A attached to this Amendment.
4.
Administrative Requests. Lessee shall submit a written request to Commission a
minimum of 30 days in advance for consent of, or for any Lease amendment, extension,
assignment, name change, loans, or other administrative processing, and include with such request
a non-refundable payment to the Commission for administrative costs in the amount of $2,500.
5.
Lessee Name. The Agreement is amended to reflect that the name of the Lessee
is Sligo Creek Holdings, LLC, a Maryland limited liability company, doing business as "The
Siena School", with the retroactive effect as ofJuly 29,2011.
6.
Representation and Warranty. Lessee represents, warrants, and avers that Lessee
is, and has been, in compliance with all terms ofthe Agreement at all times relevant. Lessee further
represents and warrants that entering into this Amendment
will
not violate any material agreement
to which Lessee is a party.
7.
Prior Condition to Amendment. This Amendment is expressly conditioned upon
Lessee's obtaining Bank of Georgetown's prior written consent for entering into this Amendment,
in accordance with the requirements set forth in that certain Recognition Agreement dated June
29,2012, entered into between the Commission and Bank of Georgetown, and Lessee agrees to
bear any costs associated with obtaining the foregoing approval from Bank of Georgetown.
8.
Effective Date. The date of this Amendment shall be the last date written on the
signature page herein.
No Other Changes. Except as modified in
this
Amendment, all other tenus and
9.
conditions of the Agreement remain the same.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Page 3 of4
5;
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Contract No. 320135-003
IN WITNESS WHEREOF, the Commission and the Lessee have executed this
Amendment on the
date
written below.
ature)
Printed Name:
Title:
Lessee Fed ID
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THE MARYLAND-NATIONAL CAPITAL
PARK AND PL
G
SION
ATTEST:
Date:
B~()'<U ~
Joseph Zimmerman,
Secretary-Treasurer
Printed Name:
-+---F-L..:...<....io<-L.l,.+-f--'--:;;....~~~'-L-
Title:
e~U77Vr:
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fRe5(~€',f)
Bank of Georgetown
For:
Page4of4
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LEGISLATIVE REQUEST REPORT
Expedited Bill
22~
16
Sligo Creek Holdings, LLC,
-
"The Siena School"
-
Lease Amendment
DESCRIPTION:
Approval ofa four-year extension lease term, totaling a 24·year lease
term for M-NCPPC property
Maryland Code, Ann., Land Use Article, §17·204(a)(2)(i), requires
that M-NCPPC obtain Montgomery County Council's approval for
any lease with a term greater than 20 years.
Sligo Creek Holdings, LLC (Lessee) seeks to obtain a construction
loan. One of the conditions to this loan is having a 24-year total lease
term. M-NCPPC, as landlord, and Lessee desires to obtain County
Council's approval in order to meet the construction loan
requirements.
M-NCPPC, Park Property Management
To be requested.
To be requested.
To be requested.
To be researched.
M-NCPPC, Michelle Grace, Assistant Division Chief, 301-495-2467
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None.
f:\law\bills\1622 lease amendment - sienna school\lrr.docx
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MONTGOMERY COUNTY DEPARTMENT OF
PARKS
THE MARYlAND"Nt\TIONi,L
CAI'IT,\L
I'ARK AND PI ANN1NC
CO:-livlL"'510~~
MEMORANDUM
DATE:
TO:
VIA:
FROM:
May 31,2016
Montgomery County Council
Mike Riley, Director of Parks
fh.lGtJLiIJt....~
Jim Poore, Chief, Facilities Management Division
Michelle Grace, Assistant Division Chief, Facilities Manager&n-;-Division
AA1
.
G
rt:---­
STAFF RECOMMENDA
nON:
Approval of Lease Amendment for Sligo Creek Holdings, LLC,
d/b/a The Siena School,
to
extend lease tenn for an additional 4 years with conditions.
BACKGROUND:
The Commission entered into a Lease Agreement with the Siena School dated July 29,2011,
with an Addendum to Lease dated May 30, 2012, for the School's use of approximately 1.47
acres of Park property as shown in the Lease Amendment "Attachment A - Leased Premises,"
The School is in the process of securing a 20-year bank loan for the construction of a new
addition to the School. A condition of the loan is that the School's Lease Agreement with the
Commission must remain in effect during the 20-year loan period. Currently, 16 years remain
under the original lease tenn.
In a written request received on April 25, 2016, Siena School requested the Commission modify
the Agreement to expire twenty years after the effective date of the loan. The current Lease
Agreement has a tenn of twenty (20) years which commenced on June 29, 2012 and expires on
June 28, 2032.
The Commission desires to amend the lease and
provi~
for an additional four (4) years to meet
the requirements of the loan. A Lease Amendment is attached for reference.
The Siena School is the owner of improved property located at 1300 Forest Glen Road, Silver
Spring, Maryland, which is adjacent to Park property. Formerly, the school site was owned by
the Boys and Girls Club, but was purchased by Siena School. A Special Exception to operate the
School in the R·60 zone and the School's acquisition each occurred in 2012.
A portion of the Leased Premises is used for parking by the School's staff, student drop-off and
buses during certain school hours and school days. Improvements to the School property and
adjacent Park property were contemplated during the lease negotiations in 2012.
Therefore~
the
FACILITIES MANAGEMENT DIVISION
16641 Crabbs Branch
Way,
Rockville, MD 20855
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Lease provides that Siena School may improve the leased area and construct new parking areas,
stormwater management facilities, recreational fields, and landscaping. Additionally, Siena shall
provide improvements to the pedestrian access between the leased premises and the adjacent
Park such as roads, driveways, parking lots and stormwater management facilities, recreational
fields, landscaping and access enhancements.
The Department of Parks is seeking County Council approval to grant Siena School the term
modification pursuant to the terms and conditions outlined in the Lease Amendment attached,
some of which are listed below.
1.
2.
3.
4.
Lessee's lender approval of lease amendment.
Rental payment for years 21-24.
Minor term revisions (late fee, holdover rent, administrative fee for future requests).
Revised Attachment
A.
Department of Park staff recommends County Council approval ofthis Lease Amendment via
legislative enactment.
Attachments:
Lease Amendment (with Attachment A - Leased Premises)
Existing Lease Agreement and Addendum; Recognition Agreement
Resolution 16-065
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{
r
f
'.
LEASE
THIS LEASE ("Lease'') is made this
.:{q\'i
dayof?,-Itt ,2011, between THE
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, a public
body corporate (the "Commission"), 6611 Kenilworth Riverdale, Maryland 20737 and The
Siena School, or its designated affiliated entity ("Siena" or the "Lessee"), whose address is
9727 Georgia Avenue, Silver Spring, MD 20910.
RECIT ALS:
A.
The Commission is a public body corporate, created and existing under Article 28
ofthe Annotated Code of Maryland that is engaged in performing governmental functions of
acquiring, developing, maintaining and operating public parks, facilities and recreation areas
within Montgomery County and Prince George's Counties, and, in such capacity, the
Commission is the fee simple owner of approximately 1.47 acres of land located as shown on
Attachment A (the "Leased Premises").
B.
The Lessee is the contract purchaser ofa certain parcel of land identified on
Attachment A as "Property ofBoys and Girls Club ofGreater Washington, Parcel I, Boys Club
of Silver Spring, Plat No. 5017, Liber 2584, Folio 308, Tax Map JP22, Parcel N458" (referred to
herein as the "Siena School Property").
C.
The Lessee intends to obtain a loan from a lender to make certain improvements
to the Siena School Property and the Leased Premises and in order to obtain said loan, enter into
a deed oftrust with a lender and pledge as security its fee interest in the Siena School Property as
well as the leasehold interest created by this Lease.
D.
The Lessee intends to seek a Special Exception ("Special Exception") to permit
the operation of an educational institution and other uses permitted under the Special Exception
on the Siena School Property and the Leased Premises.
E.
The Lessee intends to improve existing, construct new, or install driveways,
parking lots, stormwater management facilities, recreational fields, and landscaping on the
Leased Premises and improve pedestrian access between the Leased Premises and the
Commission's adjacent park (such, roads, driveways, parking lots, stormwater management
facilities, recreational fields, landscaping, and access enhancements hereinafter referred to as
"Improvements").
F.
The Lessee represents that it will fund the Improvements at the Lessee's sole
expense, construct them according to the Commission's standards, and maintain, repair, and
replace them all at the Lessee's sole expense and according to the practices ofthe Commission.
The Commission
has
determined
that
the Lessee's obligations under this Lease
G.
will fulfill public and park purposes by assisting
in
mitigating the adverse effects of storm water
Siena School Lease Page 1
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runoff and the
growth
of invasive plant species, by reducing the Commission's operating
expenses, and by allowing public access to the Leased Premises during specified periods oftime
.
as shown on Attachment B ("Access Schedule")
H.
The Commission 'and the Lessee intend that this Lease shall
set
forth the terms
and conditions under which the Lessee shall occupy the Leased Premises during the tenn hereof.
NOW, THEREFORE, for and in consideration ofthe covenants, conditions, terms and
provisions contained
in
this Lease, the parties agree as follows:
1.
Recitals. The recitals set forth above are incorporated herein by reference and made a
material part ofthis Lease.
2.
Demise of Leased Premises. The Commission leases to the Lessee, the Leased Premises
as shown on and descnbed on Attachment
A,
commencing on the Lease Commencement Date
specified below.
3.
Term and Rent.
A.
Lease Term. Subject to Section 42 below, the demise of the Leased Premises as
provided
in
this Lease commences on the date that deed transferring to title ofthe Siena School
Property to Lessee is executed and delivered (the "Lease Commencement Date"), and
terminates twenty (20) years thereafter, unless the Lease is terminated earlier
in
accordance with
the provisions of this Lease.
B.
Rent. The Lessee shall pay to the Commission a rent of One Dollar and noll 00
($1.00) payable annually ("Base Rent") in advance, without notice or demand, beginning on the
Lease Commencement Date, and continuing on the same day of each year thereafter for the
entire term ofthis Lease. Additional Rent (as defined in Section 11) shall be due and payable
upon demand.
C.
Rent Payment Address. Subject to change by written notice from the
Commission, the Lessee
sh~lmake
all Rent payments to the Commission at
Property Management Office, Montgomery County Parks
The Maryland-National Capital Park and Planning Commission
10611 New Hampshire Avenue
Silver Spring, Maryland 20903
4.
Use of Leased Premises.
A.
The Lessee shall use the Leased Prem.ises solely for activities conducted
in association
with
the operation of a private educational institution and such other uses
as
may
be permitted under the Lessee's Special Exception, such activities shall include
Siena School Lease
Page 2
@
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before school or after school programs and outdoor sports and recreational activities
operated by the Lessee andlor its designee{s) or sublessee(s).
B.
Subject to the requirements of Lessee's Special Exception, the
Commission may use any parking lots, roads, driveways, and recreational fields located
all, or in part, on the Leased Premises except during the Lessee's normal hours of
operation (including before school or after school programs) or during special events
held on the Leased Premises by the Lessee andlor its designee{s) or sublessee(s). The
Lessee shall post signs on the Leased Premises advising the public ofthe Commission's
rights with respect to
this
Section 4(B).
5.
Restrictions on
Use
of
Leased Premises. The Lessee shall not:
A.
Use the Leased Premises in violation ofany Commission law, regulation
and practice and any Federal, State and ]ocallaw and regulation;
B.
Commit waste on the Leased Premises;
C.
Use the Leased Premises for any purpose that
is
unlawful, unsafe, and
hazardous or
in
violation of any law or regulations;
D.
Place, dispose of or store any material or substance on the LeaSed
Premises that is illegal, controlled, hazardous or toxic, and not permit any other person
to bring, place, dispose of or store any material or substance that is illegal, controlled,
hazardous or toxic;
E.
Premises;
Allow any person to park a recreational vehicle or boat on the Leased
F.
Except fur uses in connection with commercial deliveries or services,
special events, buses used by the Lessee in the operation of its private educational
institution, or permitted construction, allow any person to park a commercial vehicle,
truck, or equipment on the Leased Premises;
G.
Premises;
Allow any person to park who is not authorized to use the Leased
Except
in
connection with permitted construction, repairs or new
improvements, use the Leased Premises as a storage area for equipment or materials;
I.
Allow any motor vehicle by Lessee's employees or contractors on the
Leased Premises with expired license plates, or registration;
J.
H.
Use the Leased Premises for repair of motor vehicles or equipment; and
Siena School Lease Page 3
/$)
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;'
l.
(
K
Premises.
Obstruct a sidewalk, driveway, exit, or entrance, or area in the Leased
6.
Pesticides. The Lessee shall comply with any Commission law, regulation and
practice, and any
Federa~
State, 'and local law and regulation governing the use of
pesticides, including but not limited to storage, inventory, purchase and disposal, and
application. Lessee shall not use any pesticide that is prohibited by any Commission
law, regulation and practice, and any Federal, State, and local1aw or regulation. Lessee
shall obtain prior written approval from the Director of Parks or the Director's designee
before application of any pesticide on the Leased Premises.
7.
Hazardous Materials.
A.
The Lessee shall not use or store any asbestos, hazardous or toxic
materials or substances, (hereinafter "Hazardous Material"), as defined in any Federal,
Stath Commission or local laws, regulations and rules.
B.
. lfthe Lessee causes or permits the release of any Hazardous Material, as
defined above in
this
paragraph, in or on the Leased Premises, the Lessee shall
indemnify, defend and hold the Commission harmless from any and all actions, claims,
demands, costs, damages and expenses of any kind, including: (1) attorneys fees, (2)
diminution in value ofthe Leased Premises, and (3) damages for the loss or restriction
on use ofthe Leased Premises, which are made against or incurred by the Commission
arising during or after the Term ofthis Lease. The Lessee is liable during the Term of
this Lease and as long as Lessee has possession ofthe Leased Premises, whichever
period is longer. The Lessee is not liable for the release ofHazardous Materials on the
Premises prior to the commencement ofthis Lease.
8.
Improvements. The Lessee shall construct the Improvements at its sole cost in
accordance with the applicable building codes and the Commission's standards. The
Commission shall not be responsible for any partofthe cost ofthe Improvements.
9.
Lessee - Maintenance, Repair, and
Replacement~
The Lessee shall, at its
sole costs and expense, in accordance with the annual maintenance plan and schedule
approved by the Commission in accordance with this section as set
forth
below:
A.
Maintain the Leased Premises, including
all
Improvements, in a good
state of repair and cleanliness including without limitation nonstructural, ordinary and
extraordinary repairs, maintenance and replacements, routine and periodic maintenance
of all grass areas, including mowing, mulching, and fertilizing, and managing invasive
plant species;
B.
Perform routine maintenance oftrees, shrubs, and other plantings on the
Leased Premises and replace any diseased, dying or dead
trees,
shrubs or other
plantings on the Leased Premises required by a landscaping or storm water
Siena School Lease
Page 4
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(
I
,,­
management plan approved by the Commission or any local, State, or Federal agency
having jurisdiction;
E.
F.
G.
Perform periodic maintenance ofplaying surfaces;
Clear all vehicular and pedestrian ways ofice and snow; and
Remove and dispose oftrash, solid waste, refuse, rubbish and debris.
The Lessee shall meet with the Commission's designee annually to establish an annual
maintenance plan and schedule for the Leased Premises. If the parties are unable to
agree on the annual maintenance plan and schedule by the first day of September of
each year, then the Lessee shall maintain the Leased Premises in accordance with the
then current, reasonable and customary management and maintenance practices and
policies ofthe Commission.
The Lessee shall have a commercially reasonable time to repair or rebuild
improvements damaged or destroyed by casualty.
10.
Utilities and Services. The Lessee shall promptly pay all fees, taxes, costs and
charges for all services, including electricity, gas, water systems, septic systems, sewer
systems, telephone, refuse, cable, communications, janitorial and other services for
improvements and activities used by Lessee on the Leased Premises.
11.
Reimbursement
to
Commission.
Ifthe Lessee fails in the performance, to the
Commission's satisfaction, of any ofLessee's obligations under this Lease, and
Lessee's failure continues for thirty (30) days after written notice from the
Commission, such failure to perfonn shall be considered a default ("Default") and the
Commission may cure the Default on behalfofthe Lessee. The Lessee shall reimburse
the Commission, upon demand of any out-of-pocket
sums,
amounts, costs,
(ees,
charges or expenses inci.Irred by the Commission to cure Lessee's Default, such as
without limitation, materials, labor, administrative costs, and professional fees, and the
amount ofthe reimbursement shall be additional rent ("Additional Rent"). Costs will
based on charges as reported through the Commission's PayPass system or an
equivalent program.
12.
Commission
Access
to
Leased
Premises.
In addition to any access granted
under Section 4{B), the Commission shall have access to the Leased Premises for the
purpose of.
Inspecting the Leased Premises, and performing any maintenance or
repair not performed by Lessee in accordance with the Lease obligations;
B.
Enforcing the Lease;
A
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C.
Accessing adjacent parkland;
D.
Assuring in emergencies the safety, improvement or preservation ofthe
Leased Premises; and
E.
During the last six months ofthe lease term, -showing the Leased
Premises to any prospective new lessees.
, The Commission shall provide two
(2)
business days written notice to Lessee, except in
emergency.
Public Access
to
Leased Premises. Subject to Sections
4(B)
and
12(C),
the
public shall not have access to the Leased Premises without the consent ofthe Lessee,
which consent shall not be unreasonably withheld, conditioned, or delayed.
13.
14.
Security and Liens.
A.
The Lessee may pledge as security to a lender a deed oftrust covering
the Lessee's leasehold interest in the Leased Premises created by this Lease as security.
The deed oftrust shall by limited solely to the Lessee's leasehold interest in the Leased
Premises and shall not include the Commission's fee interest in the Leased Premises. If
a lender requires a recognition agreement generally in the
form
ofthe recognition
agreement shown in Attachment
C
as a condition ofmaking a loan to the Lessee, the
Commission shall enter into such an agreement with the lender provided that the
Commission determines that the recognition agreement adequately protects the
Commission's interests.
B.
.
The Lessee shall not permit any liens to be imposed or maintained
against the Leased Premises for any labor, service or material furnished to. Lessee. If
any lien is asserted against the Leased Premises or the Lessee's leasehold interest in the
Premises, the Lessee shall promptly at the Les.see's sale cost and expense have the lien
discharged by payment, bond or otherwise.
15.
Signs. The Lessee shall not erect, place or install any sign on the Leased
Premises without obtaining the written approval in advance from the Director ofParks
or the Director's designee. The Lessee may place a temporary sign associated with
a
special event without prior written approval ofthe Director ofParks or the Director's
designee, so long as Lessee removes the sign within forty-eight
(48)
hours after posting
ofthe sign.
16.
Insurance. Lessee shall maintain insurance cOverage for the Leased Premises,
including all improvements. This insurance coverage shall be the primary coverage.
The insurance must comply with the following provisions:
A.
Comprehensive General Liability insurance
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General Aggregate -$1,000,000.
Occurrence Based Deductible allowed - $1,000.
Coverage and Limits
Premises and operations - $1,000,000.
Products and completed operations - $1,000,000.
Independent contractors - $1,000,000.
Contractual-Leases - $1,000,000.
Explosion, collapse, underground hazards - $1,000,000.
Personal injury and advertising injury - $1,000,000.
Real Property and Personal Property Damage ­
Replacement Value.
Contractual Indemnity-Hold Harmless - $1,000,000.
Fire Damage (anyone fire) - $50,000.
Medical expense (anyone person) - $5,000.
B.
Automobile Liability
Combined Single Limit - $1,000,000.
Includes owned, hired and non-owned motor vehicles
Excess Umbrella Liability -$1,000,000.
Worker's Compensation
Coverage required by the Maryland Law
C.
D.
E.
The insurance company must be licensed to do business in Maryland and
must be acceptable to the Commission. The Lessee must provide the Commission with
a certificate of insurance befure occupancy of the
Leased
Premises and must provide
the Commission with a renewal certificate of insurance on or before expiration ofthe
existing certificate. The certificate must provide for not less
than
forty-five (45) days
advance written notice to the Commission in the event oftermination, modification or
cancellation.
F.
All insurance policies must include the Lessee as the named insured and
the Commission as an additional insured. All insurance policies must waive
all
rights
of subrogation against the Commission.
O.
The Lessee shall provide insurance sufficient to cover the replacement
value of all improvements on the Leased Premises. In the event insurance coverage is
not sufficient for any reason, the Lessee shall repair the
Leased
Premises so that is in a
safe condition.
Indemnification
-
Lessee. The Lessee shall indemnify, defend and hold
17.
harmless the Commission against and from all
claims,
liabilities, obligations, damages,
fines, penalties, demands, costs, charges, judgments and expenses, including, but not
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/
limited to, reasonable attorneys' fees, that are made against or inCWTed by the
Commission arising from the Lessee's negligence, wrongful conduct, negligence
performance or failure to perform any of the Lessee's obligations under
this
Lease;
provided that the Conunission shall provide written notice to Lessee within ten (10)
business days of its first receiving notice of such claim or other actual or threatened
liability and afford Lessee a reasonable opportunity to handle the defense ofsuch claim
or liability.
. .
18.
Alterations to Leased Premises. The Lessee shall obtain the written approval
in advance from the Executive Director ofthe Commission or the Executive Director's
designee prior to making any alterations, additions or improvements to the Leased
Premises. The Lessee shall comply with
all
applicable Commission, State, Federal and
local laws and regulations.
19.
Reports to Commission. The Lessee shall promptly notify the Lessee's
insurance carrier and the Commission of any damage or personal injury on or about the
Leased Premises which occurs by any cause, including, but not limited to negligel)ce,
accident, fire, water, flood, wind, explosion, wrongful act and vandalism Lessee shall
notify the Park Police at
301-949-3010
and the Property Management Office at
(301)
495-2520.
20.
Assignment and Subletting. Lessee shall not assign this Lease or allow any
person or legal entity to use or sublet any part ofthe Leased Premises (other than in the
normal course of facility operations conducted from the Siena School Property) without
prior written consent ofthe Commission, which consent shall not be unreasonably
withheld, conditioned or delayed, as to the terms and provisions ofthe assignment or
sublease, the identity ofthe assignee or sublessee and its capabilities and financial
responsibility. Notwithstanding the previous sentence, the Commission shall not be
obligated to approve an assignment or subletting if the Commission determines that the
proposed assignee's or sublessee's proposed use of the Leased Premises does not fulfill
a public and a park purpose. Ifthe Commission consents to a subletting or assignment,
the Lessee, the sublessee, and/or the assignee shall be jointly and severally obligated
and liable to the Conunission under the terms of the Lease. The Lessee must submit to
the Commission a fully executed copy ofthe sublease or assignment not less than
fifteen
(15)
days after the Lessee and the sublessee or the assignee execute the sublease
or assignment. No such assignment or sublet ofthe Leased Premises by the Lessee
shall be effective until approved by the Commission in writing. The foregoing
limitations on subletting to the contrary notwithstanding, if Lessee's Special Exception
approval allows Lessee to have a sublessee or other occupant or user ofthe Siena
School Property, and provided Lessee's use and operation under the Special Exception
remains the primary use ofthe Siena School Property, such sublessee's use shall not be
deemed be an assignment or subletting under this Lease and such sublessee shall be
permitted
to use the Leased Premises consistent with the rights ofLessee
in
accordance
with the terms ofthis Lease without the prior consent ofthe Commission, but Lessee
shall remain fully responsible for the performance of all obligations as Lessee under
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,.
this Lease and the provisions of Section 17 shall be deemed to apply to, and cover, any
liability or claims arising out of any actions of such sublessee.
21.
Termination. Subject to compliance with any agreements of the Conunission
executed pursuant to or contemplated by Section
14(A)
hereof; if the Commission
determines during the term ofthe Lease that Lessee has materially defaulted in the
performance of
this
Lease (for purposes ofthis Lease, a "Lessee Default"), the
Commission may serve upon the Lessee a notice of default; and ifwithin thirty (30)
days of such notice, the Lessee fails to cure the specified Lessee Default (provided,
however, that if such Lessee Default is not susceptible to cure within such thirty (30)
day period, such cure period shall automatically be extended so as to allow sufficient
time for such cure, but in no event shall such cure period exceed ninety (90)
days
unless
otherwise agreed by the parties), then (1) the Commission may (but shall not
be
obligated to) make such payment or
do
such act as may be reasonably necessary to cure
such event, and charge the amount ofthe expense thereof to the Lessee, which amount
shall be due and payable by the Lessee upon demand, or (2) the Commission may,
without terminating
this
Lease, bring an action in a court of law for injunctive relief
andlor monetary damages suffered as a result ofsuch event, or (3) the Commission
shall have the right to terminate this Lease upon written notice to the Lessee.
Notwithstanding any other provision hereof; ifthe Lessee is unable to obtain a loan
from a lender to make improvements to the Siena School Property and the Leased
Premises, the Lessee shall have the right to terminate this Lease and this Lease shall be
deemed null and void co-incident with such termination.
22.
Surrender of Leased Premises.
On or befure the last day ofthe Lease term, or upon any earlier
termination of the Lease as provided herein, Lessee shall peaceably surrender the
Leased Premises including
all
improvements in good order and repair and otherwise in
the same condition as upon the later of commencement ofthe Lease or the completion
of construction ofany improvement on the Leased Premises, as the case may be, except
for: (1) ordinary wear and tear; (2) loss by fire or other casualty not caused by the
Lessee; and (3) any repair or replacement that is covered by insurance proceeds payable
or assigned to the Commission.
B.
The Lessee shall remove all ofthe Lessee's equipment, vehicles and
personal property. The Lessee may remove the Lessee's personal property that is
affixed to the Leased Premises, provided that the personal property is removed without
substantial injury to the Leased Premises. The injury is not substantial if the Lessee
promptly restores the Leased Premises to the condition existing prior to the installation
ofthe personal property and the restoration is to the satisfaction ofthe Commission.
The Lessee may not remove any permanent fixture, which is property, materials or
improvements that has become part ofthe Leased Premises.
23.
The Commission's Remedies upon Expiration or Termination. The
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Commission shall have the right and option upon expiration or tennination ofthe Lease
to: (a) re-enter the Leased Premises,
(b)
make any repairs or maintenance that may be
necessary, (c) expel the Lessee or anyone claiming through the Lessee, and (d) remove
any property from the Leased Premises. The Lessee shall remain liable for the Lessee's
negligence, wrongful conduct, negligent performance or failure to perform any of the
Lessee's obligations under this Lease, plus court costs and reasonable attorney's fees.
24.
Quiet Enioyment
So long as the Lessee perfonns all ofthe Lessee's
obligations under this Lease, the Lessee shall have quiet and peaceful use and
enjoyment ofthe Leased Premises, subject to the provisions of this
Lease,
without
interference by the Commission or any party claiming by, through or under the
Commission.
.
25.
Compliance
With
Laws. The Lessee shall promptly comply with all
Commission laws, regulations and practices and applicable Federal, State and local
laws and regulations.
26.
Notices.
The parties shall send all notices, requests, demands or other
communications in writing by: (a) personal delivery, or
(b)
certified mail or registered
mail, postage prepaid, return receipt requested, to the Commission or the Lessee, at the
. respective addresses set forth below:
The Commission:
Property Management
M-NCPPC
10611 New Hampshire Avenue
Silver Spring, Maryland 20903
Office ofGeneral Counsel
M-NCPPC
6611 Kenilworth Avenue
Riverdale.
Maryland
20737
The Lessee:
The Siena School
9727 Georgia Avenue
Silver Spring,
MD
20910
Miller, Miller
&
Canby
200-B Monroe Street
Rockville, Maryland 20850
Attn: Jody S. Kline, Esq.
With copy to:
Either party may change its notice address by written notice to the other party.
27.
No Partnership.
The Commission is not a partner, joint venturer or associate
ofthe Lessee
in
the Lessee's use of the Leased Premises.
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28.
Periodic Reviews. At the end of each five years, the Commission shall review
the use ofthe Leased Premises under this Lease, the Lessee's performance under this
Lease and other matters related to this Lease, and provide any report of such review to
the Lessee. No change in the terms or requirements ofthis Lease maybe imposed
without the express written consent ofthe Commission and the Lessee.
29.
Non-Waiver. The failure by the Commission to insist upon the performance of
any provision, condition or term ofthis Lease, or the failure of the Commission to
exercise any right or remedy shall not constitute a waiver ofprovision, condition, term,
right or remedy by the Commission. The provision, condition, term, right or remedy
shall continue in full force and effect, unless waived in writing by the Commission.
30.
Applicable Law. This Lease shall be construed in accordance with the laws of
the State ofMaryland and enforced in a court of competent jurisdiction in Montgomery
County, Maryland.
31.
Non-Discrimination. The Lessee shall not discriminate against any participant
in
or applicant for its programs, against any employee or applicant, or against any
contractor because of age, sex, race, creed, color, national origin or disability. The
Lessee shall ensure that applicants, participants, employees and contractors are treated
without regard to age, sex, race, creed, color, national origin or disability. Ifthe Lessee
is determined to be in violation of any
Federa~
State or County nondiscrimination law .
by the final order of an agency or court, the Commission may terminate or suspend this
Lease
in
whole or in part.
Entire Agreement.
This Lease contains the entire agreement between the
32.
parties. This Lease may only be modified by a written amendment signed by the
parties.
Waiver of
Jury.
The Lessee waives any right to a trial by jury in any legal
33.
action relating to this Lease.
34.
Obligations Surviving Lease. Any obligations, duties and liabilities of the
Les$ee under the Lease shall survive the expiration or termination ofthis Lease.
Permits. The Lessee shall obtain all permits and licenses required by the
35.
Commission,
Federa~
State, and local laws and regulations.
36.
Severability. If any provision of this Lease is determined to be invalid or
illegal by a court or an administrative agency or body, that provision shall be severed
from this Lease and shall not affect the remainder or any other provision ofthis Lease.
Independent Contractor.
The Lessee is an independent contractor. The
37.
Lessee'
and
its agents, officers, employees, assigns, contractors and representatives are
Siena School Lease Page 11
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not agents or employees of the COimnission.
38.
INTENTIONALLY DELETED.
39.
Successors and Assigns.
This
Lease is binding upon the parties and their
successors, agents, officers, employees, assignees, contractors, representatives and
sublessees.
40.
Applicability of Maryland Natural Resources Article. Title 5. Subtitle 11.
Anything herein to the contrary notwithstanding with respect to the obligations ofthe
Lessee to maintain the Leased Premises or its indemnification and insurance obligations
-hereunder, the Commission acknowledges that the Lessee is, and is intended to be, an
"owner" of the Leased Premises as such term is defined under Annotated Code of
Maryland, Natural Resources Article, Title 5, Subtitle 11, Section 5-1101(e) and that
the provisions ofthe Natural Resources Article, Title 5, Subtitle 11 shall be applicable
to the use by the public ofthe Leased Premises and are not waived hereunder
41.
Taxes -Fees.
The Lessee shall pay any taxes, fees, assessments, or charges
attributable or related to the Lessee's use ofthe Leased Premises. The Lessee reserves
the right to handle appeals of any tax assessment or reassessment ofthe premises for
real estate tax purposes.
42.
Contingencies.
This Lease
is
contingent on the Lessee obtaining a Special
Exception for its proposed uses and purchasing the Siena School Property. The
Commission and Lessee have the right to terminate
this
Lease if either contingency
does not occur.
SIGNATURE PAGE FOLLOWS
Siena School Lease
Page 12
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IN WITNESS
WHEREOF~
the Commission and the Lessee have executed this
Lease on the dates written below.
Date:
By:
--+-h~q....1
ature)
Typed Name:
C/~
/(auWJa<1
Title:
_ _ _
........,tf...!:.":e
ew,l=-"'::'~A--.Jl--,Ch:.......;;;...;oa_1
WITNESS
Date:
~;<~
:;0'/
Typed Name:
(i
ture)
Weft
ruJoc0;l{}n
Title:
~ ru.o.Jla~
THE MARYLAND-NATIONAL
CAPITAL PARK AND PLANNING
COMMISSI·
ey
ATTEST
Date: __
~_-_S_
..
t_l_
_
By;
<S'~ ~
Joseph Zimmerman
Secretary-Treasurer
Siena School Lease
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i
I
i
"-.
I
~J
.
.::-.i.
~·~~G
=-
1..
I.?
E
.c
<C
....
E
II:
OJ
II)
OJ
«
Z
IIIJ
0
£1..
"tS
OJ
I:)
e
III
II)
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Attachment B
Access Schedule
I.
The Lessee shall have exclusive use of the Leased Premises throughout the
calendar year on weekdays (Monday through Friday) from 7:30 am through
6:00
pm-except.for Federal, State, or Local holidays.
II. In the case of an event
to
be held outside of the periods of exclusive use as
described above in Item I, if the Lessee desires exclusive use of the Leased
Premises for such an event, the Lessee shall make a request for exclusive use to
the Commission at least thirty
(30)
days in advance. The Commission may deny
the Lessee's request if the Commission
det~rmines,
at its sole discretion,
approving the request would interfere with public or park purposes.
Notwithstanding the previous sentence, the Commission may not otherwise
unreasonably withhold or deny approval of the Lessee's request.
III. Except as otherwise provided in this Attachment C, the Lessee shall have non­
exel usive use of the Leased Premises.
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Attachment C
Recognition Agreement
RECOGNITION AGREEMENT
nIlS
RECOONmON AGBEEMBNT ('"Agreement")
is
made as of _ _ _ _
....I,
20--,
between
("Landlord") and
a
_ _ _ _ _ _ _ _ _ ("U:nder").
Recitals
dated
("Lease"),
a
("Tc:nant''),
the
teal
property
locat=l
in
• Maryland
md more
partieulru:ly
deiiCribed
in
the
Lease
('"Property").
LeDder
-prop-o-ses----,w"""·
-ma1re--'--a-;-losn-("Loa!!.~
"')
to
Tenant, the
security
for
which
will
inolude
a
deed of'tnlSt
C!M'l1ing
TcollIlt's leasehold
estate
in
the
Property
(""Deed
of'Trust").
,
In
accordance with the
Landlord
bas
leased
to
As a condition
precedent
to
making the Loan to Tenmt,
Lettder
has required
Landlord
to
ClCecute
and
deliver this
Agreemeat.
Agreements
NOW THEREJ!'ORE"
in
consideration of these premises
IlIld
the covenantll and agr=mentll set
fDrth
below, Landlord
and Lender agree as
follows:
1.
LtmdlorrJ'sConsenttoDsedofTrust.
Landlordoonsentstothc~ecution,delivctyandm:ordal:ionof
the Deed ofTIUSt.
2.
Landlord:r Representationsand Warranties.
Landlord
n::pcese.a.ts
md
warrants
!XI
leudlIr
8ll
follows:
a.
Landlord
is a
duly aqpmized, validly
t:Xisting,
and
in good standing
undertheIawsof!heSlatllofMaryland. Landlord
has
1hepowerandauthoritylo consummatethetransactiOllS
COIllemplated hereby, mdhas
ll!kcn
all necessary action
to
autho;ir.e the execution. delivery,and:peri'ormance
ofthls
AgIeemenl.
b.
The e.lIeeution, delivety and performance by
LsndI.ord
of
this
Agreement:
(i)
are
within
the
legal powers of Landlord; (h) hIM
reeeived
all
necessa1}' governmental approval;
(tii)
will not violate any
provision oflaw, or any order
of
lIllY
court
or other
agency
of
gaveIlIlIICIlt;
and (iv)
will
not
result
in
1\
breach
of
or constitute
II
default
under any agreement or other
instrument
to which Landlord
is
a party or
by
which
Landlord or
the
Property
is
bouod. This
Agreement
oonstitutes the legd, wlid and binding ohligations
of
Landlord, enforceable
against
Landiord
in
accordllllCC
with
its
letms.
c.
Attached herem as ExhIbit A
is
a 1:rlle.l!.CCUlate and complete
copy
ofthe
Lease:.
The Lease
has notmodificd,. supplemeotcd or amended
in
any
way
and
the.
Leaserepresents the eotireagrecmentbetween
Landlord and Tenant
as
to the leasing of the PIOp6d:y.
There
is
no defauh on the
part
ofLand1ord under the
Lease and,
to
Landloni'sknowledgc, there
is
no defuuttcn the part ofTenant undet the Lease.
Rent
has
been
paid
on
the
Li:Ue
through
..
20_. Then: has
been
no
assignmCllt.llypoI:11ccation
or
pledge ofLandlord's
interest
m
Lease
or
the reuts
due
under the
I:..esse.
the
d.
Landlord's fee estate
in
the
Property
is
unencumbered except
by
the
I..eue.
and no pe:rscn
other than Landlord
has
Il1IY
Interest
in
such
fee
estate except under the Lease.
3.
Lender's
R!g1tts
lIpan Ll!l1se
/Jdi2uIt.
a.
Landlord
shall
giveLender.
in
the mannc:rdeseribed
by
Section 7 ofthis
Agreemeat,
a copy of'
each
notkc given
by
Landlord
II)
Ten.sntofa
default
byTenl!Jltunderthe Lease ("Lease Defimltj
at
the same
time as Landlord gives such notice
of
a Lease Defauh
to
Tenant.
1
Siena SChool Lease
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b.
Lender
shall
have therlght (but shall have
DO
obligation), for a
period
20
days
from
receipt
of
notice, to care or
cauSe
to
be cured the
Lease
Default. Landlord shall
a~t
perl'ormance by
Lender
with
the
same
fon;c and
effect
as
though
performed
by
Tenant. Landlord shaUno! CQlJIlIlence exercising
its
remedies
under the Lea.se or applicable
law
as a
teSIllt
ofa
lease
Default
by
Tenant so long as Lender
in good
faith
(i)
has
commenced
promptly to
cu:re
the
Lease
Default
and
continues diligently to prosecute
such cure
to
complclioo,
or
(u)
if
possession
of
the
Propa:ty
is
required
in order
to
eu:re
the
Lease
Default or
if
the Lease
Default
is
ofa
lIatnre
that
itCBllUot
be
amed
by
Lender, bas commenced
to
instil.llle
and
continues
diligently
to
puzsue
foreclosw:e
proceedings
and obtain possession
and,
upon obtainingpnssession. commences
proinpUy
and
dlligentlypuraues
to
completion cu:reofanyLeaseDcfiwlt capable ofcu:re
by
Lender;
provided.
however,
that LeIlder
shall
have delivered
to
Landlotd
a
written
agree:ment
to
lake the
actiOllll described
in
clause
(i)
or
(u)
above, and that dl.ltins !he period
in
whkb
SIIch
action
is
being
takeil
all
of
the other obligations ofTcnent
under the Lease are
being
duly
perforlIwd.
Ai
any time
after
the delivery of
sueb
agreement.
Lender
may
notify
Landlord that
it
has
relinquished possession of the Property, or that
it
will
oct
:institute or
will
discontioueforeclosllmptOCeedinp, or!hatitdeemsandrequestsandrcceM:sLandlotd'sconcum:ncetbatthe
Lease
Default has been cured
by
Tenant,
and
in such event Lender shall have no fhrther liabilityunder such
agreement to
take
any
of
the actioos described
:in
clause
(i)
or
(ll)
above aDa. llnless !he
Lease
Defituh
has
been
cured,
Landlord shall have the unrestricted right
to
ttmninate the
Lease
and
to
lake
any olhcr action
it
deems
appropriate by
reason
of
any Lease Default
by
Tenaot.
4.
Em;ution
qfRelllacement
Legse.
&.
Upon request by Lender made wilhin 30
~
after
(i)
LeIlder's receipt of notice of the
tmninatiOll afthe
Lease
for
anyn:ason.
or
(ii)
LeIldcr's completiOll offorcclosure procecdjngs
Ot
any othet
action
pursuant
to
which LeIlder or
its
designee
obtains
possession of the Property, Landlord
shall
eoopera.te
with
Lender:in
connection
with
any
proceedinga
to
remove Teoant fi:om the property, and shall =:ecntc
and
deliver
II
new
lease
("Replacement
Lease")
of
the
Property to
Lender
or
ita
designee, thr
the
remainder of
the
tenn
of
the
Lea.se,.
upon
all
the
COVeDlIIlts,
conditions,
limitations
and
agreements
c:on1lIined
in
the Lease,
provided !han
Lender
IIhall
pay
to
Landlord,
simultaneously
with
the
delivery
ofthe
Rep1acement
Lease,
all
unpaid
rent
due nndertheLease through
thed8te
of
the
commenc:ementoftbe term
of
the
Replacement
Lease
and all
expen&eS"
iDcluding
but
not
limited
to
reasonable
attorneys' _ and
c&bw:semCDts
and
court
costs
incurred
by Landlord in
connection
with
the
Lease
De5m1t.
the
temdnatinn
ofthe
Lease.
the evictionofTenant
and the prepam1ion
of
the Replacement
Lease.
b,
The ReplacelIlelJ1
Lease
and
the leasehold
estate
creaII.'Id
thlll:eby
shall
maintain
the
same
priority
as
fhis
L<:ase
with
regard
to any mortgage enClIlllbram:c or pledge on the
Property
or
any
olller
lieu,
charge or encumbmncc
thereon,.
wbclhei- ornot the same shal11he:n be
in
ex.isteDee, and
shall
provide
that
lifm,
chllIBcS
or eacumbnmces on the Proper:tywbich were subordinate to
!he
Deed
ofTrust
shall
not beorbcamul
II
lice,
charge or enmunbranc:e with respect to the Replacement Lease. Concutrent with the execution and
delivety
of
the Replacement Lease,
Lmdlord shall
assign
to
the
teJumt
llIIIIled
therein
all
ofLandlord's
right,
title and
interi:st:in
and
to
al11I1Ol1CY&(mcluding insurance
and
condeamationproceeds). ifany. then held byor
payable to
Umdlmd
which
Tenant
would
have been entitled
to
receive
but
for tb.e tenninatioll of the
LeaSe.
0.
Between
the
date ofImlnination of the Lease and the date of execution and delivery ofthe
RcpIaCClllcrlt
Lease.
La:Ddlord
shall
not
CIIIlccl
lilly
subleases
or
accept
any cancellation,
tetmination or
sum:ndcr
thereof,
unless
sueb
teImination
sball
be
efrected
as
II
IIlI!.!:tcroflaw
OIl
the
tmmination
(lfthe Lease,
without
nolic:e
to
Lender.
5.
No Amendment <IlLegaL
Landlord
IIhall
not
enter
:into any
lUlIeIldment
ofthe
Lease
or accept
any
cancellation or
terntInation
of
the
Lease
without
Lender's
prior
written
coosent.
6.
Est9Dllel
CmfflcalU.
Uponrequest by
Lcndernom
time to timc,Landlord
shall
execute end deliver
to Lender or eny person designated by Lender a
written
statement
certifYing
(a) whetber the Lease IS
in
full
force end
effect,
(b)
whether thereare any amendments
to
the Lease, IlIld ifsa. specifying the
emendments, (0)
whether
there
are any then-existing setoffs or defenses against the enforcement ofany ofTenant's rights.
UIldcr
the Lease,
rmd
if
so, specifying such matters
in
reasonable detail, (d) the dares, ifaDY,
to
which:rent or other
1
Siena School Lease
Page 17
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'\
.
sums
due
under the Lease have been Paid. (e) ihatLandlcJrd bas no koowIedge ahnytheo
crlsting
defaults of
Tenant under
the
tease.
or
if
tbete
are such defaults,
~g
them in
detail,
(f)
that LandlcJrd
bas
no
knowledge of my eveot having oeCllII'Od that authorized
the
termination afthe Lease
by
LendIord,
or
if
such
event
bas
IlCIllJ:m!d,
specifying
it
in reasonable detail,
and
(g) any and aU other matters
reasonabIyrequc::stcd
by
Lender.
7.
li.!J1iJ;a,
All
notices,
demands,
requests
IUId
other
communications required under
this
Agreement
shall
be
in writinJ and
shall
be
deemed
to
have
been
properly given
if
Slmt
by hmd deJivCl)'.
Federal
Express
(or
similar overnight
C01I1'im-
service), or
by
United States
certi:l:ied
mail
(retmn
receipt requested),
poStage
pn'lJlaid,
addreSsed
to
the
party for whom
it
is
intended at
its
address hereinafter
set
forth:
If
to
Landlord:
Iftc
Lender:
Notice
sball
he
deel:Ded
given as of
!be
date
of
hand
delivery,
lIS
of
the
date
specified
for
deliVCI)'
if
by
overnight
courier
service or
lIS
of2
calendar
days
after
the
date
ofmailing. as the
may
be.
ease
8.
Succeasor:l
and
.il.mm
BO!l1ItI.
The
covenllllts md agreements contained
In
this
Agreement
shall
bind,
end
thcrlghts
undI::r
this.Agreement
shall
inure
to,
lherespective successorsmd
assigns
oflandIord
and
Lender.
9.
GoverningLgw.
The
validity
ofthis Agreement, each ofits terms and provisions,!lDd
the rights
and
obUgations ofLandlord
and
Lender
under
tb.iS
Agreement, shall be
goVerned
by,
intl;rprc!cd,
constmed
aild
flllforce!I
PUl'SllBllt to md in accordance with the laws
of
the State of'Maryiand (witboutregard to principles
of
collflicts oflaws).
10.
SevWDUity.
In
the event that any provision
of
this Agreement conflicts
with
applicable law, such
confligt
sbl!ll
not affect other provisions of!his Agreement which can be given effect
without
the c:onflictiag
provision, !lDd
to
this end the provisions of
!his
Agreement are declared
to
be severable.
11.
Imegrqtion;'
N9
Oral
ModlflCllti(lJ1.
This
Agreement
constitutes
the entin:: agreement IlIld
understanding betweenLendcr md Landlord concerning
the
subject
matter
oftbis
Agreemettt,
and
supersedes
a.1l
priOr
aod contemporaneous oral aod written agreements
with
regard
thereto. Thill Agreement II1IIY not be
changed, waived,
dischlll.lJCd or terminated. orally,
but
only
by
an instrun1ellt or
Dut:mmen.1s
in
writing.
signed
by
the partyagainst
which
eoforccmcnt
of
the chanse. waiver,
discharge
or termination
is
asserIcd.
.
12.
Tune Is ofthe
Essence.
1!Dle
is of
!he
essence oftbis Agreement.
13.
Tense,'
Gender:
Section Headings.
In
this Agreement, the;
singular
includes tbephmdsnd
vice
versa..
Each
refenmce
to
any gender
also
applies
to
1liiY other gender.
The
section beadings are Corconveuiencconly
and are
not
part ofIbis AireemenL
.
3
Siena School Lease Page 18
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f
14.
JUlJ!
Trial
Waiver.
Landlord
II!Id
Lender jointly waive trial by jury in
lillY
action or proceeding to
which Landlord
Il!ld
Lender may
be
parties, arising ont
of
orin anywaypertaining to this Agreement,
IheDeed
ofTrust or the
Lease.
It
is
agreed
II!Id
understood
that
this
waiver constitutes
Il.
waiver
of
trlal
by
jury
of
all
claims
again
to
SIlCh actions or
proceedings,
ioc1uding claims apinst parties
who
IIt'C
llOtparlies
to
this
AgrCCllleS1
iver
is
knowingly.
willingly
I'llld
voluntarily made byLandlord III1d Lender, III1d each
of
them
hereby
represents
that
DO
n:p.resentations
of
fact or opinion
have been
made
by any
individual
to
induce
this
waiver
of
trial
'by
jUry
or
to
in
any way
modifY or
llUll.ify
its effect. Landlord
and
Lender farther
represam
that
tbeyhave been represented in
the
.signing
of
this Agreement and in the making oftlrls waiver by
their
11:SpectiVil
independent legal
00llJlSe1,
selected
of their
tIWIl
fi:ee
will,
and that they have had
1he
opportunity
to
discuss this waiver with
their
:respective
counsel.
IN WITNESS WBEREOF. L!wdlard and Lenderhaveexecuted thisAgreemam as
ofthe
deyand
ycar
first
above.
wrlttc:n.
WlTNES8IATIEST:
LANDLORD:
By;
=-_ _ _ _ _ _ _ _
---l(SEAL)
________________________
Nem~
T~,
________________
~
______
LENDER:
By; ___------------.:(SEAL)
________________________
Nem~
Title:______________________
Siena School Lease Page 19
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AcJmowledgmeDt, Waive:&'
aDd IDdenuuficatloD
Tenant acknowledges
that it
bas mad, understood and accepted the terms
of
this
Agreement.
Tenant
waives
anyrlgbtofaction,clsimor
recourse against Landlord and Lender,
itS
agents and empIoyees.byreason
of
any act or
omissiDn
to
IWtlUlIler
the terms
of
this Agreement and specifiealJyaut:borizes
them
to
undertake
theactiOllScontemplatedinthis~twithorwithoulptiornotil:etoTenanL
Tena:atindemnifiesLender.
its
successorsim.d assigns and Landlord
against
anycosts, includ'mgTea5ollllble
attorneys
fees,
in
en£on:ing
the
legal
aperatioo
and
effect
of
this
Waiver
and
AcknowledgmenL
Landlon:!
and
Lende.r
are
authorl:ed
to
my
on .
this Acknowlcllgment, Waiver and lDdemnificalion.
TENANT:
By: :-;;-_ _ _ _ _ _ _ _-'CSEAL)
Name: ________________________
TitIe: _______________________
5
Siena School Lease Page 20
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i
3~l"3S.
001
ADDENDUM #1 TO LEASE
#1 TO LEASE ("Addendum") is made this
3?
t11
day of
- - - - L - - : - = ' r l - - - - : : - - "-",
2012, between THE MARYLAND-NATIONAL CAPITAL PARK
AND PIA
G COMMISSION, a public body corporate (the "Commission"), 6611
Kenilworth Riverdale, Maryland 20737 and The Siena School, or
its
designated affiliated entity
C"Siena" or the "Lessee"), whose address is 9727 Georgia Avenue, Silver Spring, MD 20910, as
an Addendum to that certain Lease, dated July 29,2011 ("Lease") and is made on the following
premises:
RECITALS:
A.
The Commission is a public body corporate, created and existing under Article 28
of the Annotated Code of Maryland that is engaged in perfonning governmental functions of
acquiring, developing, maintaining and operating public parks, facilities and recreation areas
within Montgomery County and Prince George's Counties, and, in such capacity, the
Commission is the fee simple owner of approximately 1.47 acres of land located as shown on
Attachment A (the "Leased Premises").
T~DENDUM
B.
The Lessee
is
the contract purchaser of a certain parcel of land identified on
Attachment A as "Property of Boys and Girls Club of Greater Washington, Parcell, Boys Club
of Silver Spring, Plat No. 5017, Liber 2584, Folio 308, Tax Map JP22, Parcel N458" (referred to
herein as the "Siena School Property").
C.
The Lessee intends to seek a Special Exception ("Special Exception") to permit
the operation of an educational institution and other uses permitted under the Special Exception
on the Siena School Property and the Leased Premises and in furtherance thereof and in
connection therewith, Lessee will make certain alterations and improvements to the existing
improvements on the Siena School Property, including installation of a fire sprinkler system to
the existing building which will require a new water service connection and vault (the "Water
Service Connection")
to
service the fire sprinkler system.
D.
Due to the location of certain specimen trees on the Siena School Property, Siena
proposes and desires
to
construct, install and maintain the new Water Service Connection within
the portion of the Leased Premises as more particularly depicted on Attachment B, attached
hereto (the "Water Service Connection License Area").
E.
The Commission is willing to permit the installation of the Water Service
Connection on the Water Service Connection License Area and the parties have agreed
to
amend
the Lease by the execution of this Addendum in order to confinn their agreement and obligations
with respect to the foregoing.
NOW, THEREFORE, in consideration of the foregoing Recitals which are incorporated
herein, and other good and valuable consideration. the receipt and sufficiency of which are
hereby acknowledged, the Commission and Siena hereby agree to modify the Lease as follows:
Siena School Lease. Addendum #1 Page 1
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\'"
1. Construction of Water Service Connection on Leased Premises. Anything
in
Sections 4 and 5 of the Lease to the contrary notwithstanding, Lessee is' permitted,
subject to obtaining and complying with all requirements of a Site Utility Permit and
Water Service Connection Permit issued by the Washington Suburban Sanitary
Commission ("WSSC"), to construct, install and maintain, at Lessee's sole cost and
expense, a water service connection with a vault and appurtenant structures, within
the Water Service Connection License Area outlined
in
red and depicted on
Attachment B hereto, in order to provide for a water service connection to serve a
new fire sprinkler system as part of the Improvements intended to be made by Lessee
to the existing improvements located on the Siena School Property. Prior to
submission of Lessee's application to the WSSC for permits for the Water Service
Connection, Lessee will provide the Commission with a set of plans for the
installation of the Water Service Connection for review and approval, which approval
will not be unreasonably conditioned, withheld or delayed. The Commission will
provide. upon WSSC's request, a license agreement in favor of the WSSC for the
installation and maintenance of the Water Service Connection on the form
customarily used
by
the Commission with respect to WSSC water and sewer facilities
on Commission property. Furthermore, prior to the commencement of any work:,
Lessee shall obtain from the Commission a valid Park Construction Permit which is
to be issued in accordance with the customary practices and requirements of the
Commission. The Lessee acknowledges that the Commission shall have no
responsibility to maintain the Water Service Connection and the Lessee covenants,
represents, and warrants that it will be solely responsible for maintaining the Water
Service Connection. The provisions of this Section 1 are expressly made subject to
the satisfaction of the contingencies set forth in Section 42 ofthe Lease.
2. Recordation.
If
either the Commission or the Lessee require this Lease or a
memorandUm ofthe same to be recorded in the land records, then Lessee shall:
(a). cause to be prepared a recordable form of this Lease or a memorandum of this
Lease at Lessee's sole costs and expenses; and
(b)
pay any and all costs and expenses associated with recording this Lease or
memorandum thereof, including but not limited to any recordation or transfer
taxes associated with such recording, if any.
3. Except as modified herein, the terms and provision of the Lease remain in full force
and effect
SIGNATURE PAGE FOLLOWS
Siena School Lease. Addendum #1 Page 2
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(
IN WITNESS WHEREOF, the Commission and the Lessee have executed this
Lease on
the
dates written below.
Date:
~]I)
:lU})..
:'SmNA~~
Typed Name:
Title:
Cia,;:;
kalA
F1May)
IfLMI
oi
[!Alb /
~
....
Typed Name:
Title:
)-­
LJlLU?ett
"2@o(L81)()
o£&!k
AJ..Q.J)Q~
THE MARYLAND-NATIONAL
CAPITAL PARK AND PLANNING
COMMISS~
Date:
By:(2L
Patricia
.
an-~ey
Executive Director
Date:
--==---­
,
.-it;
A"J-
By: _
C)~
_ _ _ _
--.;;;~
___
Joseph
Zimmerman
ATTEST
~
.
Secretuy-Treasurer
Siena School Lease. Addendum #1 Page 3
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..
Attachment A
Leased Premises
··~lljlll········,··
.
··t"'·"·"1
'p'fHP
If!
Pllllfi!Hlll'!
WI
- I
i;
"
.~
8
.~
.
r-
"-~-
--,
~~
.j
~~.
Siena School Lease. Addendum #1
Page 4
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Attachment B
Water Service Connection License Area
Siena School
Lease,
Addendum #1 Page 5
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,~
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J.
:0 .
0'
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320105.
Do
RECOGNITION AGREEMENT
THIS RECOGNITION AGREEMENT ("Agreement") is made as ofJune::J!l -
2012.
between
THE
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSIoN ("Landlord") and
BANK
OF GEORGETOWN ("Lender").
Recitals
In accordance with the Lease dated July
29, 2011
between Landlord, as landlord, and The Siena
School, which is the registered trade name used by Siena Learning, LLC, a Delaware limited liability company.
astenant("SienaSchool',),asamendedby
~u.m ~:t
dated Ma.uZbI2.0I2..
(collectively
and as so amended, "Lease,,), Landlord has leased to Siena School or its des'iiniied affiliate, certain real
property located in Montgomery County, Maryland and more particularly described in Exhibit A attached
hereto ("Property''). Siena School has designated Sligo Creek Holdings, LLC, a Maryland limited liability
company and an affiliate ofSiena School ("Tenant''), to be the tenant under the Lease and to hold and assume
the rights, and perform the obligations, of Siena School under the Lease, and Landlord has approved such
designation. Lender proposes to make a loan ("Loan") to Tenant, the security for which will include a deed of
trust covering Tenant's leasehold estate in the Property ("Deed of Trust").
As a condition precedent to making the Loan to Tenant, Lender has required Landlord to execute and
deliver this Agreement.
Agreements
NOW THEREFORE, in consideration ofthese premises and the covenants and agreements set forth
below, Landlord and Lender agree as follows:
I.
Landlord's Consent to Deed ofTrust.
Landlord consents to the execution, delivery and recordation of
the Deed ofTrust
2.
Landlord's Representations and Warranties.
Landlord represents and warrants to Lender as follows:
a.
Landlord is a public body corporate validly existing under the laws ofthe State ofMaryland.
Landlord has the power and authority
to
consummate the transactions contemplated hereby, and has taken all
necessary action to authorize the execution, delivery, and performance of this Agreement.
b.
The execution, delivery and performance by Landlord of this Agreement:
(i)
are within the
legal powers of Landlord;
(ii)
have received all necessary governmental approval;
(iii)
will not violate any
provision of law, or any order ofany court or other agency ofgovernment; and (iv) will not result in a breach
of or constitute a default under any agreement or other instrument to which Landlord is a party or by which
Landlord or the Property
is
bound. This Agreement constitutes the legal, valid and binding obligations of
Landlord, enforceable against Landlord in accordance with its terms.
Landlord has delivered to Lender a true, accurate and complete copy ofthe Lease, including
all
amendme~ts
thereto. The Lease has not modified, supplemented or amended in any way, except for those
amendments described in the Recitals above. and the Lease represents the entire agreement between Landlord
and Tenant as to the leasing ofthe Property. There is no default on the part ofLandlord under the Lease and,
to Landlord's knowledge, there is no default on the part of Tenant under the Lease. Rent has been paid
through the date of this Agreement There has been no assignment, hypothecation or pledge of Landlord's
interest in the Lease or the rents due under the Lease.
d.
Landlord's fee estate in the Property is unencumbered except by the Lease, and no person
other than Landlord has any interest in such fee estate except under the Lease.
c.
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c
3.
Lender's Rights Upon Lease Defoult.
a.
Landlord shall give Lender, in the manner described by Section 7 ofthis Agreement, a copy of
each notice given by Landlord to Tenant ofa default by Tenant under the Lease ("Lease Defaulf,) at the same
time as Landlord gives such notice ofa Lease Default to Tenant
b.
Lender shall have the right (but shall have no obligation), for a period 20 days from receipt of
notice, to cure or cause to be cured the Lease Default. Landlord shall accept performance by Lender with the"
same force and effect as though performed by Tenant Landlord shall not commence exercising its remedies
under the Lease or applicable law as a result ofa Lease Default by Tenant so long as Lender in good faith (i)
has commenced promptly to cure the Lease Default and continues diligently to prosecute such cure to
completion, or
(ii)
if possession ofthe Property is required in order to cure the Lease Default or if the Lease
Default is ofa nature that it cannot be cured by Lender, has commenced to institute and continues diligently to
pursue foreclosure proceedings and obtain possession and, upon obtaining possession, commences promptly
and diligently pursues to completion cure ofany Lease Defau It capable ofcure by Lender; provided, however,
that Lender shall have delivered to Landlord a written agreement to take the actions described in clause
(i)
or
(ii)
above, and that during the period in which such action is being taken all ofthe other obligations ofTen ant
under the Lease are being duly performed. At any time after the delivery of such agreement, Lender may
notify Landlord that it has .relinquished possession of the Property, or that it will not institute or will
discontinue foreclosure proceedings, or that it deems and requests and receives Landlord's concurrence that the
Lease Default has been cured by Tenant, and in such event Lender shall have no further liability under such
agreement to take any ofthe actions described in clause
(i)
or
(ii)
above and, unless the Lease Default has been
cured, Landlord shall have the unrestricted right to terminate the Lease and to take any other action it deems
appropriate by reason of any Lease Default by Tenant
4.
Execution ofReplacement Lease.
a.
Upon request by Lender made within 30 days after
(i)
Lender's receipt of notice of the
termination of the Lease for any reason, or
(ii)
Lender's completion offoreclosure proceedings or any other
action pursuant to which Lender or its designee obtains possession ofthe Property, Landlord shall cooperate
with Lender in connection with any proceedings to remove Tenant from the Property, and shall execute and
deliver a new lease ("Replacement Lease") ofthe Property
to
Lender or its designee, for the remainder ofthe
term of the Lease, upon all the covenants, conditions, limitations and agreements contained in the Lease,
provided that Lender shall pay
to
Landlord, simultaneously with the delivery of the Replacement Lease, all
unpaid rent due under the Lease through the date ofthe commencement ofthe term ofthe Replacement Lease
and all expenses, including but not limited to reasonable attorneys' fees and disbursements and court costs
incurred by Landlord in connection with the Lease Default, the termination ofthe Lease, the eviction ofTenant
and the preparation of the Replacement Lease.
b.
The Replacement Lease and the leasehold estate created thereby shall maintain the same
priority as this Lease with regard to any mortgage encumbrance or pledge on the Property or any other lien,
charge or encumbrance thereon, whether or not the same shall then be in existence, and shall provide that liens,
charges or encumbrances on the Property which were subordinate to the Deed ofTrust shall not
be
or become a
lien, charge or encumbrance with respect to the Replacement Lease. Concurrent with the execution and
delivery ofthe Replacement Lease, Landlord shall assign
to
the tenant named therein all of Landlord's right,
title and interest in and to all moneys (including insurance and condemnation proceeds), ifany, then held by or
payable to Landlord which Tenant would have been entitled to receive but for the termination of the Lease.
c.
Between the date of termination of the Lease and the date of execution and delivery of the
Replacement Lease, Landlord shall not cancel any subleases or accept any cancellation, termination or
surrender thereof, unless such termination shall be effected as a matter oflaw on the termination ofthe Lease,
Without notice to Lender.
5.
No Amendment ofLiase.
Landlord shall not enter into any amendment ofthe Lease or accept any
cancellation or termination ofthe Lease without Lender's prior written consent
2
38
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6.
Estoppel Certificates.
Upon request by Lender from time to time, Landlord shall execute and deliver
to Lender or any person designated by Lender a written statement certifYing (a) whether the Lease is in full
force and effect, (b) whether there
are
any amendments to the Lease, and ifso, specifYing the amendments, (c)
whether there are any then-existing setoffs or defenses against the enforcement ofany ofTenant's rights under
the Lease, and if so, specifying such matters in reasonable detail, (d) the dates, if any, to which rent or other
sums due under the Lease have been paid, (e) that Landlord has no knowledge ofany then existing defau Its of
Tenant under the Lease, or if there
are
such defaults, specifying them in detail,
(t)
that Landlord has no
knowledge ofany event having occurred that authorized the termination ofthe Lease
by
Landlord, or if such
event has occurred, specifYing it in reasonable detail, and
(g)
any and all other matters reasonably requested by
Lender.
7.
Notices.
All notices, demands, requests and other communications required under this Agreement
shall be in writing and shall be deemed to have been properly given if sent by hand delivery, Federal Express .
(or similar overnight courier service), or by United States certified mail (return receipt requested), postage
prepaid, addressed to the
party
for whom it is intended at its address hereinafter set forth:
If to Landlord:
Property Management
M-NCPPC
10611
New Hampshire Avenue
Silver Spring, Maryland 20903
And
Office of General Counsel
. M-NCPPC
6611
Kenilworth Avenue
Riverdale, Maryland 20737
If to Lender:
Bank of Georgetown
438 North Frederick Avenue, Suite 318
Gaithersburg, Maryland 20877
Attention: Gerard
M.
Mcloughlin, Jr.
Senior Vice President
And
Bank of Georgetown
]054 31st Street, NW, Suite 18
Washington, DC 20007
Attention: Gerard M. Mcloughlin, Jr.
Senior Vice President
With copies to:
Brian C. Rosenberg. Esquire
Offit Kurman, P.A.
8I 71 Maple Lawn Boulevard, Suite 200
Fulton, Maryland 20759
Notice shall be deemed given as of the date of hand delivery, as of the date specified for delivery if by
overnight courier service or as of2 calendar days after the date of mailing, as the case may be.
3
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8.
Successors and Assigns Bound.
The covenants and agreements contained
in
this Agreement shall
bind, and the rights under this Agreement shall inure to, the respective successors and assigns ofLandlord and
Lender.
9.
GoverriingLaw.
The validity ofthis Agreement, each of its terms and provisions, and the rights and
obligations of Landlord and Lender under this Agreement, shall be governed by, interpreted, construed and
enforced pursuant to and in accordance with the laws ofthe State ofMaryland (without regard to principles of
conflicts of laws).
Sever~bility.
In the event that any provision of this Agreement conflicts with applicable law, such
conflict shall not affect other provisions ofthis Agreement which can be given effect without the conflicting
provision. and to this end the provisions ofthis Agreement are declared to be severable.
10.
11.
Integration: No Oral Modification.
This Agreement constitutes the entire agreement and
understanding between Lender and Landlord concerning the subject matter ofthis Agreement, and supersedes
all prior and contemporaneous oral and written agreements with regard thereto. This Agreement may not be
changed, waived, discharged or terminated oralJy, but only by an instrument or instruments in writing, signed
by the party against which enforcement ofthe change, waiver, discharge or termination is asserted.
12.
Time Is afthe Essence.
Time is ofthe essence ofthis Agreement
13.
Tense,' Gender; Section Headings.
In this Agreement, the singular includes the plural and vice versa.
Each reference to any gender also applies to any other gender. The section headings are for convenience only
and are not part of this Agreement
14.
Jzgy Trial Waiver.
Landlord and Lender jointly waive trial by jury in any action or proceeding to
which Landlord and Lender may be parties, arising out ofor in any way pertainingto this Agreement, the Deed
of Trust or the Lease. It is agreed and understood that this waiver constitutes a waiver of trial by jury of all
claims against all parties to such actions or proceedings, including claims against parties who are not parties to
this Agreement This waiver is knowingly, willingly and voluntarily made by Landlord and Lender, and each
of them hereby represents that no representations of fact or opinion have been made by any individual to
induce this waiver oftrial by jury or to in any way modifY or nUllify
its
effect. Landlord and Lender further
represent that they have been represented in the signing ofthis Agreement and in the making ofthis waiver by
their respective independent legal counsel, selected of their own free
will,
and that they have had the
opportunity to discuss this waiver with their respective counsel.
IN
WITNESS WHEREOF, Landlord and Lender have executed this Agreement as of
the
day and year
first above written.
WITNESS!ATTEST:
LANDLORD;
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION
By:
Joseph C.
Zimmennan
Secretary-Treasurer
~:~~~
~
(SEAL)
4
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LENDER:
By:
~~~~-rl--:-:-:--:-
_ _ _ _
(SEAL)
Acknowledgment, Waiver and Indemnification
Tenant acknowledges
that it has read,
understood and accepted the terms ofthis
Agreement
Tenant
waives any right ofaction, claim or recourse against Landlord and Lender. its agents and employees, by reason
of any
act
or omission to
act
under the
tenus
ofthis Agreement and specifically authorizes them to undertake
the actions contemplated
in
this
Agreement with orwiihout prior notice to Tenant Tenant indemnifies Lender.
its
successors and
assigns
and Landlord
against
any costs, including reasonable attorneys
fees,
in
enforcing
the
legal operation
and
effect ofthis Waiver
and
Acknowledgment. Landlord and Lender
are
authorized
to
rely on
this Acknowledgment, Waiver and Indemnification.
'
WITNESS/A
TTEST:
TENANT:
SLIGO CREEK HOLDINGS, LLC
A Maryland Limited Liability Company
(SEAL)
ACKNO~DGMENTSONFOLLOWINGPAGES
5
11
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LENDER:
BANK OF GEORGETOWN
By: ____________________
~(SEAL)
Gerard
M.
Mcloughlin, Jr.
Senior Vice President
Acknowledgment,
Waiver
and Indemnification
Tenant acknowledges that it has read. understood and accepted the terms ofthis Agreement Tenant
waives any right ofaction. claim or recourse against Landlord and Lender, its agents and employees, by reason
of any act or omission to act under the terms ofthis Agreement and specifically authorizes them to undertake
the actions contemplated in this Agreement with or without prior notice to Tenant. Tenant indemnifies Lender,
its successors and assigns and Landlord against any costs, including reasonable attorneys fees, in enforcing the
legal operation and effect ofthis Waiver and Acknowledgment. Landlord and Lender are authorized to rely on
this Acknowledgment, Waiver and Indemnification.
WITNESS/A
TrEST:
TENANT:
SLIGO CREEK HOLDINGS, LLC
A Maryland Limited Liability Company
_ _
~#--::-..--
_ _ _ _ _
(,SEAL)
ACKNOWLEDGMENTS ON FOLLOWING PAGES
5
42..
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Acknowledgments
STATE OF MARYLAND, CITY/COUNTY OF
Rim
~
,TO
WIT:
I HEREBY CERTIFY that on this
~
da: ofJune, 2012, before me, the subscriber, a Notary Public
of the jurisdiction aforesaid, personally appeared·
and acknowledged
ofMARYLAND- TIONAL CAPITAL PARK
her/himselfto be the
E-yeC.1l.."'hvt..1::)\·~
AND PLANNING COMMISSION, and acknowledged that s/he, being autho zed so
to
do, executed the
foregoing document for the purposes therein contained, in the aforementioned capacity.
IN WITNESS MY Hand and Notarial Seal.
~~EAL)
NTARYPUBLlC
ADDITIONAL ACKNOWLEDGMENTS ON FOLLOWlNG PAGES
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STATE OF MARYLAND. CITY/COUNTY
o~o9Co~
WIT:
I HEREBY CERTIFY that on
thisRfl
day oflune, 2012. before me, the subscriber,
a
Notary Public
of
the jurisdiction aforesaid, personally apPeared Gerard
M.
McLoughlin, Jr., and acknowledged himself
to
be
a Senior Vice President ofBANK
OF
GEORGETOWN. and aclrnowledged
that
he, being authorized so
to
do,
executed the foregoing document for the purposes therein contained,. in the aforementioned capacity.
IN WITNESS MY Hand and Notarial Seal.
..
My
CommissJon
Expires:
IO~\Bo\S-
~REBY
STATE
OFg~~~~&~~
OF _ _ _ _ _
~day
.....:>.
TO
WIT:
I
CERTIFY
that
on
this
of
J!'T
'
before me, the subscriber,
a
Notary Public
ofthe jurisdiction aforesaid, personally
appeared
I
and acknowledged
herlhimself to
be
the
rJ)OW1lGe)-
of UGO CREEK HOLDINGS, LLC, a
Maryland limited
JiabiJity
company, ano acknowledged
that
s/he,
being authorized so
to
do.
executed the
fore~oing
document for the purposes therein contained.
in
the aforementioned capacity.
IN WITNESS MY Hand and Notarial Seal.
My Commission Expires:
41~1~
Certification
Athena
Marie Russo
Notary PubIc, DlstIfctof Columbia
My
CommissIon Expires 5/3012014
THIS IS TO CERTIFY that the foregoing Recognition Agreement was prepared
by
or under the
supervision of the undersigned, an attorney
at
law duly admitted
to
practice before the Maryland Court of
Appeals.
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t
STATE OF MARYLAND, CITY/COUNTY OF _ _ _ _ _-', TO WIT:
I HEREBY CERTIFY that on this __ day ofJune,
2012.
before me, the subscriber, a Notary Public
ofthe jurisdiction aforesaid, personally appeared Gerard M. Mcloughlin, Jr., and acknowledged himselfto be
a Senior Vice President ofBANK OF GEORGETOWN, and acknowledged that he, being authorized so to do,
executed the foregoing document for the purposes therein contained, in .the aforementioned capacity.
IN WI1NESS MY Hand and Notarial Seal.
....".."..=--:-:-=:-:-::-::c-_ _ _ _ _ _
(SEAL)
NOTARY PUBLIC
My Commission Expires:
STATE OF
~Y/COUNTY
OF _ _ _ _ _---', TO WIT:
ofthe jurisdiction aforesaid,
personall~ared
Cl
f
b ,
,
and acknowledged
herlhimself to be the
f'()tjn
.t::
of UGO CREEK HOLDINGS, LLC, a
Maryland limited liability company, and acknowledged that slhe, being authorized
so
to do, executed the
foregoing document for the purposes therein contained, in the aforementioned capacity.
IN WITNESS MY Hand and Notarial Seal.
I
HEREBY CERTIFY that on this
~
day of
J",ne.
2 1
O\~,J-~,mM~
My Commission Expires:
uJ30)QYIY
Certification
Athena Marie
Russo
Notary pubnc, Dlstnct 01 Columbia
My
Commission expires
6/30/2014
THIS IS TO CERTIFY that the foregoing Recognition Agreement
was
prepared by or under the
supervision of the undersigned, an attorney
at
law duly admitted to practice before the Maryland Court of
Appeals.
Brian C. Rosenberg
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EXHIBIT A
Property Description
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DESCRIPTION OF
ALEMEAREA
MARYLAND NATIONAL CAPITOL PARI(
&
PLANNING
COMMISSION, OWNERS
TO
THE SIENA SCHOOL
JUNE,
2012
BEING
a
porcol lalld. benoln.n... d....rlb.d In,
lI1l'OUgh.
"vcr and
BCroU
th.
propor!)'
acquired
by Maryland
Nalionsl
C4pllol Park
&.
Plunnlng commission
Ittlm
Tho Bullis
School,mo. by deed
dated
Jllly
8,
1946
nnd
recorded amonllthe
[.tInd
Rcenrd. ,,(Molltgomery
County.
Maryland
In
Liller
102S
ftl
Folio
"5:1;
being more particularly
described
P51\0'IV
l\II'Voycd:
BEGINNING larsald parcol "fl.nd
ata
point
au IIlI!
souillea.tent
RJghtorWay
Unoof~'O/'IIIt
Glen Road, .ald
poInt
boIng distant 43.00 feet limll the beginning
of
Iho first call or North
47"
46'
42" F.ut
1101.09 fooilineohnid
M.N.C.l'. P. C.
pmporty;
theneo mnnlngwlth IhoFomtGlel\
Road
right
ohm)'
I.
North
47"
45' 17"llaat for n
dislanco
of69.00 feet
10
Iho woslomlOOJlt corner ofTho
Boya'
Club
oCGrenter
Washington property
as
shown
011
n plat entitled "Boys Club of
Bily.... Spring"
and
",00.'IIcd
among
SAid Land Record. a. Plall>!o.
~o
17. said
poillt
beillg
al die
beginning ofillc
first oall (lr
North 47· 46' 40· En.,t
280.28
foot
lino
1lS
descrlOOd In
n
dood from tho
Boya'
Club
ofSilverSpl'ing.
Inc. to Tile Boys elub
oCGrooter
Wuhlngloll by deed dRied January 7
110,
19;9 and .'l:C!Xded April 14, 1959 alllollg said
La"d Record.
ill
Liller 2584 .1 Polio 30B: (hence running with tho
Boys'
Club property
!he
following four (4)
OOUI'$"I
8"d
dislallces
South
43'
00'
2"" Enst
for
B
dl.nllce
of200.00
feel
10
Q
point; thence
0'
"
...
-\\
2.
3.
4.
North
4T' "5'
\G"llast
for
a dlBlnJlcc of300.00
rcollo
a
potnl:
\llOneo
Norlll4Jo OJ' 24" WlIlIt Cor a dlslAllcc of 180.28 fect to n
polnl: Il\Cl1tD
s.
31.13 fcct clong tho arc oCa
Ullrve
"oslleeling
10
Ille
len
haYillga
radius of20.00 fuel, alld
n chard
0001'1118
nnd
dlslllnca
ofNorlh 87"
39'
18"
Wasl
for a
d11l1011OO
0(2.8.08
fect
10
a
poInt olllh..
solltl.caslcrn
rlahl
of
way IIno
ofPotoSI
ClIon Rood; !henoe Icoving Ih.
comll1<l1llines wills Iho
Boya'
Club property nnd rUlmllllllVlth 1h6 said
right
ofway
line
Norl" 47° 4;'26'
SD$t
for. dlslnu""
ofS9.S0
lecllo
a
point;
Ihence leaving said
rlghl
of
way
line
and ru.wlng
ill,
lIuolIgh,
OYer nnd
_em"
the
M.N.C. P. P. C.
property tile
following
sbUeon (16)
COlIma
IUId
dlsfllnccs
South 34" 07'
0Ii" Balli
Cor n dlsllIlIC& of1.24
feet 10
a polnl;
\llcneo
"-'"
6.
7.
8.
SOlllb
45°17'
39" IllIst
for
a dlslanco
o(
65.00
fcot IQ
a point; lhonea
80mb
43" 4Q'19" lloalibr a distance of67.00 feet
to
8
poinl;
thollCe
9.
®
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10.
SOlllh 41oJ!/' 33" EllS! for
II
disclnce of
59.
00
feet
to
a point: thence
II.
12.
South 37'
36' 09"
nasI
for a distance of25.00 feet
to
a
paine;
thence
South'll" 02' 511" Baat
for
a
dlstanoe of
61.S0 fcetto n
polot:
IhellCo
Soutil
39"
01'24"
nAsi
forI! dlllllllCO ofsO.OO ieello a paint;
thonea
South 42" 57' 17" PJlst
for
8
dl.lllnce
of30.00
feet
10
a point; tllo11ce
Soulh
65·
37'
54"
West
lOr
II
dlslanl:e 0(15.00
fcetto
11
polnl; thence
Soulh6S'
00'
32" West foradiatanee of7S.00 fool
10
n
polnllthenco
Soulh
52" 31'
44"
W~st
for
II
dlslJlllC6 of37.00 feet to I! point; IbcoC4
North 45' 40' 22" West for. diSlance ors.so
feelto
8
point;
thence
..'·-t\
13.
14.
IS.
IG.
17.
18.
19.
20.
Soulh 62"
37'
5S·
Wesl for a
dlslllm:o
of 42.00 rect to n point:
Ibance
ScMb 10'
19'
OS· Wesl
ror
a dlslulICI! of
42.00
rcetlo a point;
thenco
21.
22.
SOlith 64· 31'
57"
Wast
fO\'8
dislanceof
149.SO
fcelloa polnl; Ihenco
NOI1b 43"
14' 40' Wost for
R
distance of240.50
f••
llo the poinl ofboginnIIII
CONTAINING 63.717.3$ square reel or 1.4627 aorosufluud.
IlIOroor
less.
Property LillO Slirvoyor
Maryland Ilog. No.
31S
ExplreJl: 911012012
For A. MOl;",. Thomlls nud Aasoclnles,IlIc.
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DIRECTION
H4" 45' '7'[
S43'
03'
24'[
N4r
48' 111"£
1.2
1.3
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534' 07' 011'[
S45' 37' 3S"[
643' 40' IS"t
541'
311'
33'£
637' 311' OS'£
541' 02'
1!9"[
539' 0" 24"£
57'
17'£
ROAD
~
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7.24'
65.00'
67.00'
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37.00'
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37' 55"W
42.00'
149.110'
S7Q'
19'
OS'w
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564' 31'
240.50'
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CURIIE TAIlI.£
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LEASE AREA
63.717.35SQ, FT.
OR 1.4627 AC,
M.N.C.P,&P,C.
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SKETCHOFA
LEASE AREA
FROM
M. N, C. P.
&
P. C.
-1
L_
g
TO
THE SIENA SCHOOL
JUNE 2012
SCALE: 1"0060'
-~13
I INCH • 60
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A. MDRIlJH
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Atta.chment A
Leased Premises
!
.
!"
,,,
.
.
"
'.
!
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,
....
;.j.
"
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.
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t~
Siena School
Lease
Page 14
50
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CLIENT FOCUSED. RESULTS DRIVEN.
MM~
MAURY S.
EPNER (DC)
JOSEPH
P.
SUNTUM
SUSAN W. CARTER
ROBERT E. GOUGH
DONNA E. MCBRIDE
(DC)
GLENN M. ANDERSON (FL)
JSKLINE@MMCANBY.COM
Law Offices Of
200·B MONROE STREET, ROCKVILLE. MARYLAND 20850 P: 301.762.5212 F: 301.424.9673 WWW.MILLERMILLERCANBY.COM
All
attorneys
admitted
in
Maryland
and
where indicated.
. PATRICK
C.
MCKEEVER
(DC)