ASSOCIATION OF UNITED STATES POSTAL LESSORS

Transcription

1 ASSOCIATION OF UNITED STATES POSTAL LESSORS Form of Addendum to New 2017 USPS Lease Forms The attached document is a form of addendum drafted by the Association of United States Postal Lessors ( AUSPL ) for the purpose of providing guidance to its members regarding certain issues for lessors created by new lease forms the United States Postal Service (the USPS ) adopted in late In reviewing or using the attached addendum (the Addendum ), please be aware of the following: The Addendum does not and does not purport to address all issues a lessor might desire to negotiate when using the 2017 USPS lease forms. The 2017 USPS lease forms are complicated and technical legal documents which create substantially greater risks for postal lessors, and potentially impose much greater costs on such lessors, than prior versions of lease forms used for postal leases. Use of the Addendum as an aid in postal lease negotiations is not a substitute for competent and professional legal and/or negotiation assistance for lessors who do not have the experience or training to negotiate lease terms for themselves. Such postal lessors are advised to retain such professional assistance when negotiating postal leases and lease renewals, including when and if any lessor seeks to make use of all or part of the Addendum. The Addendum is provided by AUSPL as a service to its members solely in an effort to help inform them about certain items in the 2017 lease forms they might consider addressing in lease negotiations with the USPS. AUSPL is not responsible or liable to any member or other person for (i) any use of the Addendum by such member or other person, (ii) any alleged defect or deficiency in or of, or omission from, the Addendum, or (iii) the results of any lease negotiation by any person using the Addendum. Any member or other person using the Addendum agrees to indemnify AUSPL and hold AUSPL harmless for, from and against any and all claims, causes of action, liabilities, losses, costs, damages or expenses, including but not limited to court costs and reasonable attorneys fees, arising from or related to any use of or reliance on the Addendum by such person. No person is authorized to make any use of the Addendum unless such person agrees to the foregoing limitations of AUSPL s liability and indemnity. Use of the Addendum is conclusively deemed to constitute such person s agreement to such terms 1

2 ADDENDUM TO LEASE THIS ADDENDUM TO LEASE (the Addendum ) is made and entered into this day of, 20 by and between (the Landlord ) and THE UNITED STATES POSTAL SERVICE, an entity of the federal government (the Postal Service ). RECITALS: A. Landlord and the Postal Service have entered into that certain lease of even date herewith (together with the General Conditions and all Riders attached thereto, the Lease ). below. B. Landlord and the Postal Service wish to amend and supplement the Lease as provided AGREEMENTS: 1. Recitals. The recitals are incorporated by reference into this Addendum. 2. Effect of Addendum. Except as provided to the contrary in this Addendum, (i) the Lease is not amended, modified or affected by this Addendum, and (ii) the terms and provisions of the Lease will remain in full force and effect. In the event of any conflict between the Lease and this Addendum, this Addendum shall control. Capitalized terms used in this Addendum that are defined in the Lease and not otherwise defined in this Addendum shall have the same meanings for purposes of this Addendum as the meanings given to such terms in the Lease. 3. Certain Definitions. In addition to any other definitions of terms in this Addendum, the following terms shall have the following definitions for purposes of this Addendum: (a) (b) (c) (d) General Conditions means the General Conditions to USPS Lease which is a part of the Lease; Maintenance Rider means the [ Maintenance Rider Landlord Responsibility ] [Maintenance Rider USPS Responsibility (Partial) ] which is a part of the Lease; Tax Rider means the Tax Rider Reimbursement of Paid Taxes which is a part of the Lease; and USE Rider means the Utilities, Services, Equipment Rider which is a part of the Lease. 4. General Conditions Section 2(a). Notwithstanding any provision of Section 2(a) of the General Conditions to the contrary, no alleged breach of a representation in such Section 2(a) shall create a remedy in favor of the Postal Service if the alleged breach (i) results from the act or omission of the Postal Service or its employees, (ii) relates to a condition created by a failure by the Postal Service to perform maintenance it was contractually obligated to perform, whether under the Lease or any prior lease under which the Postal Service occupied the Building, Premises and/or Property, or (iii) relates to a condition existing on the date of execution of the Lease and of which the Postal Service was aware or should reasonably have been aware due to its prior use and occupancy of the Building, Premises and/or Property. 5. General Conditions Section 4(b). Notwithstanding any provision of Section 4(b) of the General Conditions to the contrary: (a) If the Postal Service exercise its right under such Section 4(b) to remove alterations and/or improvements belonging to the Postal Service upon expiration or termination of the Lease, the Postal Service will repair and restore any damage to the Premises from the installation and/or removal of such alterations and/or improvements; 2

3 (b) (c) In addition to any other restoration obligation of the Postal Service under such Section 4(b), the Postal Service s restoration obligation upon the expiration or termination of the Lease includes the obligation to have performed all maintenance the Postal Service was required to perform under the Maintenance Rider which is a part of the Lease; and Such Section 4(b) shall not, and shall not be deemed to, limit or diminish in any respect, any claim or claims the Landlord may have with respect to any failure by the Postal Service to perform maintenance in accordance with the Maintenance Rider attached to the Lease, and such claim or claims shall survive the expiration and/or termination of this Lease for the period of the statute of limitations under applicable law. 6. General Conditions Section 5. Notwithstanding any provision of Sections 5(b) and 5(e) of the General Conditions to the contrary, (i) the Postal Service shall use reasonable efforts to provide prompt notice to the Landlord of any damage or destruction requiring repairs or restoration under General Conditions Section 5, (ii) the Landlord shall not be responsible for any delay in any such repairs or restoration that are caused by any delay on the part of the Postal Service or any agency or authority responsible for issuing building permits, conducting inspections or granting approvals, or for other delays that are outside the control of the Landlord, and (iii) except for rent abatement as described in General Conditions Section 5(d), the sole remedy of the Postal Service for the Landlord s failure to repair and restore the Building and/or Premises in accordance with General Conditions Section 5 will be to terminate the Lease. 7. General Conditions Section 6(b). Notwithstanding any provision of Section 6(b) of the General Conditions to the contrary, the Landlord shall satisfy the information requirement of such Section 6(b) by delivering a certificate of insurance upon the Postal Service s request therefor. 8. General Conditions Section 9(k). Notwithstanding any provision of Section 9(k) of the General Conditions to the contrary, the Landlord s mitigation obligation shall be an obligation to use reasonable efforts to attempt to mitigate Landlord s damages by obtaining another tenant for the Premises at a fair market rental amount. The Postal Service shall have the burden of proof with respect to any claim that the Landlord failed to use reasonable efforts to mitigate damages. 9. General Conditions Section 10(i). Notwithstanding any provision of Section 10(i) of the General Conditions to the contrary, (i) nothing in such Section 10(i) shall or shall be deemed to constitute the Landlord s consent to any holdover by the Postal Service, or limited or diminish any rights and remedies the Landlord has under this Agreement, at law or in equity with respect to such holdover, including without limitation the right to contest any determination by the Postal Service with respect to rent amounts payable during such holdover, and (ii) such holdover by the Postal Service shall be subject to termination by Landlord (in which event the Postal Service shall vacate the Premises and Property) at any time upon one hundred eighty (180) days prior written notice to the Postal Service, or at any earlier time permitted under the law of the jurisdiction in which the Premises are located. 10. General Conditions Section 10(k). Notwithstanding any provision of Section 10(k) of the General Conditions to the contrary, and in addition to any purposes for Landlord s entry into the Premises permitted under such Section 10(k), Landlord is also entitled to enter the Premises to conduct inspections of the Premises. Any such entry will be on the same conditions as provided in such Section 10(k) for Landlord s entry to perform maintenance. Entry for other purposes that those set forth in the first two sentences of such Section 10(k) and this paragraph will require the consent of the Postal Service, and the Postal Service will not unreasonably withhold, condition or delay such consent. The last sentence of such Section 10(k) is deleted from such Section. 11. [Use this provision with the USPS Partial Maintenance Rider.] Maintenance Rider. The Maintenance Rider is modified as follows: 3

4 (a) (b) (c) (d) (e) (f) (g) References in item 3(a) of the Maintenance Rider to fencing, gates, paths and bridges are deleted from such item 3(a); Item 3(b) is deleted from the Maintenance Rider, and the Postal Service remains responsible for maintaining all parts of lighting systems in or on the Premises; Notwithstanding any contrary provision of item 3(c) in the Maintenance Rider, the Postal Service is responsible for regular cleaning of gutters, downspouts, troughs, scuppers, roof drains, etc.; Notwithstanding any contrary provision of item 3(g) in the Maintenance Rider and/or the USE Rider, the Postal Service remains responsible at all times for routine maintenance of any septic system, including any necessary pumping and cleaning of such septic system; Notwithstanding any contrary provision of items 3(g) and 3(h) in the Maintenance Rider, (i) the Landlord s maintenance obligation with respect to maintenance of utility systems and structures applies only to pipes, wire, conduits, drains and similar items in walls, under floors, above the ceiling and/or under the ground at or in the Property, Premises and/or Building, (ii) does not apply to portions of such utility systems and structures that are visible on or in the Property, Premises and/or Building, including without limitation electrical outlets, light fixtures, visible water pipes, sinks, toilets and similar fixtures, equipment, machinery and/or items; Items 3(i) and 3(k) are deleted from the Maintenance Rider; and Notwithstanding any contrary provision of item 3(l) in the Maintenance Rider, the Postal Service is responsible for maintenance of all landscaping at or affecting the Property, Premises and/or Building, including without limitation all trees and their branches and roots, regardless of whether they impact the Property from inside or outside the property line. 12. [Use this provision with the Landlord Responsibility Maintenance Rider.] HVAC System Performance Requirements. Notwithstanding any provision of Section 1(c) of the Maintenance Rider to the contrary, the heating system and air conditioning equipment furnished by the Landlord must (i) be capable of cooling, and actually cool at all times during appropriate seasons, the enclosed portions of the Premises (excluding any rear vestibule) to 78 degrees Fahrenheit (78 F), and (ii) be capable of heating, and actually heat at all times during appropriate seasons, the enclosed portions of the Premises to 68 degrees Fahrenheit (68 F) in all enclosed portions of the Premises (excluding any rear vestibule). 13. Reasonable Time for Landlord Performance of Maintenance. If the Postal Service gives the Landlord a proper notice of maintenance to be performed by the Landlord under the Maintenance Rider, the time period given to the Landlord for performance of such maintenance must be reasonable under the circumstances. In no event will the Landlord be responsible for delays in the performance of any maintenance to the extent such delay is due to or arises out of any action of or delay by the Postal Service or its agent(s) or employee(s). 14. Maintenance of USPS Alterations. Notwithstanding anything in the Lease to the contrary (including without limitation the Maintenance Rider) the Postal Service shall at all times remain responsible for the maintenance of alterations, additions, improvements, systems, structures, equipment, machinery and other items constructed or installed by the Postal Service in, on, over or under the Property, Premises and/or Building, regardless of the time at which such alterations, improvements, systems, equipment, machinery and other items were constructed or installed by the Postal Service, and/or whether such construction and/or installation occurred under or in connection with the Lease or any prior lease under which the Postal Service occupied the Property, Premises and/or Building. 4

5 15. Damage Due to USPS s Failure to Maintain. The Postal Service is required to pay the cost of any maintenance the Landlord is required to perform if and to the extent the necessity for such maintenance by the Landlord is a result of the Postal Service s failure to perform maintenance the Postal Service is required to perform under the Maintenance Rider. 16. Certain Damage. To the extent the Maintenance Rider refers to damage from Acts of God or any public enemy, riot or insurrection, vandalism, fire or other casualties ( Abnormal Damage ), such terms are not intended to and do not include damage or the necessity for repairs arising from the normal use of the Property, Premises and/or Building for their intended purposes, or any deterioration of the Property, Premises and/or Building from such normal use. To the extent the Maintenance Rider makes or is deemed to make the Landlord responsible for repairing any such Abnormal Damage, the Landlord s obligations with respect to such repairs shall be as set forth in the applicable terms of Section 5 of the General Conditions. 17. USE Rider for Follow-On Lease. Notwithstanding any provision of the USE Rider to the contrary, if (i) the Lease renews and/or replaces a prior lease under which the Postal Service leased the Premises, and (ii) prior to the execution of the Lease the Landlord had furnished systems and/or equipment referred to in items 1, 2 and 4 of the USE Rider, then (1) the appropriate drop-down selection for such items in the USE Rider will be only the drop-down selection that recognizes the facts that the Lease is a Follow-On Lease and such systems and/or equipment have been previously provided (regardless of whether another drop down selection has been intentionally or mistakenly selected), and (2) the standard language of such applicable drop down selection for the particular systems and/or equipment in question is incorporated in the Lease by this reference. 18. Conflict Between Maintenance Rider and USE Rider. The maintenance responsibilities placed upon the Postal Service under the Maintenance Rider, as such Maintenance Rider is amended by the terms of this Addendum, will supersede and control in the event of any inconsistency between such Maintenance Rider (as so amended) and the USE Rider. For avoidance of doubt, if the Maintenance Rider (as so amended) gives the Postal Service responsibility for maintaining all or any part of any building, structure, improvement, system, equipment, machinery, landscaping or other portion of or item on the Property, then no reference in the USE Rider to an obligation of the Landlord to maintain such building, structure, improvement, system, equipment, machinery, landscaping or other item will alter or diminish the Postal Service s maintenance responsibility with respect thereto under the Maintenance Rider (as so amended). 19. Public Water/Sewer System Connections. Notwithstanding any provision of the USE Rider to the contrary, if the water system for the Building and Premises is a private well or other private water system, and/or if the sewer system for the Building and Premises is a septic or other private sewer system, and if public water and/or public sewer facilities become available at the property line of the Property, then Landlord, at Landlord s expense, will cause the Premises and Building to be connected to such public water and/or sewer system (as applicable); provided, however, that Landlord need not connect to any such public water or sewer system so long as the private water or sewer system in use at the Premises (as applicable) remains adequate to serve the reasonable needs of the Postal Service in its occupancy of the Premises, Building and Property. After any such connection to a public water and/or system, the Postal Service will pay all recurring water and sewer charges, provided such charges are separately metered, at Landlord s expense, for the Postal Service s consumption. 20. [Use this provision with the USPS Partial Maintenance Rider.] Snow/Ice Removal. Notwithstanding any provision of the Maintenance Rider or USE Rider to the contrary, the Postal Service will furnish and pay for the timely (but in no event later than as required by local law) removal of snow and ice from the sidewalks, driveway, parking and maneuvering areas, and any other areas providing access to the Premises for use by the Postal Service s employees, contractors or the public (including, but not limited to, stairs, handicap access ramps, carrier ramps, etc.). The Landlord will be responsible for removing snow and ice from the roof. 5

6 21. Valuation Notices. Notwithstanding anything to the contrary in item (d) of the Tax Rider, Landlord s failure to deliver tax valuation notices within the time set forth in such item (d) shall have the consequence that the Postal Service shall be obligated to reimburse Real Property Taxes for the year in question in an amount which is the lower of the actual Real Property Taxes for the year in question or the Real Property Taxes for the year immediately preceding the year in question. 22. Reasonable Determinations. Notwithstanding any provision of the Lease to the contrary, (i) in all cases in which the Lease requires or permits the Postal Service to make any judgment or determination, the Postal Service will, unless the Lease sets forth a higher standard for such judgment or determination, act reasonably and in good faith in making such judgment or determination, and (ii) the Postal Service will not unreasonably withhold, condition or delay any consent the Postal Service is required or permitted to give under the Lease. 23. Counterparts. This Addendum may be executed in any number of counterparts and by facsimile, each of which shall be deemed to be an original instrument, but all such counterparts together shall constitute one and the same instrument. [Signatures are on the following page.] 6

7 IN WITNESS WHEREOF, the parties have executed this Addendum as of the day and year first written above. LANDLORD: By: Name: Title: POSTAL SERVICE: UNITED STATES POSTAL SERVICE, an entity of the federal government By: Name: Title: Contracting Officer 7