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2017-08DEED OF LEASE This Deed of Lease (“Lease”) is made this ___ day of ___________, 2017 (the “Effective Date”, defined as the last date that any party to this Lease executes the same), by and between the CITY OF FAIRFAX, VIRGINIA, a Virginia municipal corporation (the “Landlord” and/or the “City”) and MAIN STREET CHILD DEVELOPMENT CENTER, INC., a Virginia nonstock corporation (“Tenant”). WITNESSETH: That for and in consideration of the mutual benefits to be derived hereby, Landlord and Tenant hereinafter covenant and agree as follows: SECTION 1 - PREMISES The premises to be leased consist of approximately Seven Thousand Three Hundred Sixty-Four (7,364) square feet of space, which space includes six classrooms, an office, and an activity room, together with the right in common with other tenants in the building (now or hereafter existing) to use of the cafeteria, gymnasium, kitchen, storage area, public corridors, automobile parking areas (as described in Section 13 herein), walkways, landscaped areas, driveways and sidewalks (collectively, the “Premises”) of that certain property owned by the Landlord, located at 4401 Sideburn Road, Fairfax, Virginia, 22030, and formerly known as the Green Acres Elementary School building and grounds (the “Property”). The Premises are depicted on Exhibit “A” attached hereto. Tenant shall also have the reasonable right of ingress and egress to and from the Premises, without the need for additional documentation to memorialize such right of ingress and egress. SECTION 2 - TERM; TERMINATION OF EXISTING LEASE The term of this Lease shall begin at 12:01 a.m. ET on July 1, 2017 (the “Lease Commencement Date”) and shall end at 11:59 p.m. ET on June 30, 2019 (the “Lease Expiration Date”), subject to the termination provisions set forth hereinafter. The period from the Lease Commencement Date to and including the Lease Expiration Date may hereinafter be referred to as the “Lease Term”. Notwithstanding anything else in this Lease to the contrary, either Landlord or Tenant shall have the right to terminate this Lease by written notice delivered to the other party at least one hundred and twenty (120) calendar days prior to the effective date of such termination. SECTION 3 - RENT; PAYMENT ADDRESS A. The Tenant covenants and agrees to pay to Landlord base rent (in each case, the “Base Rent”) commencing on the Lease Commencement Date, in advance on the first day of each month, without demand, deduction, set-off or counterclaim, as follows: (i) for the period July 1, 2017 through June 30, 2018, the amount of Thirty-Seven Thousand One Hundred Forty- Seven and 46/100 Dollars ($37,147.46) per annum, payable in monthly installments of Three Thousand Ninety-Five and 62/100 Dollars ($3,095.62); and (ii) for the period July 1, 2018 through June 30, 2019, the amount of Thirty-Nine Thousand Four and 83/100 Dollars ($39,004.83) per annum, payable in monthly installments of Three Thousand Two Hundred Fifty 2 and 40/100 Dollars ($3,250.40). Rent for any fractional part of any month shall be prorated. Any Base Rent (or other amounts due under this Lease) not paid within five (5) days after such Base Rent or other amounts are due shall be subject to a five percent (5%) late charge, which late charge shall be in addition to the Base Rent (“Additional Rent”). The Base Rent and the Additional Rent may hereinafter be referred to together as “Rent”. In the event Tenant pays any Rent or other amounts due under this Lease by check and said check is returned by the bank unpaid, Tenant shall pay to Landlord the sum of Twenty-Five and No/100 Dollars ($25.00) to cover the costs and expenses of processing the returned check, in addition to the aforesaid Rent. Any payment of Rent or any other sum due hereunder which is not paid within thirty (30) days of the due date shall thereafter bear interest at a rate equal to the lesser of (i) the prime rate of interest published on the 30th day of such period or the closest business day thereto in the Wall Street Journal, plus two percent (2%), or (ii) the maximum rate of interest permissible under Virginia law. B. All Rent shall be paid in advance, on the first day of each calendar month during the Lease Term. All payment of Rent shall be made by check, or other form of payment in U.S. funds, to the City of Fairfax, 10455 Armstrong Street, Fairfax, Virginia 22030, or to such other party or address as Landlord may from time to time designate by written notice to Tenant. SECTION 4 - AGREEMENTS AND COVENANTS OF TENANT Tenant hereby agrees and covenants as follows: A. Tenant shall use the Premises as a child care center in strict conformance with any special use permits, special exceptions and other land use and other approvals applicable to the Premises and/or the Property, as the same may be amended or superseded (hereinafter, collectively, the “Land Use Approvals”). Tenant shall not use the Premises for any unlawful purpose, and Tenant shall use the Premises only in accordance with all applicable local, state, and federal ordinances, statutes, and regulations. Tenant agrees to obtain and maintain, at Tenant’s own expense, all permits, licenses, and similar permissions required to permit Tenant to occupy the Premises as it desires. The hours of operation shall be from 6:45 a.m. to 6:15 p.m., Monday through Friday, year-round, with the exception of occasional evening meetings and classes from 6 p.m. to 8 p.m., all as set forth in the Land Use Approvals. After receiving permission from the Director of Parks and Recreation, which permission shall not be unreasonably withheld, the Tenant may use the Premises for after-hours meetings that comply with the terms of this Lease and any applicable laws and regulations. B. Any renovations, alterations, replacements, changes, or improvements in the Premises (“Improvements”) made by the Tenant will be at the sole cost and expense of the Tenant and will require prior written approval of the Landlord; such approval to be in the sole discretion of the Landlord (although Tenant shall not be required to obtain approval from Landlord for previous improvements already made to the Premises). No such Improvements shall unreasonably restrict the use by the community of the grounds on the Property for recreational purposes. Tenant has no authority to incur any debt or to make any charge against Landlord or to create any lien upon the Premises for any work or materials furnished to the Premises or for any other purpose. Tenant shall promptly obtain the release of any mechanic’s lien or other lien or claims in connection with the making of such Improvements on the Premises 3 (or for any reason), and failure by the Tenant to remove or cause to be removed such lien or claim within thirty (30) calendar days of such lien or claim shall constitute a material default under this Lease. Tenant shall make any Improvements in the Premises in a good and workmanlike manner. Any such Improvements shall be consistent with the basic design of the building and shall not impair the structural soundness of the building. Upon the expiration or earlier termination of this Lease, any permanent Improvements shall become the property of the Landlord without cost, or shall be removed at the option of Landlord, if a request for removal is made, in writing, at the time the Improvements are approved by the Landlord. Non-permanent fixtures put in place by Tenant may be removed at Tenant’s expense provided that Tenant restores the building to the condition as of the Lease Commencement Date, normal wear and tear excepted. C. Tenant agrees to keep the Premises in good order and condition and to surrender the same at the expiration of this Lease in a comparable condition in which they are received, normal wear and tear and permitted additions and removals excepted. Landlord agrees to maintain the Property, both interior and exterior, including all buildings, grounds, improvements, fixtures, and plumbing, and all equipment and facilities installed therein and thereon, in good, secure and substantial condition and repair; however, the Landlord will not be responsible for the maintenance of any Improvements. Landlord will make all repairs necessary to keep the Property and the plumbing, heating, utilities, air conditioning, lighting, glass, doors and door closures, flooring, fixtures, and all other equipment inside Property (with the exception of any Improvements) in good repair and in proper sanitary and working condition, whether such repairs be considered structural or otherwise. Tenant agrees to make all repairs necessary to keep the Improvements in good repair and proper and sanitary working condition. In the event that Tenant shall fail to maintain the Premises or to make the necessary repairs as required by this section, Landlord shall have the right to notify Tenant of such repairs and maintenance as in its reasonable judgment are necessary, and if Tenant shall fail to diligently and reasonably commence or prosecute to completion such repairs and maintenance, Landlord may, but shall not be obligated to, make the same, and the expense(s) incurred by Landlord, together with interest at the Wall Sheet Journal prime rate per annum until paid, shall be charged to Tenant as Additional Rent, payable on demand. D. Tenant shall assume the risk of damage or loss to the Premises and to the Improvements, fixtures, equipment and all personal property located thereon, except for damage or loss caused by the gross negligence or willful misconduct of Landlord, or that damage caused by the use of the Premises by the community. Tenant shall, at its sole cost and expense, keep the Premises and its contents insured, for the full Lease Term, in a good and responsible company or companies authorized to do business in Virginia and in a form reasonably acceptable to the Landlord, to the full amount of the replacement cost of the Premises and the contents. Such policy or policies shall name Landlord and Tenant as insureds and shall include a waiver of subrogation by the insurance company against the Landlord. Tenant shall deliver to Landlord a copy or certificate of said policy showing the same to be in full force and effect. In the event Tenant shall fail to maintain such policy of insurance, then Landlord may obtain such a policy and pay the premiums thereon, and the amounts so paid will constitute Additional Rent, payable on demand by Tenant within ten (10) days of such demand. 4 E. Tenant shall obtain and maintain in full force at all times during the term of this Lease general liability insurance naming Tenant and Landlord as insureds, with limits of at least $2,000,000 for personal injuries and $2,000,000 for property damage, with an insurance company approved by Landlord, such approval not to be unreasonably withheld, and shall deliver to Landlord a copy or certificate of said policy showing the same to be in full force and effect. The certificate is subject to review and approval by the Landlord’s Risk Manager. In the event Tenant shall fail to maintain such policy of insurance, then Landlord may obtain such a policy and pay the premiums thereon, and the amounts so paid will constitute Additional Rent, payable on demand by Tenant within ten (10) days of such demand. F. Tenant shall allow Landlord or its agents, upon reasonable prior notice to Tenant (except in the event of an emergency) to have access to the Premises during normal operating hours for the purpose of inspection or for Landlord to perform any of its obligations under this Lease. Such inspections should not interfere with the normal conduct of school and should be consistent with local health regulations. Landlord shall have regular access for community use as described in Subsection 4(H) of this Lease, and for such other purposes as Landlord shall reasonably require. G. Except with respect to claims arising from the gross negligence or willful misconduct of Landlord, its agents, servants, or employees or the community use permitted in Subsection 4(H) of this Lease, Tenant assumes the responsibility for any and all claims for liability, fines, claims, damages and actions, including attorneys’ fees, relating to the Premises or arising out of any act of neglect of Tenant or of any of their employees, agents, customers, guests, or invitees during the Lease Term, or from any condition of the Premises or anything thereon during the Lease Term, or from any occurrence whatever, in, on, or about the Premises during the Lease Term, including all Landlord’s costs, expenses, court costs and attorneys’ fees in connection with any such claim. H. The grounds and public areas of the Property, including the playground and fields, will be available for community and recreational use by the City of Fairfax and the community at all times. The Landlord agrees to post signs around the fenced playground advising the public of Tenant’s hours of use of the playground, but this shall not preclude the community’s right to access the fenced playground. SECTION 5 - AGREEMENTS AND COVENANTS OF LANDLORD Landlord hereby agrees and covenants as follows: A. To permit Tenant quiet and peaceable enjoyment of the Premises during the Lease Term or for so long as Tenant shall pay the Rent and carry out all of its other obligations under this Lease. B. To permit Tenant free access to the Premises during normal operating hours, and at the reasonable request of the Tenant, outside normal operating hours in order for the Tenant to hold its regular monthly meetings. 5 C. Landlord makes no warranty concerning the Premises and any equipment or facilities therein at the time of the Lease Commencement Date. Except as otherwise provided herein, the Premises are being leased to Tenant in their “as is” and “where is” condition. D. Landlord agrees to provide daily janitorial services for the Premises, Monday through Friday. SECTION 6 - SUBLETTING AND ASSIGNMENT Tenant shall not sublet the Premises or any part thereof, or assign this Lease in whole or in part, and any sublease and/or assignment, or other transfer of Tenant’s rights, made in violation of this Section 6 shall be void and of no effect. SECTION 7 - DESTRUCTION OF PREMISES In the event of the total destruction of the Premises, or any part thereof, Tenant at its expense and without abatement of Rent will promptly, as soon as practicable after such destruction, repair and restore the Premises to the condition they were in prior to such damage. The proceeds of insurance required hereinabove shall be applied first toward the expense of such repair under such terms and conditions as may be satisfactory to Landlord. In the event that the Premises are substantially or completely destroyed, each of Landlord and Tenant shall have the option of terminating this Lease; provided that notice of any election to exercise said option to terminate is given to the other party within sixty (60) days from the occurrence of the casualty. Substantial destruction shall refer to destruction causing a minimum of fifty percent (50%) or more of the floor area of the Premises to be completely destroyed. In the event of such election, Landlord shall be solely entitled to the proceeds of insurance for said loss or destruction of the Premises and for those applicable to Landlord’s personal property, and Tenant shall be solely entitled to the proceeds of insurance applicable to Tenant’s personal property. SECTION 8 - CONDEMNATION If the whole or any part of the Premises shall be taken or condemned by any government or quasi-governmental authority pursuant to the power of eminent domain, Tenant and Landlord agree that the Tenant shall have no claim against Landlord or the condemning authority for any portion of the amount that may be awarded as damages as a result of such taking or condemnation or for the value of any unexpired portion of the Lease Term. Tenant, however, shall be entitled to claim, prove and receive such awards as may be allowed for fixtures and other equipment installed by it which shall not, under the terms of this Lease be or become the property of the Landlord at the termination hereof, provided that such payment shall not reduce the amount to which Landlord would otherwise be entitled. This Lease shall terminate when title to any portion of the Premises is taken by the condemning authority, and Rent shall be adjusted to such date. SECTION 9 - BANKRUPTCY OR INSOLVENCY If at any time during the term hereby created, a petition shall be filed either by or against Tenant and a final court adjudication of bankruptcy is made, or with the exception of Wage Earner Plan, Chapter 11, or other reorganization plan, chapter or statute, in any court or pursuant 6 to any statute either of the United States or of the Commonwealth of Virginia, whether in bankruptcy, insolvency, or if there is an appointment of a receiver of the Tenant’s property, or because of any general assignment made by the Tenant of the Tenant’s property for the benefit of the Tenant’s creditors, the Tenant shall be deemed in default herein at the sole discretion of the Landlord, and the Landlord may terminate this Lease. SECTION 10 - DEFAULT, LANDLORD’S REMEDIES A. If Tenant fails to perform any term, condition, or covenant of this Lease, and such failure to perform shall continue for more than ten (10) calendar days after written notice, in the case of any monetary obligation (such as the payment of Rent), or thirty (30) calendar days after written notice of such failure (in the event of any other obligation under this Lease) shall have been received by Tenant, unless the cure of such failure requires more than thirty (30) calendar days and Tenant is diligently pursuing such cure, Landlord shall then have the right to pursue any right or remedy to which Landlord is entitled, under applicable law or this Lease, for such failure, which shall be deemed a default for all purposes hereunder. B. Should Tenant fail to cure the aforementioned default, then, at the option of the Landlord or its successors and assigns, the Tenant’s right of possession shall cease and the Landlord, its successors or assigns, shall be entitled to the possession of the Premises and to re- enter the same without the demand of rent or demand of possession of said Premises, and may forthwith proceed to recover possession of the said Premises by process of law, any notice to quit or of intention to re-enter the same being hereby expressly waived by the Tenant. And in event of such re-entry by process of law, the Tenant nevertheless agrees to remain answerable for all damage, and all damage deficiency or loss of rent which the Landlord may sustain by such reentry; and for reasonable attorneys’ fees incurred by Landlord; and, in such case, the Landlord may, but shall not be required to, relet the said Premises for the benefit of the Tenant in liquidation and discharge in whole or in part as the case may be of the liability of said Tenant under the terms and provisions of this Lease. C. It is further provided that if under the provisions hereof a five (5) day notice or other applicable summary process shall be served and a compromise or settlement thereof shall be made, it shall not be constituted as a waiver of any covenant herein contained; and that no waiver of any breach or covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition, or agreement itself or any subsequent breach thereof. SECTION 11 - TENANT HOLDING OVER In the event that the Tenant shall not immediately surrender the Premises following the expiration or earlier termination of the Lease Term, then the Tenant shall by virtue of this agreement become a Tenant by sufferance at one hundred and fifty percent (150%) of the Base Rent then in effect. SECTION 12 - SIGNS Tenant may not place signs, awnings, shades, doors, shutters or curtains on any part of the exterior of the Premises, or pave or place any brick or stonework, cornice work, millwork or ironwork on the front of the Premises, without the prior written approval and consent of the 7 Landlord which consent shall not be unreasonably withheld, and with the prior approval, if required, of the appropriate governmental authorities. A sign permit (and any other applicable approvals) must be obtained prior to the installation of any signage. SECTION 13 - PARKING Tenant and its employees, agents and invitees shall have the right, at no additional charge, to use a portion of the parking spaces in the Property’s parking lot during the Lease Term, pursuant to the terms of the Land Use Approvals, and in accordance with the reasonable rules and regulations relating to parking adopted by Landlord from time to time in accordance with Section 14(F) of this Lease. Tenant shall not allow parking, standing, or unloading of vehicles which blocks traffic in the common driveway that services the Premises and other adjoining premises owned by the Landlord. In the event that a vehicle owned by the Tenant, Tenant’s employees, agents, or invitees, a supplier of the Tenant, or an independent freight carrier company making delivery to Tenant, blocks the common driveway, Tenant irrevocably authorizes Landlord to have these vehicles or other obstructions removed at Tenant’s expense, and, in addition, Tenant agrees to indemnify and hold harmless Landlord from any claim made by any party in connection with such removal. Tenant shall designate an area for student drop-off and pick-up to be used between the hours of 7 a.m. to 9 a.m., and 4 p.m. to 6 p.m., Monday through Friday. The drop-off and pickup area shall be in a location approved by the Landlord. Any vehicle on the parking lot that is unlicensed or in a state of disrepair will be towed at the owner’s expense. Vehicle repairs are not permitted in the parking areas. The parking lot shall be utilized only for parking related to Tenant’s occupancy. Tenant shall not store any items in the parking facilities or dispose of any trash therein. Any such storage or trash for which Tenant, its employees, invitees, or agents are responsible will be removed by Landlord at Tenant’s expense. SECTION 14 - MISCELLANEOUS A. Tenant will permit Landlord to show the Premises at reasonable hours to prospective users, tenants or purchasers during the last six (6) months of the Lease Term. B. This Lease contains the entire agreement of the parties in regard to the Premises. There are no oral agreements existing between Landlord and Tenant. C. This Lease shall be construed and governed by the laws of the Commonwealth of Virginia. Should any provisions of the Lease or its conditions be illegal or not enforceable under the laws of the Commonwealth of Virginia, as determined by a court of competent jurisdiction, it or they shall be considered severable and the Lease and its conditions shall remain in force and be binding upon the parties as though the said provisions had never been included. 8 D. If legal proceedings are instituted by the Landlord for the collection of delinquent Rent, the enforcement of any other terms or provisions of this Lease or any other matter arising out of this Lease, court costs and reasonable attorneys’ fees incurred by the Landlord shall be paid by the Tenant. E. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition, or agreement itself, or for any subsequent breach thereof. F. Tenant covenants that the following rules and regulations being in Landlord’s judgment needful for the general well-being, safety, care and cleanliness of the Premises and the building of which they are a part, shall be faithfully kept, observed and performed by Tenant, and by the agents, servants, and employees of Tenant, unless waived in writing by Landlord: 1. The sidewalks, entries, passages and staircases shall not be obstructed or used for any purpose other than ingress and egress. 2. Tenant will not do or permit to be done anything in the Premises, or the building of which they form a part, or bring, or keep anything therein which shall, any way, increase the rate of fire insurance on said building. 3. Tenant will not overload the floors of the Premises. All damage done to the building by Tenant, its agents or employees, by taking furniture, fixture, or materials in or out shall be repaired at the expense of Tenant. 4. Liquids, or other materials or substances which will cause injury to the plumbing, shall not be put into the lavatories, water closets, or other plumbing fixtures, by Tenant, its agent, employees, or invitees. 5. No animals shall be kept on the Premises, other than fish and small classroom pets, such as hamsters. If it becomes apparent that such animals are causing harm to the Premises, the Landlord reserves the right to require their removal. 6. The Landlord reserves the right to make such other rules and regulations as it deems necessary for the health, safety, and well-being of all of the tenants. SECTION 15 - TERMINATION This Lease may be terminated with no liability to Landlord or Tenant if any governmental entity or agency having authority over the Premises or the Property deny Tenant any required permits to use the Premises in the manner required by Tenant. If permits are denied, this Lease shall terminate on the date which is five (5) business days following Tenant’s written notice to Landlord of such termination. Tenant shall be entitled to a release from future payments. Any Rent already paid will not be returned. 9 SECTION 16 - NOTICES All notices shall be delivered in person or sent by certified or register mail, return receipt required. If to Landlord: City of Fairfax 10455 Armstrong Street Fairfax, Virginia 22030 Attention: Robert L. Sisson, City Manager If to Tenant: Main Street Child Development Center, Inc. 4401 Sideburn Road Fairfax, Virginia 22030 Any changes in address shall be made in writing with notice provided as required hereunder and shall make reference to this paragraph. IN WITNESS WHEREOF, this Lease has been duly executed by the parties hereto on the day and year first hereinabove written. [SIGNATURES FOLLOW ON NEXT PAGE] 10 ATTEST: LANDLORD: CITY OF FAIRFAX, VIRGINIA, a Virginia municipal corporation By: City Clerk Robert L. Sisson City Manager Approved as to form: ______________________________ City Attorney ATTEST: TENANT: MAIN STREET CHILD DEVELOPMENT CENTER, a Virginia nonstock corporation By: (SEAL) Name: Title: 11 EXHIBIT “A” DESCRIPTION OF LEASED PREMISES \Main-Street-Child_20170607_V01