03/21/2019 Agreement li)./t:3-F • Kevin Madok, CPA
e/ I+' 1'
IN., e ;_:' Clerk of the Circuit Court& Comptroller—Monroe County, Florida
DATE: May 1, 2019
TO: Kevin G.Wilson, PE
Assistant County Admi 'stator
FROM: Pamela G. Hanc.ck I.C.
SUBJECT: March 21"BOCC Meeting
Enclosed are two duplicate originals of Item Q6, Shopping Center Lease with Kir Key
Largo 022, LLC at the Tradewinds Shopping Center in Key Largo for the Social Services office
and congregate meal site, for your handling.
Once the leases are signed by the landlord, please forward a duplicate original back to me
for the record. Should you have any questions, please feel free to contact me at(305) 292-3550.
Thank you.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145
KIR KEY LARGO 022, LLC
3333 New Hyde Park Road
P. O. Box 5020
New Hyde Park, NY 11042-0020
Artemis Ginnis
Lease Administrator
May 3,2019
VIA FEDERAL EXPRESS
Kevin G.Wilson, PE
Monroe County Board of County Commissioners
1100 Simonton Street, Suite 2-216
Key West, Florida 33040
Re: Shopping Center Lease/Monroe County Board of County Commissioners
Premises: Tradewinds S.C., Key Largo, Florida
Project I.D. No. SFLK0022/- Plot 005
Dear Mr. Wilson:
Enclosed please find one fully executed counterpart of the Lease.
This letter shall confirm that Landlord shall be deemed to have tendered the Leased Premises to Tenant
as of May 3, 2019. AS THE TENANT WILL NOT BE RECEIVING KEYS TO THE LEASED PREMISES,
TENANT IS HEREBY AUTHORIZED AND INSTRUCTED TO RE-KEY THE LOCKS TO ALL DOORS
THAT ACCESS THE LEASED PREMISES.
Pursuant to the terms of your lease, prior to commencing any work, Tenant is required to do the following:
1. Immediately Transfer all utility services to its account after the Premises have been delivered to
you. Failure to do so within two (2) days from the date of this letter may results in loss of services
and/or additional fees.
2. Send a copy of Tenant's insurance certificate to Landlord using one of the following methods: (1)
fax a copy to 1-877-571-8778, (2) email a copy to kimcotenanta,ebix.com, or), or(3) mail a copy
to: Insurance Compliance, P.O. Box 100085—K9, Duluth, GA 30096. The certificate must reflect
that Landlord, KIR Key Largo 022, LLC,and Kimco Realty Corporation are named as additional
insureds, and must refer to Site No. SFLK0022/, and Plot No. 005.
3. Forward at least two (2) copies of your plans and specifications for your work (if required by the
Lease) to Connie Hurst, Landlord's Property Manager for the Shopping Center at 1 Oakwood
Boulevard, Hollywood, Florida 33020, as well all such other documents in connection with your
work as may be required by the lease, such as the Payment and Performance Bond, the
contractors general liability, workers compensation and occupational disease insurance policies,
and the general contractors written indemnity agreement in the form attached to the Lease. Also
upon completion of your work and prior to opening for business, please forward a copy of your
Certificate of Occupancy to Landlord's Property Manager identified above.
If you have any questions regarding the premises, please contact Landlord's Property Manager identified
above at 954-956-2113 or churst@kimcorealty.com:
Please accept our best wishes for success at our Center.
Artemis Ginnis
Lease Administrator
enc.
•
SHOPPING CENTER LEASE
This lease ("Lease"), dated as of I-4 3, ZO I C1 , by and between KIR KEY
LARGO 022, LLC ("Landlord") and MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
("Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant wish to enter into this Lease on the terms and conditions
hereinafter set forth;
NOW,THEREFORE, in consideration of the foregoing,and the mutual covenants and agreements
contained in this Lease, Landlord and Tenant hereby agree as follows:
Tenant hereby leases the Leased Premises (as hereinafter defined) from Landlord and Landlord
hereby leases the Leased Premises to Tenant upon, and subject to, the terms and conditions hereinafter
set forth in this Lease.
1. Basic Lease Provisions and Definitions.
In addition to other terms defined in this Lease, the following terms whenever used in this Lease
with the first letter of each word capitalized shall have only the meanings set forth in this Article, unless
such meanings are expressly modified, limited or expanded elsewhere herein.
(A) Shopping Center Location: Depicted on Exhibit"A", located in
Tradewinds S.C., Key Largo, Florida
Site No.: SFLK0022/
(B) Leased Premises: The premises identified as plot 005 shown hatched on Exhibit "A"
(see Article 2).
(C) Floor Area: 2,400 square feet (see Article 2).
(D) Lease Commencement Date: The date that this Lease is fully executed by both Landlord and
Tenant.
(E) Rent Commencement Date: The earlier of: (i) one hundred twenty (120) days after the Lease
Commencement Date; or (ii) the date any portion of the Leased
Premises initially opens for business to the public.
(F) Lease Term: Commencing on the Lease Commencement Date and ending at 12
noon on the Expiration Date (see Article 2).
(G) Expiration Date: The last day of the calendar month in which occurs the 3rd
anniversary of the day immediately preceding the Rent
Commencement Date (see Article 2).
(H) Base Rent Schedule—Original Term (see Article 3):
Lease Year Annual Base Rent Monthly Rent
1 $39,600.00 $3,300.00
2 $40,986.00 $3,415.50
3 $42,420.51 $3,535.04
(I)Tax Rent: As provided in Article 5(B) of Rider A.
(J) Common Area Rent: As provided in Article 8 of Rider A.
(K) Percentage Rent Rate: N/A
(L) Security Deposit: None
(M) Permitted Use: A county government office which provides meals, nutrition and other
services for the elderlycertain members of the community using
electric food warming equipment for reheating pre-packaqed meals.
Tenant is strictly prohibited from operating as a general food market,
grocery store, bakery, delicatessen or fish market. Tenant shall not
engage in on-site food preparation (other than the aforesaid
reheating of pre-packaged meals).
(N) Landlord's Notice Address: c/o Kimco Realty Corporation
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(See Article 29) 3333 New Hyde Park Road
Suite 100
P.O. Box 5020
New Hyde Park, New York 11042-0020
With a copy to:
c/o Kimco Realty Corporation
6060 Piedmont Row Drive South, Suite 200
Charlotte, North Carolina 28287
Attn: Regional General Counsel/Legal Dept.
(0) Tenant's Notice Address: Monroe County Board of County Camv4w55t X'
1100 Simonton Street(Suite 2-216)
Key West, Florida 33040
With a copy to:
County Attorney
1111 12th Street(Suite 408)
Key West, FL 33040
(P) Broker(s): CBRE, Inc.
777 Brickell Ave, Suite 1100
Miami, Florida, 33131
Attn: Daniel Diaz
FOR INFORMATION ONLY
Tenant's Telephone No.: (305)292-4529
Tenant's Fax No.: (305)295-4321
Tenant's Email Address.: Wilson-kevina.monroecounty-fl.gov
Tenant's Business Name: Monroe County Board of County Commissioners
Tenant's Contact Person: Kevin Wilson
Guarantor(s): None
The following riders and exhibit(s)are hereby incorporated into this Lease and made a part of this Lease
for all purposes:
Riders: Rider"A" General Lease Provisions (set forth in Articles 2 through 29).
Rider"B" Specific Lease Provisions (beginning with Article 30).
Exhibit(s): Exhibit"A"--Site Plan
Exhibit"B-1" --Contractors Indemnity Agreement
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties hereto have executed this Lease under their respective hands
and seals as of the day and year first above written.
WITNESSES TO LANDLORD LANDLORD
, KIR KEY LARGO 022,LLC
$y Kimco Income erating Partners ' ;P
Its managin ember
By K' co In a REIT its rat partner
\ SdL Name
Title Kevin J. 11ith
Date Vice President
WITNESSES TO TENANT TENANT:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
Name:
� Q� � Title: �(
- �9� �( �
n`UDate: 312417,91
d'o CC. p, ro✓` 6
ACKNOWLEDGEMENT FOR TENANT:
STATE OF FI•''"f a )
ss:
COUNTY OF M•1.-•G )
Before me,the undersigned,a Notary Public in and for the State nd County aforesaid,an
officer duly authonzed to take acknowledgm nts,pejson�lly appearedDann L..K•!L. Ib me k wn Ip A L
be the person described in and who as R Dr �• of fj.1r,.�L...,►y lr3c�4 a C.•4ors L 'id e ••'•C.4
corporation,executed on behalf of the corpora on,and he acknowledged before m that he executed th
foregoing instrument as an officer of the corporation in name of and on behalf of the corporation,that this
act was done by authority of the corporation for the uses and purposes set forth in the instrument;and that
the foregoing instrument is the free act and deed of the corporation
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal,this lit
day of 7 ,204 in this State and County
My Commission expires —
Notary Public ,.;P,%;g.,
PAMELAG.HANCOCK
(Notanat Seal) =' MY COMMISSION tFF963618
D(PIRES:February 22,2020
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ASSISTANT COUNITY ATTORNEY
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RIDER A
THIS RIDER A IS ATTACHED TO AND HEREBY MADE A PART OF THE LEASE
(SEE ALSO RIDER B).
2. Leased Premises, Term and Lease Year. The Leased Premises is deemed to contain an
amount of square feet of space equal to the Floor Area. The Lease Term shall commence on the Lease
Commencement Date and shall include the period,if any, between the date the Lease is fully executed and
the Lease Commencement Date. Tenants duty to pay Rent shall commence on the Rent Commencement
Date. Notwithstanding the foregoing, Tenant shall pay the first month's installment of Rent on the
execution hereof, which amount shall be applied as a credit against such first monthly installment as and
when due (and promptly refunded if, for any reason other than Tenant's default, this Lease should be
terminated by reason of non-occurrence of the Lease Commencement Date). The Lease Term shall expire
without notice on the Expiration Date. On request,Tenant shall promptly deliver to Landlord a statement
in recordable form specifying the Rent Commencement Date and the Expiration Date. The first Lease Year
shall commence on the Rent Commencement Date and end on the last day of the calendar month in which
occurs the first anniversary of the day immediately preceding the Rent Commencement Date. Each
succeeding Lease Year shall be each successive twelve (12) month period.
3. (A) Base Rent. Tenant shall pay Base Rent at the annual rates specified in the Base Rent
Schedules in monthly installments paid in advance on the first day of each calendar month in the amount
specified in the Base Rent Schedule. If the Rent Commencement Date is not the first of the month, the
Base Rent for that month shall be prorated. Should any Lease Year contain more or less than twelve (12)
months, Base Rent and other charges for such Lease Year shall be appropriately prorated. In addition,
Tenant shall pay Landlord as additional rent each month throughout Lease Term including renewal terms,
on the same date that monthly payments of Base Rent are due, an amount equal to four (4%) percent of
the Base Rent that is payable for that month, as a management fee to Landlord. All other payments to be
made by Tenant pursuant to this Lease are in addition to Base Rent. Tenant shall pay Base Rent and other
Rent to Landlord or its designated agent at the address Landlord designates without Landlord making any
demand.
Exhibit 1 attached herete on the first day of each month in advance for the full amount of such monthly
Rent payment then due. Tenant shall maintain sufficient funds in Tenant's Bank Account at all times
of which shall conotitute a default for the failure to pay Rent. Simultaneously with Tenant'o execution of
"1 n tote er with . oided check r Tenant2s ga k ccount The obligation to pay Base Rent and other
Rent is an independent, unconditional covenant.
(B) Additional Rent. Base Rent and all other payments required to be made by Tenant
(including, but not limited to, Tax Rent and Fixed Common Area Rent) shall be deemed to be and are
included in the term "Rent", which shall be due and payable on demand or together with the next
installment of Base Rent, whichever first occurs, unless another time is expressly provided for payment.
Landlord shall have the same rights and remedies for non-payment of any Rent as
for a non-payment of Base Rent. Tenant shall pay to Landlord any tax or license fee measured by Tenants
Rents receivable by Landlord; these taxes shall be paid by Tenant each month with monthly payments of
Rent. See also Article 5(C).
(C) Late Rent. Any Rent not paid when due shall bear interest on the
payable amount from the date when due until paid at the Default Interest Rate (see Article 24(B)); in
addition,Tenant shall pay Landlord a Fifty($50.00) Dollar late charge for each overdue payment.
(D) Notwithstanding any alleged defense, counterclaim or offset against Rent,Tenant shall
continue to pay Landlord all Rent faithfully when due, including during the continuance of any dispute or
legal action, subject to reimbursement if directed by the Court. Tenant hereby consents to the entry in any
court action of an order requiring Tenant to make Rent payments during the pendency of the lawsuit. All
Rent due to Landlord under this Lease shall,unless and to the extent expressly otherwise provided herein,
be due and payable without any notice, demand, offset, credit, deduction or abatement. Landlord shall
have the sole right to designate the manner in which Rent and other payments received from Tenant are
applied to Tenants rental account.
4. Intentionally Deleted.
5. Taxes.
(A) "Taxes" shall mean and include: real estate taxes; special and general assessments;
water and sewer rents and charges including connection or hookup charges; governmental license and
permit fees; charges for public or private easements benefiting the Shopping Center; taxes on other areas
made available for the common use or benefit of tenants; and all other governmental impositions and
charges(extraordinary as well as ordinary,foreseen and unforeseen)which are either a lien on the Shopping
Center or which are charged, levied or assessed on, or imposed in connection with, the use, occupancy or
possession of the Shopping Center and/or which appear as a charge on a tax bill given to Landlord by any
official taxing authority; and also: taxes, license fees or other charges measured by the rents receivable by
Landlord from the Shopping Center; occupancy taxes, rent taxes or similar taxes; interest on Tax
installment payments; and costs, expenses and fees (including attorneys'and other experts'fees) incurred
by Landlord in contesting and/or negotiating Taxes with the public authorities(regardless of the outcome).
If any method of taxation prevailing on the date of this Lease is altered, so as a substitute for the whole or
any part of real estate taxes there is levied or assessed a different kind of tax, the different tax shall be
deemed included in "Taxes". However, "Taxes" shall not include any inheritance, estate, succession,
transfer, gift, franchise or corporation tax, or any net income tax, profit tax or capital tax imposed on
Landlord. A copy of an official tax bill with respect to a governmental tax or assessment shall be conclusive
evidence of the amount of a Tax. If the Leased Premises is located in Indiana, Ohio, Illinois or other
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jurisdiction wherein taxes are billed or are payable in arrears after they have accrued or become a lien,then
the taxes that are payable or become a lien during the calendar year in which the Lease Term is in effect
shall be included in the definition of"Taxes" shared in or payable by Tenant according to the provisions of
this Article even though the payment thereof relates to a fiscal tax period in whole or in part occurring prior
to the commencement of or after the end of the Lease Term.
(B) Tax Rent. As additional Rent for each year of this Lease (herein called "Tax Rent"),
Tenant shall pay to Landlord, in the manner hereinafter described, the product obtained by multiplying
the aggregate amount of all Taxes payable by Landlord for the then-current calendar year(or other fiscal or
accounting year selected by Landlord) by a fraction ("Tenant's Fraction"), the numerator of which is the
Floor Area of the Leased Premises, and the denominator of which is the total square foot ground floor area
which is leasable for space(on the first day of the month in question)inside all the buildings of the Shopping
Center. Notwithstanding the foregoing, at Landlord's option Tenant's Fraction may be appropriately
adjusted with regard to Tax Rent and/or Common Area Rent to exclude from the denominator thereof any
land and/or building(s)in the Shopping Center leased to or occupied by third parties with separate tax lots
or parcels for which they directly or indirectly pay taxes and/or who are responsible for maintenance of
portions of the Common Areas; provided that in such event the Taxes or Common Area expenses paid by
such third parties shall also be excluded in the computation of Taxes and/or Yearly Common Area Costs.
On the first day of each month in advance,Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant's
annual share of Tax Rent, based on Landlord's estimates. If after the end of a calendar year (or other
accounting period used by Landlord)the total of the monthly payments by Tenant for the year has exceeded
or is less than the annual Tax Rent actually due, then an adjustment shall be made with appropriate
payments to or repayment by Landlord. If the amount of any Taxes payable during the current year shall
not yet have been billed by the taxing authority, the monthly Tax Rent then payable shall be based on the
amount of the corresponding Taxes for the immediately preceding Tax year, subject to immediate
adjustment (and payment of the adjusted amount by Tenant) when such Taxes are billed or determined.
(C) Other Taxes. In addition to Tax Rent, Tenant shall pay in the entirety: all taxes
attributable to its signs,personal property and leasehold interests;all taxes allocable or attributable to any
improvements made by Tenant to the Leased Premises; all occupancy taxes or other taxes on its right to
occupy the Leased Premises; ,,,, t,, o it., Rent (i luding sales taxes , ens if-the ,e ea Premises
in Florida or in any other jurisdiction imposing a tax on rents); and other taxes imposed on tenants
generally.
Exemption from the Florida Tax on Rents. In the event Tenant is exempt from the Florida
Tax on Rent (see Section 212.031 of the Florida Statutes) and delivers to Landlord a copy of the certificate
granting this status then, to the extent Tenant's tax exemption relieves Landlord from collecting and paying
these taxes,Tenant shall not be required to pay these taxes to Landlord.
6. Security Deposit. Intentionally Deleted.
7. Construction; Condition of Premises; Ownership of Installations. If Tenant enters the
Leased Premises before the Lease Commencement Date(but Tenant shall have no such right except as may
be expressly provided herein or with Landlord's prior written consent),Tenant shall pay for all utilities used
by it and defend, indemnify and hold Landlord harmless from all liability which arises out of Tenant's
possession, use or occupancy during that period, and provide Landlord with the insurance referred to in
Article 11(B),and the indemnity in Article 11(A)shall apply and all other provisions of this Lease shall apply
except (unless otherwise stated herein) the obligation to pay Rent. Promptly following the Lease
Commencement Date, Tenant shall (subject to the provisions of Article 10(E) and all other relevant
provisions of this Lease)fixture and do all other work,including inst„nation fan att,.actve lighted
sign above its entrance (see Article 10 (D)), in order to prepare the Leased Premises for business operation,
and complete its work, fully staff and stock its store, and open for business promptly. Prior to operating
its business, Tenant shall obtain a permanent certificate of occupancy (or local equivalent) for the Leased
Premises from the local government agency having jurisdiction, and obtain final lien waivers for all work
performed by or on behalf of Tenant and forward copies to Landlord. Tenant shall, at its sole expense, in
doing any work, making any installations, or in using, occupying or conducting business at the Leased
Premises, comply, and cooperate with Landlord with respect to Landlord's obligation to comply, with all
present and future laws,regulations,building codes and/or fire codes applicable to the Leased Premises or
to Tenant's use or occupancy or business operations, including those that relate to accessibility
requirements and the installation, maintenance, upgrading, repair or replacement of sprinkler systems,
and Tenant shall defend,indemnify and hold Landlord harmless from all losses,damages,claims,liabilities,
costs and expenses(including legal fees) arising out of any failure to do so. Tenant acknowledges Landlord
has made no representations,and that Tenant has conducted all inspections it deems necessary(including
environmental), and Tenant accepts the Leased Premises and all the equipment, apparatus, plumbing,
heating,air conditioning,electric,water,waste disposal and other systems relating thereto and the parking
lot and the other Common Area of the Shopping Center "AS IS". Landlord is not obligated with respect to
either the Leased Premises or the Shopping Center to make any improvements, changes, installations, do
any work, make any alterations, repairs or replacements, clean out the Leased Premises, obtain any
permits, licenses or governmental approvals, or spend any money either to put Tenant in possession or to
permit Tenant to open for business,unless Landlord has so agreed expressly in this Lease. All work other
than that to be performed by Landlord, if any, shall be accomplished by Tenant. 'Unless specifically stated
otherwise in this Lease,it is deemed that Landlord shall have tendered possession of the Leased Premises
to Tenant immediately on the signing of this Lease by both Landlord and Tenant. Except for signs,
merchandise counters or other easily removable similar trade fixtures installed by Tenant at Tenant's
expense, all alterations, decorations, additions and improvements made by Tenant to the Leased Premises
and including all heating and air-conditioning units,equipment and apparatus at the Leased Premises and
other fixtures such as ceiling tiles and grids, lighting fixtures, electric panel boxes,plumbing,boilers, floor
and wall coverings, alarm systems, lights, toilet fixtures, partitions, doors and utilities shall be deemed
attached to the freehold and be Landlord's property.
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8. Common Area/Fixed Common Area Rent. Tenant shall have the non-exclusive right to use
the parking areas, driveways, sidewalks and other improvements and amenities of the Shopping Center
which are from time to time made available by Landlord and any other owners of portions of the Shopping
Center for the common use of the tenants and other occupants of the Shopping Center (the "Common
Areas"). Landlord shall keep and maintain the Common Areas in good condition. The Landlord reserves
the exclusive right at any time to: (i) change, reduce or add to the Common Areas, and (ii) use the roof,
foundation or exterior walls (other than Tenant's storefront) for placing of signs or equipment, including
utility equipment, or for purpose of additional construction. During the Lease Term, Tenant shall pay to
Landlord the Fixed Common Area Rent,as defined herein,as a contribution towards all costs and expenses
of every kind and nature incurred by Landlord in keeping and maintaining the elements of the Common
Areas,and the administration thereof. Tenant's annual"Fixed Common Area Rent"for the first(1st)Lease
Year of the Lease Term shall be i$836.O0 (based on $4.18 per square foot of Floor Area of the Leased
Premises), payable in twelve (12) equal monthly installments (partial months to be pro-rated)
simultaneously with Tenant's payment of Base Rent, and shall automatically increase by four percent(4%)
each Lease Year of the Lease Term, including any renewal terms, over the amount of Fixed Common Area
Rent Tenant was required to pay Landlord for the immediately preceding Lease Year.
9. Use of Premises.
(A) The Leased Premises will be used only for the Permitted Use, and for no other use or
purpose. Landlord has not made any representations as to whether the Permitted Use is permitted by the
municipality, or whether the Leased Premises is zoned for such use. Without limitation of the foregoing,
no sale or dispensing of lottery tickets, other gaming tickets, or alcoholic beverages shall be permitted.
(B) Intentionally Deleted.
(C) Tenant's Business Operations. Tenant shall keep the Leased Premises open and
operated continuously for business not less than from 8:00 A.M. to 5:00 P.M. each day for at least five (5)
days a week. Tenant will continuously operate its business therein with diligence and in a manner
fully staffed with personnel at the Leased Premises„ and at
Tenant agrees for its part: no auction,fire,bankruptcy,
going out of business or similar sale will be conducted or advertised;no merchandise will be kept,displayed
or sold or business solicited in the Shopping Center outside the Leased Premises; no nuisance will be
permitted;nothing shall be done which is unlawful, offensive or contrary to any law, ordinance,regulation
or requirement of any public authority, or which may be injurious to or adversely affect the quality of the
Leased Premises or the Shopping Center; no part of the Leased Premises (especially the electric and
plumbing systems, the floor and walls) will be overloaded, damaged or defaced; no holes will be drilled in
the stone or brickwork or in concrete;no emission of any objectionable odors, sounds or vibrations will be
permitted. Tenant shall procure all licenses and permits required for the use or occupancy of the Leased
Premises and the business being conducted therein; the storefront, show windows and signs will be
repaired, kept clean,in good condition and lighted; all merchandise and other property will be delivered to
or removed from the Leased Premises only by the rear entrance; all garbage,waste and refuse will be kept
stored temporarily inside the Leased Premises and then regularly removed at Tenant's expense and, if
Landlord opts, only by a contractor designated by Landlord, provided its price is competitive. Tenant will
comply with the requirements of law and any requests of governmental agencies or Landlord in its recycling
program, if any. er ten,..,ts e f the Shopping Center .
0
any. Tenant shall comply with all environmental statutes, regulations or ordinances now or hereinafter
enacted by government authorities. Tenant shall not permit the release, emission, disposal, dumping or
storage of hazardous wastes (as defined in any such laws) into the septic tanks, sewers, or other waste
disposal facilities of the Shopping Center or anywhere in the Shopping Center,or permit same to be brought
into the Leased Premises at any time,and the provisions of this sentence shall survive the expiration of the
Lease Term. Tenant shall keep the Leased Premises free of rodents, vermin, insects and other pests, and
provide regular exterminator services at its own expense, and, if Landlord opts, only by an exterminator
designated by Landlord provided its price is competitive. Tenant agrees that nothing will be done or omitted
which may either prevent the obtaining by Landlord or other tenants of insurance on any part of the
Shopping Center or on any personal property thereon, or which may make void or voidable any such
insurance,or which may create any extra premiums for any insurance carried by Landlord or other tenants.
Tenant will comply with all requirements and recommendations of Landlord's and Tenant's insurance
companies and any rating bureau or similar organization, including maintaining and servicing fire
extinguishers.
(D) Tenant agrees to: stock only merchandise Tenant intends to offer for sale at retail at
t l ess .a;• Boa at'� 'o ed P e ses; not sell goods, solicit business or distribute advertising
matter in the Common Areas;not permit preparation of food or any cooking, baking or frying in the Leased
Premises,except in connection with the heating of frozen meals for the congregate meals service(subiect to
Tenant's compliance with the obligations set forth in Article 38 of Rider B). Tenant shall keep the sidewalks,
curbs and ramps(if any) adjacent to the Leased Premises(and also all delivery areas,ramps,loading areas
and docks used exclusively by Tenant) in good and safe condition and free from snow, ice, and rubbish.
Tenant will not make or suffer any waste of the Leased Premises. Landlord shall not be liable for the act of
any other tenant or person who may cause damage to or who may interfere with Tenant's use or occupancy
of the Leased Premises or Tenant's business.
10. (A) Utilities. Tenant shall provide and pay for its own heat, air conditioning, water, gas,
electricity, sewer, sprinklers and other utilities, including application deposits and installation charges for
meters and for consumption or use of utilities. Tenant shall pay its share of sewer charges, if any,
reasonably determined by Landlord. Tenant shall keep sufficient heat to prevent the pipes from freezing.
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If Tenant receives utilities through a meter which supplies utilities to other tenants, Tenant will pay to
Landlord Tenant's proportionate share (based on relative square feet size of premises) of the total meter
charges. If Tenant receives water from Landlord's well or other sources made available by Landlord(instead
of from an independent water company),Tenant shall pay for the water, and all costs and expenses for the
maintenance, repair, replacement and installation of tanks, electric costs, machinery, apparatus and
facilities shall be included in Yearly Common Area Costs. In the event the Leased Premises is not separately
metered for electricity, gas, water, sewer, or other utilities, Landlord shall have the right, but not the
obligation, to: (i) install, at Tenant's costs, a separate submeter serving the Leased Premises to separately
meter tenant's utility usage, as applicable, if permitted by the municipality, and (ii) hire a third party to
read such submeters and bill Tenant directly, and Tenant shall pay such third party, as and when billed,
all charges for utility consumption based on the submeters along with a reasonable administrative fee for
same,and(iii)require Tenant to pay one-twelfth(1/12th)of the annual amount of such utilities each month
pursuant to Landlord's estimates, which may be adjusted from time to time, and if after the end of each
year the total of the monthly payments by Tenant for the year is more or less than Tenant's annual share
due, then an adjustment shall be made with appropriate payments by Tenant, or credit by Landlord, to
Tenant's rental account. Landlord shall have the right to service the Shopping Center with solar generated
or other renewable forms of electricity at cost competitive rates. Furthermore,Tenant agrees to cooperate
with Landlord's obligations to comply with utility disclosure regulations and the collection of data relating
to utility consumption at the Leased Premises.
(B) Landlord's Repairs. Weather permitting and subject to Article 25, Landlord shall,
within thirty(30)days after receiving written notice from Tenant, commence to make repairs,if necessary,
to the foundation, the roof, the exterior of the perimeter demising walls, and the load-bearing structural
columns and beams in the Leased Premises, except that if those repairs or replacements arise from (i)
repairs, installations, alterations, or improvements by or for Tenant or anyone claiming under Tenant, or
(ii)the fault or misuse of Tenant or anyone claiming under Tenant,or(iii)default under the Lease by Tenant,
then Tenant shall make such repairs or replacements or,if Landlord elects,Landlord may perform the work
for Tenant's account and Tenant shall reimburse Landlord for expenses incurred. In determining
Landlord's repair obligations,the expression"roof'does not include rooftop heating or air conditioning units
(except for Landlord's obligations regarding the HVAC units described in Article 37 of Rider Bl or other
structures or apparatus on the roof serving the Leased Premises, and "exterior of walls" does not include
the storefront, any glass, windows, window sashes or frames, doors, door frames or hardware, trim or
closure devices, or any part of the interior side of perimeter walls, all of which shall be Tenant's duty to
repair, maintain, and replace. In any event, Landlord's obligation shall be only to make the repairs for
which it is hereby obligated,and Landlord shall not be liable for loss of business,loss of sales,loss of profits
or for any consequential damages or for damage to or loss of personal property, fixtures or any interior
elements of the Leased Premises which are Tenants responsibility to maintain or repair.
(C) Tenant's Repairs. Subject to Article 1O(B),Tenant shall maintain and make all repairs
and alterations of every kind with respect to the Leased Premises (including necessary replacements) to
keep it in good condition (including the storefront, glass, signs, ceilings, interior walls, interior side of
perimeter walls, floor, floor coverings, plumbing, electric, heating and air conditioning, sprinklers and
lighting fixtures), and do all required by any laws, ordinances or requirements of public authorities. From
the point they serve the Leased Premises exclusively,whether located inside or outside,Tenant shall make
all repairs,replacements and alterations necessary to maintain in good condition all lines, apparatus, and
equipment relating to utilities(including heating, air conditioning,water, gas, electricity and sewerage). If
any applicable law requires alterations, repairs or improvements to the Leased Premises and/or the
Common Areas (the "Required Repairs"), then any Required Repair which is due solely to (i) the Permitted
Use; (ii) alterations or improvements made to the Leased Premises by or on behalf of Tenant or anyone
claiming under Tenant; and/or (iii) Tenants business operations, will be performed by Tenant at its sole
cost and expenses. Tenant shall maintain a service contract for the regular seasonal maintenance (as per
manufacturer's recommendation, but not less than four (4) times per year, including the manufacturers
recommended points for service and repair)of the heating,ventilating and air conditioning("HVAC")system
servicing the Leased Premises with a licensed HVAC contractor at all times during the Lease, and shall
provide a copy of same to Landlord. In the event Landlord has or initiates a uniform HVAC maintenance
program or trash removal program for the Shopping Center, Tenant agrees, at Tenant's expense, to
participate and use Landlord's designated contractor, provided its price is competitive with other licensed
contractors in the region. Additionally, if any air conditioning or heating equipment (or other utility
equipment)is damaged by vandalism,fire,lightning or other casualty,Tenant shall repair(and if necessary,
replace)the equipment,notwithstanding Article 13. Tenant's sole right of recovery shall be against Tenant's
insurers for loss or damage to stock,furniture and fixtures, equipment, improvements and betterments.
(D) Signs;Painting;Displays. No sign,other advertising or any other thing may be placed
by Tenant or anyone claiming under Tenant on the exterior of the Leased Premises or on the interior part
of either windows or doors without Landlord's prior written approval, which shall not be unreasonably
withheld. Tenant shall not utilize flashing,painted,neon or moving signs or lights. Tenant shall not paint,
decorate or mark any part of the exterior. Tenant shall install an exterior lighted sign or signs in compliance
to at least 10:00 P.M. or to such later hour as requested by Landlord, on all days of the year.
(E) Alterations. No alterations, installations, additions or improvements will be made to
the Leased Premises by Tenant without Landlord's prior written approval. All installations, alterations,
additions and improvements, whether by Landlord, Tenant or any other person (except only sign panels
and movable trade fixtures installed at Tenant's cost) shall become, when made, a part of Landlord's real
estate, and on termination of the Lease Term shall be surrendered with the Leased Premises in good
condition. Tenant shall not have the right to remove sign boxes. Tenant shall defend,indemnify and save
Landlord harmless from and against all claims for injury, loss or damage to person or property caused by
or resulting from doing any work. For any work that involves penetration of the roof surface or alterations
to the sprinkler system,Tenant shall employ Landlord's contractor. The maintenance of any portion of the
roof affected by Tenant's work will be Tenant's responsibility, including repair of areas of the Shopping
Center that might be affected due to water penetration through Tenant's roof work.
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(F) Permits; Liens. All repairs, installations, alterations, improvements and removals by
Tenant will be done in a good and workmanlike manner,only after Tenant has procured all permits. Tenant
shall comply with all laws, ordinances and regulations of public authorities and with all Landlord's and
Tenants insurance requirements and with insurance inspection or rating bureaus; and the work shall not
adversely affect the structure of the building. Tenant shall pay promptly when due all charges for labor
and materials in connection with any work done by or for Tenant or anyone claiming under Tenant. Tenant
shall remove, by payment, bonding or otherwise, within ten (10) days after notice, all liens placed on the
public record or in any way against Landlord's interest or the Shopping Center resulting from any act of
Tenant or from labor or materials being alleged to have been supplied at the request of Tenant or anyone
claiming under Tenant,failing which Landlord may remove such lien and collect all expenses incurred from
Tenant as additional Rent. Tenant shall protect, defend, save harmless and indemnify Landlord and any
fee owner of the Shopping Center from and against all losses,claims,liabilities,injuries,expenses(including
legal fees),lawsuits and damages arising out of any lien described above.
11. Indemnity; Insurance.
(A) Tenant shall protect, defend, save harmless and indemnify Landlord and any fee owner
of the Shopping Center from and against all losses, claims, liabilities, injuries, expenses (including legal
fees), lawsuits and damages of whatever nature either (i) claimed to have been caused by or resulted from
any act, omission or negligence of Tenant or its subtenants, concessionaires, employees, contractors and
invitees no matter where occurring, or (ii) occurring in the Leased Premises except if caused by Landlord's
negligence. Landlord shall not be liable under any circumstances for any injury or any loss or damage to
or interference with any merchandise,equipment,fixtures,furniture,furnishings or other personal property
or the business operations of Tenant or anyone in the Leased Premises occasioned by(i)the act or omission
of persons occupying other premises,or(ii)any defect,latent or otherwise,in any building or the equipment,
machinery, utilities, or apparatus, or (iii) any breakage or leakage of the roof, walls, floor, pipes or
equipment, or (iv) any backing up, seepage or overflow of water or sewerage, or (v) flood, rain, snowfall or
other elements or Acts of God. If Tenant makes shopping carts available,the foregoing indemnity provisions
shall apply to claims relating to the shopping carts; and Tenant shall remove all shopping carts from the
Common Area, as often as necessary, so that the Common Area shall remain reasonably free of carts. All
shopping carts shall be stored inside the Leased Premises.
(B) Landlord's Insurance. Landlord shall carry the following insurance: (i) bodily injury
with not less than$1 million combined single limit; (ii) an umbrella liability insurance policy with a limit of
not less than$5 million; and(iii) property damage liability on Shopping Center buildings for not less than
the lesser of(a) at least eighty percent(80%)percent of the replacement cost or(b)the maximum insurable
value of the Shopping Center.
(C) Tenant's Insurance. Tenant shall maintain with financially responsible insurance
companies with a Best Rating of not less than A VIII licensed to do business in the state where the Leased
Premises is located: (i) a commercial general liability insurance policy with respect to the Leased Premises
and its appurtenances (including signs) naming Landlord, Landlord'o lender (if any), and Kimco Realty
With a limit of not less tha O e Millo ($i nnn nnro Dol aro.
not less than Five Million($5,000,000)Dollars(which may
be in a combination of a commercial general liability insurance policy and umbrella coverage), naming
; (ii)an insurance
policy to cover heating and air-conditioning units against damage for one hundred (100%) percent
replacement cost; (iii) at Tenant's option, an all-risk property insurance policy insuring all merchandise,
leasehold improvements, furniture,fixtures and other personal property, all at their replacement cost; and
(iv) at Tenant's option, business interruption insurance. Tenant shall deliver these insurance policies or
certificates thereof, satisfactory to Landlord,issued by the insurance company to Landlord with premiums
prepaid on the signing of this Lease and thereafter at least thirty (30) days prior to each expiring policy.
Tenant's failure to deliver the policies or certificates, within thirty (30) days after receipt of written notice
from Landlord, shall constitute a default and shall entitle Landlord, at Landlord's option, to purchase the
above required insurance at then prevailing market rates, and Tenant shall pay Landlord on demand the
costs thereof pl„o a twenty perc t "0%) aaminictrative fee. All policies of insurance required of Tenant
shall have terms of not less than one(1)year. Tenant has advised Landlord that Tenant is self-insured and
carries excess liability coverage, and is subject to limited immunity from claims under Section 7698.28,
Fla. Stat. Notwithstanding the foregoing, Tenant shall not be required to maintain a policy to cover the
heating and air-conditioning units against damage, the all-risk property insurance policy and/or business
interruption insurance set forth in this section of this Lease, but whether or not Tenant elects to maintain
such insurance,Tenant releases and discharges Landlord, its agents, servants and employees forever from
any claims, actions, losses, damages, causes of action, manners of action, covenants, bonds and
agreements arising out of or resulting from losses which would have been covered had Tenant maintained
such insurance coverage. Furthermore, Tenant shall repair and replace the heating and air-conditioning
units serving the Leased Premise as needed in order to keep same in good working order and condition.
12. Access to Premises. Landlord shall have the right (but shall not be obligated) to enter the
Leased Premises upon reasonable notice (and in case of emergency without notice) to inspect or to show
the Leased Premises to prospective purchasers,mortgagees or tenants,or to make any repairs, alterations,
or improvements, including the installation or removal of pipes, wires and other conduits serving other
parts of the Shopping Center. Commencing six(6)months prior to expiration of the Lease Term, Landlord
may maintain "For Rent" signs on the front or any other part of the exterior of the Leased Premises.
Landlord further reserves to itself the exclusive right at any time to use the roof, foundation or exterior
walls (other than Tenant's storefront) for placing of signs or equipment, including utility equipment, or for
purpose of additional construction.
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13. Fire or Other Casualty.
(A) Tenant shall give prompt notice to Landlord in case of fire or other damage to the Leased
Premises.
(B) If(i)the Shopping Center buildings are damaged to the extent of more than twenty-five
(25%) percent of the replacement cost, or(ii) the Leased Premises are damaged to the extent of more than
fifty (50%) percent of the replacement cost, or (iii) the Leased Premises are damaged and Tenant is not
operating for business as required by Article 9(C)at the time the damage occurs,or(iv)the Leased Premises
are damaged and less than one(1)year of the Lease Term remains unexpired at the time of the fire or other
casualty; then in any of such events, Landlord may terminate this Lease by notice to Tenant within ninety
(90)days after such event,and on the date specified in the notice this Lease shall terminate. If the damage
renders the Leased Premises wholly or partially untenantable, there shall be a fair and equitable
proportionate abatement of all Rent during that period. Unless this Lease is terminated as aforesaid, this
Lease shall remain in effect.
(C) If this Lease is not terminated by Landlord, this Lease shall continue in full force and
effect (Tenant waives any right conferred by any applicable law to terminate this Lease based on the
damage), and Tenant shall, immediately on notice from Landlord, remove its fixtures, other property and
debris as required by Landlord, and then Landlord shall rebuild the Leased Premises to the condition
existing when the Leased Premises was originally delivered to Tenant; and on completion thereof Tenant
shall restore Tenants property and promptly reopen for business. Tenant shall use the proceeds of any
recovery on Tenant's insurance policies for restoration of improvements made by Tenant to the Leased
Premises, and for restoration and/or replacement of Tenant's equipment,trade fixtures and inventory,and
to cover any business interruption loss.
(D) The "replacement cost" as used in (B) above shall be determined by a reputable
contractor selected by Landlord.
14. Eminent Domain.
(A) If the whole of the Leased Premises are taken in connection with eminent domain, the
Lease Term shall expire when Landlord shall be divested of its title, and Rent shall be apportioned as of
that date.
(B) If only part of the Leased Premises is taken in connection with eminent domain, and
the ground floor area of the Leased Premises is reduced by more than twenty (20%) percent and the part
remaining shall not be reasonably adequate for the operation of Tenant's business,Landlord or Tenant may
terminate this Lease by giving the other notice within thirty(30) days after such taking, effective as of the
date possession of the taken part shall be required for public use; and Rent shall be apportioned as of that
date.
(C) Tenant shall not have any claim for an award based on the loss of its leasehold estate.
Landlord shall be entitled to all damages in connection with eminent domain. Tenant shall execute any
instrument required by Landlord for the recovery of damages and to remit to Landlord any damage proceeds
recovered, except, however, Tenant may recover for itself damages for movable trade fixtures which were
installed by Tenant, provided Landlord's award is not reduced thereby.
15. Defaults and Remedies.
(A) Any one of the following shall be a default by Tenant: (1) if Tenant fails to pay Rent,
Security Deposit or other money,or to provide a certificate of insurance or to provide an estoppel certificate
as required by Article 27 when due, or(2) if Tenant fails to perform or observe any agreement or condition
on its part to be performed or observed, other than the defaults mentioned in the preceding clause (1) or in
clauses(3)through(8)below,or if Tenant defaults under any other lease or agreement between Tenant and
Landlord or an affiliate of Landlord, or (3) if Tenant's leasehold interest is levied on, attached or taken by
any process of law, or(4) if Tenant makes an assignment of its property for the benefit of creditors, or(5) if
any bankruptcy, insolvency or reorganization proceeding or arrangement with creditors (whether through
court or by proposed composition with creditors) is commenced by or against Tenant, or(6) if a receiver or
trustee is appointed for any of Tenant's property, or(7) if this Lease is transferred to or devolves on, or the
Leased Premises is occupied by, anyone other than Tenant except if specifically permitted by this Lease,or
(8)if Tenant closes the Leased Premises or ceases doing business at the Leased Premises.
(B) If(i) a default described in subsection 15(A)(1) or in subsections 15(A)(3) through (7)
inclusive occurs,or(ii)a default described in subsections 15(A)(2)or 15(A)(8)occurs and continues for more
than fifteen (15) days after written notice from Landlord, then in any of such cases Landlord or its agent
shall have the right to enter the Leased Premises and dispossess Tenant and all other occupants and their
property by legal proceedings, use of reasonable force (under the conditions allowed in Article 15(F)hereof)
or otherwise. Tenant hereby waives any claim it might have for trespass or conversion or other damages if
Landlord exercises such remedies. Landlord may exercise the remedies just mentioned without terminating
this.Lease. As an independent cumulative right to obtaining possession without terminating this Lease,
Landlord shall have the right to terminate this Lease by giving Tenant written notice specifying the day of
termination(which shall be not less than five(5) days from the date of the notice), on which date this Lease
and all of Tenant's rights will cease as a conditional limitation, as if that date specified in Landlord's notice
was the original date for expiration of this Lease; but in all cases Tenant shall remain liable as hereinafter
provided.
(C) Notwithstanding any re-entry, dispossession or termination of the Lease by Landlord,
Tenant will remain liable for damages to Landlord in an amount equal to the aggregate of all Rents and
other charges required to be paid up to the time of such re-entry, dispossession or termination, and for
Landlord's damages arising out of the failure of Tenant to observe and perform Tenant's covenants and,in
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addition, for each month of the period which would otherwise have constituted the balance of the Lease
Term, Tenant shall pay any deficiency between the monthly installment of Base Rent plus the Tax Rent,
Common Area Rent and all other Rent that would have been payable, less the net amount of the rents
actually collected by Landlord from a new tenant, if any. Tenant will not be entitled to any surplus.
Furthermore,Tenant will be liable to Landlord for all the expenses Landlord incurs for:legal fees related to
obtaining possession and making a new lease with another tenant;legal fees and court costs incurred in or
related to bankruptcy proceedings, including legal fees and court costs incurred or related to issues and
events that are peculiar to bankruptcy; brokerage commissions in obtaining another tenant; and expenses
incurred in putting the Leased Premises in good order and preparing for re-rental (together herein referred
to as"Reletting Costs"). In addition,Landlord may relet the Leased Premises,or any part thereof,for a term
which may be less or more than the period which would have constituted the balance of the Lease Term
and may grant reasonable concessions or free rent to a new tenant. Landlord's refusal or failure to relet
the Leased Premises to a new tenant shall not release or affect Tenant's liability; and Landlord shall not be
liable for failure or refusal to relet, or for failure to collect rent under such reletting.
(D) In any case where Landlord shall have the right to hold Tenant liable monthly,Landlord
may elect to declare all the aggregate Rent for the remaining balance of the Lease Term, as well as all
accrued Rent,to be immediately due and payable,and to recover immediately against Tenant all such Rent
(for loss of a bargain and not as a penalty).
(E) In the event of a breach or threatened breach of the Lease by Tenant, Landlord shall
have the right of injunction and the right to invoke any remedy allowed at law or in equity. Mention of any
particular remedy shall not preclude Landlord from any other remedy in law or in equity.
(F) Tenant waives service of notice of intention to re-enter or institute legal proceedings to
that end. Tenant waives any rights of redemption as to the Leased Premises granted by any present or
future laws. The words "re-enter" and "re-entry" are not restricted to their technical legal meaning.
Notwithstanding the foregoing,Landlord may use force to dispossess Tenant only in the following situations:
(i) it is pursuant to law or a court order, judgment or decree; or (ii)Tenant has not been operating its
business at the Leased Premises open to the public as required by Article 9(C) of this Lease for more than
seven(7) business days.
(G) Landlord and Tenant mutually agree that they hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other as to any matters arising out of or in any
way connected with this Lease,or their relationship as Landlord and Tenant,or Tenant's use or occupancy.
Tenant agrees that no counterclaim or setoff will be interposed in any action by Landlord based on
non-payment of Rent, even if such counterclaim or setoff is based on Landlord's alleged breach of a duty to
repair or alleged breach of quiet enjoyment, or any other allegation.
16. Subordination.
(A) This Lease is and shall be subject and subordinate to(i)all ground or underlying leases
and all mortgages or other security instruments now or hereafter affecting such leases, (ii)all mortgages or
other security instruments now or hereafter affecting the fee title of the Shopping Center, (iii)all documents
and agreements of record affecting the Shopping Center,and(iv)all renewals,modifications,consolidations,
replacements, and extensions of any such ground or underlying leases, mortgages, security instruments
and other documents of record. This clause shall be self-operative and no further instrument of
subordination shall be required by any ground or underlying lessee or by any mortgagee. In confirmation
of such subordination, Tenant agrees to execute promptly any instrument that Landlord may request.
However, at the option of Landlord or such mortgagee or ground lessor or secured party, this Lease shall
be paramount to such mortgage or ground or underlying lease or other security instrument.
(B) If Landlord transfers its interest in the Leased Premises, or proceedings are brought for
foreclosure of any such mortgage or in case of sale in lieu thereof, or termination of any such ground or
underlying lease,Tenant shall,if requested,attorn to the transferee,mortgagee,ground or underlying lessor
and deliver,without charge,instruments acknowledging the attornment.
(C) Provided Tenant was given notice in writing of the names and addresses to which the
notices should be sent,Tenant shall give prompt written notice of any default by Landlord to the holder of
all mortgages, ground or underlying leases and security holders if the default is such as to give Tenant a
right to (i) terminate this Lease, or(ii) reduce the Rents or any other sums reserved, or (iii) credit or offset
any amounts against Rents. Tenant shall give prompt written notice of any material default by Landlord
that remains uncured beyond the applicable notice and cure periods,to Landlord's Mortgagee,Wells Fargo
Bank, Commercial Mortgage Servicing, 401 South Tryon Street, 8th Floor, Charlotte, NC 28202, MAC
D 1050-084,Attn: Client Solutions. Any mortgagee, ground lessor or security holder shall have the right to
cure Landlord's default within sixty(60)days after receipt of Tenant's notice;and no such rights or remedies
shall be exercised by Tenant until the expiration of said sixty(60) days(or such additional time reasonably
required to cure such default).
17. Waiver of Subrogation. Landlord and Tenant hereby release the other and all other persons
claiming under it by way of subrogation from any and all liability for loss or damage to property, even if
such loss or damage is caused by the fault or negligence of the other or of any persons claiming under the
other. Tenant and Landlord will cause their respective insurance companies to endorse their respective
insurance policies to permit a waiver of subrogation.
18. ASSIGNMENT AND SUBLETTING. Tenant shall not, whether voluntarily or by operation of
law or otherwise: (i) assign, mortgage, pledge, hypothecate, or otherwise transfer or encumber any of its
interest in this Lease or the Leased Premises, in any manner, nor (ii) sublet, license or permit occupancy
by any other person of any portion of the Leased Premises (all of the foregoing are collectively called a
"Transfer"), without obtaining on each occasion the prior written consent of Landlord, which consent
Landlord may deny,regardless of commercial reasonableness.
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In the event Tenant desires to engage in a Transfer,Tenant shall give Landlord written notice
("Transfer Notice") containing the following: (i) the name and address of the proposed assignee, subtenant
or occupant(the"Proposed Transferee");(ii) if the Proposed Transferee is a corporation,limited partnership,
partnership, limited liability company or other business entity, the name and addresses of the principal
officers, partners, members or shareholders of the Proposed Transferee (the "Principals"); (iii) current
fmancial and other information with respect to the financial ability, operating experience, and business
reputation of the Proposed Transferee and its Principals sufficient for Landlord to evaluate the financial
capabilities and business experience of the Transferee, its Principals and the proposed Transfer; and (iv)
true and complete copies of all the documents and agreements related to the Transfer, and (v) payment of
Landlords reasonable administrative and attorneys' fees in reviewing the proposed Transfer, which is
currently$2,500, subject to reasonable increases.
Within thirty (30) days after Landlord's receipt of the Transfer Notice, Landlord shall elect by
written notice to Tenant("Landlord's Notice") to either: (1)consent to the proposed Transfer to the Proposed
Transferee;(2)deny its consent to such proposed Transfer;or(3)terminate this Lease. In the event Landlord
shall elect to terminate this Lease: (i) the Lease shall expire on the date which is specified in the Landlord's
Notice,which date will not be less than sixty(60) days after the date of Landlord's Notice; (ii)Tenant shall
be released from all liability which accrues under the Lease after the latter of(the "Release Date"): (1) the
date Tenant surrenders possession of the Leased Premises to the Landlord in the condition required by this
Lease, or (2) the date set forth in Landlord's Notice to Tenant that it has elected to terminate this Lease
(other than indemnities and obligations of Tenant which expressly survive termination of this Lease, as set
forth herein). Tenant shall be required to pay all Rent which accrues under the Lease through the Release
Date.
In any assignment, the assignee must assume this Lease in writing on Landlord's form.
Notwithstanding any Transfer, Tenant shall not be released (nor shall any of Tenant's constituents,
partners, or members be released) from any obligations,liabilities or covenants under this Lease and shall
continue to remain responsible for all liabilities and obligations under the terms of this Lease. In any
Transfer the Leased Premises shall be used for the Permitted Use only. Landlord shall have the right to
collect Rent from any assignee, subtenant or other occupant without releasing Tenant or waiving any right
against Tenant for its default under this Article and without accepting the payor as a permitted Transferee.
Any transfer of(i) any corporate stock of; (ii) any partnership interest in;or(iii) any membership interest in
Tenant, or a merger, consolidation or liquidation of or by Tenant, either voluntarily or by operation of law,
shall be deemed an assignment and require Landlord's consent as stated above. Under any circumstances,
Landlord shall not be liable for any money damages to Tenant or Tenant's proposed assignee, transferee or
subtenant for refusal to consent to any assignment or transfer of this Lease or transfer of Tenant's corporate
stock or sale of Tenant's business or for refusal to consent to any subletting;Tenant's sole remedy shall be
specific performance.
Notwithstanding anything contained in this Lease to the contrary, in the event Landlord
approves a Transfer with respect to a sublease or license of all or any portion of the Leased Premises: (i)
Tenant shall be required to derive substantially all of its income with respect to the Leased Premises from
subleasing or licensing substantially all of the Leased Premises,and the subrent or other amounts received
or accrued by Tenant from subleasing or licensing the Leased Premises is not based on the income or profits
of any person, excluding for this purpose subrent or other amounts based on a fixed percentage or
percentages of gross receipt or gross sales of any person, and (ii) Tenant shall not assign, convey, sell,
pledge,mortgage,hypothecate or otherwise encumber,transfer or dispose of all or any part of this Lease or
Tenant's leasehold estate hereunder with any person, or in any manner, which could cause any portion of
the amounts received by Landlord pursuant to this Lease to fail to qualify as "rents from real property"
within the meaning of section 856(d)of the Internal Revenue Code of 1986,as amended(the"Code"),or any
similar or successor provision thereto or which would cause any other income of Landlord to fail to qualify
as income described in section 856(c)(2) of the Code.
19. Surrender and Holding Over.
(A) At the expiration or sooner termination of the tenancy hereby created, Tenant shall
surrender the Leased Premises in the same condition as the Leased Premises were in upon delivery of
possession thereof to Tenant, reasonable wear and tear excepted, and damage by unavoidable casualty
excepted to the extent that the same is covered by Landlord's Property insurance policy, and Tenant shall
surrender all keys for the Leased Premises to Landlord and shall inform Landlord of all combinations on
locks, safes and vaults,if any,in the Leased Premises. Prior to the expiration or sooner termination of this
Lease,Tenant shall remove any and all trade fixtures,equipment and other unattached items which Tenant
may have installed, stored or left in the Leased Premises or elsewhere in the Shopping Center, and Tenant
shall not remove any plumbing or electrical fixtures or equipment, heating or air conditioning equipment,
floor coverings (including but not limited to wall-to-wall carpeting), walls or ceilings, all of which shall be
deemed to constitute a part of the freehold and/or leasehold interest of Landlord,nor shall Tenant remove
any fixtures or machinery that were furnished or paid for by Landlord (whether initially installed or
replaced). The Leased Premises shall be left in a broom-clean condition. If Tenant shall fail to remove its
trade fixtures or other property as provided in this Article 19, such fixtures and other property not removed
by Tenant shall be deemed abandoned by Tenant and at the option of Landlord shall become the property
of Landlord, or at Landlord's option may be removed by Landlord at Tenant's expense, or placed in storage
at Tenant's expense, or sold or otherwise disposed of, in which event the proceeds of such sale or other
disposition shall belong to Landlord. In the event Tenant does not make any repairs as required by this
Article 19(A), Tenant shall be liable for and agrees to pay Landlord's costs and expenses in making such
repairs. Tenant's obligations and covenants under this Article 19(A) shall survive the expiration or
termination of this Lease.
(B) If Tenant or anyone claiming under Tenant remains in possession of the Leased
Premises after the expiration of the Lease Term, that person shall be a tenant at sufferance; and during
such holding over,Base Rent shall be twice the rate which was in effect immediately prior to the Lease Term
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expiration, which Landlord may collect without admission that Tenant's estate is more than a tenancy at
sufferance, and all the other provisions of this Lease shall apply insofar as the same are applicable to a
tenancy at sufferance.
20. No Waivers by Landlord. No waiver by Landlord of any breach by Tenant or requirement of
obtaining Landlord's consent shall be deemed a waiver of any other provision of this Lease or any
subsequent breach of the same provision or a waiver of any necessity for further consent. No payment by
Tenant or acceptance by Landlord of a lesser amount than due from Tenant shall be deemed to be anything
but payment on account,and Tenant's payment of a lesser amount with a statement that the lesser amount
is payment in full shall not be deemed an accord and satisfaction. Landlord may accept the payment
without prejudice to recover the balance due or pursue any other remedy. Landlord may accept payments
even after default by Tenant without prejudice to subsequent or concurrent rights or remedies available to
Landlord under this Lease,at law or in equity. Any acceptance by Landlord of any payment by Tenant after
termination or expiration of the Lease Term shall not constitute an acceptance of Rent but rather a payment
to Landlord on account of Tenants use and occupancy of the Leased Premises. All rights and remedies
which Landlord may have under this Lease, at law or in equity shall be distinct, separate and cumulative
and shall not be deemed inconsistent with each other, and any or all of such rights and remedies may be
exercised at the same time.
21. Rules and Regulations. Tenant shall observe and comply with, and cause its employees,
agents, subtenants and concessionaires, and their employees and agents, to observe and comply with all
reasonable rules and regulations promulgated by Landlord by notice to Tenant; and such rules and
regulations shall have the same force and effect as if originally contained in this Lease.
22. Failure of Performance by Tenant. If Tenant shall default under this Lease, Landlord may,
at its election, immediately or at any time thereafter, without waiving any claim for breach of agreement,
and without notice to Tenant, cure such default or defaults for the account of Tenant, and the cost to
Landlord thereof plus interest at the Default Interest Rate shall be deemed to be additional Rent and payable
on demand. Tenant shall pay all reasonable attorneys' fees, costs and expenses incurred by Landlord in
enforcing the provisions of this Lease,suing to collect Rent or to recover possession of the Leased Premises,
whether the lawsuit or other action was commenced by Landlord or by Tenant.
23. Limitations on Landlord's Liability.
(A) "Tenant" includes the persons named expressly as Tenant and its transferees,
successors and assigns. Except as otherwise provided in the next sentence,the agreements and conditions
contained in this Lease shall be binding on and inure to the benefit of the parties hereto and their
transferees, legal representatives, successors and assigns. "Landlord" means only the then-owner of the
lessor's interest in this Lease, and in the event of a transfer by Landlord of its interest in this Lease, the
transferor shall be automatically released from all liability and obligations as Landlord subsequent to the
transfer.
(B) Notwithstanding anything to the contrary,Tenant agrees it will look solely to Landlord's
estate in the Shopping Center as the sole asset for collection of any claim, judgment or damages or
enforcement of any other judicial process requiring payment of money. Tenant agrees that no other assets
of Landlord shall be subject to levy, execution or other procedures to satisfy Tenants rights or remedies.
24. Miscellaneous Provisions.
(A) This Lease contains the entire agreement between the parties. No oral statements or
representations or written matter not contained in this Lease shall have any force or effect. This Lease
cannot be modified or terminated orally, but only by a writing signed by Landlord and Tenant, except for a
termination expressly permitted by this Lease. If more than one party executes this Lease as"Tenant",the
liability of all such signatories shall be joint and several. Neither this Lease nor any memorandum,
assignment or memorandum of assignment thereof shall be recorded in any public records without
Landlord's prior written consent. Any obligation of any person shall be performed at its sole cost and
expense unless a contrary intent is expressly stated herein. Each provision of this Lease shall be valid and
enforced to the fullest extent permitted by law. However, if any provision or the application thereof to any
person or circumstance shall to any extent be declared by a court to be invalid,the remainder of this Lease
shall not be affected. If Tenant is not an individual, the person signing this document on behalf of Tenant
represents(by such signature)that he or she has been duly authorized by Tenant to execute this document
and that such signature creates a binding obligation of Tenant.
(B) The term"Default Interest Rate"as used in this Lease shall mean Fifteen (15%) Percent
per annum or the maximum interest rate permitted by law,whichever ip lowe"
(C) Notwithstanding any other provision in this Lease, Landlord in its absolute discretion
shall have the option at any time to relocate Tenant from the Leased Premises(the"Present Premises")into
other premises in the Shopping Center (the"New Premises"). Landlord shall give Tenant at least forty-five
(45) days'notice of the approximate date Tenant is to move to the New Premises. Landlord shall prepare
the New Premises to the same extent that Landlord prepared the Present Premises. The New Premises will
have at least the same amount of square foot area as the Present Premises. Landlord shall pay for moving
Tenants inventory, fixtures, equipment and storefront sign to the New Premises. Tenant shall cooperate
with Landlord. Tenant will move its business operations to the New Premises within forty-eight(48)hours
after Landlord notifies Tenant that it has substantially completed its preparation of the New Premises. The
New Premises will become the Leased Premises (instead of the Present Premises) and the Rent (including
all of Tenant's other monetary obligations to Landlord under the Lease) and all the other terms and
provisions of this Lease shall be transferred to and continue to apply, without interruption, to the New
Premises from and after the date Tenant is required to move pursuant to this Article.
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(D) The submission of this Lease to Tenant for review or Tenant's signature does not
constitute a reservation of, or option for, the Leased Premises or a representation that the business terms
have been approved by executive officers of Landlord or Landlord's Board of Directors. This Lease shall
become effective as a lease or agreement only upon mutual execution and delivery. A lease which is not
fully executed and delivered cannot be enforced in any manner and cannot give rise to any rights or
remedies.
(E) The provisions of this Lease shall be construed,in all respects,without reference to any
rule or canon requiring or permitting the construction of provisions of documents against the interest of
the party responsible for the drafting of the same, it being the intention and agreement of the parties that
this Lease be conclusively deemed to be the joint product of both parties and their counsel. Furthermore,
the parties agree that this Lease may be executed with revision markings(so-called"blacklining")appearing
in the execution copy(i.e.,deleted text is overstricken and newly-inserted text is underscored or in boldface);
such"blacklining"shall not be accorded any significance or taken into account in any way;this Lease shall
be construed for all purposes as if all overstricken text were deleted and never included in this Lease and
all bold or underscored text were not bold or underscored.
(F) Quiet Enjoyment. Landlord covenants that, upon Tenant's payment of the Rent
required hereunder and its performance of all of the terms and conditions of the Lease, Tenant's peaceful
and quiet enjoyment of the Leased Premises shall not be disturbed by Landlord or anyone properly claiming
by, through or under Landlord. Notwithstanding the foregoing, this provision is subject to all mortgages,
encumbrances, easements and underlying leases to which this Lease may be or become subordinate.
(G) OFAC. Tenant represents and warrants to Landlord that neither Tenant nor any of its
subsidiaries, directors, officers, or employees, nor, to the knowledge of Tenant, any agent or affiliate or
representative of Tenant, (collectively"Tenant Parties")is,or at any time during the term of this Lease shall
be: (i) the target of any sanctions administered or enforced by the U.S. Government (including, without
limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S.
Department of State and including,without limitation, the designation as a"specially designated national"
or"blocked person") (collectively, "Sanctions" and any individual sanctioned entity, a"Sanctioned Party"),
(ii) owned by, controlled by, acting for or on behalf of, providing assistance, support, sponsorship, or
services of any kind to,or otherwise associated with a Sanctioned Party,or(iii) in violation of any provisions
of the USA PATRIOT Act, Pub. L. No. 107-56. For purposes of this paragraph "Person" means any
individual, partnership, corporation, limited liability company, trust or other entity, and "United States
Person"means a person that is a citizen or resident of the United States,a corporation,partnership,limited
liability company, or other entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source. Notwithstanding, if Tenant is a publicly traded entity, this
paragraph shall not apply to Tenant Parties to the extent that such Person's interest in the Tenant is
through a U.S. Publicly-Traded or Pension Entity. "U.S. Publicly-Traded or Pension Entity" means either
(A) a Person (other than an individual) whose securities are listed on a national securities exchange, or
quoted on an automated quotation system, in the United States, or a wholly-owned subsidiary of such a
Person, or (B) an "employee pension benefit plan" or "pension plan" as deemed in Section 3(2) of ERISA.
Tenant covenants and agrees to deliver to Landlord any certification or other evidence requested from time
to time by Landlord, in its sole discretion, confirming Tenant's compliance with the provisions of this
Section. In addition, Tenant hereby authorizes Landlord and any of its affiliates to submit and/or release
any and all information it may deem appropriate to determine whether Tenant complies with this paragraph
throughout the Lease Term. In the event any of the representations in this paragraph are determined to be
false now or at any time during the Lease Term,Tenant shall be deemed to have committed an incurable
default, entitling Landlord, in addition to all other remedies at law or in equity, to immediately terminate
this Lease on written notice to Tenant.
25. Unavoidable Delays. Where either party hereto is required to do any act but is untimely in
completing the act, the time attributable directly to delays caused by an Act of God, hurricane, tornado,
rain,snow,cold or other weather,war,civil commotion,fire or other casualty,labor difficulties,or shortages
of labor, materials or equipment, government regulations or other causes beyond such party's reasonable
control shall not be counted in determining the time during which such act is to be completed. In any case
where work is to be paid for out of insurance proceeds or condemnation awards, due allowance shall be
made for delays in the collection of such proceeds and awards. The provisions of this Article shall not be
applicable at all to excuse or permit delay of the time for Tenant to pay Rent or other money or to obtain
and maintain insurance policies. If Landlord is unable to deliver the Leased Premises by the end of one(1)
year after Landlord's execution of this Lease, then either party may terminate this Lease by giving thirty
(30) days written notice to the other at any time thereafter and prior to tender.
26. Sole Broker. Tenant represents that no broker, finder, or other person entitled to
compensation (other than the Broker identified in Article 1) was involved in this Lease, and that no
conversations or prior negotiations were had with any broker, finder or other possible claimant other than
the Broker concerning the renting of the Leased Premises. Tenant shall defend, indemnify and hold
Landlord harmless against any claims for compensation(including legal fees incurred by Landlord) arising
out of any conversations or negotiations had by Tenant with anyone other than the Broker.
27. Estoppel Certificates. From time to time,within ten(10)days following written notice,Tenant
shall deliver to Landlord a signed and acknowledged written statement addressed to Landlord and such
other parties (including their successors and assigns) as the Landlord may designate, on Landlord's form
or such other form reasonably acceptable to Landlord, certifying: the date of this Lease and that this Lease
is in full force and effect and unmodified except as stated; the monthly Base Rent and Additional Rent
payable during the Lease Term; the date to which the Rent and other payments have been paid; whether
Landlord is in default, or if there are any offsets, defenses, or counterclaims claimed by Tenant, and if a
default, offset, defense, or counterclaim is claimed, specifying the specific nature and default; and stating
any additional matters requested.
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28. Shopping Center Changes. Neither Exhibit A nor this Lease is a warranty by Landlord that
the Shopping Center will remain as shown. Landlord may relocate, increase, reduce or otherwise change
the number, dimensions, or locations of the parking areas, drives, exits, entrances, walks and other
Common Areas or buildings. If Landlord desires to modernize the facade of the Shopping Certer -Tenant
Landlord reserves the right to use portions of the Common Area for construction-
related activities and to erect temporary scaffolding in front of the Leased Premises. Tenant waives any
claim for rent abatement, loss of business or damages arising out of any reasonable and temporary
inconvenience allegedly experienced by Tenant during the course of any alteration, improvement or
modernization, or during any repair activities in which Landlord is engaged.
29. Notices. All notices intended to impose liability on the other party or exercise a right ("Notice")
shall be in writing and sent by certified or registered mail, return receipt requested, or delivered by a
nationally recognized overnight courier(such as Federal Express or UPS) and in order to be effective a copy
of any notice of Landlord's default must be sent by Tenant to the holders of any mortgages, ground leases
or security interests as per Article 16(C). Notices shall be sent to the address set forth in Article 1 or to such
other address as may be designated by notice. Notices shall be effective the day after the notice was sent,
or if by courier delivery, the day delivered or delivery refused. The purported giving of notice or exercise by
Tenant of any right, option or privilege by any means other than written notice given in strict compliance
with this Article shall be null,void and of no force or effect,even if any such other means of communication
succeeds in conveying actual notice. If courier delivery is refused or not able to be made, the day delivery
was first attempted shall be deemed the delivery date.
(END OF RIDER A)
SEE RIDER B ATTACHED HERETO AND HEREBY MADE A PART OF THIS LEASE.
•
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RIDER B
30. Notwithstanding anything provided herein, if there is any discrepancy between Rider"A" and
Rider"B", Rider"B" shall prevail.
31. Intentionally Deleted.
32. Tenant's Plans & Specifications and Pre-Construction Requirements.
(A) Within thirty (30) days after the date Landlord executes this Lease, Tenant shall submit
to Landlord, for Landlord's written approval the following items (hereinafter collectively referred to
as "Required Items"):
1. Complete detailed drawings and specifications in sufficient detail for Tenant to obtain
all necessary building permits (hereinafter collectively referred to as "Plans") for all
the work to be done by Tenant to the Leased Premises. Each of Tenant's Plans
submissions shall include a set of full-size construction drawings and specifications,
as well as one set of computerized construction drawings saved on a CD ROM or
via email in .DWG, .PDF or .DXF read-only file format.
2. Tenant has advised Landlord that it may use its own employees to perform the initial
build out work in the Leased Premises. And, as stated above, Tenant is self-insured
and carries excess liability coverage, and is subject to limited immunity from claims
under Section 7698.28, Fla. Stat. For any work that is not performed by Tenant's
employees, Tenant shall deliver to Landlord, a comprehensive general liability
insurance policy from Tenant's contractor's insurer (with a rating of not less than A-
8) naming Landlord and Kimco Realty Corporation as additional insureds for at least
$3,000,000 combined single limit for bodily injury and property damage and
contractor's Workers' Compensation and Occupational Disease insurance with
statutory limits and employer's liability with a limit of at least $1,000,000.
3. To the extent that Tenant hires a third-party contractor (i.e. a person or entity that is
not an employee of Tenant), the general contractor's written indemnity agreement in
the form attached hereto as Exhibit"B-1"that the contractor shall indemnify, defend,
save and hold harmless Landlord, its mortgagee, agents, employees and assigns,
from all liabilities, claims, losses, liens, damages and suits of whatsoever nature for
personal injury, death or property damage alleged to arise out of the work performed
under the contract, whether by contractor or by any subcontractor, and whether
asserted against Landlord or contractor.
(B) Landlord shall inform Tenant of any objections to the Required Items within thirty (30)
days after receipt of all such items. If Tenant fails to deliver any of the Required Items timely,
then Landlord shall have the right to terminate this Lease and retain the Tenant's entire security
deposit as liquidated damages. Furthermore, Landlord shall have no obligation to review Tenant's
Plans unless and until Landlord is in receipt of all Required Items. Tenant, within fifteen (15) days
of receiving Landlord's objections to the Required Items, shall deliver to Landlord corrected
Required Items, which Landlord shall accept or reject within the next fifteen (15) days.
(C) Tenant must obtain Landlord's written approval of all Required Items prior to
commencing any of its work at the Leased Premises. Landlord's approval of Tenant's Plans shall
not constitute an affirmation by Landlord that they conform to law or impose any liability on
Landlord. Upon Landlord's approval of the Required Items Tenant shall immediately apply for all
permits necessary for its work. After the permits are issued and Landlord has completed the
work, if any, that it has specifically agreed in this Lease to do, Tenant shall promptly commence
and complete Tenant's work in conformity with the Plans, building department requirements and
all relevant laws and regulations.
(D) Tenant shall comply with all legal requirements during its work and, when completed,
Tenant's work must comply with all laws, ordinances, regulations or orders of public authority, and
with the requirements of the appropriate Fire Insurance Rating Organization and Landlord's
insurance company. Prior to opening for business, Tenant shall obtain and deliver to Landlord:
(a) Tenant's affidavit that all work, labor and materials have been paid for and completed in
accordance with the Plans, (b) a final unconditional notarized lien waiver from the general
contractor, and (at Landlord's sole discretion) any subcontractors who performed work at the
Leased Premises, and (c) a copy of the certificate of occupancy (or its local equivalent) for the
Leased Premises. If a temporary Certificate of Occupancy is issued, Tenant shall deliver a copy
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of that document to Landlord and then, upon issuance of a permanent Certificate of Occupancy,
immediately forward a copy of it to Landlord.
(E) If Landlord or its representative inspects the Leased Premises and determines that
Tenant's work is not being done in accordance with the approved Plans, Tenant shall correct any
deficiencies or omissions immediately.
(F) Tenant shall not permit any mechanic's or other lien to be filed either against the Leased
Premises or the Shopping Center or Tenant's leasehold interest by reason of work, labor, services
or materials supplied. If any lien is filed, Tenant shall, within ten (10) days after notice of the filing,
cause it to be discharged of record,failing which Landlord, in addition to any other right or remedy,
may (but shall not be obligated to) discharge such lien by deposit, bonding proceedings or by
payment of the claimed amount for Tenant's account. Any amounts so paid, together with interest
at the Default Interest Rate from the date of payment, shall be paid by Tenant to Landlord on
demand as additional Rent. Nothing herein shall be construed as the consent or request of
Landlord to any contractor, subcontractor, laborer or materialman to perform work or furnish
materials. Furthermore, nothing herein shall give Tenant the authority to contract for or permit
the rendering of any service or furnishing of any material that could give rise to the filing of any
lien.
(G) Tenant shall require its contractor to furnish to both Tenant and Landlord on completion
of the work a guaranty, for a period of one (1) year from final completion of all work, that all work
and materials will be free from all defects and that all apparatus (e.g., air-conditioning equipment)
will develop capacities and characteristics specified in the approved Plans upon use, and that
whenever within one (1) year of the final acceptance of the work, contractor is notified in writing
by either Landlord or Tenant that any equipment, material or workmanship is defective or in some
way does not meet specifications, contractor shall immediately replace, repair or otherwise correct
the defect or deficiency without cost to Landlord. Additionally, if any work is performed thereon,
the following items shall be guaranteed for periods in excess of the one (1) year: Motor
Compressor Units - five (5) years; Exterior Walls - two (2) years (guaranteed against air and
moisture leakage); Roofing -two (2) years.
(H) In the event Tenant's work involves the construction of a demising wall, Tenant shall
physically indicate the proposed location of the demising wall on the floor of the Leased Premises,
notify Landlord's construction or property manager that the location has been marked and that
construction of the wall is about to begin, and give Landlord's construction or property manager
a reasonable opportunity to come to the Leased Premises and inspect the proposed placement
of the wall.
(I) For any Tenant work that involves penetration of the roof surface, Tenant shall employ
Landlord's roofing contractor at Tenant's sole cost and expense, thereby ensuring that the roofing
bond and/or warranty will remain in full force and effect. The maintenance of Tenant's roof work
will be the sole responsibility of Tenant and shall include the repair of adjoining areas that might
have been affected due to water penetration through Tenant's roof work.
(J) In the event Tenant must obtain a zoning variance, waiver or other change in order to
use the Leased Premises for the purposes described in Article 1(M), or for any work Tenant
desires to perform at the Leased Premises, Tenant shall first obtain Landlord's written approval,
not to be unreasonably withheld or delayed, prior to seeking such a change. If Landlord's consent
is given, Landlord agrees to cooperate with Tenant in such application and Tenant agrees to: (i)
keep Landlord advised of all developments as they occur, (ii) provide Landlord with an opportunity
to review all documents before they are filed, and (iii) give Landlord a reasonable amount of notice
before any hearings are held so that Landlord's representative shall have an opportunity to attend.
Tenant shall not be permitted to enter into any agreements that affect the use, access, or condition
of the Shopping Center without first obtaining Landlord's written consent, and any attempt to do
so shall constitute a default under the Lease.
33. Shopping Center Redevelopment.
(A) Tenant acknowledges that Landlord may, but is under no obligation to, redevelop the
Shopping Center at some time in the future. In the event Landlord undertakes such a
redevelopment, Tenant acknowledges that the redevelopment process may disrupt the normal
business activities of the Shopping Center. Tenant agrees to accept the Leased Premises subject
to any inconvenience, disturbance or impact any such redevelopment may have upon the Leased
Premises and Tenant's operations.
(B) As used herein, the term "Approvals" shall mean all permits, approvals, variances,
licenses and other determinations required under the provisions of applicable federal, state,
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county and local municipal laws, ordinances, regulations and administrative rulings to redevelop
the Shopping Center, including any tax increment financing approvals (TIF), if applicable. In the
event Landlord undertakes such a redevelopment, Tenant acknowledges that Exhibit A attached
to the Lease may not remain as shown and Landlord may relocate, increase, reduce or otherwise
change the number, dimensions, or locations of buildings, parking areas, drives, exits, entrances,
walks and other Common Areas of the Shopping Center, or the location of the Leased Premises,
as may be necessary, whether in order to obtain the Approvals in a timely manner, or in the event
changes to the layout of the Shopping Center need to be made to accommodate the
redevelopment of the Shopping Center in general, or the development or redevelopment of other
tenants' spaces at the Shopping Center, without any calendar year construction blackout periods,
construction limitations or building restrictions.
(C) Notwithstanding anything contained in the Lease to the contrary, Landlord shall have
the right to terminate the Lease at any time, upon not less than one (1) year prior written notice
to Tenant in the event Landlord needs the Leased Premises to accommodate a redevelopment
of the Shopping Center as provided above. In the event the Lease is terminated pursuant to this
Article, the Lease Term shall expire on the termination date provided in the notice as if that were
the date of expiration originally provided in the Lease. Tenant will remain liable to Landlord for all
payment obligations (including, without limitation, rent, additional rent, and tax, common area
maintenance and insurance reimbursement, if any) and all other obligations under the Lease
(including Tenant's obligation to insure the Leased Premises) accrued through (and including)the
Lease termination date.
(D) If Landlord proceeds with the redevelopment and Tenant's Lease is not
terminated as described above, during the course of the redevelopment Tenant shall, at its
expense, erect a temporary sign or banner as directed by Landlord until the completion of the
renovation. On or before the completion of the renovation, Landlord will provide Tenant with
revised Shopping Center sign criteria and Tenant shall be required, at Tenant's sole cost and
expense, to install a new sign that complies with the new sign criteria. Tenant's sign design
drawings and specifications shall be submitted to Landlord for Landlord's written approval prior to
the fabrication and erection of Tenant's sign. The sign shall be governed by all applicable
provisions of this Lease, including, but not limited to, Tenant's duty to repair and insure the sign.
The sign shall be subject to all governmental authorities' codes and restrictions.
34. State Mandated Radon Notice. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
35. No Construction Liens. Tenant shall have no power or authority to permit construction,
mechanic's, materialmen's or other liens to be placed upon the Leased Premises in connection
with maintenance, alterations, modifications or otherwise. The interest of Landlord shall not be
subject to liens for improvements made by Tenant. Landlord shall not be liable for any work, labor
or materials furnished to the Leased Premises by or through Tenant or anyone claiming through
Tenant. No construction liens or other liens for any such work, labor or materials shall attach or
affect the interest of Landlord in and to the Leased Premises. Landlord has recorded or shall
record a notice as set forth in Section 713.10 of the Florida Statutes. This Lease itself shall not
be recorded in the public records except at the option of Landlord. Furthermore, Tenant shall be
required to obtain and provide to Landlord final lien waivers from all contractors, subcontractors,
materialmen and suppliers which have filed or sent to Landlord a "Notice to Owner".
36. Tenant Improvement Allowance.
A. In consideration of Tenant's initial construction of the Leased Premises as a first class
office, and upon completion of its construction work in accordance with Tenant's Plans approved
by Landlord ("Work"), Landlord agrees to contribute towards the costs of the Work, which may
include reasonable costs incurred for architect's, engineering, ec-permitting fees, and self-
performed labor and materials associated with the Work (provided such self-performed labor and
materials are adequately documented to the Landlord's reasonable satisfaction), but specifically
excludes costs incurred for Tenant's personal property, furniture, trade fixtures, equipment,
inventory, and signs, a sum equal to the lesser of(i) the actual cost of the Work, or(ii)the sum of
Twenty-Four Thousand and 00/100ths Dollars ($24,000.00) (the "Tenant Improvement
Allowance"). In the event that the cost of the Work exceeds the Tenant Improvement Allowance,
such excess amount shall be borne solely by Tenant. Landlord agrees to pay Tenant the Tenant
Improvement Allowance, provided that Tenant is not in default, within approximately thirty (30)
days after Tenant has accomplished all of the following:
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(1) Completed the work pursuant to all of the terms and conditions of this Lease {including
installation of a L andlord approved exterior storefront sign) and delivering to Landlord:
(i) either a copy of the building permit reflecting all final inspections for all disciplines has
been obtained or a copy of the final Certificate of Occupancy, and (ii) copies of any other
approvals required by local government agencies (e.g. the fire department) to operate
Tenant's business, and (iii) copies of final as-built plans for Tenant's work;
(2) Furnished Landlord with (i)Tenant's notarized affidavit that no changes have been made
to the plans submitted to Landlord and that all work, labor and materials have been paid
for, and delivering to Landlord (ii) final unconditional notarized lien waivers, as well as
paid invoices or statements, from the general contractor along with the general
contractor's schedule of values, or in the event Tenant does not hire a general
contractor,then from Tenant's vendors, and (iii)final unconditional notarized lien waivers
from all contractors and (at Landlord's sole discretion) subcontractors who performed
work at the Leased Premises;
(3) Submitted to Landlord the insurance certificate required under the terms of this Lease
and a fully completed and signed "W-9 Form";
(4) All contingencies to the effectiveness of the Lease have been satisfied or waived;
(5) Fully fixtured, stocked and staffed the Leased Premises and opened for business to the
public;
(6) Paid the first month's Rent, whether in advance of the Rent Commencement Date or
not; and
(7) Sent a written request for payment of the Tenant Improvement Allowance to Landlord's
Construction/Property Manager for the Shopping Center containing the documents set
forth in (1), (2) and (3) above; and in the event Tenant does not submit same to Landlord
within one hundred eighty (180) days after the date Tenant opens for business, then
Tenant shall forever relinquish and forfeit its right to the Tenant Improvement Allowance.
B Landlord and Tenant acknowledge and agree that any and all alterations,
improvements, repairs or installations made by Tenant to or upon the Leased Premises which are
funded by the Tenant Improvement Allowance, or the costs of which are reimbursed to Tenant by
the Tenant Improvement Allowance, are and shall at all times remain the property of Landlord. It
is expressly agreed and acknowledged that the payment of the Tenant Improvement Allowance
is subject in all respects to satisfaction of certain conditions set forth in this Article, which
conditions were bargained for by the parties and consideration was given. The economic terms
of this Lease would have been different (and less beneficial to Tenant) had these conditions to
payment not been agreed to by the Tenant and binding upon any assignee.
C. In the event Tenant is in default, beyond applicable notice and cure periods, at the time
Tenant is entitled to receive the Tenant Improvement Allowance, or in the event any of Tenant's
contractors, materialmen or suppliers have not been timely paid by Tenant, then Landlord shall
have the right, in addition to all other rights and remedies available to Landlord, to apply all or any
portion of the Tenant Improvement Allowance to cure Tenant's default and to reimburse Landlord
for any costs incurred by Landlord in curing such default, or pay such contractors, materialmen
or suppliers directly from the Tenant Improvement Allowance, whichever the case may be, with
any remaining balance paid to Tenant if Tenant does not default under any of its obligations under
the Lease for the three (3) month period after Landlord's application of any portion of the Tenant
Improvement Allowance. Furthermore, In the event that a bankruptcy case is commenced by or
against Tenant under Title 11 of the U.S. Code (the "Bankruptcy Code") (or other insolvency
proceeding is commenced by or with respect to Tenant under other applicable law) at any time
prior to Tenant having been paid the Tenant Improvement Allowance, then, as a condition
precedent to Landlord's obligation to pay all or any remaining portion of the Tenant Improvement
Allowance, Tenant, or its proposed assignee, shall be required to provide sufficient written
documentary evidence of "adequate assurance of future performance" (as defined under the
Bankruptcy Code) to Landlord that Tenant, or its assignee, will be able to satisfy all obligations
that remain under the Lease for the remaining Lease Term. Moreover, no payment of any Tenant
Improvement Allowance (or portion thereof) shall be paid to (a) Tenant unless and until an order
of the bankruptcy court has been entered and has become a "final order" approving the
assumption of the Lease, or (b) any assignee unless and until an order of the bankruptcy court
has been entered and has become a "final order" approving the assumption and assignment of
the Lease to the assignee.
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37. New HVAC. Provided Tenant, within thirty (30) days after the Lease Commencement Date:
(i) activates utility services for the Leased Premises and transfers the utility accounts for the
Leased Premises to its name, and (ii) sends written notice to Landlord thereof, then prior to the
30th day after Landlord receives such notice, Landlord shall furnish and install two (2) four (4)
tons of roof-top heating, ventilation, and air conditioning units and one (1) two (2) ton roof-top
heating, ventilation, and air conditioning unit to replace the existing roof top units.
38. (a) Fire Extinguisher. Tenant shall install (and maintain and replace as necessary),
proper fire extinguishers suitable for building use which satisfies the current requirements
established by municipal codes and protects Tenant's roof and building from any damage that
may be caused by Tenant's method of cooking.
(b) Grease Traps. If Tenant does any baking and frying in the Leased Premises,
Tenant shall install (and maintain and replace as necessary) grease traps immediately outside
the Leased Premises connecting all lines from the Leased Premises to the main sanitary branch.
The grease traps shall be installed in compliance with all local laws and regulations. Any
upgrading to the sanitary or sewer lines necessitated by the installation of the qrease traps shall
be performed at Tenant's expense. Tenant shall restore any parking or landscape area disturbed
in connection with the installation of these traps to a condition equal to that existing prior to the
work. Unless required by law, Tenant shall not be required to install grease traps if Tenant's only
method of heating or reheating meals is an electric reheating oven (i.e. Tenant will not use qas,
any type of open flame or fryers in the Leased Premises).
(c) Odor. Tenant acknowledges that the terms of this Lease prevent the use of the
Leased Premises in a manner that shall be offensive and that unless properly conducted, the
'sale of foodlfthe operation of a restaurant] can cause odors in and about the premises. Tenant
agrees that it shall install, and properly maintain in good working order throughout the Lease
Term, such ventilation and other equipment as required by municipal codes and as may be
necessary to relieve the Leased Premises and the adjoining and surrounding premises of any
odors caused by Tenant's business operation, which may include special vents to create negative
pressure; and failure to do same shall constitute a default under the Lease. Tenant shall defend,
indemnify and hold Landlord harmless of and from any loss, cost or expense arising out of odor
or other conditions in the Leased Premises. Tenant agrees to exercise special care in its handling
of garbage, waste, and refuse and will remove such materials from the Shopping Center as
frequently as is necessary in order to eliminate all odors.
(d) Pests. Tenant acknowledges the terms of this Lease require Tenant to keep the
Leased Premises free of rodents, vermin, insects and other pests and that, unless properly
conducted, the presence of food can attract such pests. Tenant agrees that it will properly store
its products, regularly clean and exterminate the Leased Premises, and take all measures
necessary to prevent rodents, vermin, insects and other pests from entering the Leased Premises
or the Shopping Center. Tenant further agrees that, in the event any such pests are discovered
in or about the Leased Premises, Tenant will immediately take all necessary and appropriate
measures to relieve the Shopping Center of such pests. Tenant agrees to exercise special care
in its handling of garbage, waste, and refuse and will remove such materials from the Shopping
Center as frequently as is necessary in order to prevent pests from entering the Leased Premises
or the Shopping Center.
39. Annual Appropriation. Tenant's performance and obligation to pay under this
Lease, is contingent upon an annual appropriation by the Board of County Commissioners.
County shall pay in accordance with the Florida Local Government Prompt Payment Act. Nothing
contained in this Article 39 shall limit Landlord's rights and remedies in the event of the occurrence
of a monetary default by Tenant. All such rights and remedies are reserved.
END OF RIDER B
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EXHIBIT A
This site plan is intended to be an approximate depiction of the Shopping Center. No
representation or warranty is made with respect to the actual location, number or configuration
of Buildinggs, Curb Cuts,Abutting Thoroughfares, Parking Areas, Traffic Patterns, or of the
Tenants intended to be within the Shopping Center. The Landlord specifically reserves the
right to change the content and configuration of the Shopping Center from time to time and at
any time the Landlord desires in its sole and absolute discretion, or as is required to conform
to Local Governing Agencies.
The leased premises shall be the area identified below.
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EXHIBIT "B-1"
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT pertains to work to be performed at the Tradewinds S.C., and
located in Key Largo, Florida, herein referred to as "Shopping Center" (Site: SFLK0022/),
by (herein referred to as "Contractor"), having an address at:
and is part of the Contract with
(herein referred to as "Tenant"), having an address at
which Contract is
dated , for work to be done at the Shopping Center from approximately
through
Contractor acknowledges that Tenant is contractually obligated to obtain this Agreement under a
lease for its store at the Shopping Center. Contractor has entered into this Agreement in order to induce
Tenant to retain Contractor to perform certain work at its store.
Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS KIR Key Largo 022, LLC,
and Kimco Realty Corporation, hereinafter collectively referred to as Landlord, its respective agents and
employees, assigns, and architects of and from all liabilities, claims, losses, damages, injury, causes of
actions and suits of whatever nature for personal injury, including death, and for property damage, arising
out of or alleged to arise out of, or any conditions of, the work performed under this Contract, whether by
Contractor or by any sub-contractor, and whether any claim, cause of action, or suit is asserted against
Landlord or its agents and employees, assigns, and architects, or Contractor, severally, jointly, or jointly
and severally. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Landlord, its agents
and employees, assigns, and architects of and from any and all costs of any nature, including without
limitation investigation, adjustment, attorney's fees, expert's fees, court costs, administrative costs, and
other items of expense arising out of any claim, cause of action or suit of the kind and nature herein set
forth.
Neither Contractor nor any sub-contractor shall file any mechanic's, materialmen's, or other liens
either against the Leased Premises or the Shopping Center from any work, labor, services or materials
supplied or performed by Contractor or by any sub-contractor. Contractor hereby agrees to INDEMNIFY,
SAVE & HOLD HARMLESS Landlord, its agents and employees, assigns, and architects of and from any
and all costs of any nature, including without limitation investigation, adjustment, attorney's fees, expert's
fees, court costs, administrative costs, and other items of expense arising out of any mechanic's,
materialmen's, or other liens filed against the either against the Leased Premises or the Shopping Center
by Contractor or by any sub-contractor.
Contractor hereby agrees that it will obtain Comprehensive General Liability insurance including
Blanket Contractual Liability with minimum amount of$3,000,000.00 Combined Single Limit for bodily injury
and property damage.
Additionally, Contractor must also obtain Workers Compensation and Occupational Disease
insurance with statutory limits and form as required by the State in which the work is to be performed, and
Employer's Liability with a limit of not less than $1,000,000.00 for all damage.
Certificates for all insurance will be submitted to Landlord before commencement of any work. The
Certificates must indicate that the"HOLD HARMLESS AGREEMENT"contractual indemnity as set forth in
this agreement is insured. Landlord must be named as an additional insured and the policy must provide
that no less than 15 days advance written notice will be given to both the party to whom such Certificates
are issued and the additional insured in the event of cancellation of the policies or a reduction in the limits
of liabilities set forth above. At Landlord's request, Contractor will immediately furnish Landlord with a true
and complete copy of any insurance policy Landlord wants to renew. No invoices for payments will be
honored unless such Certificates of Insurance (or the policy, if requested) had been filed timely with
Landlord at 3333 New Hyde Park Road, Suite 100, New Hyde Park, NY 11042-0020.
Contractor acknowledges that Landlord did not retain Contractor to perform any work at the
Shopping Center and agrees that Contractor will not look to Landlord for any compensation whatsoever for
any work it performs at the Shopping Center.
IN WITNESS HEREOF, this Contractor has executed this Agreement this_day of , 20_
CONTRACTOR:
By:
Name:
Title: