Item G2
Revised 2/95
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 17.2000
Division:
County Administrator
Bulk Item: Yes
No -X-
Department: County Administrator
AGENDA ITEM WORDING:
Approval of a lease with Kimco Realty for library and office space in the Tradewinds Shopping Center.
ITEM BACKGROUND:
Staff is negotiating a lease for three 1,200 square foot bays adjacent to the Key Largo library to provide
additional space for public meetings and to provide office space for the relocation of Growth
Management staff from the current office on Plantation Key.
PREVIOUS REVELANT BOCC ACTION:
On May17, 2000, the Board of County Commissioners authorized staff to pursue negotiations.
STAFF RECOMMENDATIONS:
To be provided at the meeting.
TOTAL COST:
To be determined.
BUDGETED: Yes
No
COST TO COUNTY: To be determined.
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty _
OMB/Purchasing _Risk Management _
DIVISION DIRECTOR APPROVAL:
- -L-~ _~
James L. Roberts
DOCUMENTATION:
Included
To Follow X Not Required
To be provided at the meeting. .. _ L.1
AGENDA ITEM #~~
DISPOSITION:
G'Z...
Tradewinds Shopping Center - Growth Management Office Space
Lease Term
Size (sq ft)
Annual Rent
5 years (Non-appropriation clause after second year)
3,600 (3 units at 1,200 square feet each)
$14.82 per square foot
Estimated Costs:
Year 1 Year 2 Year 3 Year 4 Year 5 Total
Rent 53,352 55,224 57,096 58,968 60,840 285,480
CAM, etc. 9,000 9,270 9,548 9,835 10,130 47,782
Utilities 2,412 2,484 2,559 2,636 2,715 12,806
Sewer hookup unknown unknown unknown unknown unknown unknown
Renovations
Low Estimate 90,000 90,000
High Estimate 126,000 126,000
Average 108,000 108,000
Total 172,764 66,978 69,203 71,438 73,684 454,068
Revisions to Tradewinds Shopping Center Lease
Revisions to Rider A
Paragraph 3(C) titled "Late Rent."
The County will not pay late rent fees.
Delete this entire paragraph.
Paragraph 10(D) titled "Signs; Painting; Displays."
The County will not be responsible for keeping an exterior sign lit until 10:00 PM at night.
Delete the last sentence.
Paragraph 11 (A) titled "Indemnity; Insurance."
The County's liability is limited by statute.
Insert the following to the first sentence: To the extent authorized by Section 768.28,
Florida Statutes, Tenant shall protect, defend, save harmless...
Paragraph 11 (8) titled "Tenant's Insurance."
This paragraph is inappropriate for a government tenant.
Delete this entire paragraph and replace with the following: The Landlord acknowledges
that the Tenant is a political subdivision of the State of Florida and is self-insured for
general liability with respect to the Leased Premises in the amount of $100,000 to any
one person suffering injury, death, or property damage, and $200,000 for injury, death or
property damage arising out of the same incident or occurrence.
Revisions to Rider B
Paragraph 33 titled "Other Taxes."
This paragraph is inappropriate for a government tenant as the County is not subject to
these taxes and fees.
Delete this entire paragraph.
SHOPPING CENTER LEASE
This lease ("Lease"), dated as of A1o"'t 7, ?OOO, by and between KIR KFY IARr.[] a?? II C ("Lcn:llord") and MON<rF allNTY
BOARD OF al~TY cn.t.1ISSI(),lFRS ("Tenant");
WIT N E SSE T H:
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
TRADEW1NDS SHOPPING CENTER, KEY LARGO, FL
Site No.: 022
--
(B) Leased Premises:
The premises identified as Plot 6 shown hatched on Exhibit "A" (see Article 2).
(C) Floor Area:
3,600 square feet (see Article 2).
(D) Lease Commencement Date:
The Lease Commencement Date shall be the earlier of: (i) the date this Lease is
fully executed by Landlord and Tenant; or (ii) September 1, 2000. Tenant's
obligation to pay Tax Rent and Common Area Rent as set forth in Articles 5 and 8
shall commence on the Lease Commencement Date (see Article 2).
(E) Base Rent Commencement Date:
90 days after the Lease Commencement Date (see Article 2).
(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 Fifth (5th) anniversary of the
day immediately preceding the Rent Commencement Date (see Article 2).
(G-1) Additional Term:
One (1) five (5) year option (see Articles 1 (H) (i) and 36).
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
(H) Base Rent Schedule (see Article 3):
LEASE
YEAR
1 $51 ,300.00
2$53,100.00
3$54,90000
4$56,70000
5$58,50000
ANNUAL MONTHLY
BASE RENT INSTALLMENT
$4,275.00
$4,425.00
$4,575.00
$4,725.00
$4,875.00
(H)(I) Base Rent Schedule - Additional Term (see Article 36):
LEASE
YEAR
ANNUAL
BASE RENT
MONTHLY
INSTALLMENT
1 $60,30000
2$62,100.00
3$63,900.00
4$65,700.00
5$67,50000
$5,025.00
$5,175.00
$5,325.00
$5,475.00
$5,625.00
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
(I) Tax Rent
As provided in Article 5(B).
(J) Common Area Rent
As provided in Article 8(D).
(K) Percentage Rent Rate:
None.
(L) Security Deposit:
None.
(M) Permitted Use:
County administration offices (see Article 9).
T:\SITE\022\MONROE\LEASE.DOC 1
08/10/00 ams
(N) Landlord's Notice Address:
(see Article 29)
3333 NEW HYDE PARK ROAD
SUITE 100
P.O. BOX 5020
NEW HYDE PARK, NEW YORK 11042-0020
(0) Tenant's Notice Address:
(see Article 29)
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
5100 COLLEGE ROAD, #212
KEY WEST, FL 33040
(P) Broker(s):
(see Article 26)
Long Property Group, Inc.
Eric Long
3800 S Tamiami Trail Street
Sarasota, FL 34239
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
FOR INFORMATION ONLY
Tenant's Telephone No.:
(305)295-5180
Tenant's Fax No.:
Tenant's Business Name:
Tenant's Contact Person:
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
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
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.
By: KIMCO INCOME OPERATING PARTNERSHIP, LP., member
By: KIMCO INCOME OPERATING REIT, its general partner
By:
(corporate seal)
Print Name:
Title:
Date Signed:
WITNESSES TO TENANT:
TENANT: MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS
By:
(corporate seal)
Print Name:
Title:
Date Signed:
Fed Tax ID #
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
T:\SITE\022\MONROE\LEASE.DOC 2
oa/10/00 ams
FOR TENANT (CORPORATION) :
STATE OF
) ss:
COUNTY OF
On the day of , 2000, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared
to me personally known, who by me duly sworn did say that he is the
of MONROE COUNTY BOARD OF COUNTY COMMISSIONERS; that he knows the seal of said
corporation; that the seal affixed to this instrument is that corporate seal and that it was so affixed by order of the Board of Directors of the
corporation; and that he acknowledges the execution of this instrument to be the voluntary act and deed of the corporation by it voluntarily
executed.
(Notarial Seal)
My Commission expires
T:\SITE\022\MONROE\LEASE.DOC 3
08/10/00 ams
I RIDER A
2
3 THIS RIDER A IS ATIACHED TO AND HEREBY MADE A PART OF THE LEASE
4 (SEE ALSO RIDER B).
5
6 2. Leased Premises. Term and Lease Year. The Leased Premises is deemed to contain an
7 amount of square feet of space equal to the Floor Area. The Lease Term shall commence on the Lease
8 Commencement Date. Tenant's duty to pay Rent shall commence on the Rent Commencement Date.
9 Notwithstanding the foregoing, Tenant shall pay the first month's installment of Rent on the execution
10 hereof, which amount shall be applied as a credit against such first monthly installment as and when
II due (and promptly refunded if, for any reason other than Tenant's default, this Lease should be
12 terminated by reason of non-occurrence of the Lease Commencement Date). The Lease Term shall
13 expire without notice on the Expiration Date. On request, Tenant shall promptly deliver to Landlord a
14 statement in recordable form specifying the Rent Commencement Date and the Expiration Date. The
15 first Lease Year shall commence on the Rent Commencement Date and end on the last day of the
16 calendar month in which occurs the first anniversary of the day immediately preceding the Rent
17 Commencement Date. Each succeeding Lease Year shall be each successive twelve (12) month
I 8 period.
19
20 3. (A) Base Rent. Tenant shall pay Base Rent at the annual rates specified in the Base
21 Rent Schedules in monthly installments paid in arrears on or before the first day of each calendar
22 month which immediately follows the month for which such Base Rent is due advance on the first day
23 of each calendar month in the amount specified in the Base Rent Schedule. If the Rent
24 Commencement Date is not the first of the month, the Base Rent for that month shall be prorated.
25 Should any Lease Year contain more or less than twelve (12) months, Base Rent and other charges for
26 such Lease Year shall be appropriately prorated. In addition, Tenant shall pay Landlord as additional
27 rent each month throughout Lease Term including renewal terms, on the same date that monthly
28 payments of Base Rent is due, an amount equal to four (4%) percent of the Base Rent that is payable
29 for that month, as a management fee to Landlord. All other payments to be made by Tenant pursuant
30 to this Lease are in addition to Base Rent. Tenant shall pay Base Rent and other Rent to Landlord or
31 its designated agent at the address Landlord designates without Landlord making any demand. The
32 obligation to pay Base Rent and other Rent is an independent, unconditional covenant.
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
(B) Additional Rent. Base Rent and all other payments required to be made by
Tenant (including, but not limited to, Percentage Rent, Tax Rent and 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 or any Security Deposit as for a non-payment of Base Rent. Tenant shall pay to Landlord
any tax or license fee measured by Tenant's Rents receivable by Landlord; these taxes shall be paid by
Tenant each month with monthly payments of Rent.
(C) Late Rent. Any Rent or Security Deposit 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.
(Dl 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.
4. Percentae:e Rent.
(A) In addition to Base Rent, Tenant shall pay Landlord the amounts to which
Lundlord shall be entitled under this Article (herein called "Percentuge Rent").
(S) GROSS S.'\LES. "Gross Sales" means the aggregate of the prices churged for all
merchandise and services sold or leased in or from the Leased Premises und internet sales which are
either originated at terminals in the Leased Premises or picl(ed up by customers at the Leased-
Premiocs during each Lease Year, ';,hether by Tenant-eF-aY-B-RJo'-Other person, whether sold or lensed
on credit or paid by caoh, checl(, barter or otherwise, whether the merchandise is delivered or the
serviceG rendered from the LeGsed Premises or elsewhere, induding sales or leases across the counter,
orders taken on the telephone, mail orders, sales or leases from mechanicul de'/ices or vending
machines, depooits not refunded to customers, and layaway sales; except that the f-ollowing shall not
be included as Gross Sales, or if previously included in any Lease Year, may be deducted
subsequently from Gross Sales reported fur such Leuse Year: (i) refunds or credits to customers for
returno of merchandise sold at the Leased Premises (but not for returns of merchandise sold at any
other Gtore, by catalog or over the internet unless the internet order originated at the Leased Premises
and was pre'/iously included in Gross Sales), and (ii) retail sales tmces charged specifically and
separately as such to customers und paid by Tenant to the twang authority. There shall not be any
deduction from Gross Sales by reason of Tenant's being liable to pay any franchise tClJ(, capital stock
tme, income tal[ or oimilar or dissimilar tel){ bused upon Tenant's gross receipts, gross or net income,
capital Gtmcture, or profitG. The prices charged for saleG and/or leases Ghall be included in GroGG
A-I
8/10/00314 PM
T:\SITE\022\MONROE\RIOER-A.DOC AS
Form 497
1 Sales on delivery to, or the laying a'.'.'ay of merchandise for, the customers or on the rendering of the
2 service. Tenant shall bear the risk and eJcpenoe of non collection for bad debts or for granting credit.
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
'7
,)-
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
(e) Payment of PereentalZe Rent. The Percentage Rent payable for each Lease Year
shall be 0. sum equal to the product of the Percentage Rent Rate multiplied by the amount by which
Gross Sales realized during that Lease Year eJcceeds the Gross Sules Buse for that LeaGe Yeur. The
GrosG Sules Base shall be reduced proportionately for uny Lease Year which iG leGS than t'.\'el-le (12)
calendar months or in '.vhich the aggregate Base Rent paid in that Lease Year is less than the annual
umount specified in the Base Rent Schedule (us set forth in .^.rticle l(H)). Tenant shall commence to
puy Percentuge Rent during each Lease Year on the fifteenth (15th) day of that month which
immediately follows the month in waieh Gross Sales eJceeeds the Gross Sales Base. Thereafter, for
each succeeding month remaining in that Lease Year, based on additional Gross Sales, Tenant shall
pay (in addition to the monthly Base Rent) the additional Percentage Rent due, at the same time as
Tenunt furnishes euch monthly Gross Sules stutement. On receipt by Lundlord of Tenant's unnual
Gross Sules stutement, there shall be mude, if warrunted, un adjustment between Landlord and
Tenunt, with puyment to, or repuyment by, Lundlord us the cuse may require, so thut Tenant shull
puy the eJmct umount of Percentage Rent due. Each Lease Year shall be a Geparute computation for
Gross Sales and Percentage Rent for that year, and Gross Sales of any Lease Year and the Percentage
Rent due thereon shall have no bearing on Gross Sales of any other Lease Year.
(DI Statements. Before the fifteenth (15th) day ufter the end of each calendar month,
Tenant ahall furnish Lundlord 0. monthly statement showing the Gross Sales for that month. In
addition, Before the thirtieth (30th) day after the end of each Lease Yeur, Tenant shall furnish
Landlord an annual cumulatiye statement in such detail as Landlord reasonably requires, shO'.ving
the GroGs Sules for thut Leuse Yeur. and at the sume time pay Lundlord 0.11 (or the bulance) of the
Percentage Rent due f-or the Lease Year covered by the annual statement. Monthly and Annual
statements shall be signed by Tenant's principal eJcecutiye offioer. Tenant shallleeep in its main office
(located within the continental United States) true and complete books and records of 0.11 GrOGS Sales
made by Tenunt or by any other person in accordance with generuUy accepted principles of retail
store accounting, including: daily records of cash and credit sales, income tUJC returns, sales tUJC
reporta, canceled checlm, checle stubs, banle statements, computer printouts, boolm of uccount,
deposit slips, sales slips, sales receipts, records of purchases and inventory records, and cash register
tapea. Landlord or its agents may audit all of Tenant's boolm and records, which Tenant shall keep
intact for at least forty eight (18) months after the Lease Year to which they pertain. Landlord's
failure to audit shall not be an admission of the correctness of any statement or puyments by Tenant,
and shall not bar Landlord from collecting at any time the Percentage Rent actually due. If Gross
Sales reported f-or any Lease Year are understated by two (2%) percent or more of the true amount,
Tenant shall pay to Landlord, in addition to the additional Percentage Rent due, the eJcpenses of
Landlord's audit or eJmmination. If Tenant disputes Landlord's claim for Percentage Rent bused on
eJCuminution results, Tenunt muy puy under protest und, within ninety (90) duys ufter ha'/ing received
Lundlord's notice of the Percentuge Rent due, may sue for a refund of the claimed oyerpayment.
Failure to state "payment under protest" in writing on the check, or failure to sue within ninety (90)
days, shall be a waiyer of claim. The burden of proof to sho'.\' Landlord's Gross Sales figures as being
inuccurute shull be on Tenant. If Landlord schedules an examination and the eJeaminer is unable to
conduct the eJmmination due to Tenunt's failure to produce proper records or failure to lceep the
uppointment or other hindrunce, Tenunt shall pay us additional Rent the eJcuminers' fees and
eJCpenses regardlesG of whether the mmmination is not then held or is held at 0. lute I' date.
5. Taxes.
(AI "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
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.
(BI 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
A-2
8/10/003: 14 PM
T:\SITE\022\MONROE\RIDER-A.DOC AS
Form 497
I
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
J~
-.)
24
25
26
27
28
29
30
31
~J
.)-
33
34
35
36
37
38
39
40
41
42
43
44
4'1
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
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. ----GH
the fin:;t day of each month in advance, At the same time and place as Base Rent is due and payable.
Tenant shall pay to Landlord one-twelfth (1j12th) 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; all taxes on its Rent (including sales taxes on rents if the
Leased Premises is in Florida or in any other jurisdiction imposing a tax on rents); and other taxes
imposed on tenants generally.
€i. 8eeuritv Deposit. On Tenant'G eJteoution of thiG LeaGe, Tenant Ghall pay the Security
DepoGit aG security for the payment of Rent and Tenant'G performunoe and obGervance of thiG LeaGe.
If Tenant defaulte under this LeaGe, or defaultG under any other lease or agreement bet'Neen Tenant
and Landlord or an affiliate of Landlord, Landlord may, without prejudice to any other available
remedy, apply the Security DepoGit to'NardG ouring the default and compenGuting Landlord for 10GG or
damage ariGing from the default. f.t the eJ[piration of thiG Lease, if Tenant is not in default or
otherwiee liable to Landlord, the unapplied balanoe of the Security Deposit shull be returned to
Tenant. Tenant eltpreGGly agrees that Tenant shall ha'le no right to apply any portion of the Seourity
Deposit against any of Tenant's obligations to pay any Rent hereunder and, if Tenunt shall seek to so
apply such Security Deposit, Tenant shull on demand pay liquidated damages to Landlord in a sum
equal to two (2) times the amount of any such unpaid Rent. If at any time Landlord upplies part or 0.11
of the Security Deposit, Tenant shall pay to Landlord the amount so applied, thereby increasing the
amount of the Security Deposit, so Landlord shull haye on hand the full original Security Deposit at
0.11 times. If Landlord tranGferG thiG LeuGe und Security DepoGit to a tranGferee, the tranGferor shall be
releaGed from liability with respect to the Security Depoeit or ite return to Tenant; Tenant Ghall look
only to such transferee with reGpect thereto. Tenant Ghall not mortgage, aGsign ((JJ[cept in connection
with an aGsignment of thiG LeaGe by Tenant which is other'.viGe eJ[preGGly permitted by the terms of
this Leuse) or encumber itG intereGt in the Security DepoGit, and any attempt to do GO shall be void.
On any tranefer by Tenunt of itG interest in this Lease, the Security DepoGit shull be deemed
tranGferred to the aGsignee. In case of Tenant's bankruptcy, reorganization or other similar
proceeding, the Security DepoGit shall be deemed applied first to payment of unpaid Rent for periods
prior to inetitution of the proceedings.
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
installation of an attractive exterior lighted sign above its entrance (see Article 10 (D)), in order to
prepare the Leased Premises for business operation, ane!. complete its vJork, 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 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 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
A-3
8( 10(003: 14 PM
T:\SlTE\022\MONROE\RIDER-A.DOC AS
Form 497
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
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.
8. Common Area.
(A) Subject to subparagraph (C) below, Tenant and its employees, agents, and
customers shall have the non-exclusive right to the use or benefIt of the Common Area to the extent
and in the manner reasonably designated by Landlord. Except as otherwise specified in this Lease,
Landlord agrees to make all necessary repairs and maintenance to the Common Area to keep same in
good condition, including without limitation sweeping and removal of snow, ice and refuse, and
landscaping maintenance.
(B) "Common Area" is hereby defIned as the areas, equipment and facilities of the
Shopping Center or of any other land or property made available by Landlord for the safety, benefIt or
convenience of tenants or their employees, subtenants, customers or invitees, including (as
illustrations and not in limitation): parking areas, driveways, truck serviceways, sidewalks and curbs;
entrances and exits from the adjacent streets; traffIc lights, traffic islands, landscaped areas; meter
rooms outside individual stores; fencing; lighting facilities; sprinkler system serving landscaped areas
or buildings; sewage system outside tenants' stores; roofs, gutters and downspouts and the exterior of
outside walls (excluding storefronts) of buildings (without implying Tenant may use the roofs or
outside walls); directional or safety signs; Landlord's pylon signs (but not individual tenant panels)
and sign panels which identify the Shopping Center. Tenant acknowledges that the Common Area
may also be used by occupants and/or invitees of properties adjoining the Shopping Center, whether
or not owned, leased or managed by Landlord.
(C) Landlord reserves the right at any time and from time to time to change or reduce
or add to the Common Area. Common Area shall be under the exclusive control and management of
Landlord (including the hours that parking area lights are kept on). Tenant and its employees shall
park their vehicles only in areas Landlord designates for employee parking; if after one (1) violation
notice is given to Tenant a violation recurs by Tenant or its employees parking vehicles in other than
the employee parking areas, Landlord shall have the right to tow such vehicle at Tenant's expense
and/or levy an assessment against Tenant of Forty ($40.00) Dollars per day for each vehicle. Tenant
shall not permit trucks or delivery vehicles used by it to be parked in the Common Area except where
Landlord permits. Landlord may impose parking charges by meter or otherwise, and may close parts
of the Common Area for such time necessary in its opinion to prevent a dedication or accrual of rights
in other persons, or to discourage non-customer parking. Landlord shall not be obligated (although it
may do so at its option) to keep the Common Area illuminated to any extent after 10:00 P.M. or on
any Sunday or legal holiday.
(D) Common Area Rent. In the manner hereinafter described, Tenant shall pay its
share of "Yearly Common Area Costs" (hereinafter defIned). On the first day of eaoh month in
udyunoe, At the same time and place as Base Rent is due and payable. Tenant shall pay to Landlord,
as additional Rent (herein called "Common Area Rent") one-twelfth (1 jl2th) of Tenant's annual share
of Landlord's estimated Yearly Common Area Costs, based on Landlord's estimates. Tenant's annual
share shall be determined by multiplying the Yearly Common Area Costs by Tenant's Fraction
(defIned in Article 5(B)). For a portion of a calendar month at the beginning of the Lease Term,
Tenant's Common Area Rent shall be prorated for that month.
(E) "Yearly Common Area Costs" shall mean and include all costs and expenses
incurred by Landlord during each twelve (12) month period selected by Landlord for repair,
replacement, painting, maintenance, protection and operation of the Common Area and for insurance
carried by Landlord with respect to the Shopping Center, and insurance-related costs and expenses,
including (by way of examples and not in limitation) costs or expenses relating to: parking areas,
sidewalks and the like; storm water and sewage drainage and sanitary control; removal of snow, ice
and refuse (including use of trash compactors); gardening and landscaping; roof repairs; insuring
buildings and improvements and insuring for bodily injury and property damage liability, including
but not limited to insurance premiums, administrative costs, fees, losses within deductibles and/or
self-insured retentions for All-Risk Property Insurance including Flood and Earthquake, Boiler &
Machinery, Loss of Rents, Crime, General and Umbrella liability, Workers Compensation, Automobile,
and such other coverages and limits as Landlord in its sole discretion deems reasonable in the
circumstances, all at the fair premiums (which may be at the manual rates applicable to the Shopping
Center), as if the Shopping Center was the only property owned by Landlord (but notwithstanding the
foregoing, such insurance may be obtained through blanket policies as long as Landlord makes a
A-4
8/10/003: 14 PM
T:\SITE\022\MONROE\RlDER-A.DOC AS
Form 497
1
2
3
4
5
6
7
8
9
10
] I
]2
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
~7
,,-
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
reasonable allocation of premiums to the Shopping Center, which allocation may be based, inter alia,
upon a uniform per square foot rate for all or substantially all property owned by Landlord and
affiliates); controlling or eliminating puddling or flooding; lighting (including electric cost and
maintenance, repair or replacement of fixtures, poles and replacement of bulbs); depreciation of
property owned or rental paid for maintenance machinery and equipment; taxes or fees payable by
Landlord for any pylons, equipment or other facilities; compensation to on-site personnel to
implement services, patrol, direct parking or police the Common Area; plus fifteen (15%) percent of
the Yearly Common Area Costs as a fixed administrative fee for Landlord. Landlord may cause any
services such as sweeping, snow removal, repairs, etc. to be provided by independent contractors, and
the fees paid shall be part of Yearly Common Area Costs. For the purposes of computing Tenant's
Common Area Rent, those items considered to be capital expenditures under Generally Accepted
Accounting Principles ("GAAP") shall be amortized over the useful GAAP life of the item (not to exceed
7 years).
(F) After the end of each accounting period, Landlord shall furnish a statement of the
actual Yearly Common Area Costs. If the statement shows that the aggregate of Tenant's monthly
estimates paid by Tenant during such year was less than Tenant's Common Area Rent payable,
Tenant shall pay the balance due to Landlord within ten (10) days after receipt of the statement; and
if the statement shows that the aggregate paid exceeded the Common Area Rent payable, Landlord
shall either refund the excess or credit Tenant's next accruing Common Area Rent. Tenant's failure to
give Landlord written notice of any objection to the statement within ninety (90) days after the
statement is sent shall constitute a waiver of any objection or inquiry Tenant may have about the
statement or for any examination of Landlord's records. Tenant acknowledges Landlord has not made
any warranty, agreement or representation of any kind as to the actual dollar amount of Yearly
Common Area Costs or Tenant's dollar share thereof.
9. Use of Premises.
(A) Tenant agrees that the Leased Premises will be used and occupied by Tenant
and/ or any assignees, sublessees or other occupants (which reference to assignees, sublessees and
other occupants shall not be deemed to give Tenant any rights to assign or sublet not specifically set
forth in this Lease), or permitted to be used and occupied by Tenant or any other such parties only for
the Permitted Use, and for no other use or purpose. Without limitation of the foregoing, no sale or
dispensing of lottery tickets, other gaming tickets, liquor, wine or beer shall be permitted.
(B) Neither Tenant, nor any stockholder owning more than five (5%) percent of Tenant
if Tenant is a corporation, nor any person, corporation, partnership, trust, other firm or entity which
controls or is controlled by Tenant or is under common control with Tenant, nor any subsidiary of
Tenant, nor any business organization affiliated with Tenant (including but not limited to any
so-called "parent company" of Tenant), nor any guarantor of this Lease, will, directly or indirectly,
conduct business at, or sell from, any other place situated within a radius of three (3) miles of the
Leased Premises any merchandise or services which Tenant is permitted to sell or engage in any
business which Tenant is permitted to conduct in the Leased Premises. In addition to, and not in
exclusion of, any remedy available to Landlord for breach of the foregoing covenant, so long as this
covenant is being breached, Tenant's annual Base Rent shall be increased by twenty-five (25%)
percent. and, in addition, one half (1/2) of all of the "Gross Sales" (see .'\rticle 1 (E)) realized in or from
such other place shall be added to the Gross Sales of the Leased Premises for the purpose of
computing the Percentage Rent under thie Lease, with the eame eff.ect ae though such other Gross
Sales had actually been realized from the Leased Premises; but if Tenant has ceased conducting
bueinesG at the Leaeed Premises then, in addition to the twenty fi'le (25~/,,) percent Ease Rent
increaGc, all the "Gross Sales" realized from such other place shall be attributed to the Leased
Premieee.
54 (e) Tenant's Business Operations. Tenant shall keep the Leased Premises open and
55 operated continuously for business not less than from 10:00 A.M. to 9:00 P.M. each day for at least
56 six (6) days a week. Tenant will continuously operate its business therein with diligence and in a
57 manner calculated to produce maximum Gross Sales, and fully staffed with personnel at the Leased
58 Premises~, and at all times fully stoclced with seasonal merchandise. Tenant agrees for its part: no
59 auction, fire, bankruptcy, going out of business or similar sale will be conducted or advertised; no
60 merchandise will be kept, displayed or sold or business solicited in the Shopping Center outside the
61 Leased Premises; no nuisance will be permitted; nothing shall be done which is unlawful, offensive or
62 contrary to any law, ordinance, regulation or requirement of any public authority, or which may be
63 injurious to or adversely affect the quality of the Leased Premises or the Shopping Center; no part of
64 the Leased Premises (especially the electric and plumbing systems, the floor and walls) will be
65 overloaded, damaged or defaced; no holes will be drilled in the stone or brickwork or in concrete; no
66 emission of any objectionable odors, sounds or vibrations will be permitted. Tenant shall procure all
67 licenses and permits required for the use or occupancy of the Leased Premises and the business being
68 conducted therein; the storefront, show windows and signs will be repaired, kept clean, in good
69 condition and lighted; all merchandise and other property will be delivered to or removed from the
70 Leased Premises only by the rear entrance; all garbage, waste and refuse will be kept stored
71 temporarily inside the Leased Premises and then regularly removed at Tenant's expense and, if
72 Landlord opts, only by a contractor designated by Landlord, provided its price is competitive. Tenant
73 will comply with the requirements of law and any requests of governmental agencies or Landlord in its
74 recycling program, if any. Tenant will cooperate with Landlord and other tenants of the Shopping
75 Center in promotions and advertising, and will become 0. dues paying member of any merchants'
76 association (or eimilar organization) of which fifty (50%) percent or more of the tenants are members;
A.S
8/10/003: 14 PM
T:\SITE\022\MONROE\RIDER-A,DOC AS
Form 497
] or alternatively will become a participant of and Ghall pay itG prorata Ghare (bo.Ged on Tenant'G relo.ti-_'e
2 Gtore Gize) of any eJrpenGeG incurred by a marketing or promotion fund program noVl or hereafter
3 eGtabliGhed by Landlord, if any. Tenant shall comply with all environmental statutes, regulations or
4 ordinances now or hereinafter enacted by government authorities. Tenant shall not permit the
5 release, emission, disposal, dumping or storage of hazardous wastes (as defined in any such laws)
6 into the septic tanks, sewers, or other waste disposal facilities of the Shopping Center or anywhere in
7 the Shopping Center, or permit same to be brought into the Leased Premises at any time, and the
8 provisions of this sentence shall survive the expiration of the Lease Term. Tenant shall keep the
9 Leased Premises free of rodents, vermin, insects and other pests, and provide regular exterminator
10 services at its own expense, and, if Landlord opts, only by an exterminator designated by Landlord
II provided its price is competitive. Tenant agrees that nothing will be done or omitted which may either
12 prevent the obtaining by Landlord or other tenants of insurance on any part of the Shopping Center
] 3 or on any personal property thereon, or which may make void or voidable any such insurance, or
]4 which may create any extra premiums for any insurance carried by Landlord or other tenants.
15 Tenant will comply with all requirements and recommendations of Landlord's and Tenant's insurance
] 6 companies and any rating bureau or similar organization, including maintaining and servicing fire
17 extinguishers.
]8
19 (D) Tenant agrees to: stock only merchandise Tenant intends to offer for sale at retail
20 at the Leased Premises; use for office or other non-selling purposes only incidental space required for
2] Tenant's retail business conducted at the Leased Premises; not sell goods, solicit business or
22 distribute advertising matter in the Common Areas; not permit preparation of food or any cooking,
23 baking or frying in the Leased Premises. Tenant shall keep the sidewalks, curbs and ramps (if any)
24 adjacent to the Leased Premises (and also all delivery areas, ramps, loading areas and docks used
25 exclusively by Tenant) in good and safe condition and free from snow, ice, and rubbish. Tenant will
26 not make or suffer any waste of the Leased Premises. Landlord shall not be liable for the act of any
27 other tenant or person who may cause damage to or who may interfere with Tenant's use or
28 occupancy of the Leased Premises or Tenant's business.
29
30 10. (A) Utilities. Tenant shall provide and pay for its own heat, air conditioning, water,
31 gas, electricity, sewer, sprinklers and other utilities, including application deposits and installation
32 charges for meters and for consumption or use of utilities. Tenant shall pay its share of sewer
33 charges, if any, reasonably determined by Landlord. Tenant shall keep sufficient heat to prevent the
34 pipes from freezing. If Tenant receives utilities through a meter which supplies utilities to other
35 tenants, Tenant will pay to Landlord Tenant's proportionate share (based on relative square feet size
36 of premises) of the total meter charges. If Tenant receives water from Landlord's well or other sources
37 made available by Landlord (instead of from an independent water company), Tenant shall pay for the
38 water, and all costs and expenses for the maintenance, repair, replacement and installation of tanks,
39 electric costs, machinery, apparatus and facilities shall be included in Yearly Common Area Costs.
40 See_Artict~~_ re Utili!y"'Deregulation.
41
42 (B) Landlord's Reoairs. Weather permitting and subject to Article 25, Landlord shall,
43 within thirty (30) days after receiving written notice from Tenant, commence to make repairs, if
44 necessary, to the foundation, the roof, the exterior of the perimeter demising walls, and the
45 load-bearing structural columns and beams in the Leased Premises, except that if those repairs or
46 replacements arise from (i) repairs, installations, alterations, or improvements by or for Tenant or
47 anyone claiming under Tenant, or (ii) the fault or misuse of Tenant or anyone claiming under Tenant,
48 or (iii) default under the Lease by Tenant, then Tenant shall make such repairs or replacements or, if
49 Landlord elects, Landlord may perform the work for Tenant's account and Tenant shall reimburse
50 Landlord for expenses incurred. In determining Landlord's repair obligations, the expression "roof'
5] does not include rooftop heating or air conditioning units or other structures or apparatus on the roof
52 serving the Leased Premises, and "exterior of walls" does not include the storefront, any glass,
53 windows, window sashes or frames, doors, door frames or hardware, trim or closure devices, or any
54 part of the interior side of perimeter walls, all of which shall be Tenant's duty to repair, maintain, and
55 replace. In any event, Landlord's obligation shall be only to make the repairs for which it is hereby
56 obligated, and Landlord shall not be liable for loss of business, loss of sales, loss of profits or for any
57 consequential damages or for damage to or loss of personal property, fIxtures or any interior elements
58 of the Leased Premises which are Tenant's responsibility to maintain or repair.
59
60 (C) Tenant's Reoairs. Subject to Article 10(B), Tenant shall maintain and make all
6 I repairs and alterations of every kind with respect to the Leased Premises (including necessary
62 replacements) to keep it in good condition (including the storefront, glass, signs, ceilings, interior
63 walls, interior side of perimeter walls, floor, floor coverings, plumbing, electric, heating and air
64 conditioning, sprinklers and lighting fixtures), and do all required by any laws, ordinances or
65 requirements of public authorities. From the point they serve the Leased Premises exclusively,
66 whether located inside or outside, Tenant shall make all repairs, replacements and alterations
67 necessary to maintain in good condition all lines, apparatus, and equipment relating to utilities
68 (including heating, air conditioning, water, gas, electricity and sewerage). Tenant shall maintain a
69 service contract for the regular seasonal maintenance of the heating, ventilating and air conditioning
70 ("HVAC") system servicing the Leased Premises with a reputable HVAC contractor at all times during
71 the Lease. Additionally, if any air conditioning or heating equipment (or other utility equipment) is
72 damaged by vandalism, fire, lightning or other casualty, Tenant shall repair (and if necessary, replace)
73 the equipment, notwithstanding Article 13. Tenant's sole right of recovery shall be against Tenant's
74 insurers for loss or damage to stock, furniture and fixtures, equipment, improvements and
75 betterments.
76
8/10/003: 14 PM
T\SITE\022\MONROE\RIDER-ADOC AS
A-6
Form 497
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
~')
J_
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
1
2
(D) Sie:ns: Pain tine:: Disolavs. 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 with Landlord's specifications and keep the sign(s) (which must
first be approved by Landlord in writing) lit to at least 10:00 P.M. or to such later hour as requested
by Landlord, on all days of the year.
3
(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.
(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 Tenant's 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. Indemnitv: 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) 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 as an additional
insured with a limit of not less than One Million ($1,000,000) Dollars; (ii) an umbrella liability
insurance policy with a limit of not less than J4v.e- One Million ($5,000,000) ($1.000,000) Dollars,
naming Landlord as an additional insured; (iii) an insurance policy to cover heating and
air-conditioning units against damage for one hundred (100%) percent replacement cost; (iv) an
all-risk property insurance policy insuring all merchandise, leasehold improvements, furniture,
fixtures and other personal property, all at their replacement cost; and (v) 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 shall constitute a default. All policies of insurance required of Tenant shall
have terms of not less than one (1) year.
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
8/10/003: 14 PM
T:\SITE\022\MONROE\RlDER-A.DOC AS
A-7
Form 497
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
~J
.J_
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
1
2
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 or for
purpose of additional construction.
3
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 Tenant's 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) Anyone 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
8/10/003: 14 PM
T:\SITE\022\MONROE\RIDER-A.DOC AS
A-8
Form 497
1
2
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.
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
~")
,)-
(e) 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 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; 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. For the purpose of oomputing Landlord's damages due to loss of Percentage Rents
~~~s~~uent to termination, the GrosB Sales of the LeaBed Premises for each LeaBe Year oo~~~~~:
with the Lease Year of such termination Bhall be deemed to be equal to the amount of GraB I
'Nhioh were realized during the higheBt of the three (e) LeaBe Yeam prior to the termination.
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
(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.
52
53
(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.
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
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, and (ii)
all mortgages or other security instruments now or hereafter affecting the fee title of the Shopping
Center, and (iii) all renewals, modifications, consolidations, replacements and extensions of any such
ground or underlying leases and mortgages. 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.
74 (e) Provided Tenant was given notice in writing of the names and addresses to which
75 the notices should be sent, Tenant shall give prompt written notice of any default by Landlord to the
76 holder of all mortgages, ground or underlying leases and security holders if the default is such as to
8/10/003: 14 PM
T:\SITE\022\MONROE\RIDER.A.DOC AS
A-9
Form 497
I
2
3
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. 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).
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
I~
--'
24
25
26
27
28
29
30
3 J
~I
-'-
33
34
35
36
37
38
39
40
4]
42
43
44
45
46
47
48
49
50
5]
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
17. Waiver of SubroEation. Landlord and Tenant hereby release the other and all other
persons claiming under it from any and all liability for loss or damage caused by any casualty, even if
the casualty is brought about 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 OR SUBLETTING. Tenant shall not assign, mortgage, pledge, or
otherwise transfer or encumber this Lease or any interest therein, either voluntarily or by operation of
law or otherwise, or sublet the whole or any part of the Leased Premises, or permit occupancy by
anyone else, without obtaining on each occasion Landlord's prior written consent, which consent
Landlord may deny, regardless of commercial reasonableness. In any assignment the assignee must
assume this Lease in writing on Landlord's form. Any request for Landlord's consent to assignment
or subletting shall be accompanied by payment of Landlord's reasonable administrative and
attorneys' fees relating thereto. Notwithstanding an assignment or subletting or occupancy of the
Leased Premises by anyone other than Tenant, 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. 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 tenant. 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. In any assignment of this Lease, the
assignment shall be invaliEi unless the assignor pays Landlard, prior to the assignment, any
Percentage Rent due fur the elapsed J3ortion of the Lease Year in which the preposed assignment is to
occur (fDr this purpose, the "Gross Sales Base" shall be reduced in the same proportion that tho
number of days in ouch elapsed portion of the Leafle Year bearfl to three hundred sinty five [365]).
The computation of any Percentage Rent payable to Landlord for the unelapsed portion of that Lease
Year flhall be bafled on a "Grosfl Salefl Bafle" reduced in the flamo proportion that the number of days
in Guch unelapfled portion of the Lease Year beam to three hundred flim)' five (365).
19. Surrender and BoldinE 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.
(BI 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 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 bv 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
8/10/003: 14 PM
T\SITE1022\MONROE\RIDER-A.DOC AS
A-1O
Form 497
] shall be deemed to be anything but payment on account, and Tenant's payment of a lesser amount
2 with a statement that the lesser amount is payment in full shall not be deemed an accord and
3 satisfaction. Landlord may accept the payment without prejudice to recover the balance due or
4 pursue any other remedy. Landlord may accept payments even after default by Tenant without
5 prejudice to subsequent or concurrent rights or remedies available to Landlord under this Lease, at
6 law or in equity. Any acceptance by Landlord of any payment by Tenant after termination or
7 expiration of the Lease Term shall not constitute an acceptance of Rent but rather a payment to
8 Landlord on account of Tenant's use and occupancy of the Leased Premises. All rights and remedies
9 which Landlord may have under this Lease, at law or in equity shall be distinct, separate and
] 0 cumulative and shall not be deemed inconsistent with each other, and any or all of such rights and
II remedies may be exercised at the same time.
12
13 21. Rules and Ree:ulations. Tenant shall observe and comply with, and cause its
14 employees, agents, subtenants and concessionaires, and their employees and agents, to observe and
15 comply wIth all reasonable rules and regulations promulgated by Landlord by notice to Tenant; and
16 such rules and regulations shall have the same force and effect as if originally contained in this
17 Lease.
18
19 22. Failure of Performance bv Tenant. If Tenant shall default under this Lease, Landlord
20 may, at its election, immediately or at any time thereafter, without waiving any claim for breach of
21 agreement, and without notice to Tenant, cure such default or defaults for the account of Tenant, and
22 the cost to Landlord thereof plus interest at the Default Interest Rate shall be deemed to be additional
23 Rent and payable on demand. Tenant shall pay all reasonable attorneys' fees, costs and expenses
24 incurred by Landlord in enforcing the provisions of this Lease, suing to collect Rent or to recover
25 possession of the Leased Premises, whether the lawsuit or other action was commenced by Landlord
26 or by Tenan t.
27
28
29
30
31
23. Limitations on Landlord's Liabilitv.
~J
j-
(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.
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
(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
Tenant's rights or remedies.
24. Miscellaneous Provisions.
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
(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 is lower.
(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 Tenant's 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
8/101003: 14 PM
T:\SITE\022\MONROE\RIDER-A.DOC AS
A-II
Form 497
1 Lease shall be transferred to and continue to apply, without interruption, to the New Premises from
2 and after the date Tenant is required to move pursuant to this Article.
3
4 (D) The submission of this Lease to Tenant for review or Tenant's signature does not
5 constitute a reservation of, or option for, the Leased Premises or a representation that the business
6 terms have been approved by executive officers of Landlord or Landlord's Board of Directors. This
7 Lease shall become effective as a lease or agreement only upon mutual execution and delivery. A
8 lease which is not fully executed and delivered cannot be enforced in any manner and cannot give rise
9 to any rights or remedies.
10
11 (E) The provisions of this Lease shall be construed, in all respects, without reference
12 to any rule or canon requiring or permitting the construction of provisions of documents against the
13 interest of the party responsible for the drafting of the same, it being the intention and agreement of
14 the parties that this Lease be conclusively deemed to be the joint product of both parties and their
15 counsel. Furthermore, the parties agree that this Lease may be executed with revision markings (so-
16 called "blacklining") appearing in the execution copy (i.e., deleted text is overstricken and newly-
17 inserted text is underscored or in boldface); such "blacklining" shall not be accorded any significance
] 8 or taken into account in any way; this Lease shall be construed for all purposes as if all overstricken
19 text were deleted and never included in this Lease and all bold or underscored text were not bold or
20 underscored.
2]
n 25. Unavoidable Delavs. Where either party hereto is required to do any act but is untimely
23 in completing the act, the time attributable directly to delays caused by an Act of God, hurricane,
24 tornado, rain, snow, cold or other weather, war, civil commotion, fire or other casualty, labor
25 difficulties, or shortages of labor, materials or equipment, government regulations or other causes
26 beyond such party's reasonable control shall not be counted in determining the time during which
27 such act is to be completed. In any case where work is to be paid for out of insurance proceeds or
28 condemnation awards, due allowance shall be made for delays in the collection of such proceeds and
29 awards. The provisions of this Article shall not be applicable at all to excuse or permit delay of the
30 time for Tenant to pay Rent or other money or to obtain and maintain insurance policies. If Landlord
31 is unable to deliver the Leased Premises by the end of one (1) year after Landlord's execution of this
32 Lease, then either party may terminate this Lease by giving thirty (30) days written notice to the other
33 at any time prior to tender.
34
35 26. Sole Broker. Tenant represents that no broker, finder, or other person entitled to
36 compensation (other than the Broker identified in Article 1) was involved in this Lease, and that no
37 conversations or prior negotiations were had with any broker, finder or other possible claimant other
38 than the Broker concerning the renting of the Leased Premises. Tenant shall defend, indemnify and
39 hold Landlord harmless against any claims for compensation (including legal fees incurred by
40 Landlord) arising out of any conversations or negotiations had by Tenant with anyone other than the
41 Broker.
42
43 27. Estoppel Certificates. From time to time, within ten (10) days following written notice,
44 Tenant shall deliver to Landlord a signed and acknowledged written statement certifying: the date of
45 this Lease and that this Lease is in full force and effect and unmodified except as stated; the monthly
46 Base Rent payable during the Lease Term; and the Percentage Rent Rate; the date to which the Rent
47 and other payments have been paid; whether Landlord is in default, or if there are any offsets,
48 defenses, or counterclaims claimed by Tenant, and if a default, offset, defense, or counterclaim is
49 claimed, specifying the specific nature and default; and stating any additional matters requested by
50 Landlord or a mortgagee.
5l
52 28. Shoppin2: Center Chan2:es. Neither Exhibit A nor this Lease is a warranty by Landlord
53 that the Shopping Center will remain as shown. Landlord may relocate, increase, reduce or otherwise
54 change the number, dimensions, or locations of the parking areas, drives, exits, entrances, walks and
55 other Common Areas or buildings. If Landlord desires to modernize the facade of the Shopping
56 Center, Tenant shall, upon request of Landlord, install a new exterior sign and improve its storefront,
57 following the design of Landlord's architect. Landlord reserves the right to use portions of the
58 Common Area for construction-related activities and to erect temporary scaffolding in front of the
59 Leased Premises. Tenant waives any claim for rent abatement, loss of business or damages arising
60 out of any reasonable and temporary inconvenience allegedly experienced by Tenant during the
61 course of any alteration, improvement or modernization, or during any repair activities in which
62 Landlord is engaged.
63
64 29. Notices. All notices intended to impose liability on the other party or exercise a right
65 ("Notice") shall be in writing and sent by certified or registered mail, return receipt requested, or
66 delivered by a nationally recognized overnight courier (such as Federal Express or UPS) and in order
67 to be effective a copy of any notice of Landlord's default must be sent by Tenant to the holders of any
68 mortgages, ground leases or security interests as per Article 16(C). Notices shall be sent to the
69 address set forth in Article 1 or to such other address as may be designated by notice. Notices shall
70 be effective the day after the notice was sent, or if by courier delivery, the day delivered. The
71 purported giving of notice or exercise by Tenant of any right, option or privilege by any means other
72 than written notice given in strict compliance with this Article shall be null, void and of no force or
73 effect, even if any such other means of communication succeeds in conveying actual notice. If courier
74 delivery is refused or not able to be made, the day delivery was first attempted shall be deemed the
75 delivery date.
76
8/10/003: 14 PM
T:\SlTE\022\MONROE\RIDER-A,DOC AS
A-12
Form 497
]
2
3
(END OF RIDER A)
SEE RIDER B ATTACHED HERETO AND HEREBY MADE A PART OF THIS LEASE.
8/10/003: 14 PM
T:\SITE\022\MONROE\RIDER-A,DOC AS
A.13
Form 497
RIDER B
30. Notwithstanding anything provided herein to the contrary, if there is a discrepancy
between Rider "A" and Rider "B", Rider "B" shall prevail.
31. Sign Criteria - Reference Article 1 0(0). (A) Tenant must obtain Landlord's written
approval of its sign design drawings prior to the fabrication and installation of Tenant's sign.
The drawings must include the dimensions, color, style and types of materials to be used.
The sign shall consist of individual internally illuminated channel letters mounted on the
raceway. The returns, raceway and jewelite trim shall be painted to match the stucco sign
background. The lettering shall not exceed 36 inches in height and the length shall not
exceed 2/3 of Tenant's storefront. Flashing, neon or moving lights on signs are prohibited.
The sign shall be placed in the designated area and in such a manner that it does not
extend beyond the parapet or facade. The plans and permits for, and the installation of, the
lettering shall all be at Tenant's sole cost and expense. The sign shall be governed by all
applicable provisions of this Lease, including, but not limited to, Tenant's duty to repair
(Article 10) and insure (Article 11) the sign. The sign shall be subject to all governmental
authorities' codes and restrictions.
(B) Upon the expiration or sooner termination of this Lease, Tenant shall remove its
sign and restore the sign band/fascia to its original condition.
32. Utility Deregulation.
(A) Landlord Controls Selection. Landlord and Tenant acknOWledge that new utility
deregulation may allow Landlord to change electric service providers in the future. If such
deregulation goes into effect, Landlord shall have the right at any time and from time to time
during the Lease Term to either (i) contract for service from a different company or
companies providing electricity service (each such company shall hereinafter be referred to
as an "Alternative Service Provider") or (ii) continue to contract for service from the present
electric utility company (the "Electric Service Provider").
(B) Tenant Shall Give Landlord Access. Tenant shall cooperate with Landlord, the
Electric Service Provider, and any Alternative Service Provider, at all times as reasonably
necessary, and allow the foregoing to have reasonable access to any and all electric lines,
feeders, risers, wiring, and any other machinery within the Leased Premises.
(C) Landlord Not Responsible for Interruption of Service. Landlord shall not be
liable or responsible for any loss, damage, or expense that Tenant may sustain or incur by
reason of any change, failure, interference, disruption, or defect in the supply or character
of the electric energy furnished to the Leased Premises, or if the quantity or character of
the electric energy supplied by the Electric Service Provider or any Alternate Service
Provider is no longer available or suitable for Tenant's requirements, and no such change,
failure, defect, unavailability, or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or
relieve Tenant from any of its obligations under the Lease.
33. Other Taxes - Reference Article 5(C). Notwithstanding anything to the contrary
contained in the Lease, Tenant shall pay directly to Landlord any tax or license fee
measured by Tenant's gross Rents receivable by Landlord, including but not limited to the
Florida Rent Tax as set forth in Section 212.031 of the Florida Statutes, as heretofore and
hereafter amended. That portion of such taxes attributable to each month's Rent shall be
paid by Tenant to Landlord each month along with Tenant's monthly Rent payment.
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.
T: \S ITE\022\MO N ROE\RI DER-B. DOC
AS
08/1 0/2000
35. No Construction Liens - Reference Article 10(F). 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.
36. Option to Extend Lease. (A) Provided Tenant is not in default under any provision of
the Lease and has faithfully performed the terms or conditions of the Lease and Tenant is
in actual physical possession of all of the Leased Premises (and operating and open for
business as contemplated by this Lease, in all of the Leased Premises), Tenant shall have
the right to extend the term of this Lease as set forth in Article 1 (the "Original Term") for
one additional period of five (5) years (the "Additional Term") commencing upon the
expiration of the Original Term, provided that Tenant shall give Landlord written notice of
such election at least one (1) year prior to the expiration of the Original Term. TIME IS OF
THE ESSENCE WITH RESPECT TO THIS ARTICLE. Except as expressly otherwise
provided herein, the Additional Term shall be upon all of the terms and conditions of the
Lease except that any articles which were intended to be one time, initial provisions or
concessions (such as free Rent, Landlord Work, or a Tenant improvement allowance) shall
be deemed to have been satisfied and shall not apply to the Additional Term. Also, there is
no option to further extend the Term of the Lease beyond the expiration date of this Option.
(B) Option Base Rent. In the event Tenant exercises its option to extend the
Term of the Lease as provided above, the annual Base Rent during each Lease Year of the
Additional Term shall be as set forth in Article 1 (H)(i).
37. Termination Right. In the event the Monroe County Board of County Commissioners
Meeting ("Board") votes not to appropriate funds for this Lease in its annual meeting,
Tenant shall have the right to terminate the Lease at any time after the expiration of the
second Lease Year upon the following conditions. Tenant must: (i) notify Landlord within
ten (10) days after the Board budget vote, (ii) must vacate the Leased Premises within
thirty (30) days after the Board budget vote, and (iii) put demising walls back to the
condition they were in before Tenant's occupancy prior to Tenant's vacating of the Leased
Premises. In the event that Tenant elects to terminate this Lease in accordance with the
provisions of this Article, then and in such event the Lease shall terminate on the
Termination Date as if such date Was the date originally set forth for the expiration of this
Lease. Tenant shall remain liable for all obligations under the Lease that accrue up to and
including the Termination Date.
38. PLANS AND SPECIFICATIONS.
(A) Within thirty (30) days after the date Landlord executes this Lease, Tenant
shall submit to Landlord, for Landlord's written approval, 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 two sets of full-size
construction drawings and specifications, as well as one set of computerized construction
drawings saved on 3.5" diskettes in .DWG or .DXF file format. If Tenant fails to deliver
these Plans to Landlord timely, Landlord shall have the right to terminate this Lease and
retain the Tenant's entire security deposit as liquidated damages.
(B) Landlord shall inform Tenant of any objections to the Plans within thirty
(30) days after receipt; then Tenant, within fifteen (15) days, shall deliver to Landlord
corrected Plans, which Landlord shall accept or reject within the next fifteen (15) days.
(C) Tenant must obtain Landlord's approval of its Plans 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
T.\SITE\022\MONROE\RIDER-B. DOC
AS
2
08/1 0/2000
Landlord. 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. Before commencing its work, Tenant will deliver to Landlord all of the
following: (1) A ~gntr4~tgr'i: ~gm~hitign bgnd, in f:i'.'gr gf l..:indlgH,i 4i: gbIiSQQ, in fgrm
:i~WgvQd by I..:indlgrd, i~~61Qd by 4 ~61rQty ~gR::J~:iny i::iti~f:i~tgry tg I..:indlgrd, S6I:ir:intQQins
~gl*1~IQtign gf TQn:int'i: wgrk in :i~~grd:im:Q with thQ P14ni: frQQ gf IiQni: :ind i:Q~61rity
4srQQr;;JQnti:, :ind (1) comprehensive general liability insurance from Tenant's contractor
naming Landlord as additional insured for at least$Iii,QOO,OOQ $1,000,000 combined single
limit for bodily injury and property damage, and (3) the general contractor's written
indemnity agreement 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,
and (4) contractor's Workers' Compensation and Occupational Disease insurance with
statutory limits and employer's liability with a limit of at least $1,000,000.
(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 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 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 Lease 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 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 ar otherwise correct the defect or deficiency
without cost to Landlord. Additionally, the following items shall be guar:::.nteed 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 architect that the location has been marked and
that construction of the wall is about to begin, and give Landlord's architect a reasonable
T. \S ITE\022\M ON ROE\RI DE R-B. DOC
AS
3
08/1 0/2000
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, 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), Tenant
shall first obtain Landlord's written approval, not 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.
39. HVAC. Notwithstanding anything contained in Articles 7 and 10, if: i) the HVAC system
fails to operate during the ten (10) days following the date Landlord tenders the Leased
Premises to Tenant; ii) the failure is not due to an act or omission of Tenant or its agents,
employees or contractors; and Hi) Landlord receives written notice from Tenant within three
days of the failure, Landlord shall restore the system to operating condition. After the ten
(10) day period, Tenant shall have full responsibility with respect to the HVAC system.
END OF RIDER B
T:\SITE\022\MONROE\RIDER-B.DOC
AS
4
08/1 0/2000
EXHIBIT "A"
NOTE: THIS SITE PLAN SHOWS THE APPROXIMATE lOCATION OF THE lEASED PREMISES
AND THE APPROXIMATE CONFIGURATION OF THE lEASED PREMISES AND ADJACENT
AREAS, AND IS ONLY IllUSTRATIVE OF THE SIZE AND RELATIONSHIP OF THE STORES
AND COMMON AREAS GENERALLY, ALL OF WHICH ARE SUBJECT TO CHANGE. THE
SHOWING OF ANY NAMES OF TENANTS, PARKING SPACES, CURB CUTS OR TRAFFIC
CONTROLS SHALL NOT BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY
LANDLORD THAT ANY TENANTS WILL BE AT THE SHOPPING CENTER OR THAT ANY
PARKING SPACES, CURB CUTS OR TRAFFIC CONTROLS WILL CONTINUE TO EXIST.
THE LEASED PREMISES SHALL BE THE STOREROOM IDENTIFIED BELOW:
T:\SITE\022\MONROE\RIDER-B.DOC
AS
5
08/10/2000