Item C04 C.4
Coty f � ,�� ,' BOARD OF COUNTY COMMISSIONERS
�� Mayor David Rice,District 4
The Florida Keys � Mayor Pro Tem Craig Cates,District I
y Michelle Coldiron,District 2
James K.Scholl,District 3
Ij Holly Merrill Raschein,District 5
County Commission Meeting
August 17, 2022
Agenda Item Number: C.4
Agenda Item Summary #10735
BULK ITEM: Yes DEPARTMENT: Facilities Maintenance
TIME APPROXIMATE: STAFF CONTACT: Alice Steryou(305) 292-4549
No
AGENDA ITEM WORDING: Approval of a First Amendment to Shopping Center Lease with
UH US Big Pine Key 2019, LLC, as Landlord, to change the Notice address for the Landlord's
Property Management office. This Lease is for the District 2 County Commissioner's office at Unit
B-2 at the Big Pine Key Shopping Center.
ITEM BACKGROUND: On February 17, 2021, the BOCC approved the lease of a new location
for the District 2 County Commissioner's office and authorized the Mayor to execute the new Lease
once it had been finalized and approved by the County Attorney's office for office space in the Big
Pine Key Shopping Center. The Shopping Center Lease was executed on March 11, 2021. The
Landlord provided a New Notice Address change that the Landlord's Property Management Office
has moved from 2701 North Charles Street, Suite 404, Baltimore, MD 21218, to 2002 Clipper Park
Road, Suite 105, Baltimore, MD 21211. This First Amendment to the Lease is to revise paragraph 25
of the Lease to reflect the new addresses for the Landlord. All other terms and conditions of the
Lease remain the same. The current Lease expires on April 30, 2023, unless it is renewed.
PREVIOUS RELEVANT BOCC ACTION:
February 17, 2021 BOCC approved the lease of a new location for the District 2 County
Commissioner's office and authorized the Mayor to execute the new Lease
once it had been finalized and approved by the County Attorney's office.
The Lease was executed on March 11, 2021.
CONTRACT/AGREEMENT CHANGES:
Yes
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
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C.4
08-17-2022-First Amendment to Shopping Center Lease - District Two Commissioner-Big Pine
(final legal stamped)Partial Exec-rev
02-17-2021 Shopping Center Lease -UH US BPK 2019 LLC—Exec
FINANCIAL IMPACT:
Effective Date: August 17, 2022,with the address change retroactive to March 23, 2022
Expiration Date: April 30, 2023 (current Lease termination date unless renewed)
Total Dollar Value of Contract: N/A
Total Cost to County: N/A
Current Year Portion: N/A
Budgeted:
Source of Funds: 001-00101-BOCC Administrative
CPI: Yes-Annual3%
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant: N/A
County Match: N/A
Insurance Required: Yes —Insurance provided after BOCC approval.
Additional Details: This Amendment is for a change of Notice Address for the Landlord.
N/A
02/17/21 001-00101 - BOCC ADMINISTRATIVE $52,194.24
REVIEWED BY:
Patricia Eables Completed 08/01/2022 11:15 AM
William DeSantis Completed 08/01/2022 11:16 AM
Kevin Wilson Completed 08/01/2022 1:03 PM
Purchasing Completed 08/01/2022 1:14 PM
Budget and Finance Completed 08/01/2022 1:58 PM
Brian Bradley Completed 08/02/2022 4:20 PM
Lindsey Ballard Completed 08/02/2022 4:36 PM
Board of County Commissioners Pending 08/17/2022 9:00 AM
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FIRST AMENDMENT TO SHOPPING CENTER LEASE
This First Amendment to Shopping Center Lease is made and entered into on the 20 day of July,
2022, by and between UH US Big Pine Key 2019, LLC, a Delaware limited liability company, (hereinafter
"Landlord") and Monroe County Board of County Commissioners, a political subdivision of the State of
Florida, (hereinafter"Tenant" or"BOCC") for Monroe County Commissioner District office space.
WHEREAS, on the 17th day of February, 2021, the BOCC approved to enter into a Shopping
Center Lease ("Original Lease") for Unit B-2 at the Big Pine Shopping Center for use as the District 2
County Commissioner's Office and authorization for the Mayor to execute the required Lease after review U)
by the County Attorney's Office; and
WHEREAS, the parties subsequently executed the final approved Shopping Center Lease dated
March 10, 2021; and
WHEREAS, Tenant has now received a Notice from the Landlord of an address change for the E'
Landlord's property management office for purposes of giving proper notice under the Original Lease and
the parties now desire to revise the Original Lease as to the notice provision; and
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WHEREAS, the parties have found the Original Lease to be mutually beneficial;
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NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth U
below, the parties agree as follows:
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1. Paragraph 25 of the BASIC LEASE TERMS of the Original Lease is hereby amended to
read as follows:
25) Parties Designated to Receive Copies of all Notices (including notices of default):
If to Landlord:
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UH US Big Pine 2019, LLC
c/o MCB Real Estate, LLC
2002 Clipper Park Road, Suite 105
Baltimore, MD 21211
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With a copy to:
PSD Realty Associates, LLC
2655 N. Ocean Dr.
Suite 401
Singer Island, FL 33404 Ur
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If to Tenant:
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Facilities Contract Monitor
123 Overseas Highway, Rockland Key
Key West, FL 33040 E
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And
Monroe County Attorney's Office
1111 12th St., Suite 408
Key West, FL 33040
2. Except as set forth in Paragraph one of this First Amendment to Shopping Center Lease, in
all other respects,the terms and conditions of the Original Lease dated March 10,2021, shall remain in full
force and effect. U)
IN WITNESS WHEREOF, each party has caused this First Amendment to Shopping Center Lease ;
to be executed by its duly authorized representative.
TENANT:
(SEAL) BOARD OF COUNTY COMMISSIONERS
ATTEST: KEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA
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By: E E
Deputy Clerk Mayor David Rice E
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Date:
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LANDLORD:
UH US Big Pine 2019, LLC
MONA0ECOUNTY ATTORNEY'SOFFICE A Delaware Limited Liability Company
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PATRICIA EABLES
ASStST,AN'L&Sj5TOftNEYBy:
CATIE:
Robert T. Schmitt
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Manager
Date: 7/8/22 0
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STATE OF: New Jersey
COUNTY OF: Morris
Subscribed and sworn to (or affirmed) before me, by means of❑ Physical presence or ® online E
notarization, on _ 7/8/2022 (date) byobe t T.s ntt� cc�i (name of
affiant). He/She is personally known to me or has producedLL
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Personally Known (type of identification) as identification. cN
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(SEAL) NOTARY PUBLIC
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\GM°F'iC My Commission Expires:
OS/14/2026
Caroline L.Murray
Notary Public of New Jersey 2
n , Commission #50160821
My Commission Expires 05/14/2026
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Kevin Madak, CPA
Glerk of the Circuit Court& Comptroller—Monroe County, Florida
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DATE: March 15, 2021
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TO: Alice S(eryou 0
Coutrac( Monitor
FROM: P<uilela G. 13ancok7.C:.
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SU EC-F: February 17'' 110CC Meeting
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Attaclied is all cicctrollic copy of llle 1011m ng item fir your handling
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'l'l0 I.ca_se for I init B-2 at the Big Pine Key Sliopping Center for use as the District 2
Comi-nissioner's 0flic;e mid autljoriration for Mayer to execute (lie required Ixe.ase, after re►riew by a
[lie Coun(.y Attorney's (Alice; and gran(.ed approval to lenninatc die current Ika_se on (lie District 2
Con1n11ssionces ofllcc now located on Sllip's N-Vay, I3ig Pine Key; all(] authorizing[lie Mayor to
execute the terminadon notice. U)
Should you lm,e any questions please lcel tree to contact lnc al (305) 292-35 50. �
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cc: Facilities Supenisor CN
Counly Attorney CN
Finance
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KEY WEST MARATHON PLANTATION KEY PKIROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Pfau
305-294-4641 305-289-6027 305-852-7145 305 Packet Pg. 165
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SHOPPING CENTER LEASE
Between
UH US Big Pine Key 2019 LLC, LESSOR
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and
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Monroe County Board of County Commissioners
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For the Premises Located at
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201 Key Deer Boulevard, Unit 4B2 Big Pine Key, Monroe County, Florida 33043 V-
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March 10, 2021
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BASIC LEASE TERMS z
The following are certain basic terms and definitions are hereby incorporated as part of the
Lease. In the event that any conflict between the following Basic Lease Terms and other t
more detailed provisions of the Lease, the other provisions of the Lease shall be
controlling.
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1) Shopping Center Name and Location: Big Pine Shopping Center, Big Pine Key, FL
2) Landlord's Name: UH US Big Pine Key 2019 LLC
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3) Tenant's Name: Monroe County, Board of County Commissioners
4) Tenant's Address: 1100 Simonton St. 0
Key West, FL 33040
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5) Address of Premises: 201 Key Deer Blvd, Suite B-2
Big Pine Key, FL 33043-4905 �E
6) Tenant's Trade Name: Monroe County, Board of County Commissioners
7) Tenant's Telephone#: 305.292.4549
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8) Tenant's IRS Taxpayer ID #: 59-6000749 te,'�
9) Brokers: Keys Real Estate V-
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10) Premises Floor Area: 1,200 square feet
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11) Initial Term: Two (2)years with an early termination if Tenant secures space in a
County owned facility, and gives six (6)months written notice.
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12) Term Commencement Date: same as RCD date
13) Rent Commencement Date: The earlier of Tenant opening or 5/1/21
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14) Minimum Base Rent: PSF Annual Monthly
5/1/21 —4/30/22 $17.00 $20,400.00 $1,700.00
5/1/22 —4/30/23 $17.51 $21,012.00 $1,751.00 V-
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15) Renewal Terms: One Option for four(4)years. Rent to start at$18.00 with 3% N
annual increases.
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16) Holdover Rent: 150% of Minimum Base Rent
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17) Security Deposit: $0.00
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18) Common Area Maintenance, Trash, Insurance, and Taxes:
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Starting rate Common Area Maintenance: $274.62 U
Insurance: $200.14 CL
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RE Tax: $97.35 Tenant is exempt from State of FL sales tax (will need
certificate to verify)
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19) Estimated Landlord Delivery: Upon fully executed lease N
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20) Landlord Allowance: N/A
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21) Landlord's Work: None
22) Permitted Use: The Premises shall be used and occupied only as a County office and for no
other purpose.
23) Insurance: Tenants obligations are as outlined in lease
24) Guarantors: n/a
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25) Parties Designated to Receive Copies of All Notices (including notices of default): U�
If to Landlord:
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United Hampshire US Holdings, LLC CL
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22 Maple Ave
Morristown, NJ 07960
With copy to:
PSD Realty Associates, LLC
2655 N. Ocean Dr, Ste 401
Singer Island, FL 33404
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If To Tenant:
County Commissioner—District Two
1100 Simonton St
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Key West, FL 33040 N
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With copy to: N
County Attorney Q
1111 12th St. Ste 408
Key West, FL 33040 E
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26) Payments shall be made and mailed to:
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United Hampshire US Holdings LLC
PO Box—200285 0
Pittsburgh, PA 15251-0285
Or overnighted to:
United Hampshire US Holdings LLC
Attn: Lock Box 200285
500 Ross Street 154-0460
Pittsburgh, PA 15262-0001
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EXHIBITS
A. Rent Schedule
B. Shopping Center Site Plan '�
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C. Rules and Regulations
D. Sign Criteria
E. Legal Description of Shopping Center
F. Form of Estoppel Certificate
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TABLE OF CONTENTS
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ARTICLE 1-Defined Terms 0
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1.1 Advance Rent
1.2 Applicable Laws
1.3 Base Rent
1.4 Basic Lease Terms
1.5 Broker 0
1.6 Building
1.7 Common Area Maintenance Costs
1.8 Common Areas
1.9 Condemnation
1.10 Condemnation Award °0
1.11 Effective Date
1.12 Environmental Laws 0
1.13 Exclusive Use Rights
1.14 Fair Market Rent E
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1.15 Gross Sales
1.16 HVAC Maintenance Contract E
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1.17 HVAC Maintenance Contractor
1.18 HVAC System
1.19 Hazardous Substances
1.20 Initial Term cs
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1.21 Landlord X
1.22 Landlords Work
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1.23 Lease or Agreement
1.24 Managing Agent
1.25 Managing Agents Address
1.26 Minimum Operating Hours
1.27 Mortgage
1.28 Mortgage
1.29 Percentage Rent
1.30 Percentage Rent Breakpoint
1.31 Percentage Rent Rate
1.32 Permitted Use T
1.33 Premises
1.34 Premises Floor Area
1.35 Rent
1.36 Rules and Regulations
1.37 Security Deposit 0
1.38 Shopping Center
1.39 Store Space Q
1.40 Substantial Completion of Landlords Work
1.41 Substantial Completion of Tenants Work N
1.42 Tax Expenses
1.43 Tenant
1.44 Tenants Estimated Common Area Maintenance Costs for First Full Year of
Lease Term
1.45 Tenants Estimated Tax Expenses for First Full Year of Lease Term
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1.46 Tenants Insurance Contact
1.47 Tenants Proportionate Share
1.48 Tenants Trade Name 0
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1.49 Tenants Work
1.50 Term
1.51 Term Commencement Date U
ARTICLE 2 - Grant and Term
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2.1 Grant
2.2 Term
2.3 Relocation
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ARTICLE 3 -Rent
3.1 Base Rent 0
3.2 Fair Market Rent.
3.3 Calculation of Fair Market Rent. E
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3.4 Percentage Rent
3.5 Utility Charges
3.6 Taxes
3.7 Maintenance Costs
3.8 Adjustments to Tenant's Proportionate Share
3.9 Method of Payment, Past Due Rent
3.10 No Setoff, Counterclaim, etc. X
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ARTICLE 4 - Construction of Improvements
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4.1 Condition of Premises N
4.2 Tenant's Work
4.3 Commencement and Completion of Tenant's Work; Tenant's Opening
4.4 Certification of Estimated Cost of Tenant's Work
ARTICLE 5 -Use of Premises as
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5.1 Use
5.2 Other Tenant's Exclusive Use Rights
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ARTICLE 6 - Quiet Enjoyment and Landlord's Right of Entry
6.1 Tenant's Right to Possession 0
6.2 Right of Entry V-
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ARTICLE 7 -Nuisance,Waste, Rules and Regulations
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7.1 Nuisance
7.2 Waste, Etc. u
7.3 Rules and Regulations E
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ARTICLE 8 - Compliance with Law, Liens, and Indemnity
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8.1 Compliance with Law and Contracts 0
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8.2 Environmental Compliance
8.3 Title and Covenant Against Liens
8.4 Indemnification U
ARTICLE 9 -Maintenance and Repair of Premises
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9.1 Maintenance by Tenant
9.2 Maintenance by Landlord 0-
9.3 HVAC Systems
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ARTICLE 10-Common Areas
10.1 Control of Common Areas 0
10.2 License
10.3 Solicitation of Business E
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10.4 Right to Employ Contractor
10.5 Security
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ARTICLE 11 -Fixtures, Signs, and Alterations
11.1 Fixtures cs
11.2 Signs
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11.3 Landlord's Lien U
11.4 Alterations
ARTICLE 12 - Condemnation cN
12.1 All of Premises Taken
12.2 Less Than All of Premises Taken
12.3 Shopping Center Taken
12.4 Ownership of Condemnation Award
ARTICLE 13 -Insurance
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13.1 Insurance to be Provided by Landlord r i
13.2 Insurance to be Provided by Tenant
13.3 Tenant's Insurance Requirements
13.4 Loss and Damage to Tenant's Property,Waiver of Subrogation 0
ARTICLE 14 -Damage or Destruction Q
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14.1 Destruction of Premises N
14.2 Destruction of Shopping Center
ARTICLE 15 -Assignment, Subletting and Encumbrance
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15.1 Assignment and Subletting
15.2 Criteria for Assignment and Subletting
15.3 Encumbrance 0
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ARTICLE 16-Default
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16.1 Events of Default
16.2 Remedies of Landlord.
16.3 Expenses of Enforcement. 0
16.4 Rights Cumulative, Non-Waiver.
16.6 Landlord's Right to Cure.
16.7 Default by Landlord.
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ARTICLE 17-Estoppel Certificates, Subordination, and Mortgagee Protection
17.1 Estoppel Certificates 0
17.2 Subordination Superiority
17.3 Mortgagee Protection
17.4 Tenant's Default; Power of Attorney
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ARTICLE 18 - Surrender and Holdover
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18.1 Surrender
18.2 Holdover c�
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ARTICLE 19 - Security Deposit and Advance Rent U
19.1 Security Deposit T-
19.2 Advance Rent N
ARTICLE 20 - General Provisions
20.1 Successors
20.2 Notices
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20.3 Excuse of Performance
20.4 No Option
20.5 No Joint Venture
20.6 Broker t i
20.7 Financial Statements
20.8 Interpretation, Headings and Captions
20.9 Joint and Several Liability
20.10 Partial Invalidity
20.11 Survival
20.12 Definition of Landlord,Exculpation
20.13 Time of Essence N
20.14 Accord and Satisfaction
20.15 Entire Agreement
20.16 Recordation E
20.17 Governing Law
20.18 Authority and Good Standing
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20.19 Annual Appropriation
20.20 Public Access
20.21 Non-Waiver of Immunity 0
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20.22 Nondiscrimination
20.23 Adjudication of Disputes or Disagreements
20.24 Covenant of No Interest U
20.25 Privileges and Immunities
20.26 Legal Obligations and Responsibilities
20.27 Ethics Clause
20.28 Public Entity Crime Statement
20.29 Maintenance of Records
20.30 Attestations
20.31 Rule of Construction N
20.32 Cooperation °0
20.33 Tenant's Right to Terminate
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SHOPPING CENTER LEASE AGREEMENT
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THIS LEASE is made and entered into by and between Landlord and Tenant, as said 0
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terms are herein defined, as of the Effective Date of this Lease.
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ARTICLE 1-Defined Terms U
When used in this Agreement the following terms shall have the respective meaning set
forth opposite each such term, 0
1.1 Advance Rent. The amount, if any, set forth in the Basic Lease Terms.
1.2 Applicable Laws. All laws, rules, orders, ordinances and regulations of the
municipality, county and state in which the Premises are located, of the Federal
government, of any department or bureau of any of them, and of any other governmental
authority having jurisdiction over the Premises, in effect from time to time during the °0
Term, which shall impose any duty on Landlord or Tenant with respect to the use,
occupancy or alteration of the Premises, or Tenant's business conducted therein, including 0
environmental Laws and the Americans with Disabilities Act(ADA).
1.3 Minimum Base Rent. The fixed rent payable by Tenant during the Term as set
forth in the Basic Lease Terms. In the event of conflict between the various Base Rent
figures shown in the Basic Lease Terms, the figures appearing under"Monthly Rent" in
the Basic Lease Terms shall be deemed controlling and conclusive as to the Base Rent
payable hereunder.
1.4 Basic Lease Terms. The terms set forth under the caption Basic Lease Terms
following the title page of this Lease, which Basic Lease Terms are incorporated into this
Lease by this reference. X
1.5 Broker. Each person or entity named as such in the Basic Lease Terms (if more U
than one,jointly and severally).
1.6 Building. The building within the Shopping Center of which the Premises are a V-
part. N
1.7 Common Area Maintenance Costs. The total of all items of cost and expense
expended (including appropriate reserves) in operating, managing, equipping,protecting, °0
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policing, lighting, repairing, replacing, maintaining the Common Areas (less any insurance
proceeds collected with respect to any such repair or replacement), all costs of insuring the
Shopping Center as provided in herein below, and all costs incurred in advertising and
promoting the Shopping Center as a whole. By way of example, Common Area
Maintenance Costs shall include all costs, expenses and other charges incurred by
Landlord in connection with(a) maintaining and repairing the Common Areas as shall be
required in Landlord's judgment to preserve the utility and condition of the Common r i
Areas in substantially the same condition and status though not necessarily the same area
or configuration as the Common Areas were in as of the Term Commencement Date; (b)
providing security, fire detection and protection and traffic direction and control; (c) 0
cleaning and removal of rubbish, dirt, debris, water, snow and ice (including removal of V-
water, snow and ice from rooftops); (d)planting, re-planting and replacing flowers and Q
landscaping; (e)maintaining systems for and supplying water, drainage, sewerage and I-
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other utility services; (f) obtaining liability,property damage, fire, extended coverage, N
flood, rent loss, malicious mischief, vandalism, workmen's compensation and employees'
liability, and any other casualty and liability insurance, (g)wages, health and welfare
benefits,pension benefits, union dues, vacation, unemployment taxes and social security
taxes of Landlords employees involved in the maintenance and operation of the Shopping
Center; (h)personal property taxes; (i) securing and maintaining permits and licenses; (j)
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supplies; (k)the operation of loud-speakers and any other equipment supplying music; (1)
maintaining systems for and supplying lighting (including the cost of light bulbs and
electric current); (m)patching, repairing, resurfacing, topping and marking of all parking 0
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and drive areas; (n) filling, sealing and supporting of sinkholes; (0) arranging for and
carrying out center-wide advertising and promotional campaigns; (p) maintaining and
replacing any under-canopy signs within the Shopping Center, (q) depreciation of U
machinery and equipment used in the operation of the Common Areas (but not including
depreciation of the original cost of acquiring Common Areas of the Shopping Center); (r)
the charges of any independent contractor who, under contract with Landlord or its 0
representatives, does any of the work of operating, maintaining or repairing the Common
Areas; (s) fees actually paid or payable from time to time to any property management
company which is managing the Shopping Center,provided that any such fees paid to an
affiliate of Landlord shall not exceed market rates for the services being rendered by such N
property management company; (t)the costs and expenses incurred by the Landlord with °0
respect to the maintenance, repair and replacement of the HVAC Systems serving the
Shopping Center, but not including the HVAC Systems serving the Premises; and(u) any 0
other activity or action associated with managing, operating, maintaining or repairing the
Common Areas, whether or not hereinbefore mentioned, which, in accordance with E
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generally accepted accounting principles consistently applied, would be considered as an
item of expense (as opposed to items which would be considered capital items according to
such principles). Common Area Maintenance Costs shall not include any capital
expenditures except as follows: any capital expenditures made by Landlord may be
amortized over the useful life of the item for which the expenditure is made, and the
portion thereof applicable to each respective year during the term may be included in
Common Area Maintenance Costs for such year until such item is fully amortized, X
provided that if any such expenditure arises solely as a result of the use or occupancy of a U
particular tenant, including Tenant, such expense shall not be included in Common Area
Maintenance Costs but shall be charged to the tenant, including Tenant if applicable, '
giving rise to the need for same. N
1.8 Common Areas. (a) All automobile parking areas, entrances and exits thereto, and 0-
other facilities furnished by Landlord from time to time in or near the Shopping Center, °0
including employee and customer parking areas, mall areas. the truck way or ways, loading
docks,package pick-up stations, Shopping Center signs,pedestrian sidewalks and ramps,
landscaped areas, exterior and interior stairways, hallways, display and exhibit areas, and
other areas and improvements provided by Landlord for general use, in common, of
tenants of the Shopping Center, their officers agents, employees and customers; and b all
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facilities and areas of the buildings in the Shopping Center not installed by or exclusively
serving a single tenant of the Shopping Center, including the foundations, concrete floors,
exterior walls, roofs, ducts, conduits and similar items, heating, ventilating, air
conditioning,plumbing, security and fire detection and protection systems, and storm,
sanitary, drainage and other utility systems. 0
1.9 Condemnation. Any taking or condemnation, either permanently or temporarily,
for any public or quasi-public use or purpose, by any competent authority in appropriation Q
proceedings or by any right of eminent domain or by agreement or conveyance in lieu
thereof. N
1.10 Condemnation Award. All damages for any Condemnation of all or any part of
the Shopping Center, including all damages as compensation for diminution in value of the u
leasehold, reversion and fee of the Premises, and the Tenants Work.
1.11 Effective Date. The date that this Lease is fully executed and delivered to both
Landlord and Tenant.
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1.12 Environmental Laws. All federal, state or local laws, ordinances or other statutes
of a governmental or quasi-governmental authority, relating to pollution or protection of
the environment. 0
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1.13 Exclusive Use Rights. Rights granted to any tenant of the Shopping Center which
provide in effect that such tenant will have the right within the Shopping Center to engage
in a specified use or activity, and that Landlord will preclude other tenants of the Shopping U
Center from engaging in such use or activity; such grant of rights may not preclude all
other tenants of the Shopping Center from engaging in such use or activity, but shall
nonetheless qualify as Exclusive Use Rights for the purpose of this Lease. 0
1.14 Fair Market Rent. That rent described in Section 3.2 as calculated pursuant to
Section 3.3 herein.
1.15 Gross Sales. N/A
1.16 HVAC Maintenance Contract. The contract that shall be maintained by Tenant
from time to time with the HVAC Maintenance Contractor for the maintenance of the °0
HVAC Systems serving the Shopping Center.
1.17 HVAC Maintenance Contractor. The person or entity with whom Landlord 0
designates from time to time, who or will, must be a licensed air conditioning contractor
acceptable to Landlord.
1.18 HVAC System(s). All components of the heating, ventilation and air conditioning
system serving the Premises.
1.19 Hazardous Substances. Pollutants, contaminants, toxic or hazardous wastes, or
any other substances, the use and/or the removal of which is required or the use of which is
restricted,prohibited or penalized by any Environmental Laws.
1.20 Initial Term. The period commencing on the Term Commencement Date, and
ending as of the expiration of the number of years (and months, if applicable, set forth in X
the Basic Lease Terms following (a)the Term Commencement Date if it is the first day of U
a calendar month, or(b) if the Term, Commencement Date is not the first day of a calendar
month, the first day of the first full calendar month following the Term, Commencement V-
Date. N
1.21 Landlord. The Landlord named in the Basic Lease Terms.
1.22 Landlord's Work. Such work as set forth in Basic Lease Terms.
1.23 Lease or Agreement. This Agreement, including the Basic Lease Terms and the
Exhibits and any Riders referred to in the Basic Lease Terms, all of which are incorporated
herein and made a part hereof.
1.24 Managing Agent. The Managing Agent named in the Basic Lease Terms, or any
successor thereto selected by Landlord from time to time in accordance with Section 10.4.
1.25 Managing Agent's Address. The address of the Managing Agent as set forth in
the Basic Lease Terms, as it may be changed from time to time pursuant to Section 10.4 r i
1.26 Minimum Operating Hours. n/a
1.27 Mortgage. Any mortgage, security deed, deed of trust or other instrument of
security that is or may hereafter be placed upon the Shopping Center, or any part thereof 0
containing the Premises. V-
1.28 Mortgagee. The holder from time to time of any mortgage, or the grantee or trustee Q
under any security deed, deed of trust or other instrument of security that is or may I-
hereafter be placed upon the Shopping Center, or any part thereof containing the Premises. N
1.29 Percentage Rent. N/A
1.30 Percentage Rent Breakpoint. N/A
1.31 Percentage Rent Rate. N/A. E
1.32 Permitted Use. The use set forth in the Basic Lease Terms, and no other use
whatsoever.
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1.33 Premises. That portion of the Shopping Center identified by cross-hatching on
Exhibit B, the address of which is set forth in the Basic Lease Terms.
1,34 Premises Floor Area. The number set forth in the Basic Lease Terms, and which 0
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shall be conclusive for the purpose of all calculations made based on same under the terms
of this Lease, regardless of the actual measurements of the Premises.
1.35 Rent&Additional Rent: All amounts, including Minimum Base Rent, CAM, U
taxes, liabilities and obligations which Tenant has assumed or agreed to pay or discharge
pursuant to this Lease, including those enumerated in Article 3 and elsewhere in this
Lease, together with every fine,penalty, interest and cost which may be added for non- 0
payment or late payment thereof pursuant to the terms of this Lease
1.36 Rules and Regulations. The Rules and Regulations attached as Exhibit C, as they
may be supplemented or amended from time to time by Landlord as provided in this Lease.
1.37 Security Deposit. The amount set forth in the Basic Lease Terms.
1.38 Shopping Center. The real property or leasehold estate in the real property shown °0
on the site plan attached hereto as Exhibit B, the name and location of which are set forth
in the Basic Lease Terms, as the same may be modified from time to time pursuant to 0
Section 6.1 hereof and as legally described on Exhibit E.
1.39 Store Space. Landlord's best estimate of the number of square feet of area in the
Shopping Center, or any portion thereof which is specifically referred to in this Lease,
available for the exclusive use and occupancy of tenants of the Shopping Center.
1.40 Substantial Completion of Landlords Work. N/A
1.41 Substantial Completion of Tenant's Work. N/A
1.42 Tax Expenses. The total general and special real estate taxes and assessments
which are levied and assessed during each calendar year of the Term on all land, buildings
and other improvements in the Shopping Center, including the Premises and all Common X
Areas, and Landlord's expenses in contesting the validity of, or seeking a reduction in, or U
seeking to prevent an increase in, or attempting to obtain any refund of, any such tax or
assessment, or in seeking any reassessment in the value of the Shopping Center or any
portion thereof. For the calendar year in which the Term commences, the Tax Expenses
shall be computed by multiplying the total amount of taxes and expenses described in the
preceding sentence for the calendar year in which the Term commences by a fraction, the °0
numerator of which is the number of days in the period beginning with the Term
Commencement Date to and including December 31 of such calendar year, and the
denominator of which is 365. For the calendar years in which the Term ends, the Tax
Expenses shall be computed by multiplying the taxes and expenses described in the first
sentence of this Section for the calendar year in which the Term ends by a fraction, the
numerator of which is the number of days in the period beginning on January 1 st of such
calendar year to and including the last day of the Term, and the denominator of which is r i
365.
1.43 Tenant. The Tenant named in the Basic Lease Terms.
1.44 Tenant's Estimated Common Area Maintenance Costs for First Full Year of 0
Lease Term. The amount set forth as such in the Basic Lease Terms, which is Landlord's
good faith estimate of the amount which will be paid by Tenant for Common Area Q
Maintenance Costs during the first full year of the Term, and which amount shall not in �
any way limit Tenant's obligation to pay Tenants Proportionate Share of actual Common N
Area Maintenance Costs for each full and partial year of the Term as set forth herein.
1.45 Tenants Estimated Tax Expenses for First Full Year of Lease Term. The
amount set forth as such in the Basic Lease Terms, which is Landlord's good faith estimate
of the amount which will be paid by Tenant for Tax Expenses during the first full year of
the Term, and which amount shall not in any way limit Tenant's obligation to pay Tenant's
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Proportionate Share of actual Tax Expenses for each full and partial year of the Term as set
forth herein,
1.46 Tenants Insurance Contact. The person named as such in the Basic Lease Terms, 0
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or such other person as Tenant may substitute therefore from time to time by written notice
to Landlord.
1.47 Tenant's Proportionate Share. The fraction (expressed as a percentage) U
determined from time to time by dividing the Premises Floor Area by the number of square
feet of Store Space that is or shall be leased to tenants who shall be similarly subject to
proportionate shares of Tax Expenses, Common Area Maintenance Costs and the like, as 0
herein provided, which percentage shall be subject to adjustment as provided in Section 3.6
and other provisions of this Lease.
00
1.48 Tenant's Trade Name. The trade name or trade style set forth in the Basic Lease
Terms, or such other trade name or trade style as Tenant may select and Landlord may N
approve from time to time. °0
1.49 Tenant's Work. All improvements to the Premises necessary for Tenant's use or
occupancy thereof as set forth in the Basic Lease Terms. 0
1.50 Term. The Initial Term together with any other period for which the term of this
Lease is extended or renewed.
1.51 Term Commencement Date. The date determined in the manner set forth in the
a�
Basic Lease Terms.
d
ARTICLE 2- Grant and Term
2.1 Grant. In consideration of the Rent agreed to be paid and of the covenants and
agreements made by the respective parties hereto, Landlord demises and leases to Tenant X
and Tenant hereby leases from Landlord the Premises, upon the terms and conditions U
herein provided, together with the right to use, in common with others entitled thereto, the
Common Areas, subject to the terms and conditions of this Lease and to reasonable Rules V-
and Regulations for the use thereof as prescribed from time to time by Landlord. N
2.2 Term. Subject to the terms, covenants and agreements contained herein, Tenant
shall have and hold the Premises for the entire Term. °0
2.3 Relocation. Landlord shall have the right from time to time during the Term, at
Landlord's expense, with Tenant's consent to relocate the Premises from their then current
location to another location within the Shopping Center containing an interior area
comparable to the Premises,provided that the Landlord gives the Tenant written notice of
the Landlord's intention to do so at least ninety (90) days before undertaking such
relocation. In such event, Landlord shall, at Landlord's expense, install within the new
location of the Premises improvements of the same quality and quantity as those within the r i
Premises as they exist prior to the relocation, and on the completion of such installation
Landlord shall cause the Tenant's machinery, furniture, fixtures and equipment within the
Premises to be moved to the new location of the Premises. Upon the completion of such 0
relocation, this Lease shall automatically cease to grant a leasehold interest in the space V-
constituting the Premises before the relocation and shall automatically thereafter grant a Q
leasehold interest in the apace within the Premises as relocated, on the same terms and I-
V-
conditions as set forth in this Lease (other than the location of the Premises and except as N
provided in the following sentence), all without the necessity of further action by either
party or formal amendment of this Lease. Notwithstanding the foregoing, the Minimum
Base Rent shall be adjusted, and Tenant's Proportionate Share shall be adjusted to reflect
any difference between the size of the Premises prior to the relocation and the size of the
Premises after the relocation. Each party agrees to execute,promptly upon receipt of a
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written request therefore from the other party, a formal amendment of this Lease to
confirm the relocation of the Premises and any resulting changes in the terms of this Lease
as provided in this Section 2.3. 0
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ARTICLE 3 -Rent
U
3.1 Minimum Base Rent. Commencing on the first month from and after the Term
Commencement Date, Tenant covenants and agrees to pay to Landlord monthly Minimum
Base Rent payments in advance on the first day of each full calendar month within the 0
Term, which monthly amounts are set forth under"Monthly Rent" set forth on Exhibit A.
If the Term Commencement Date falls on a day other than the first day of the month, the
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Minimum Base Rent for such partial month shall be due and payable on the first day of the
following month and shall be prorated, at the Minimum Base Rent rate applicable to the
first full month of the Term, as set forth in the Basic Lease Terms, based on a thirty-day °0
month and the number of days in such month from and after the Term Commencement
Date. Notwithstanding the foregoing, the Advance Rent shall be paid upon execution and 0
delivery of this Agreement by Tenant.
3.2 Fair Market Rent. N/A E
E
3.3 Calculation of Fair Market Rent. N/A
3.4 Percentage Rent. N/A
3.5 Utility Charges. Tenant shall be solely responsible for and pay when due all
charges for heat, water, sewer, gas, electricity or any other utility services used or
consumed in the Premises. If any of such services are to be separately metered to Tenant,
then with or without notice from Landlord, Tenant shall be required to arrange and pay all
charges customarily charged for connection of such services by the provider thereof, X
including connection fees, the cost of the meters therefore, and any required deposits or U
prepayments. In the event separate bills are not obtainable for any such expense, Tenant
shall pay to Landlord Tenant's Proportionate Share of such charges and expenses, subject '
to adjustment based on any extraordinary use or consumption of any utility by Tenant on
the Premises, within five (5) days after billing therefore. In the event such charges shall not
be paid when due, Landlord shall have the right to pay same, which amount so paid shall °0
be Additional Rent due from Tenant on demand.
3.6 Taxes. Tenant agrees to pay to Landlord as additional Rent Tenant's Proportionate
Share of Tax Expenses in monthly installments on or before the first day of each calendar
month, in advance, in an amount estimated by Landlord. Additionally, Tenant shall be
responsible for payment of all taxes imposed on said rental payments, including but not
limited to the Florida State Sales Tax as now imposed or as hereafter amended,which taxes
shall be paid at the same time and in the same manner as said rental payments. Upon receipt r i
of all bills for Tax Expenses attributable to any calendar year, Landlord shall furnish
Tenant with a written Statement of the actual amount of Tenants Proportionate Share of
Tax Expenses. If the total amount paid by Tenant under this Section for any calendar year 0
shall be less than the actual amount due from Tenant for such calendar year as shown on
such statement, Tenant shall pay to Landlord the difference between the amount paid by Q
Tenant and the actual amount due, such deficiency to be paid within ten (10) days after the
effective date of an invoice from Landlord setting forth such amount. If the total amount N
paid by Tenant hereunder for any calendar year shall exceed such actual amount due from
Tenant for such calendar year, such excess shall be credited by Landlord against payments u
next due from Tenant for Tax Expenses, or if no payments are next due, refunded to E
Tenant. Tenant shall further pay as additional Rent all rental, sales and use taxes related to
the Premises or this Lease assessed by any governmental authority, whether measured by
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Rent payments or otherwise, and whether charged against Tenant or Landlord(but not
including income or franchise taxes or any other taxes imposed upon or measured by
Landlord's net income,profits or net worth unless the same shall be imposed in lieu of real 0
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estate taxes). Tenant shall further pay and discharge when due any federal, state, county or
municipal tax levied or assessed against the leasehold estate created hereby, and any taxes
levied or assessed against any trade fixtures, furnishings, equipment, leasehold U
improvements, alterations or additions made by Tenant, and merchandise and personal
property of any kind owned, installed or used by Tenant in or upon the Premises during the
Term. �
3.7 Common Area Maintenance Costs. Tenant agrees to pay as additional Rent,
monthly or less frequently as directed by Landlord, Tenants Proportionate Share of all
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Common Area Maintenance Costs incurred during the Term, whether or not any specific
items thereof actually (or in Tenant's judgment)benefit the Premises or Tenant, it being
acknowledged and agreed by Tenant that all of the Common Area Maintenance Costs °0
benefit the Shopping Center as a whole, and therefore directly or indirectly benefit the
Premises. Landlord's determination that any specific term of Common Area Maintenance 0
Costs does or will benefit the Shopping Center shall be conclusive. Tenant's payments of
Common Area Maintenance Costs shall be based on Landlord's reasonable estimates,
subject to adjustment from time to time. After the end of each calendar year during the
Term (and in the case of the last partial calendar year during the Term, at any time within
fourteen (14) months after the Term ends), Landlord shall submit to Tenant a statement
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setting forth Tenants Proportionate Share of actual Common Area Maintenance Costs for
such calendar year. If the total amount paid by Tenant under this Section for any calendar
year shall be less than the actual amount due from, Tenant for such year as shown on such
statement, Tenant shall pay to Landlord the difference between the amount paid by Tenant X
and the actual amount due, such deficiency to be paid within ten (10) days after the U
effective date of an invoice from Landlord setting forth such amount, and if the total
amount paid by Tenant hereunder for any calendar year shall exceed such actual amount V-
due from Tenant for such year, such excess shall be credited by Landlord against payments N
hereunder next due, or if no payments are next due, refunded to Tenant. 0-
3.8 Adjustments to Tenant's Proportionate Share. Notwithstanding anything in this
Lease to the contrary, for the purpose of determining Tenant's Proportionate Share of any
charges described in Sections 3.5, 3.6 and 3.7 above, any or all of the following
adjustments may, at Landlord's option, be made to the fraction used as the Tenant's
Proportionate Share of such charges, in order to appropriately calculate the costs which are
allocable pro rata to the Premises:
(a) To the extent that any item of Common Area Maintenance Costs relates to either office
or retail space, or relates to both such types of space but in unequal proportions, (ii)with r i
respect to such items or portions thereof which relate to retail space, Tenant's
Proportionate Share may be adjusted to reflect that fraction of all retail space within the
Shopping Center, or the portion thereof to which such cost item relates, which is 0
represented by the Premises. V-
(b) To the extent that any item of Common Area Maintenance Costs, utilities, Tax Q
Expense, or Trash removal expense is incurred in connection with less than all of the Store I-
Space, and relates to the Premises, the denominator of Tenant's Proportionate Share of that N
particular item may be adjusted to include only the portion of the Store Space, as
reasonably estimated by Landlord, to which such item relates (including the Premises u
Floor Area. E
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(c) The Tenant's initial Proportionate Share of RE Tax Expenses shall be 1.29% of the
total tax bill for the shopping center. Tenant is exempt from State of Florida Sales Tax and
shall deliver a copy of the certificate granting this status to the Landlord. 0
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(d) The determination of Tenant's Proportionate Share of Common Area Maintenance
Costs may be made from time to time in accordance with either of the following methods:
(i)the denominator of the fraction used as Tenant's Proportionate Share may include the U
space of any anchor or major tenant of the Shopping Center, in which case the amount of
Common Area Maintenance Costs allocated among Tenant and other tenants shall be the
total of all Common Area Maintenance Costs, without deduction for any amount paid to 0
Landlord by such anchor or major tenant as reimbursement for Common Area
Maintenance Costs; or(ii)the denominator of the fraction used as Tenant's Proportionate
Share may exclude the space of any anchor or major tenant of the Shopping Center, in
which case the amount of Common Area Maintenance Costs allocated among Tenant and
other tenants shall be the difference between the total of all Common Area Maintenance °0
Costs and the amount paid to Landlord by such anchor or major tenant as reimbursements
for Common Area Maintenance Costs. 0
3.9 Method of Payment, Past Due Rent. The Security Deposit, and all Rent payments
shall be paid in lawful money of the United States of America, in certified funds, or by
cashier's check or personal check drawn on a bank located in the United States of America,
such check to be made payable to the Landlord or such other person as Landlord may from
time to time direct by notice to Tenant. No payment made by check shall be deemed
received until the check has cleared and funds are collected by Landlord. All Rent shall be
paid without notice or demand at the rental payment address set forth under the Basic
Lease Terms or at such other place as Landlord may from time to time direct by notice to
Tenant. In the event Tenant fails to make any such payment within five (5) days after the X
same becomes due, then in addition to all rights,powers and remedies provided herein, by U
law, or otherwise, in the case of nonpayment of Rent, Landlord shall be entitled to recover
from Tenant five percent(5%) of the amount due as liquidated damages. Tenant will also
pay to Landlord on demand, interest at the rate of twelve percent(12%)per annum on all
overdue installments of Rent, including all obligations which Landlord shall have paid on 0-
behalf of Tenant, in each case from the due date thereof until paid in full. °0
3.10 No Setoff, Counterclaim, etc. The Rent payable hereunder by Tenant shall be paid
without setoff, counterclaim, deduction, or defense and, except as otherwise expressly
provided herein, without abatement or suspension. Except as otherwise expressly provided
in this Lease, this Lease shall not terminate, nor shall Tenant have any right to terminate
this Lease, nor shall Tenant be entitled to any abatement or reduction of Rent hereunder,
nor shall the obligations of Tenant under this Lease be affected, by reason of(a) any
damage to or the destruction of all or any part of the Premises from whatever cause, (b)the r i
taking of the Premises or any portion thereof by Condemnation, requisition or otherwise
for any reason, (c)the prohibition, limitation or restriction of Tenant's use of all or any
part of the Premises, or any interference with Such use, by Applicable Laws or by 0
injunction, (d) any default on the part of Landlord under this Lease, or under any other
agreement to which Landlord and Tenant may be parties, (e)the bankruptcy, insolvency,
reorganization, composition, readjustment liquidation, dissolution, winding up or other
proceeding affecting Landlord or any assignee of Landlord, or(I) any other cause whether
similar or dissimilar to the foregoing. It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent covenants and u
agreements, that The Rent shall continue to be payable in all events and that the
obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or
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perform the same shall have been terminated pursuant to an express provision of this
Lease. 0
0
ARTICLE 4 - Construction of Improvements
4.1 Condition of Premises. (a) If there is any Landlord's Work to be performed, then
Landlord agrees that it will, at its sole cost and expense,promptly after the Effective Date
of this Lease (subject, however, to the rights of any existing occupants of the Premises),
commence and pursue to completion Landlord's Work. 0
(b) Tenant shall not take possession of the Premises or perform any work therein until
Tenant has provided suitable evidence to Landlord that Tenant has obtained all insurance
required under Section 13.2. Tenant's indemnification of Landlord set forth in Section 8.4
shall specifically extend to any loss or damage which may be incurred by Landlord as a
result of Tenant's failure to obtain such insurance prior to commencement of Tenant's °0
Work. Tenant's taking possession of the Premises shall be conclusive evidence as against
Tenant that the Premises were in satisfactory condition when Tenant took possession. 0
Tenant acknowledges that it has inspected the Premises and hereby accepts the Premises in
their present condition (subject only to the performance of Landlord's Work, if applicable)
with no representation or warranty by Landlord as to the condition of the Premises, or their
suitability for the Tenant's Work or the Permitted Use, or the condition of the Shopping
Center, and with no promise by Landlord or its agents to improve or repair the Premises or
the Shopping Center except for Landlord's Work, if applicable.
4.2 Tenant's Work. The Tenant's Work shall be completed by Tenant, at Tenant's
expense. Tenant agrees to submit to Landlord plans and specifications covering the
Tenant's Work in such detail as Landlord may require within thirty (30) days of the X
Effective Date of this Lease, and Landlord shall have no more than ten (10) days to U
approve, disapprove or to ask Tenant to modify such plans. Tenant agrees not to
commence work on any of the Tenant's Work until Landlord has approved such plans and V-
specifications in writing. Approval of any plans, specifications or working drawings shall N
not be deemed any assurance by Landlord and shall impose no responsibility or liability on
Landlord as to the approved item's completeness, sufficiency, or compliance with
Applicable Laws. Tenant may use its own qualified employees to perform the initial build
out of Tenant's Work in the leased Premises. For any of Tenant's Work that Tenant is
unable to perform using its own qualified employees, such Tenant's Work shall be
constructed by licensed and insured contractors acceptable to Landlord, in its reasonable
discretion. At all times during Tenant's construction, Landlord and its representatives shall
have the right to enter upon the Premises for the purpose of inspecting construction, the
progress of the Tenant's Work, and compliance with the approved plans and specifications.
Tenant agrees that its entry onto and occupation of the Premises prior to the Term
Commencement Date shall be subject to all of the terms of this Lease, except the covenants
to pay Rent and Additional Rent which are set forth hereinabove. Without limiting the 0
generality of the foregoing, Tenant shall obtain and pay for all insurance required under V-
Section 13.2 and 13.3 and shall pay all charges for utilities furnished to the Premises in Q
accordance with Section 3. 5, upon the earlier of(a) Tenant's entry onto the Premises, or
(b)the date on which Substantial Completion of Landlord's Work has occurred and shall N
continue such payments and maintain such insurance throughout the Term. In constructing
the Tenant's Work, Tenant shall conform with the terms of Section 11.4(b). Upon
completion of the Tenant's Work, Tenant shall provide final lien waivers and E
documentation in accordance with Section 8.3, as applicable.
4.3 Commencement and Completion of Tenant's Work; Tenant's Opening. Prior
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to commencement of the Tenant's Work, Tenant shall provide Landlord with a copy of the
construction contract(s)relating to same,if applicable.
4.4 Certification of Estimated Cost of Tenant's Work Tenant agrees to complete, 0
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execute and deliver to Landlord, upon execution of this Lease or at any time thereafter at
the request of Landlord or its Managing Agent, a certification setting forth Tenant's initial
estimate of the cost of Tenant's Work. U
ARTICLE 5 -Use of Premises
0
5.1 Use. (a) The Premises shall be occupied and used only for the Permitted Use and
for no other purpose whatsoever unless Landlord, in its sole right, discretion or with the
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approval and consent of any other interested party who has a right, consents in writing to a
change in such use. Tenant acknowledges and agrees that the Permitted Use of the
Premises set forth herein is a critical element of the bargain of the parties hereto and that °0
actual and substantial detriment will result to Landlord and the other tenants and occupants
of the Shopping Center in the event that a change or deviation in such use shall occur or be 0
permitted without the express written consent herein required.
(b) Tenant agrees to keep the Premises open and diligently operate the business conducted
therein under the Trade Name, using a sufficient number of adequately trained managers
and personnel for efficient service, during the Minimum Operating Hours,provided that
such Minimum Operating Hours are subject to change from time to time by Landlord so
long as any such change is applicable to substantially all tenants of the Shopping Center.
Tenant agrees that storage and office space in the Premises shall only exist to the extent
required for the Permitted Use conducted on the Premises. Tenant agrees to conduct
Tenant's business at all times in a first-class, high-grade manner consistent with reputable X
business standards and practices in good faith and in such manner that the high reputation U
of the Shopping Center is furthered. No auction, fire, liquidation or bankruptcy sales may
be conducted in the Premises without the prior written consent of Landlord having been
first obtained.
5.2 Other Tenant's Exclusive Use Rights. Notwithstanding any other provision of
this Lease, including the Permitted Use specified herein, Tenant shall not use the Premises °0
in any manner which violates the terms of any Exclusive Use Rights granted to any other
tenant of the Shopping Center prior to the Effective Date of this Lease. Further, Tenant
shall not use the Premises in any manner which violates the terms of any Exclusive Use
Rights hereafter granted to any other tenant of the Shopping Center,provided that Tenant
is given notice of the existence of such Exclusive Use rights, and provided that such
Exclusive Use Rights do not preclude Tenant from using the Premises for the primary use
included in the Permitted Use. U
ARTICLE 6-Quiet Enjoyment and Landlord's Right of Entry
0
6.1 Tenants Right to Possession. If and so long as Tenant shall pay the Rent specified
herein and observe and perform all covenants, agreements and obligations required by it to
be observed and performed hereunder, Tenant shall have the right to hold and occupy the
Premises for the Term free of any claim of possession by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord, subject,
nevertheless, to the terms and conditions of this Lease and the Mortgages and other matters u
to which this Lease is subordinate. Landlord expressly reserves the right as to the Shopping
Center at any time to do, or permit to be done, any or all of the following: add or remove
buildings or structures; change the number and location of buildings and structures; change
Packet Pg. 184
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building dimensions; change the number of floors in any of the buildings or structures;
enclose any mall; add to, alter or remove partially or wholly any structure or structures
used to enclose any plaza area; change the identity and type of stores and tenancies and the 0
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dimensions thereof, change the name of the Shopping Center in which the Premises are
located; change the address or designation of the Premises; provide subterranean and
multiple level parking decks; convert Common Areas into Store Space; change the means U
of access to and egress from the Shopping Center; and expand or reduce the size of the
Shopping Center,provided, however, that no such changes shall deny or materially
interfere with reasonable visibility of, ingress to, or egress from the Premises. 0
6.2 Right of Entry. Tenant agrees that Landlord, its agents, employees or servants, or
any person authorized by Landlord may enter the Premises for the purpose of inspecting
the condition of the same and to make such repairs, additions, improvements, changes or
alterations to the Premises or the Building as Landlord may elect to make, and to exhibit N
the same to prospective purchasers, Mortgagees and tenants of other areas of the Shopping °0
Center and to prospective tenants, and to place in and upon the Premises during the last six
(6) months of the Term, at such places as may be determined by Landlord, "for rent' signs 0
or notices, and Tenant undertakes and agrees that neither Tenant nor any person within
Tenant's control will interfere with such signs or notices. Such entry, inspection, repairs,
additions, improvements, changes or alterations as Landlord may make of or to the
Premises or the Building shall not constitute eviction of Tenant in whole or in part, and the E
E
Rent reserved shall not abate while such work is being done by reason of loss or
interruption of business of Tenant or otherwise. If Tenant or Tenant's agents or employees
shall not be present to permit entry into the Premises at any time when for any reason entry
therein shall be necessary in the reasonable judgment of Landlord, Landlord or its agents
or employees may enter same by master key or by forcible entry without liability therefore, X
and without in any manner affecting the obligations, covenants, terms or conditions of this
c,
Lease. Nothing herein contained, however, shall be deemed or construed to impose upon
Landlord any obligation or liability whatsoever for care, supervision, repair, improvement, '
addition, change or alteration of the Premises, the Building, the Shopping Center or any
part thereof, other than as herein expressly provided.
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ARTICLE 7-Nuisance,Waste, Rules and Regulations
7.1 Nuisance. Tenant shall not perform any acts or carry on any practices which may
injure the Building, violate any certificate of occupancy affecting same, constitute a public
or private nuisance or a menace to other tenants in the Shopping Center,produce undue
noise, create obnoxious fumes or odors or otherwise cause unreasonable interference with r i
other tenants of the Shopping Center.
7.2 Waste, Etc. Tenant agrees not to: (a)permit any unlawful or immoral practice to be
carried on or committed on the Premises; (b) make any use of or allow the Premises to be 0
used for any purpose that might invalidate or increase the rate of insurance thereof, (c) V-
keep or use or permit to be kept or used on the Premises any flammable fluids or
explosives without the written permission of Landlord first had and obtained; (d)use the
Premises for any purpose whatsoever which might create a nuisance or injure the
reputation of the Premises or of the Shopping Center; (a) deface or injure the Premises or
the Shopping Center; (f) overload the floors; (g) sell or consume or allow the sale or
consumption of alcoholic beverages on the Premises, unless the same is included in the
Permitted Use and appropriate licenses and insurance coverage has been secured; or(h)
commit or suffer any waste in or about the Premises. Tenant agrees to pay as additional
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C.4.b
Rent any increase in the cost of insurance on the Premises as a result of any unauthorized
use of the Premises by Tenant, but such payment shall not constitute in any manner a
waiver by Landlord of its rights to enforce all of the covenants and provisions of this 0
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Lease.
7.3 Rules and Regulations. Tenant covenants and agrees with Landlord to comply
with the Rules and Regulations throughout the Term. In addition to all other remedies set U
forth herein, in the event any violation of any of the Rules and Regulations continues more
than five (5) days after the effective date of notice to Tenant of such violation, beginning
on such fifth day Tenant shall, in addition to any and all other remedies of Landlord 0
provided in this Lease for default by Tenant,pay liquidated damages of Fifty Dollars
($50.00)per day for each such violation for each day such violation continues. Landlord
reserves the right to adopt additional Rules and Regulations, or amend any existing Rules
and Regulations, relating to the conduct of Tenant's activities in the Premises and the
Shopping Center, which shall be deemed incorporated herein as of the effective date of °0
notice to Tenant setting forth such additional or amended Rules and Regulations. Tenant
acknowledges and agrees that the Rules and Regulations applicable to Tenant may not be 0
applicable to all occupants of the Shopping Center and/or may not be uniformly enforced
against all occupants of the Shopping Center, and that Landlord shall have no liability for
failure to enforce such Rules and Regulations.
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ARTICLE 8-Compliance with Law, Liens, and Indemnity
U)
8.1 Compliance with Law and Contracts. Tenant shall, at its expense, comply with
and shall cause the Premises and Tenant's employees to comply with all Applicable Laws
at all times during the Term. Without limiting the foregoing, Tenant covenants and agrees X
to (a) conduct its operations on the Premises in a way that does not violate the Applicable U
Laws, and (b)take promptly, at its expense, whatever corrective measures are required by
the Applicable Laws in the event of a violation. Tenant shall also, at its expense, comply V-
with the requirements of all policies of insurance which at any time may be in force with N
respect to the Premises, and with the provisions of all contracts, agreements and
restrictions affecting the Premises or any part thereof or the occupancy or use thereof. °0
8.2 Environmental Compliance. Tenant hereby agrees that(a)no activity will be
conducted on the Premises that will produce any Hazardous Substance, except for
activities that are part of the ordinary course of the Permitted Use,provided said activities
are conducted in accordance with all Environmental Laws and have been approved in
advance in writing by Landlord, and provided that Tenant shall have obtained any required
permits and shall pay any fees and provide any testing required by any governmental
agency in connection therewith; (b) Tenant will not permit any Hazardous Substances to be r i
brought into or stored in the Premises, except for the temporary storage of reasonable
quantities of materials that are used in the ordinary course of the Permitted Use,provided
such materials are properly stored in a manner and location meeting all Environmental 0
Laws and approved in advance in writing by Landlord,provided that Tenant shall have V-
obtained any required permits and shall pay any fees and provide any testing required by Q
any governmental agency in connection therewith, and provided such materials shall be I-
removed and disposed of by Tenant in accordance with all Environmental Laws and any N
required cleanup procedures shall be diligently undertaken by Tenant pursuant to all
Environmental Laws; (c) Tenant will advise Landlord promptly in writing of any
environmental concerns raised by any private party or governmental agency or relating to
any use, discharge, dumping, spill or storage of any Hazardous Substance in any way
affecting the Premises or the surrounding area; (d) no portion of the Premises will be used
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as a landfill or a dump; (e) Tenant will not install any underground tanks of any type; (f)
Tenant will not allow any surface or subsurface conditions to exist or come into existence
that constitute, or with the passage of time may constitute a public or private nuisance. 0
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Landlord or Landlord's representative shall have the right but not the obligation to enter
the Premises for the purpose of inspection to ensure compliance with all Applicable Laws,
including all Environmental Laws. Should it be determined, in Landlord's sole opinion, U
that any Hazardous Substances are being improperly stored, used, or disposed of on the
Premises, or if at any time during or after the Term the Premises are found to contain any
Hazardous Substances which were brought onto the Premises by Tenant or anyone 0
claiming by, through or under Tenant, then Tenant shall immediately take such corrective
action as is requested by Landlord, including proper and thorough cleanup procedures, at
Tenant's sole cost. Should Tenant fail to take such corrective action within twenty-four
(24) hours of Landlord's request, or if such action is not diligently pursued to completion,
Landlord shall have the right to take such action and Tenant shall promptly reimburse °0
Landlord for any and all costs associated with such action.
8.3 Title and Covenant Against Liens. Landlord's title is and always shall be 0
paramount to the title of Tenant and nothing in this Lease contained shall empower Tenant
to do any act which can, shall or may encumber the title of Landlord. Tenant covenants and
agrees not to suffer or permit any lien of mechanics or materialmen to be placed upon or
against the Shopping Center,the Building or the Premises or against Tenant's leasehold
interest in the Premises and, in case of any such lien attaching, to immediately pay and
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remove same. Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether occasioned by act of Tenant, operation of
law or otherwise, to attach to or be placed upon Landlord's interest in the Shopping Center,
the Building or the Premises, and any and all liens and encumbrances created by Tenant X
shall attach only to Tenant's interest in the Premises. Within fourteen (14) days after U
completion of Tenant's Work or any alterations, additions, improvements or changes
authorized under Section 11.4, as evidenced by a Certificate of Occupancy or its equivalent '
as to the work performed, Tenant shall provide Landlord with final lien waivers, if
applicable, from each contractor, subcontractor, materialmen and supplier involved in such
work which provides more than $5,000.00 in labor, materials or services, and shall also °0
provide Landlord with copies of its construction contracts, if applicable, and all other
appropriate documentation reasonably required for Landlord to determine (a)the total
costs actually incurred by Tenant for labor and materials in connection with the
construction of the Tenant's Work or the alterations, additions, improvements or changes
in question, (b)the contractors, subcontractors, materialmen and suppliers from whom lien
waivers are needed, (c)the appropriate amounts of such lien waivers, and(d)that no liens
have been or will be filed by any person or entity arising from or in connection with such t i
work. If any such liens so attach and Tenant fails to pay and remove same within ten (10)
days, Landlord, at its election, may pay and satisfy the same and in such event the sums so
paid by Landlord, with interest from the date of payment at the rate set forth in Section 3.7 0
hereof for amounts owed Landlord by Tenant, shall be deemed to be additional Rent due
and payable by Tenant at once without notice or demand. Q
8.4 Indemnification. Tenant agrees to pay, and to protect, indemnify and save �
harmless Landlord and all beneficiaries, agents and employees of Landlord from and N
against any and all liabilities, losses, causes of action, suits, claims (including all third-
party claims for personal injury or property damage), demands, administrative
proceedings,judgments, damages,punitive damages,penalties, fines, costs (including
sums paid in settlement of claims) and expenses (including all attorney's fees, consultants'
or experts' fees and other expenses of Landlord in connection with any of the foregoing
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C.4.b
and all costs incurred in enforcing this indemnity) of any nature whatsoever(except those
arising from the grossly negligent acts of Landlord, its agents or employees), arising from
(a) Tenant's use and occupancy of the Premises (including statutory liability and liability 0
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under workers compensation laws), (b) any injury to, or the death of, any person or any
damage to property on the Premises or upon adjoining sidewalks, and if Tenant is
permitted to use any portion of the Common Areas for the conduct of its business, then U
also within any such portion of the Common Areas to the extent that such injury, death or
damage occurred during or arose out of such use, (c) any act or negligence of the Tenant,
(d) Tenant's violation of any agreement, condition, covenant, representation or warranty 0
contained in this Lease, and (e)violation by Tenant of any contract or agreement to which
Tenant is a party and affecting the Premises or any part thereof or the occupancy or use
thereof, or(f)violation by Tenant of any Environmental Laws or other Applicable Laws.
For the purpose of subsections (a)through (f) of the preceding sentence, the term "Tenant'
shall include Tenant and any other person occupying all or any portion of the Premises, °0
and any officer, agent, employee, guest, or invites of any of them. Tenant upon notice from
Landlord will defend any claim of the nature described in this Section at the Tenant's 0
expense by counsel approved in writing by the Landlord. The foregoing indemnification
and the responsibilities of Tenant shall survive the termination or expiration of this Lease.
ARTICLE 9 -Maintenance and Repair of Premises
d
9.1 Maintenance. Tenant shall at all times maintain the entire Premises (Including
maintenance of exterior entrances and all glass and show window moldings) and all floors,
ceiling, interior walls,partitions, doors, fixtures, equipment and appurtenances thereof
(including lighting,plumbing fixtures and electrical and fire detection and protection X
systems installed by Landlord or Tenant exclusively serving the Premises) in good order, U
appearance, condition and repair, including all necessary replacements of any of said
facilities. V-
9.2 Maintenance by Landlord. (a) Landlord covenants to maintain or cause to be N
maintained only the foundations and roof of the Premises, the HVAC units and the
structural soundness of the concrete floors and exterior and demising walls thereof, in good °0
order, repair and condition, exclusive of any work required because of damage caused by
any act, omission or negligence of Tenant; any sub lessee or their respective employees,
agents, invitees, licensees or contractors. The provisions of this Section shall not apply in
the case of damage or destruction by fire or other casualty or a taking under the power of
eminent domain, in which events the obligations of Landlord shall be controlled by the
Sections of this Lease dealing therewith.
(b) If Landlord is required to make repairs to the Premises by reason of Tenant's acts, r i
omissions or negligence or if Tenant refuses or neglects to repair as required hereunder to
the reasonable satisfaction of Landlord, Landlord may make such repairs without liability
to Tenant for any loss or damage that may accrue to Tenant's merchandise, fixtures, or 0
other property or to Tenant's business by reason thereof. Upon completion thereof, Tenant V-
shall reimburse Landlord's costs for making such repairs plus twenty percent(20%) of Q
such costs for overhead and supervision, upon presentation of a bill therefore, as additional I-
Rent. N
9.3 HVAC Systems. Tenant shall maintain in good operating order and repair the
HVAC System serving the Premises. In the event that such HVAC Systems serving the u
Premises require repair, maintenance or replacement, then Tenant will use commercially
reasonable efforts to perform such necessary repairs, maintenance or replacements. Tenant
will pay the costs of such repairs, maintenance or replacements. Tenant's maintenance
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shall include maintaining a HVAC Maintenance Contract with the HVAC Maintenance
Contractor or other qualified professional satisfactory to Landlord which requires the
inspection of the HVAC System and filter replacement at least quarterly. 0
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ARTICLE 10- Common Areas
U
10.1 Control of Common Areas. All Common Areas shall at all times be subject to the
exclusive control and management of Landlord or its designees, and Landlord shall have
the right from time to time to establish, modify and enforce reasonable Rules and 0
Regulations in addition to those set forth in this Lease with respect to all of the Common
Areas. Landlord or its designees shat have the right to construct, maintain and operate
lighting and parking facilities on all Common Areas; to police the same (and use or not use
security service in connection therewith as Landlord shall determine in its absolute
discretion); from time to time to change or reduce the area, level, location, size and °0
arrangement of the Common Areas; to restrict parking within the Common Areas by
tenants, their officers, agents and employees to employee parking areas; to close all or any 0
portion of the Common Areas to such extent as may, in the opinion of Landlord's counsel,
be legally sufficient to prevent a dedication thereof or the accrual of any rights to any
person or the public therein; to erect improvements or buildings on the Common Areas for
lease or sales purposes and to lease said improvements; to discourage non-customer
parking and other activities within the Common Areas; and to do and perform such other
acts in and to the Common Areas as, in the use of good business judgment, Landlord shall
determine to be advisable with a view to the convenience and use thereof by tenants of the
Shopping Center, their officers, agents, employees and customers;provided that no
changes to the Common Areas shall be made by Landlord which deny or materially X
interfere with reasonable viability of ingress to or egress from the Premises or that would U
materially interfere with the Tenant's business.
10.2 License. All Common Areas which Tenant may be permitted to use and occupy '
from time to time are to be used and occupied under a revocable license, and if the
Common Areas shall be altered or diminished, Landlord shall not be subject to any liability
nor shall Tenant be entitled to any compensation or diminution or abatement of Rent, nor °0
shall such alteration or diminution of Common Areas be deemed constructive or actual
eviction. �
10.3 Solicitation of Business. Tenant and Tenant's employees and agents shall not 0
solicit business in the Common Areas, nor shall Tenant place any handbills or other
advertising matter in or on automobiles parked in the Common Areas.
10.4 Right to Employ Contractor. If Landlord from time to time determines, in
Landlord's sole judgment, that the best interests of the Shopping Center will be served by r i
having the Common Areas or any part thereof operated and maintained by a person, firm
or corporation other than Landlord, Landlord may select a person, firm or corporation to
operate and maintain all or any such part of the Common Areas and may negotiate and 0
enter into a contract therefore with such person, firm or corporation on such terms and
conditions and for such time as Landlord, in Landlord's sole judgment, shall deem Q
reasonable and proper both as to service and cost, and the cost thereof shall be included in
the Common Area Maintenance Costs. The initial person, firm or corporation selected to N
provide such services is the Managing Agent, and Landlord may delegate any and all rights
and obligations under this Lease to the Managing Agent. Unless otherwise notified by u
Landlord, the Managing Agent shall have the right to approve plans under Sections 4.2,
11.2 and 11.4, the right of entry and other rights of Landlord under Section 6.2, the right to
provide notices from Landlord under Section 7.3 hereof, and the right(but not the
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obligation)to enforce the Rules and Regulations. The Managing Agent shall also be
entitled to the benefit of all exculpatory provisions in this Lease benefiting Landlord to the
extent such provisions relate to actions taken by the Managing Agent on Landlord's behalf. 0
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Landlord may replace the Managing Agent from time to time without notice to or consent
of Tenant
10.5 Security. Landlord may in its absolute discretion provide security services for the U
Common Areas but Landlord shall not be obligated to provide security services nor be
deemed to have warranted the effectiveness or adequacy of any such services that are
provided or the personnel,procedures or equipment used in connection with same, and 0
Landlord shall not be liable in any manner for the failure of any security services to
prevent personal injury or death or property damage or loss, or to apprehend any person
suspected of causing such injury, death, damage or loss. Landlord is expressly released
from any contractual duty or any implied warranty or duty to protect or provide a secure
environment for Tenant or any third parties, and no third party shall be deemed a °0
beneficiary of any provision of this Lease or any contract made by Landlord relating to
security services. 0
ARTICLE 11 -Fixtures, Signs and Alterations
d
11.1 Fixtures. All readily removable furnishings, store fixtures and equipment owned
and used by Tenant in the Premises shall at all times during the Term be and remain the
property of Tenant without regard to the means by which they are installed in or attached X
to the Premises. Upon or prior to expiration or termination of the Term of this Lease or i
U
termination of Tenant's right to possession of the Premises pursuant to Article 16, Tenant
shall, at its expense, remove from the Premises all furnishings, fixtures and equipment
situated thereon (including all exterior and interior signs) and restore any damage to the N
Premises caused by such removal as provided in Section 18.1.Notwithstanding any of the
foregoing, Tenant shall not remove any equipment, conduits and fixtures providing water, °0
plumbing, electrical, heating, ventilation, air conditioning, lighting and sewer service to the
Premises, all of which shall become the property of Landlord upon expiration or
termination of the Term or termination of Tenant's right to possession of the Premises, and
shall be conclusively presumed to have been conveyed by Tenant to Landlord under this
Lease as a bill of sale without any payment or credit by Landlord to Tenant. Any property
required to be removed by Tenant hereunder and not so removed shall be conclusively
presumed to have been abandoned by Tenant and shall become the property of Landlord,
and Tenant shall have no further right, title or interest therein, and Landlord may thereafter
cause such property to be removed from the Premises and disposed of, but the cost of any
such removal and disposition and the cost of repairing any damage caused by such removal 0
shall be additional Rent which shall be due and payable by Tenant upon demand by
V-
Landlord. Notwithstanding the forgoing, Tenant's build out items consisting of walls,
bathrooms, and floor coverings are not required to be removed by the Tenant.
11.2 Signs. Tenant shall have the right to place signs on the exterior and interior of the
Premises and on the Shopping Center pylon signs,provided that the size, style, location
and appearance of all exterior signs and all interior signs visible from the exterior of the
Premises shall be subject to the approval of Landlord and shall be in compliance with E
Applicable Laws. If a list of sign criteria is set forth in the Exhibits to this Lease, then such
criteria shall serve only as guidelines for Tenant's signage. Plans for all signage proposed
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by Tenant shall be submitted for Landlord's approval prior to fabrication of the sign.
(b) In the event Tenant places any sign on or visible from the exterior of the Premises
which does not conform to the requirements set forth in this Section, in addition to any and 0
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all other remedies of Landlord provided in this Lease for default by Tenant, Landlord may
(i)remove such sign without notice to Tenant, and permanently dispose of same in any
manner Landlord may deem fit without liability to Landlord, and charge Tenant as U
additional Rent all costs incurred in connection therewith together with interest thereon as
provided herein, or(ii)notify Tenant that such sign must be removed by Tenant, and in
such event Tenant shall pay to Landlord liquidated damages of Fifty Dollars ($50.00) for 0
each day after the effective date of such notice that the sign is not removed by Tenant. As
more particularly described in Section 8.4, Tenant shall indemnify Landlord for any and all
ao
costs and expenses arising for the placement or removal, by Tenant or Landlord, of any
sign which does not conform to the requirements set forth in this Section.
(c) The fabrication and erection of any sign of Tenant permitted hereunder will be °0
performed at Tenant's sole expense by a sign company approved by Landlord in order to
assure conformity of design, material and final appearance. Landlord may install, maintain 0
and replace as reasonably required from time to time a standard sign with the Tenant's
Trade Name under the canopy at the Shopping Center. Landlord's costs of maintaining
and replacing any such canopy sign shall be included within the Common Area
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Maintenance Costs. E
11.3 Intentionally Deleted.
11.4 Alterations. (a) Tenant shall not make any alterations, additions, improvements or
changes in the Premises above Ten Thousand Dollars ($10,000.00) in value without in
each instance first obtaining the prior written consent of Landlord, and approval by
Landlord of the plans and specifications therefore; provided that subject to Section 11.4(b), X
Tenant may make in a first class manner such interior additions, improvements and U
changes in the Premises as Tenant may deem necessary or desirable in connection with
operation of its retail store in the Premises so long as such alterations, additions, '
improvements and changes are non-structural and do not interfere with or otherwise affect N
any heating, ventilating, air conditioning,plumbing, security, fire detection and protection
or utility systems except those installed by Tenant or exclusively serving the Premises. °0
(b) Tenant shall not itself, and shall not authorize or permit anyone other than Landlord to,
at any time,pierce,penetrate,perforate, or otherwise disturb or alter in any manner the
boundaries of the Premises, which are hereby defined as the interior, unfinished surface of
the floor slab, the interior surface of the roof, the centerline of interior demising walls and
the interior, unfinished surfaces of exterior demising waits.
(c) All alterations, additions, improvements and changes to the Premises permitted under
this Section 11.4 shall be at Tenant's expense and shall conform to all specifications set r i
forth in the Exhibits hereto and comply with all insurance requirements and with
Applicable Laws. Approval of any plans, specifications or working drawings under this
Section shall not be deemed any assurance by Landlord and shall impose no responsibility 0
or habitability on Landlord as to the approved item's completeness, sufficiency, or �
compliance with Applicable Laws, Tenant shall be responsible for and shall pay to Q
Landlord, as additional Rent, the entire amount of any real estate taxes solely attributable
to any alterations, additions or improvements made by Tenant pursuant to this section. All N
such alterations, additions, improvements and changes shall become, upon completion, the
property of Landlord, unless Landlord requires their removal pursuant to Section 18.1.
ARTICLE 12 - Condemnation
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C.4.b
12.1 All of Premises Taken. If the whole of the Premises shall be taken by
Condemnation, this Lease shall terminate as of the date possession shall be taken by the
condemning authority, and Tenant shall pay Rent and perform all of its other obligations 0
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under this Lease up to such date with a proportionate refund by Landlord of any Rent
which shall have been paid in advance for periods subsequent to such date.
12.2 Less Than All of Premises Taken. If less than all but more than twenty-five U
percent(25%) of the Premises Floor Area is taken by Condemnation, or if(regardless of
the percentage of Premises Floor Area which is taken)the remainder of the Premises CL
C,
cannot be used for Tenant's continued use or occupancy for Tenant's business, in the 0
reasonable judgment of Landlord, then in either such event Landlord or Tenant shall each
have the right to terminate this Lease upon notice to the other parry, the effective date of
which is within sixty (60) days after possession is taken by such Condemnation. If this
Lease is so terminated, it shall terminate as of the date possession shall be so taken, and
Tenant shall pay Rent and perform all of its other obligations under this Lease up to such °0
date with a proportionate refund by Landlord of any Rent which shall have been paid in
advance for periods subsequent to such date. If this Lease is not so terminated, it shall 0
terminate only with respect to the parts of the Premises so taken as of the date possession
shall be taken by such authority, and Tenant shall pay Rent up to such date with a
proportionate refund by Landlord of any Rent which shall have been paid in advance for
periods subsequent to such date, and thereafter the Base Rent shall be reduced in direct
proportion to the amount of Premises Floor Area taken, and Landlord agrees, at Landlord's
a�
cost and expense, as soon as reasonably possible to restore the remainder of the Premises
to a complete unit of similar quality and character as existed prior to such taking (to the
extent feasible); provided that Landlord shall not be required to expend more on such
restoration than an amount equal to the Condemnation Award received by Landlord (less X
all expenses, costs and legal fees incurred by Landlord in connection with such U
Condemnation Award and less any portion of such Condemnation Award which Landlord
will need to restore any Common Areas affected by such Condemnation) multiplied by a '
fraction, the numerator of which is the number of square feet of Premises Floor Area so
taken and the denominator of which is the number of square feet of Store Space so taken.
12.3 Shopping Center Taken. If any part of the Shopping Center is taken by °0
Condemnation so as to render, in Landlord's sole judgment, the remainder unsuitable for
use as a retail shopping center, Landlord shall have the right to terminate this Lease upon
notice to Tenant within One Hundred Twenty (120) days after possession is taken by such
Condemnation. If Landlord so terminates this Lease, it shall terminate as of the date
possession is taken by the condemning authority, and Tenant shall pay Rent and perform
all of its other obligations under this Lease up to such date with a proportionate refund by
Landlord of any Rent which shall have been paid in advance for periods subsequent to r i
such date.
12.4 Ownership of Condemnation Award. As between Landlord and Tenant, any
Condemnation Award relating to Condemnation of all or any part of the Shopping Center 0
shall belong to Landlord without any deduction therefrom for any present or future estate
of Tenant, and Tenant hereby assigns to Landlord at its right, title and interest to any such Q
Condemnation Award. Although the entire Condemnation Award shall belong to Landlord,
Tenant shall have the right to claim and recover from the condemning authority, but not N
from Landlord, such compensation as may be separately awarded or recoverable by Tenant
by reason of the Condemnation and for or on account of any cost or loss which Tenant
might occur in removing Tenants merchandise, furniture and fixtures,provided that any
such award shall not reduce the Condemnation Award otherwise payable to Landlord.
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C.4.b
ARTICLE 13. Insurance
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13.1 Insurance to be provided by Landlord. The premiums charged Landlord for the 0
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insurance described in this Section 13.1 shall be included in Common Area Maintenance
Costs, and as elsewhere provided herein, Tenant shall pay Tenant's Proportionate Share of
such premiums. Landlord shall maintain throughout the Term insurance of the following U
types:
(a)Property insurance insuring the Building and other improvements within the Shopping
Center for fire and other risks from time to time included under "extended coverage" (all 0
risk)policies, and in addition, coverage for flood, earthquake and boiler and machinery (if
applicable). Such coverage (except for flood and earthquake) shall be written on a
replacement cost basis equal to the full insurable replacement value of the foregoing and
shall not cover Tenant's equipment, trade fixtures, inventory, fixtures or personal property N
located on or in the Premises. °0
(b) Business interruption insurance on the Shopping Center insuring that the monthly base
rent and applicable Common Area Maintenance Costs, taxes and other reimbursements) 0
with respect to all Store Space therein will be paid to Landlord for a period of up to two
years if any portion thereof is destroyed or rendered inaccessible by a risk insured against
under the preceding subsection,
(c) Commercial general liability insurance against any and all claims for bodily injury and
property damage occurring within the Common Areas. Such insurance shall have a
combined single limit of not less than One Million Dollars ($1,000,000)per occurrence,
per location with a Two Million Dollar($2,000,000) aggregate limit.
(d) Such other insurance as required by any Mortgagee.
13.2 Insurance to be provided by Tenant. Tenant shall maintain throughout the Term, X
and for the period of time prior to the Term Commencement Date after the date that U
Substantial Completion of Landlord's Work occurs, at Tenant's expense, insurance of the
following types: V-
(a)Personal property insurance against loss or damage to the Tenants Work and all N
subsequent alterations, additions and improvements to the Premises and all furniture,
fixtures, equipment, inventory and all other items of Tenants property on the Premises, by °0
fire and other risks from time to time included under"extended coverage" (all risk)
polices, and in addition, coverage for flood, earthquake and boiler and machinery (if
applicable). Such insurance shall be written on a replacement cost basis in an amount equal
to one hundred percent(100%) of the full replacement value of the aggregate of the
foregoing.
(b) Workmen's compensation insurance in amounts required by law.
(c) Commercial General Liability insurance against any and all claims for bodily injury r i
and property damage occurring within the Premises being leased by Tenant. Such
insurance shall have a combined single limit of not less than One Million and 00/100
($1,000,000.00) Dollars per occurrence,per location with a Two Million and 00/100 0
($2,000,000.00) Dollars aggregate limit. V-
(d) If the Permitted Use includes sale and/or serving of alcoholic beverages, insurance Q
covering any claims arising under Applicable Laws relating to the storage, sale, use or
giving away of any fermented, alcoholic or other intoxicating liquor or beverage, which N
claims could be asserted against Landlord, Tenant or the Premises, in amounts and form
reasonably acceptable to Landlord. Tenant shall not be permitted to store, sell or give away
any such fermented, alcoholic or other intoxicating liquor or beverage on the Premises E
unless Landlord shall have specifically consented thereto in writing, such use shall be
within the Permitted Use, Tenant shall have obtained all required licenses and permits in
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C.4.b
connection therewith, and such licenses and permits shall be in full force and effect.
(e) Insurance against loss or damage to plate glass in or on the Premises.
(f) Such other insurance on the Premises in such amounts and against such other insurable 0
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hazards as at the time are commonly obtained in the case of property similar to the
Premises, as required by any Mortgagee.
13.3 Tenant's Insurance Requirements. Each policy of insurance referred to in this U
Section shall be domiciled in the U.S.A., and authorized to issue such insurance in the state
where the Premises are located. Landlord acknowledges and accepts that at the effective
date of this Lease, a portion of Tenant's insurance is provided by the Florida Municipal 0
Insurance Trust(FMIT) and contains a self-insured retention of$200,000.00 per claim.
For every policy which Tenant is obligated to carry under Section 13.2,Tenant shall not
cancel or fail to renew or amend such policy or reduce the coverage thereunder except after
thirty (30) days' prior written notice to Landlord. Certificates of insurance shall be
delivered to Landlord prior to the entry by Tenant on the Premises for the purpose of °0
constructing the Tenant's Work, and annually thereafter at least thirty (30) days' prior to
the expiration date of the old policy. Tenant shall have the right to provide insurance 0
coverage which it is obligated to carry pursuant to the terms hereof in a blanket policy,
provided such blanket policy expressly affords coverage to the Premises and to Landlord
as required by this Lease and shall include an aggregate limit per location endorsement.
Should Tenant fail to maintain or renew any insurance provided for in this Section, or to
pay the premium therefore, or to deliver to Landlord any of such certificates, then and in
any of said events, Landlord, at its option, but without obligation to do so, may, upon thirty
(30) days' notice to Tenant,procure such insurance, and any sums so expended by
Landlord(together with Landlord's reasonable administrative expense in procuring such
insurance) shall be additional Rent hereunder and shall be paid by Tenant to Landlord on X
the first day of the month next following the date on which such expenditure is made by U
Landlord. In no event shall the limits of any insurance required to be earned by Tenant
hereunder be deemed to limit the liability of Tenant under this Lease. Tenant shall V-
promptly advise Landlord of any change in Tenant's Insurance Contact from time to time, N
and Landlord shall have the right to contact Tenant's Insurance Contact from time to time
to determine whether Tenant has in force all insurance required by this Lease or for other °0
legitimate reasons.
13.4 Loss and Damage to Tenant's Property. (a) Tenant, as a material part of the
consideration to Landlord, assumes all risk of loss or damage to property (including
Tenant's Work and Tenant's furniture, fixtures and inventory) or injury to persons
occurring in upon or about the Premises, and any loss or interruption of business within the
Premises, from any cause whatsoever, sustained by Tenant or any party claiming through
Tenant, and Tenant waives all right to recovery against Landlord and all claims for any r i
such occurrences, except damage to Tenant resulting from the willful misconduct of the
Landlord or its authorized representatives. Tenant's waiver of claims under this Section
shall include claims for loss, damage, injury or loss of business resulting from: (i) any 0
equipment or appurtenances being in disrepair, (ii) intentionally omitted, (iii) injurydone V-
or occasioned by wind, settling, earth movement or other natural causes; (iv) any defect in Q
or failure of plumbing, heating, or air conditioning equipment, electric wiring or I-
V-
installation thereof, gas, water, steam pipes, stairs,porches, railings or walks on or about N
the Building or the Premises or otherwise; (v)broken glass; (vi)the backing up of any
water or sewer pipe or downspout; (vii)the bursting, leaking or running of any tank, tub,
washstand, water closet, waste or water pipe, drain or any other pipe or tank in, upon or
about the Building or the Premises; (viii)the escape of steam, gas, coolant or hot water;
(ix)water being upon or coming through the roof, skylight, trap door, stairs, walks,
Packet Pg. 194
C.4.b
Common Areas or any other place upon or near the Building or the Premises or otherwise;
(x)the failing of any fixtures,plaster, stucco or the like; (xi) any act, omission, or
negligence of co-tenants or of other occupants or persons within the Shopping Center, 0
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including theft and vandalism, or(xii) any other loss or damage actually insured by or
which would be insured by an insurance policy required to be obtained under this Lease.
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ARTICLE 14-Damage or Destruction
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14.1 Destruction of Premises. In the event that the Premises are totally or partially
damaged or destroyed by fire or other casualty or occurrence covered by insurance, the
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damage shall be repaired and the Premises restored to the same condition as they were in
immediately before such damage or destruction by Landlord at Landlord's expense, to the
extent of available insurance proceeds and subject to the terms of any Mortgage. If(a) such °0
damage results from a cause not insured, (b)the cost of repair or restoration exceeds the
amount of insurance proceeds received by Landlord and available for restoration of the 0
Premises, or(c) such damage occurs during the last two (2)years of the Term, Landlord
may elect to either repair or restore the Premises or to terminate this Lease upon giving
notice of such election in writing to Tenant within thirty (30) days after the occurrence of
the event causing the damage;provided that if Landlord elects to terminate this Lease
under Subsection (a) or(b) of this sentence, and if only the Premises have been affected by
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such fire or other casualty, Tenant may, within thirty (30) days after the effective date of
Landlord's notice to terminate, elect to pay to Landlord at the time Tenant notifies
Landlord of such election the difference between the amount of available insurance c�
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proceeds and the cost of repair and restoration, in which case Landlord shall repair and X
restore the Premises as aforesaid and shall provide Tenant with satisfactory evidence that U
all sums contributed by Tenant as provided in this section have been expended by
Landlord in paying the cost of such repair and restoration; provided further that if Tenant V-
does not give Landlord notice of such election and pay the amount required to prevent N
termination, this Lease shall terminate upon the expiration of said thirty (30) day period
after Landlord's notice. If Landlord is required or elects to rebuild as herein provided,
Landlord shall rebuild with due diligence and in any event within one hundred eighty (180)
days of the casualty (subject to causes of the type set forth in Section 20.3 and delays in the
adjustment of insurance) only that part of the Premises originally provided by Landlord at
its expense pursuant hereto, and Landlord shall have no responsibility to rebuild or restore
any portion of the Premises constructed by Tenant at its expense. If the casualty or the
repairing or rebuilding shall render the Premises untenable in whole or in part, a
proportionate abatement of the Base Rent shall be allowed from the date when the damage r i
occurred until the date when the Premises have been restored by Landlord, said proportion
to be computed on the basis of the relation which the square footage of the portion of the
Premises rendered untenable and not occupied by Tenant bears to the Premises Floor Area. 0
14.2 Destruction of Shopping Center. In the event that fifty percent(50%) or more of V-
the Store Space within the Building or the Shopping Center shall be damaged or destroyed Q
by fire or other cause, notwithstanding that the Premises may be unaffected by such fire or
other cause, Landlord may terminate this Lease and the tenancy hereby created by giving N
to Tenant thirty (30) days' prior written notice of Landlord's election to terminate, which
notice shall be given, if at all, within one hundred and fifty (150) days following the date
of said occurrence.
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C.4.b
ARTICLE 15-Assignment, Subletting and Encumbrance
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15.1 Assignment and Subletting. Tenant shall not assign this Lease or any interest 0
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therein or sublet the Premises or any portion thereof without the prior written consent of
Landlord, which consent shall be in Landlord's sole discretion, but no permitted
assignment or subletting shall relieve Tenant of Tenant's covenants and agreements U
hereunder. The consent of Landlord to any one assignment or sublease pursuant hereto
shall not be deemed to be a waiver of the provisions of this section with respect to any
subsequent assignment or sublease. Each such permitted sublease shall expressly be made 0
subject to the provisions of this Lease, If Tenant assigns any of its rights and interests
under this Lease, the assignee under such assignment shall expressly assume all of the
obligations of Tenant hereunder in a written instrument satisfactory to Landlord at the time
of such assignment. No assignment or sublease shall impose any obligations on Landlord
or otherwise affect any of the rights of Landlord under this Lease, nor shall it affect or °0
reduce any of the obligations of Tenant hereunder, and all such obligations shall continue
in full effect as obligations of a principal, and not as obligations of a guarantor or surety, to 0
the same extent as though no assignment or subletting had been made. In the event Tenant
shall assign this Lease or sublease the Premises for rent or other consideration in excess of
the Rent payable hereunder applicable to the space in question, Landlord shall be paid all
such excess rent or other consideration monthly, on the same dates as monthly Base Rent
payments are paid, as additional Rent hereunder. The assignee or sublessee shall be
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required to make all payments due directly to Landlord. Tenant shall, concurrently with the
execution and delivery of any such permitted assignment or sublease, deliver a duplicate
original thereof to Landlord. A change in the beneficial or record ownership of any class of
capital stock of Tenant, a transfer of partnership interests or of any beneficial interest in X
Tenant, or a sale of substantially all of the merchandise on the Premises to one purchaser U
shall in each case be treated as and deemed to be an event of assignment of this Lease
which shall be subject to the terms of the foregoing provisions of this Section. '
15.2 Criteria for Assignment and Subletting. Landlord has retained the prior right to
use its sole discretion of consent to proposed assignment or sublease for several substantial
business and equity reasons which were considerations for this Lease, including: the fact °0
that the success and continuation of the Shopping Center is directly related to the use and
operation of each particular store in the overall integrated merchandising scheme of the
Shopping Center; the obligations of Landlord owed to Mortgagees, major tenants, other
nearby shopping centers and the public, and the reputation and expertise of Tenant. In
evaluating and determining whether or not to consent to a requested assignment or
sublease of the Premises by Tenant, Landlord must be satisfied in its sole determination
that the criteria set forth above continue to be satisfied, and Landlord must receive r i
adequate assurance of the financial condition and stability of the proposed assignee or
sublessee, the reputation and expertise of the assignee or sublessee, the ability and
likelihood of payment of all Rent due hereunder, that the assignees or sub lessee's use and 0
occupancy of the Premises will not require alterations or other actions by either Landlord
or the assignee or sublessee in order to comply with Applicable Laws; and such other Q
assurances as Landlord requires, including those assurances that Landlord has the right to
receive in accordance with Section 365(b)(3) of the Bankruptcy Reform Act of 1994. N
Accordingly, if Tenant requests Landlord's consent to any proposed assignment or
sublease, Landlord may require that Tenant provide Landlord with any information
concerning the proposed assignee or sublessee as Landlord deems appropriate, in its sole
discretion, and Landlord shall have forty-five (45) days after receipt of all such information
in which to evaluate the suitability of the proposed assignee or sublessee and to advise
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C.4.b
Tenant of its approval or disapproval. In connection with each request for Landlord's
approval of a proposed assignee or sublessee, Tenant shall pay to Landlord a flat fee of
Five Hundred Dollars ($500.00) as an administrative fee, and in addition Tenant shall 0
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reimburse Landlord for all out-of-pocket costs, including attorney's fees and costs,
incurred by Landlord in evaluating the proposed assignee or sublessee, and in preparing or
reviewing appropriate documentation to evidence the assignment or sublease, the U
assumption of the terms of this Lease by the assignee or sublessee, and Landlord's consent
thereto. Landlord's approval of any assignee or sublessee shall not create any
responsibility or liability on the part of Landlord for any non-compliance with Applicable 0
Laws. �
15.3 Encumbrance. Neither this Lease nor the Term shall be mortgaged,pledged or
encumbered by Tenant, nor shall Tenant mortgage,pledge or encumber the interest of
Tenant in and to any sublease of the Premises or the Rent payable thereunder, without the
prior written consent of Landlord, which consent may be granted or withheld in the sole °0
discretion of Landlord, and Tenant shall not allow or permit any transfer of this Lease or
any interest hereunder by operation of law. Any purported mortgage,pledge, encumbrance, 0
sublease, assignment or transfer made in violation of this Section shall be void.
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ARTICLE 16-Default
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16.1 Events of Default Any of the following occurrences or acts shall constitute an
event of default under this Lease (and all of the following shall apply with equal force and
effect to any assignee or sublessee of Tenant):
(a) if Tenant, at any time during the Term, shall (i) fail to make any payment of Minimum
Base Rent for a period of five (5) days after the effective date of notice given by Landlord X
that any such payment has become due;provided that after Landlord has provided such a U
notice two (2)times within any period of twelve (12) months, the failure of Tenant to make
any other payment of Minimum Base Rent due during the same twelve (12) month period, '
which failure continues for more than five (5) days after the due date of such payment,
shall, without any notice from Landlord, be an event of default by Tenant hereunder; or(ii)
fail to make any payment of Rent other than Minimum Base Rent for a period of ten (10) °0
days after the effective date of notice given by Landlord to Tenant that any such payment
has become due; or(iii) fail to cure, immediately after notice from Landlord, any
hazardous condition which Tenant has created or suffered in violation of law or this Lease;
or(iv) fail to observe or perform any of the covenants in respect to assignment, subletting
and encumbrance set forth in Article 15; or(v) subject to the other terms hereof, fail to
observe or perform any other provision hereof for thirty (30) days after the effective date
of notice given by Landlord to Tenant of such failure (provided that in the case of any
default referred to in this clause (v)which cannot be cured by the payment of money and
cannot with diligence be cured within such thirty (30) day period, if Tenant shall
commence to cure the same within such thirty (30) day period and thereafter shall 0
prosecute the curing of same with diligence and continuity, then the time within which
such failure may be cured shaft be extended for such period not to exceed sixty (60) days Q
as may be necessary to complete the curing of the same with diligence and continuity); or �
(vi) furnish to Landlord any fraudulent statement of Gross Sales hereunder.
Notwithstanding anything to the contrary contained herein, in the event that Tenant is not
in compliance with any of the terms of this Lease regarding the use of the Premises or the u
Common Area after Landlord has provided to Tenant at least one (1)previous notice of
such noncompliance at any time during the Term, then Landlord shall not be required to
provide any further notice of such noncompliance, and upon the occurrence of such
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C.4.b
noncompliance Landlord shall have the right to declare Tenant in default hereunder
without any further notice or grace period, whether or not Tenant has cured the default on
any prior occasion or on that occasion; or(b)to the full extent permissible under the 0
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Bankruptcy Reform Act of 1994, or any successor thereto, if Tenant or any Guarantor shall
(i) file a voluntary petition in bankruptcy or any petition or answer seeking or acquiescing
in any reorganization, arrangement composition, readjustment, liquidation, dissolution, or U
similar relief for itself under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debtors, or(ii) seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or Guarantor 0
or of all or any substantial part of the assets of Tenant or any Guarantor of the Premises or
any portion thereof or of any or all of the income, rents, issues,profits or revenues thereof,
or(iii) make any general assignment for the benefit of creditors, or admit in writing its or
their inability to pay its or their debts generally as they become due, or(iv) commit an act
of bankruptcy; or(c)to the full extent permissible under the Bankruptcy Reform Act of °0
1994, or any successor thereto, the filing of a petition against Tenant or Guarantor seeking
any reorganization, arrangement, composition, readjustment, liquidation, dissolution or 0
similar relief under any present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debtors, or the appointment of any trustee, E
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receiver or liquidator of Tenant or Guarantor or of all or any substantial part of the assets
of Tenant or any Guarantor of the Premises or any portion thereof or of any or all of the
Income, rents, issues,profits or revenues thereof, unless such petition shall be dismissed
within thirty (30) days after such filing, but in any event prior to the entry of an order,
judgment or decree approving such petition; or if the applicable provisions of the
Bankruptcy Reform Act of 1994, specifically Sections 363 and 365 thereof, are not
satisfied to the fullest extent possible; or(d) if Tenant or Guarantor(if either is a X
corporation or a limited liability company) is liquidated or dissolved or its charter expires U
or is revoked, or if Tenant or Guarantor(if either is a partnership or business association) is
dissolved or partitioned, or if Tenant or Guarantor (if either is a trust) is terminated or
expires, or if Tenant or Guarantor(if either is an individual) dies; or(e) if the Premises
shall have been abandoned, and for the purposes of this Lease the Premises shall be
deemed to have been abandoned if Tenant transfers a substantial part of Tenant's inventory
or fixtures from the Premises to another location without replacing same with comparable
items; or(f) if Tenant fails to take possession of the Premises promptly after Substantial
Completion of Landlord's Work has occurred or when possession is otherwise tendered by
Landlord in accordance with the terms of this Lease, or to submit plans or other
information regarding the Tenant's Work for Landlord's approval when and as required
hereunder, or to commence and complete construction of the Tenant's Work when and as
required hereunder, or to open its business in the Premises by the Term Commencement r i
Date or as otherwise required hereunder.
16.2 Remedies of Landlord.
(a) If any Event of a monetary Default, the Landlord shall have the right, at the option of 0
Landlord, to terminate this Lease upon three (3) days' written notice to Tenant, and to �
thereupon re-enter and take possession of the Leased Premises with or without legal Q
process. (a) If any Event of a non-Monetary Default, the Landlord shall have the right, at �
the option of Landlord, to terminate this Lease upon fifteen (15) days' written notice to N
Tenant, and to thereupon re-enter and take possession of the Leased Premises with or
without legal process. If any Event of Default occurs, Landlord shall have the right, at its
option, from time to time, without terminating this Lease, to reenter and relet the Premises,
or any part thereof, with or without legal process, as the agent and for the account of
Tenant upon such terms and conditions as Landlord may deem advisable or satisfactory, in
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C.4.b
which event the rents received on such reletting shall be applied first to the expenses of
such reletting and collection including but not limited to, necessary renovations and
alterations of the Leased Premises, reasonable attorney's fees, any real estate commissions 0
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paid, and thereafter toward payment of all sums due or to become due Landlord hereunder,
and if a sufficient sum shall not be thus realized or secured to pay such sums and other
charges, (i) at Landlord's option, Tenant shall pay Landlord any deficiency monthly, U
notwithstanding Landlord may have received rental in excess of the rental stipulated in this
Lease in previous or subsequent months, and Landlord may bring an action therefore as
such monthly deficiency shall arise, or(ii) at Landlord's option, the entire deficiency, 0
which is subject to ascertainment for the remaining term of this Lease, shall be
immediately due and payable by Tenant. Nothing herein, however, shall be construed to
require Landlord to reenter and re-let in any event. The Landlord shall not, in any event, be
required to pay Tenant any surplus of any sums received by Landlord on a reletting of said
Premises in excess of the rent provided in this Lease. °0
(b) If any Event of Default occurs, the Landlord shall have the right, at its option, to
declare the rents for the entire remaining term and other indebtedness, if any, immediately 0
due and payable without regard to whether possession shall have been surrendered to or
taken from Landlord, and may commence action immediately thereupon and recover
judgment therefore. If any Event of Default occurs, the Landlord, in addition to other rights
and remedies it may have, shall have the right to remove all or any part of the Tenant's
property from the Leased Premises and any property removed may be stored in any public
warehouse or elsewhere at the cost of, and for the account of Tenant and the Landlord shall
not be responsible for the care or safekeeping thereof, and the Tenant hereby waives any
and all loss, destruction and/or damage or injury which may be occasioned by any of the
aforesaid acts. Tenant shall from time to time provide Landlord with a list of leased X
personal property, with the names and addresses of the equipment lessors. No such reentry U
or taking possession of the Leased Premises by Landlord shall be construed as an election
on Landlord's part to terminate this Lease unless a written notice of such intention is given '
to Tenant. Notwithstanding any such reletting without termination, Landlord may at all
times thereafter elect to terminate this Lease for such previous default or breach. Any such
reentry shall be allowed by Tenant without hindrance, and Landlord shall not be liable on °0
damages for any such reentry, or guilty of trespass or forcible entry. Any rental which may
be due Landlord, whether by acceleration or otherwise, as herein provided in this Article,
shall include the Minimum Base Rent set forth on Exhibit A attached hereto and any other
costs and expenses denominated as additional rentals in this Lease. Any and all rights,
remedies and options given in this Lease to Landlord shall be cumulative and in addition to
and without waiver of, or in derogation of, any right or remedy given to it under Florida
law now or hereafter in effect. r i
16.3 Expenses of Enforcement. In the event any payment due Landlord under this lease
shall not be paid on the due date, said payment shall bear a late payment charge of five
percent(5%)per month of the amount of the payment from the due date until paid unless 0
otherwise specifically provided herein, but the payment of such charge shall not excuse or
cure any default by Tenant under this Lease. In the event that it shall be necessary for
Landlord to give more than one (1)written notice to Tenant of any violation of this Lease,
Landlord shall be entitled to make an administrative charge to Tenant of Twenty-Five and
00/100 Dollars ($25.00) for each such notice. This late payment charge will constitute
liquidated damages and will be paid to Landlord together with such unpaid amounts. Any
charges becoming due under this Section of this Lease shall be considered additional Rent
as defined herein and become due with the next ensuing monthly payment of the Minimum
Base Rent and shall be collectible as a part thereof. In the event any check in payment of
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C.4.b
monies due Landlord is not honored by the financial institution upon which such check
was drawn and is returned to Landlord for any reason whatsoever, Landlord may impose,
as additional Rent, a returned check service charge of Twenty-five and 00/100 Dollars 0
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($25.00) or five percent(5%) of the amount of the returned check, whichever is greater,
each time a check is not honored and returned to Landlord. Such returned check service
charge shall not preclude Landlord from imposing a charge as provided in above. U
16.4 Rights Cumulative, Non-Waiver. No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any other right or remedy 0
given hereunder or now or hereafter existing at law or in equity or by statute. The failure of
Landlord to insist at any time upon the strict performance of any covenant or agreement or
to exercise any option, right,power or remedy contained in this Lease shall not be
construed as a waiver or relinquishment thereof for the future. The receipt by Landlord of
any Rent with knowledge of the breach of any covenant or agreement contained in this °0
Lease shall not be deemed a waiver of such breach, and no waiver by Landlord of any
provision of this Lease shall be deemed to have been made unless expressed in writing and 0
signed by Landlord. In addition to the other remedies provided in this Lease, Landlord
shall be entitled, to the extent permitted by law, to injunctive relief in case of the violation,
or attempted or threatened violation, of any of the covenants, agreements, conditions or
provisions of this Lease, or to a decree compelling performance of this Lease, or to any
other remedy allowed to Landlord at law or in equity.
16.5 Legal Expenses.
(a) In the event Landlord seeks the advice of legal counsel in connection with any default
by Tenant under this Lease, or in connection with enforcement of any of Landlord's rights
hereunder, Tenant shall pay to Landlord all attorney's fees and costs incurred or paid by X
Landlord in connection therewith, whether or not suit is filed and including if applicable,
U
attorney's fees incurred in connection with any appeal of the legal proceedings.
(b) In the event either Landlord or Tenant shall be in default in the performance of any of
its obligations under this Lease, or if any dispute shall arise between Landlord and Tenant
concerning the interpretation of this Lease, and if an action shall be brought in connection
therewith in which it shall be finally (with no further appeal being available or with respect °0
to which all appeal rights have expired) determined that Landlord or Tenant was in default,
or that the court agrees with one party's interpretation of the disputed provision of this
Lease, the party determined by the court to be in default, or with whose interpretation of
this Lease the court does not agree, shall pay to the other party all attorney's fees and
litigation expenses incurred or paid by the other party in connection therewith including
attorney's fees in the appellate courts if applicable.
(c) In the event Landlord shall, without fault on its part, be made a party to any litigation r i
commenced against Tenant, and if Tenant, at its expense, shall fail within thirty (30) days
after the effective date of notice from Landlord to provide Landlord with counsel approved
by Landlord, Tenant shall pay as additional Rent all costs and attorney's fees incurred or 0
paid by Landlord in connection with such litigation. In the event Tenant shall, without fault
on its part, be made a party to any litigation commenced against Landlord, and if Landlord, Q
at its expense, shall fail within thirty (30) days after the effective date of notice from �
Tenant to provide Tenant with counsel approved by Tenant, Landlord shall reimburse N
Tenant for all costs and attorney's fees incurred or paid by Tenant in connection with such
litigation.
16.6 Landlord's Right to Cure. Landlord may, but shall not be obligated to, cure any E
default by Tenant after complying with the notice provisions herein set forth, and
whenever Landlord so elects, all costs and expenses paid or incurred by Landlord in curing
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C.4.b
such default, including reasonable attorney's fees, shall be deemed to be additional Rent
due on demand with interest as provided in Sections 3.10.
16.7 Default by Landlord. 0
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(a) Landlord shall not be in default unless Landlord fails to perform obligations required of
Landlord under this Lease within a reasonable time, but in no event later than ten (10)
business days after the effective date of written notice by Tenant to Landlord and to any U
Mortgagee whose name and address shall have theretofore been furnished to Tenant in
writing, specifying the obligation which Landlord has failed to perform; provided,
however, that if the nature of Landlord's obligation be such that more than ten (10) days 0
are required for performance, then Landlord shall not be in default if Landlord commences
performance within such ten (10) day period and thereafter diligently prosecutes the same
to completion.
(b) Tenant shall have no right of set off or deduction of any amounts incurred in
connection therewith against any Rent payments. In the event Tenant shall take any action °0
to correct or attempt to cure any purported default of Landlord, (i) such action shall be
taken at Tenants sole risk. 0
(c) In no event shall Tenant have the right to terminate this Lease as a result of Landlord's
default. Tenant's remedies shall be limited to damages and or to injunctive relief. Should
the Tenant provide Landlord notification of any breach of the covenant of Quiet
Enjoyment, including but not limited to sewer and plumbing problems, insect problems, or E
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vermin problems, which are the responsibility of Landlord hereunder, Landlord shall have
thirty (30) days' to remedy the issue; provided, however, that if the nature of Landlord's
obligation be such that more than thirty (30) days are required for performance,then
Landlord shall not be in default if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion. Should the X
breach of Quiet Enjoyment arise three (3)times within any lease year, and Landlord has
U
not cured such breach within the applicable cure period, Tenant shall have the right to
terminate the Lease by providing Landlord thirty (30) days' written notice of termination, V-
as long as such breach has not been remedied in such thirty (30) days. �
ARTICLE 17-Estoppel Certificates, Subordination, and Mortgagee Protection
17.1 Estoppel Certificates. Within ten (10) days after request therefore by Landlord,
Tenant agrees to execute and deliver a certificate in the form presented by Landlord to any
proposed Mortgagee or purchaser of the Premises, or to Landlord, certifying (if such be the
case)to matters requested by Landlord including the following: (a)that Tenant is in full
and complete possession of the Premises, such possession having been delivered by
Landlord or its predecessor and accepted by Tenant,
(b)that any improvements required to be furnished by Landlord by the terms of this Lease
have been completed in all respects to the satisfaction of Tenant;
(c)that this Lease is in full force and effect and has not been amended, modified, 0
supplemented or superseded except as specifically noted; V-
(d)that there is no existing default on the part of Landlord in the performance of any Q
covenant, agreement or condition contained in this Lease to be performed by Landlord; I-
(e)that Tenant does not have any actual or pending claim against Landlord; N
(f)that no Rent has been prepaid by Tenant; and
(g)that the addressee of said certificate may rely on the representations therein made, and
certifying as to the dates of commencement and termination of the Term, the date on which E
Rent commenced to accrue under this Lease, and the date through which Rent has been
paid. Without limiting the generality of the foregoing, Tenant agrees to execute an estoppel
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C.4.b
certificate substantially in the form attached as in Exhibit F hereto within ten (10) days
after request from Landlord, with such qualifications to Section 2 as may be appropriate if
the estoppel certificate is delivered prior to Substantial Completion of Landlord's Work. 0
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17.2 Subordination, Superiority. The rights and interests of Tenant under this Lease
shall be automatically subordinate to any Mortgage, and to any and all advances to be
made thereunder and to the interest thereon and all renewals, amendments, modifications, U
replacements and extensions thereof, if the Mortgagee under such Mortgage shall elect to
subject and subordinate the rights and interests of Tenant under this Lease to the lien of its
Mortgage. Although the subordination contained herein is automatic, within ten (10) days 0
after written notice from Landlord requesting same, Tenant agrees to execute and deliver
from time to time an instrument in writing prepared by Landlord or its Mortgagee,
recognizing that this Lease is subordinate to the Mortgage specified in such instrument.
Notwithstanding the foregoing, any Mortgagee of the Shopping Center or any part thereof
containing the Premises may elect to give certain rights and interests of Tenant under this °0
Lease priority over the lien of its Mortgage. In the event of such election and upon
notification by such Mortgagee to Tenant to that effect, the rights and interests of Tenant 0
under this Lease shall be deemed to have priority over the lien of said Mortgage, whether
this Lease is dated prior to or subsequent to the date of said Mortgage. Tenant shall, within
ten (10) days following the request of Landlord or such Mortgagee, execute and deliver
whatever instruments may be required for such purpose.
17.3 Mortgagee Protection. If requested in writing by Landlord and any Mortgagee,
which written notice specifies the address of such Mortgagee for notice purposes, Tenant
agrees to give such Mortgagee a copy of any notice served upon Landlord by Tenant in
connection with this Lease. Further, any notice of default by Landlord served by Tenant
shall be sent to such Mortgagee by registered or certified mail,postage prepaid, return X
receipt requested. Tenant further agrees that if Landlord shall have failed to cure such U
default within thirty (30) days after the effective date of such notice to Landlord(or if such
default cannot be cured within that time, then such additional time as may be necessary if V-
Landlord has commenced within such thirty (30) day period and is diligently pursuing the N
remedies or steps necessary to cure such default), then the Mortgagee shall have an
additional thirty (30) days after the effective date of notice from Tenant of Landlord's
failure to cure within which to cure such default(or if such default cannot be cured within
that time, then such additional time as may be necessary if such Mortgagee has
commenced to cure within such thirty (30) day period and is diligently pursuing the
remedies or steps necessary to cure such default, including commencement of foreclosure
proceedings if necessary to effect such a cure). Until the time allowed as aforesaid for the
Mortgagee to cure such default has expired without cure, Tenant shall have no right to, and
shall not, terminate this Lease on account of Landlord's default. Should any prospective r i
Mortgagee require a modification or modifications of this Lease, which modification or
modifications will not cause an increased cost or expense to Tenant or in any other way
materially change the rights and obligations of Tenant hereunder, then, and in such event, 0
Tenant agrees that this Lease may be so modified and Tenant shall, within thirty (30) days V-
following the request of Landlord or such Mortgagee, execute and deliver whatever Q
instruments may be required for such purpose.
17.4 Tenant's Default; Power of Attorney. Failure of Tenant to execute and deliver N
any instrument requested under this Article 17 within the time period required under the
applicable section hereof shall constitute an event of default.
ARTICLE 18- Surrender and Holdover
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18.1 Surrender. Upon the expiration or earlier termination of the Term of this Lease, or
upon termination of Tenant's right to possession of the Premises in accordance with
Article 16, Tenant shall peaceably leave and surrender the Premises to Landlord broom- 0
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clean and otherwise in the condition in which the Premises are required to be maintained
by the terms of this Lease. Tenant shall surrender all keys for the Premises to Landlord at
the place then fixed for the payment of Rent and shall inform Landlord of all combinations U
on locks, safes and vaults, if any, in the Premises. Tenant shall, at its expense, on or prior
to such expiration or earlier termination, remove its personal property (except that which is
expressly made the Landlord's property under Section 11.1) and repair any damage caused 0
by such removal, in accordance with Section 11.1.
18.2 Holdover. Should Tenant or any party claiming under Tenant hold over in
possession at the expiration of the Term, such holding over shall not be deemed to extend
the Term or renew this Lease, and such holding over shall be an unlawful detainer and N
such parties shall be subject to immediate eviction and removal. During any period while °0
Tenant shall hold the Premises after expiration of the Term, the Minimum Base Rent shall
be increased to one hundred fifty percent(150%) of the Minimum Base Rent in effect 0
immediately prior to the expiration of the Term, which Tenant shall pay upon demand to
Landlord. Further, Tenant shall pay all damages, consequential as well as direct, sustained
by Landlord by reason of such holding over.
ARTICLE 19 - Security Deposit
19.1 Security Deposit. The Security Deposit, if any, specified in the Basic
Lease Terms shall be held by Landlord as security for the full and faithful performance by
Tenant of each and every term, covenant and condition of this Lease on the part of Tenant Wi
to be observed and performed. Landlord shall have no liability to pay interest thereon U
unless required by Applicable Laws, nor shall Landlord be required to keep the Security
Deposit separate from its general funds. Landlord's obligations with respect to the Security
Deposit are those of a debtor and not a trustee. If any Rent shall be overdue and unpaid or N
should Landlord make payments on behalf of Tenant, or should Tenant fail to perform any
of the terms of this Lease, then Landlord may, at its option, and without prejudice to any
other remedy which Landlord may have on account thereof, apply the Security Deposit or X
so much thereof as may be necessary to compensate Landlord toward the payment of the
Rent, or towards any loss, damage or expense sustained by Landlord resulting from such U)
default on the part of Tenant, and in such event Tenant shall forthwith upon demand
restore the Security Deposit to its original amount, and the sum required to so restore the
Security Deposit shall be additional Rent hereunder. In the event Tenant shall have fully
and faithfully complied with all of the terms, covenants and conditions of this Lease, the
Security Deposit shall be returned in full to Tenant within thirty (30) days following the E
end of the Term or earlier termination of this Lease, subject to the refund provision as set
forth in Section 1.37. In the event that any bankruptcy, insolvency, reorganization or
other creditor-debtor proceedings shall be instituted by or against Tenant or its successors
or assigns, Landlord may apply the Security Deposit first to the payment of any unpaid N
Rent then due, and the balance, if any, of the Security Deposit may be retained by
Landlord in partial liquidation of Landlord's damages. Landlord may deliver the Security N
Deposit to the purchaser of Landlord's interest in the Premises, in the event that such
interest is sold, and Landlord shall thereupon be discharged from any further liability with
E
respect to the Security Deposit.
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19.2 Intentionally Deleted.
0
ARTICLE 20- General Provisions
20.1 Successors. Subject to Article 15 and Section 20.12, all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns.
20.2 Notices. All notices, demands, requests, consents, approvals and other instruments 0
required or permitted to be given pursuant to the terms of this Lease shall be given in
writing, as follows: if to Tenant, addressed to Tenant either at Tenant's address or at the
address of the Premises, each as stated in the Basic Lease Terms, with a copy of all notices
to Tenant to be delivered simultaneously to all parties designated in the Basic Lease Terms
to receive copies of notices to Tenant; if to Landlord, at Landlord's address as stated in the °0
Basic Lease Term, with a copy of all notices to Landlord to be delivered simultaneously to
all parties designated in the Basic Lease Terms to receive copies of notices to Landlord. 0
All notices shall be deemed to have been properly given and shall be effective: (a) one (1)
business day after delivery into the custody of any nationally recognized overnight courier
service such as FedEx, with charges paid by the sender, for overnight delivery; or(b)two
(2)business days after deposit with the U.S. Postal Service if sent by registered or certified
mail,postage prepaid, return receipt requested; or(c)upon actual receipt by the addressee,
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as evidenced by a written receipt, if notice is given by any other method. Landlord and
Tenant shall each have the right from time to time to specify as its address for purposes of
this Lease any other addresses in the United States of America upon three (3) days' notice
thereof, similarly given, to the other party. In addition to the preceding methods, Landlord X
shall have the right to give notice to Tenant by posting a copy of such notice at the U
entrance to the Premises, and any such notice shall be effective on the first business day
after such notice is posted.
20.3 Excuse of Performance. Anything in this Lease to the contrary notwithstanding,
neither Tenant nor Landlord shall be deemed in default with respect to the performance of
any of the terms, covenants and conditions of this Lease if such failure of performance °0
shall be due to any strike, lockout, boycott, labor dispute, civil commotion,war-like
operation, invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulation or control, inability to obtain any material or service, Act of God,
adverse weather condition, energy shortage or any other cause whether similar or
dissimilar, beyond the reasonable control of Tenant or Landlord, as the case may be;
provided such cause is not due to the willful act of Tenant or Landlord, as the case may be;
and further provided that delays or failures to perform resulting from lack of funds shall r i
not be deemed delays beyond the reasonable control of a party; and further provided that
the foregoing shall not relieve Tenant from its obligation timely to pay Rent and other
sums due under this Lease; and further provided that the party claiming any such excuse 0
for its performance hereunder has given the other party notice of the cause and anticipated
duration of such failure of performance,
20.4 No Option. The submission of this Lease for examination does not constitute an
offer to enter into a lease, and this Lease shall become effective only upon execution and N
delivery hereof by Landlord and Tenant.
20.5 No Joint Venture. The relationship of the parties is that of lessor and lessee only,
and nothing in this Lease shall be construed as creating a partnership,joint venture, E
principal-agent or any other relationship between Landlord and Tenant except that of lessor
and lessee. Except as expressly otherwise provided herein, neither party shall have any
Packet Pg. 204
C.4.b
right or power to create any expense or liability chargeable to the other party.
20.6 Broker. Tenant and Landlord represent and warrant, each to the other, neither has
dealt with any broker or finder entitled to any commission, fee or other compensation, by 0
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reason of the execution of this Lease except the Broker(s), if any, specified in the Basic
Lease Terms. As more particularly described in Section 8.4, Tenant and Landlord shall
each indemnify the other for any and all costs and expenses arising from any claim for a U
commission, fee or other compensation by a broker or finder claiming by, through or under
Landlord or Tenant, other than Broker(s), as the case may be.
20.7 Financial Statements. At the request of Landlord, Tenant shall, not later than 0
ninety (90) days following the close of each fiscal year of Tenant during the Term, furnish
to Landlord a balance sheet of Tenant as of the end of such fiscal year and a statement of
income and expense for the fiscal year then ended, together with an opinion of an
independent certified public accountant of recognized standing to the effect that said
financial statements have been prepared in conformity with generally accepted accounting °0
principles consistently applied, and fairly present the financial condition and results of
operations of Tenant as of and for the periods covered. 0
20.8 Interpretation, Headings and Captions. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense where there is more
than one Tenant and to either corporations, associations, limited liability companies,
partnerships, individuals, males or females, shall in all instances be assumed as though in
each case fully expressed. Wherever used herein, the words "include" and "including"
shall be deemed to be followed by the words "but shall not be limited to" or"but not
limited to,"respectively, unless the context otherwise requires. The headings and captions
contained in this Lease are inserted for convenience of reference only, and are not to be
deemed part of or to be used in construing this Lease; the foregoing does not apply to the X
Basic Lease Terms and to Article 1 of this Lease, where the headings and captions are an U
integral part of the terms hereof.
20.9 Joint and Several Liability. If there is more than one Tenant at any time, the V-
liability of all such parties for compliance with and performance of the terms and N
covenants of this Lease shall be joint and several
20.10 Partial Invalidity. If any term or provision of this Lease or the application thereof °0
to any person or circumstance shall, to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid and enforced to
the fullest extent permitted by law.
20.11 Survival. Any provision of this Lease which obligates Tenant to pay an amount or
perform an obligation before the Term Commencement Date or after the expiration of the r i
Term shall be binding and enforceable notwithstanding that payment or performance is not
within the Term, and the same shall survive. In addition, all obligations of Tenant to pay
Rent during the Term, and Tenant's obligations under Sections 8.4 and Article 16 hereof, 0
shall survive expiration or termination of this Lease. V-
20.12 Definition of Landlord, Exculpation. The term Landlord as used in this Lease, so Q
far as the covenants or obligations on the part of Landlord are concerned, shall be limited I-
to mean and include only the owner or owners at the time in question of the Premises, and N
in the event of any transfer or transfers of title thereto, Landlord named herein (and in case
of any subsequent transfer or conveyance, the then grantor) shall be automatically relieved
from and after the date of such transfer or conveyance of all liability as respects the E
performance of any covenants or obligations on the part of Landlord contained in this
Lease thereafter to be performed. It is expressly understood and agreed by and between the
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C.4.b
parties hereto, anything herein to the contrary notwithstanding, that all of the
representations, warranties, undertakings and agreements herein made on the part of
Landlord, while in form purporting to be the representations, warranties, covenants, 0
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undertakings and agreements by Landlord or for the purpose or with the intention of
binding Landlord personally, are made and intended for the purpose only of subjecting
Landlord's interest in the Premises and the Shopping Center to the terms of this Lease and U
for no other purpose whatsoever, and that in the case of default hereunder by Landlord,
Tenant shall look solely to the interest of Landlord in the Premises and the Shopping
Center for satisfaction of any obligation of Landlord to Tenant. 0
20.13 Time of Essence. Time is of the essence of this Lease, and all provisions herein
relating thereto shall be strictly construed.
20.14 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the Rent or other amounts herein stipulated shall be deemed to be other than
on account of the stipulated Rent and amounts due, nor shall any endorsement or statement °0
on any check or any letter accompanying any check or payment thereof be deemed an
accord and satisfaction, and Landlord may accept such check or payment without prejudice 0
to Landlord's right to recover the balance of such amounts or pursue any other remedy
provided in this Lease.
20.15 Entire Agreement. This Lease and Exhibits, Riders, Addenda and Guaranty, if
any, attached hereto and forming a part hereof, set forth all the covenants,promises, E
E
agreements, conditions and understandings between Landlord and Tenant concerning the
Premises, and there are no covenants,promises, agreements, conditions or understandings,
ether oral or written, between Landlord and Tenant concerning the Premises except those
herein set forth. Except as otherwise provided herein, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or Tenant X
unless reduced to writing, approved by the Board of County Commissioners, and signed by U
both parties before it becomes effective.
20.16 Recordation. Tenant shall not record this Lease without the written consent of
Landlord.
20.17 Governing Law. This Lease shall be construed and enforced in accordance with
the laws of the state of Florida. Landlord and Tenant agree that venue for any dispute °0
will lie in Monroe County, Florida.
20.18 Authority and Good Standing. In the event Landlord or Tenant hereunder is a
corporation, limited liability company,partnership, or any other form of entity other than a
natural person, the person(s) executing this Lease on behalf of Landlord or Tenant hereby
covenant and warrant that Landlord and/or Tenant has been properly formed, is in good
standing and is qualified to do business in the state in which the Shopping Center is
located; all forms, reports, fees, taxes, and other documents and charges required to r i
establish and maintain Landlord or Tenant's good standing, qualification to do business
and compliance with applicable laws have been and will continue to be filed and paid by
Landlord or Tenant when due; and such persons executing this Lease on behalf of 0
Landlord or Tenant are duly authorized by the appropriate persons or governing body of
Landlord or Tenant to execute and deliver this Lease on behalf of each party. Q
20.19 Annual Appropriation. Monroe County's performance and obligations to pay I-
under this contract is contingent upon an annual appropriation by the Board of County N
Commissioners.
20.20 Public Access. The Landlord and Tenant shall allow and permit reasonable access u
to, and inspection of, all documents,papers, letters or other materials in its possession or E
under its control subject to the provisions of Chapter 119, Florida Statutes, and made or
received by the Landlord and Tenant in conjunction with this Lease Agreement; and the
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C.4.b
Tenant shall have the right to unilaterally cancel this Lease Agreement upon violation of
this provision by Landlord.
20.21 Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, 0
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Florida Statutes, the participation of the Landlord and the Tenant in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or
local government liability insurance pool coverage shall not be deemed a waiver of U
immunity to the extent of liability coverage, nor shall any contract entered into by the
Tenant be required to contain any provision for waiver.
20.22 Nondiscrimination. Landlord and Tenant agree that there will be no discrimination 0
against any person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, this Agreement automatically terminates
without any further action on the part of any party, effective the date of the court order. Landlord
and Tenant agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VII of the °0
Civil Rights Act of 1964 (PL 88-352)which prohibits discrimination on the basis of race, color or
national origin; 2) Title IX of the Education Amendment of 1972, as amended(20 USC ss. 1681- 0
1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the
basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107)
which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act
of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of
1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or
alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and
290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) X
Title VIII of the Civil Rights Act of 1968 (42 USC s. 3601 et seq.), as amended, relating to U
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities
Act of 1990 (42 USC s. 12101 Note), as may be amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Monroe County Code Chapter 14, Article II,
which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry,
sexual orientation, gender identity or expression, familial status or age; and 11) Any other °0
nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or
the subject matter of, this Agreement.
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20.23 Adjudication of Disputes or Disagreements: Landlord and Tenant agree that all disputes
and disagreements shall be attempted to be resolved by meet and confer sessions between
representatives of each of the parties. The Landlord and Tenant Representatives shall try to resolve 2
the claim or dispute with meet and confer sessions. If the issue or issues are still not resolved to
the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law. This Agreement is not subject to
arbitration. 0
20.24 Covenant of No Interest. Landlord and Tenant covenant that neither presently has any
interest, and shall not acquir0e any interest, which would conflict in any manner or degree with its N
performance under this Lease Agreement, and that the only interest of each is to perform and
receive benefits as recited in this Lease Agreement.
20.25 Privileges and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
d
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C.4.b
any public agents or employees of the Tenant, when performing their respective functions under
this Lease Agreement within the territorial limits of Monroe County shall apply to the same degree U
and extent to the performance of such functions and duties of such officers, agents, volunteers, or
employees outside the territorial limits of the County.
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20.26 Legal Obligations and Responsibilities. Non-Delegation of Constitutional or Statutory
Duties. This Lease Agreement is not intended to, nor shall it be construed as, relieving any
participating entity from any obligation or responsibility imposed upon the entity by law except to
the extent of actual and timely performance thereof by any participating entity, in which case the 0
performance may be offered in satisfaction of the obligation or responsibility. Further, this Lease
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the Tenant, except to the extent permitted by the Florida T
constitution, state statute, and case law. N
20.27 Ethics Clause. Landlord warrants that it has not employed, retained or otherwise had act
on its behalf any former County officer or employee subject to the prohibition of Section 2 of
Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of 0
Ordinance No. 020-1990. For breach or violation of this provision the County may, in its
discretion, terminate this contract without liability and may also, in its discretion, deduct from the ,E
contract or purchase price, or otherwise recover the full amount of any fee, commission,
percentage, gift, or consideration paid to the former County officer or employee. E
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20.28 Public Entity Crime Statement. A person or affiliate who has been placed on the
convicted vendor list following a conviction for public entity crime may not submit a bid,
proposal, or reply on a contract to provide any goods or services to a public entity, may not submit
a bid,proposal, or reply on a contract with a public entity for the construction or repair of a public W
building or public work, may not submit bids on leases of real property to public entity, may not U
be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract
with any public entity, and may not transact business with any public entity in excess of the
threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months
from the date of being placed on the convicted vendor list.
20.29 Maintenance of Records. Landlord shall maintain all books, records, and documents
directly pertinent to performance under this Agreement in accordance with generally accepted
accounting principles consistently applied. Records shall be retained for a period of seven (7)
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years from the termination of this agreement. Each party to this Agreement or its authorized
representatives shall have reasonable and timely access to such records of each other party to this
Agreement for public records purposes during the term of the Agreement or for seven (7)years
following the termination of this Agreement. Landlord shall submit to the Lessee invoices with
supporting documentation that are acceptable to the Clerk. Acceptability to the Clerk is based on
generally accepted accounting principles and such laws, rules, and regulations as may govern the 0
Clerk's disbursal of funds.
N
20.30 Attestations. Landlord agrees to execute such documents as the Tenant may reasonably
require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free N
Workplace Statement.
20.31 Rule of Construction. This Lease Agreement has been drafted by counsel for Landlord E
as a convenience to both parties, and both parties have read and negotiated all of the language used
in this Lease. The parties acknowledge and agree that because all parties participated in
Packet Pg. 208
C.4.b
negotiating and drafting this Lease,no rule of construction shall apply to this Lease which
construes any language, whether ambiguous, unclear or otherwise in favor of or against any party o
by reason of that party's role in drafting this Lease.
20.32 Cooperation. In the event any administrative or legal proceeding is instituted against
either party relating to the formation,execution, performance, or breach of this Lease Agreement,
Landlord and Tenant agree to participate,to the extent required by the other party, in all
proceedings, hearings, processes,meetings,and other activities related to the substance of this 0
Agreement or provision of the services under this Agreement. Landlord and Tenant specifically
agree that no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
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20.33 Tenant's Right to Terminate. If Tenant acquires adequate space in a County-owned or CN
State-owned building sufficient to allow Tenant's current use of the Premises herein to be
transferred to such other County or State owned property, Tenant shall provide Landlord with sixty
(60)days' written notice of Tenant's intention to vacate the Premises and all obligations of Landlord 4-
and Tenant under this Lease shall cease upon Tenant vacating the Premises.
IN WITNESS WHEREOF,the parties have executed and delivered this Lease as of the
Effective Date:
- .�VITNESS: TENANT:
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. Monroe County U
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Board of �
t County Commissioners '
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KEVIN MADOK, Clerk
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As Deputy Clerk Name: Michelle Coldiron, Mayor
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Date: 17 7,0 2-1 Date: 24 2-1 3:3F
WITNESS: LANDLORD:
UH US Big Pine Key 2019 LLC 0
Delaware limited liability company
Its sole member CN
By:Robert T. Schmitt N
Its: Manager
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Date: March 11, 2021
MCNR*CoLetty A-nOFNEY'S OFF CE
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C.4.b
EXHIBIT A
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L Initial Term Monthly Minimum Base Rent Payment Schedule:
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Minimum Base Rent $1,700.00 U
Common Area Maintenance 274.62
Insurance 200.14 CL
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Real Estate Taxes 97.35 0
Florida State Sales Tax (7%) 0.00
Total $2,272.11
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EXHIBIT C
2
RULES AND REGULATIONS 0
(1) All loading and unloading of goods shall be done only at such times, in the areas and
through the entrances designated for such purposes by Landlord.
(2) The delivery or shipping of merchandise, supplies and fixtures to and from the
Premises shall be subject to such rules and regulations as in the judgment of Landlord are
necessary for the proper operation of the Premises and the Shopping Center. 0
(3) All garbage and refuse shall be kept in the kind of container specified by Landlord and
shall be placed outside of the Premises prepared for collection in the manner and at the
times and places specified by Landlord. If Tenant shall place any garbage or refuse outside
of the Premises other than in compliance with the preceding sentence, after a one-time
notice from Landlord that Tenant is not in compliance herewith, on each subsequent °0
occasion that such garbage or refuse is left outside the Premises, and without further
notice, Landlord shall be entitled to remove such garbage or refuse and Tenant shall pay to 0
Landlord liquidated damages of One Hundred Dollars ($100.00) for each such violation,
with Landlord's right to collect such liquidated damages to be in addition to any and all
other remedies of Landlord provided in the Lease for default by Tenant. Any articles of
personal property of any nature whatsoever placed outside of the Premises shall be
considered abandoned and shall be deemed to be garbage or refuse which is subject to the
terms of the preceding sentence. If Landlord shall provide or designate a service for
picking up refuse and garbage, Tenant shall use same at Tenant's cost. If Tenant arranges
for its own garbage and refuse removal, the provider of such service and the schedule for
removal must be approved in advance by Landlord, and all garbage and refuse must be X
removed by the approved provider in accordance with the approved schedule unless and U
until Landlord agrees to any modification thereof. Tenant shall pay the cost of removal of
all of Tenant's garbage or refuse. Tenant shall not burn any trash or garbage of any kind in
or about the Premises or the Shopping Center.
(4)No aerial or any other device or structure, including T.V. or satellite dish, shall be
erected on the roof or exterior walls of the Premises, or on the Shopping Center, without in °0
each instance the prior consent of Landlord. Any device so installed without such consent
shall be subject to removal without notice at any time. The costs incurred by Landlord in
connection with such removal shall be due and payable as additional Rent hereunder on
demand by Landlord.
(5) Tenant shall keep the Premises at a temperature sufficiently high to prevent freezing of
water in pipes and fixtures.
(6) Tenant shall sweep the sidewalk in front of the store and keep the windows and sills r i
clean. The areas immediately adjoining the Premises shall be kept clean and free from dirt
and rubbish by Tenant and Tenant shall not place or permit any obstructions or
merchandise in such areas. No sidewalk sales shall be permitted by Tenant without 0
Landlord's prior written consent in each instance, which consent may be withheld in �
Landlord's sole and absolute discretion and if granted may be subject to any conditions Q
Landlord may deem appropriate.
(7) Tenant and Tenant's employees shall park their cars only in those portions of the N
parking areas designated for that purpose by Landlord. Tenant shall from time to time
furnish Landlord with state automobile license numbers assigned to Tenant's car or cars, u
and cars of Tenant's employees.
(8) The plumbing facilities shall not be used for any other purpose than that for which they
are constructed, and no foreign substance of any kind shall be thrown therein.
Packet Pg. 212
C.4.b
(9) Tenant shall keep the signs, exterior lights and display window lights on the Premises
lighted each and every day of the Term during the hours designated by Landlord.
(10) Landlord may at Landlord's sole discretion, amend, delete, or add reasonable new 0
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rules and regulations for the use and care of the Premises or the Shopping Center.
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EXHIBIT D
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SIGN CRITERIA 0
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ALL SIGNAGE SUBJECT TO LANDLORD APPROVAL
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C.4.b
EXHIBIT E
2
LEGAL DESCRIPTION OF SHOPPING CENTER 0
Tract EB, CU, EE, EC, ED, CS, CT of PINE KEY ACRES, SECTION ONE, Big Pine Key, as t
recorded In Official Records Book 509, Page 1047, of the Public Records of Monroe County,
Florida; said tracts being in the Northwest 1/4 of Section 26, Township 66 South, Range 29 CL
CL
East, on Big Pine Key in Monroe County, Florida, and being more particularly described as
follows:
Commence at the Southeast corner of the said Northwest 114 and run thence North along
the East boundary of the said Northwest 1/4 for a distance of 1062 feet; thence West for a
distance of 25 feet to the Point of Beginning of the parcel of land being described herein, N
said Point of Beginning being on the West right of way line of Wilder Road (Official Records
Book 346, Page 540, of the said Public Records), said Point of Beginning being the
Northeast corner of the lands owned by The Marathon Bank (Official Records Book 768,
Page 1968, of the said Public Records), and said Point of Beginning also being the Southeast 4-
corner of the said Tract CS; from the said Point of Beginning, run thence North along the
West right of way line of the said Wilder Road and along: the East boundary of the said
Tracts CS, CT and CU for a distance of 667.38 feet to the Northeast corner of the said Tract
CU; thence West along the North boundary of the said Tracts CU, EB and EE for a distance E
of 781.26 feet to the Northwest corner of the said Tract EE and the Northeasterly right of
way line of State Road 940 (Deed Book G-7, Page 310, of the said Public Records), thence
South 310 41' East along the Southwesterly boundary of the said Tracts EE, EC and ED and
along the Northeasterly right of way line of the said State Road 940 for a distance of 782.42
feet to the Southwest corner of the said Tract ED and the Northwest corner of the lands
described in said Official Records Book 768, Page 1968; thence run East along the South LU
boundary of the said Tracts ED and CS and along the North boundary of the-lands described UI
in Official Records Book 768, Page 1968 for a distance of 370.33 feet back to the Point of
Beginning.
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LESS that portion of the subject property deeded to Monroe County by Warranty Deed dated �e
November 29, 1993, recorded in Official Records Book 1283, Page 2439, of the Public
Records of Monroe County, Florida, being more particularly described as follows;
Parcel lying in Tract CS of the aforementioned Pine Key Acres. Commence at the Southeast
corner of Tract CS, also known as the Northeast corner of the land owned by Marathon
Bank, and Point of Beginning of the above described parcel of land; thence run South 891,
37' 38" West (recorded Easterly and should be Westerly) along the South line of said Tract
CS for a distance of 54.95 feet; thence run North 000 19' 30" West (recorded Northerly)
along the Southerly projection of the East line of the existing one story concrete base
building, and along the East line of said building, the line also parallel with the West right- U
of-way line of said Wilder Road, for a distance of 145.00 feet to the Point of Commencement
of the parcel herein described; thence continue North 000 19' 30" West (recorded North) CL
along said East line of the building, for a distance of 40 feet; thence South 891, 37' 38" West
(recorded Westerly) for a distance of 60 feet; thence South 000 19' 30" East (recorded LO
South) for a distance of 40 feet; thence North 8911 37' 38" East (recorded East) for a CN
distance of 60 feet to the Point of Beginning, C14
TOGETHER WITH an appurtenant easement for ingress and egress as set forth In that N
certain Dedication of Easement recorded in Official Records Book 542, Page 611, Public
Records of Monroe County, Florida.
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Packet Pg. 215
C.4.b
EXHIBIT F
2
FORM OF TENANT ESTOPPEL CERTIFICATE 0
PREMISES:
LANDLORD:
TENANT:
LEASE DATED:
TENANT'S NOTICE 0
ADDRESS: �
SECURITY DEPOSIT:
SQUARE FEET:
DATE: C1,4
The undersigned, Tenant, hereby certifies to that: °0
1. Tenant has accepted possession of the Premises pursuant to the Lease. The Lease term
commenced on . The termination date of the Lease term, 0
excluding renewals and extensions, is
2. Any improvements required by the terms of the Lease to be made by Landlord have
been completed to the satisfaction of Tenant in all respects, and Landlord has fulfilled all
of its duties under the Lease.
3. The Lease has not been assigned, modified, supplemented or amended in any way. The
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Lease constitutes the entire agreement between the parties and there are no other
agreements between Landlord and Tenant concerning the Premises.
4. The Lease is valid and in full force and effect, and, to the best of Tenant's knowledge,
neither Landlord nor Tenant is in default thereunder. Tenant has no defense, setoff or X
counterclaim against Landlord arising out of the Lease or in any way relating thereto, or
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arising out of any other transaction between Tenant and Landlord, and no event has
occurred and no condition exists, which, with the giving of notice or the passage of time,
or both, will constitute a default under the Lease. N
5. No rent or other sum payable under the Lease has been paid more than one month in 0-
advance. °0
6. The minimum monthly rent presently payable under the Lease is $
7. Tenant acknowledges that Tenant has received notice that the Lease has been (or will
be) assigned to, and Tenant has received no notice of a prior assignment, hypothecation or
pledge of the Lease or the rents, income, deposits or profits arising thereunder. Tenant
understands that under the provisions of the assignment, the Lease cannot be terminated
(either directly or by the exercise of any option which could lead to termination) or
modified in any of its terms, or consent be given to the release of any party having liability r i
thereon, without the prior written consent of, that without such consent, no rent may be
collected or accepted more than one month in advance and that the interest of the Landlord
in the Lease has been assigned to solely as security for the purposes specified 0
in the assignment and assumes no duty, liability or obligations whatever en
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under the Lease or any extension or renewal thereof. Q
8. Tenant hereby acknowledges and agrees that if shall succeed to the
interest of Landlord under the Lease shall assume (only while owner of and N
in possession or control of the building on which the Premises are a part) and perform all
of the Landlord's obligations under the Lease, but shall not be liable for any act or
omission of any prior landlord(including the present Landlord), liable for the return of any
security deposit, subject to any offset or defense which Tenant may have against any such
prior landlord or bound by any rent or additional rent Tenant may have paid for more than
Packet Pg. 216
C.4.b
the current month to any such prior landlord or bound by any assignment, surrender,
termination, cancellation, waiver, release, amendment or modification of the Lease made
without its express written consent. 0
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9. Tenant shall give prompt written notice of any default of Landlord under
the Lease, if such default entitles Tenant, under law or otherwise, to terminate the Lease,
reduce rent or credit or offset any amount against future rents and shall give U
reasonable time (but in no event less than ninety (90) days after the receipt
of such notice)to cure or commence during such default prior to exercising (and as a
condition precedent to its right to exercise) any right Tenant may have to terminate the 0
Lease or to reduce rent or credit or offset any amounts against the rent. Tenant shall give
written notice to any successor in interest of any purchaser at a foreclosure sale
under the mortgage, any transferee who acquired the property on which the Premises are a
part by deed in lieu of foreclosure or any successor or assign thereof.
10. Tenant shall not look to, as mortgagee, mortgagee in possession, or successor in title to
the property on which the Premises are a part, in connection with the return of or
accountability with respect to any security deposit required by Landlord, unless said sums 0
have actually been received by as security for Tenant's performance under
the Lease. E
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11 All notices and other communications from Tenant to shall be in writing
and shall be delivered or mailed by registered mail,postage paid, return receipt requested,
addressed to at:
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with a copy to:
or at such other address as , any successor,purchaser or transferee shall furnish to Tenant
in writing.
12. This Estoppel Certificate is being executed and delivered by Tenant to as a X
requirement for making a loan to Landlord, which loan is secured in part by an assignment U
to of Landlord's interest in the Lease and with the intent and understanding
that the above statements will be relied upon by
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TENANT:
By:
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[CORPORATE SEAL]
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