Agenda 10/08/2013 Item #16E3 10/8/2013 16.E.3.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chair to execute a Lease with
Gulfshore Associates Limited Partnership for the continued use of office space for
Pelican Bay Services Division staff.
OBJECTIVE: To secure a new lease for Pelican Bay Services Division (PBSD) to maintain its
presence within Pelican Bay at the Suntrust Bank building.
CONSIDERATIONS: The current Lease with Gulfshore Associates Limited Partnership (Landlord)
for the office for Pelican Bay Services located within the Suntrust Bank building in Pelican Bay is
scheduled to terminate on December 13, 2013. At this time, the Landlord has provided a new Lease
for PBSD's continued use of office space at that location.
Since 1992, PBSD has leased office space located on the sixth floor at this location. The Landlord
consulted with staff to get approval to relocate PBSD, at the Landlord's sole cost, to the third floor so
that the Landlord may accommodate another tenant who will be leasing the entire sixth floor.
In order to compensate PBSD for its cooperation in relocating to the new space, the Landlord will be
moving PBSD to the new location at the Landlord's sole cost; providing a reduced rent for the first
year of occupancy, $27,137.88, with no Common Area Maintenance charges; reducing the rent for
the second and third years at an annual rent of$21,537.96, but will charge CAM for those two years;
and providing a Ten Thousand Dollar design budget toward the design of the new space. All other
terms and conditions are similar to those contained in the original lease from 1992 concerning the use
of the leased property.
At the Pelican Bay Services Division Advisory Board (Board) meeting on July 10, 2013, the Board
unanimously voted for staff to secure a lease for the proposed space.
FISCAL IMPACT: The first year's rent of $27,137.88, and the second and third year's annual rent of
$21,537.96 plus CAM, shall be paid from the following accounts: Pelican Bay MSTBU (109), Water
Operation Administration (182601), Rent Building (644100); Pelican Bay MSTBU (109), Right of Way
Beautification (182900), Rent Building (644100); Pelican Bay Light (778), Street Lighting Operations
(182700), Rent Building (644100).
GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan.
LEGAL CONSIDERATIONS: The attached Lease has been approved as to form and legality and
requires majority vote for approval. —CMG
RECOMMENDATION: That the Board of County Commissioners approves the attached Lease with
Gulfshore Associates Limited Partnership and authorizes its Chair to execute same.
PREPARED BY: Michael Dowling, Sr. Property Management Specialist, Real Property
Management, Facilities Management Department
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.E.16.E.3.
Item Summary: Recommendation to approve a Lease with Gulfshore Associates Limited
Partnership for the continued use of office space for Pelican Bay Services.
Meeting Date: 10/8/2013
Prepared By
Name: DowlingMichael
Title: Property Management Specialist, Senior,Facilities
9/23/2013 10:50:16 AM
Approved By
Name: pochopinpat
Title:Administrative Assistant,Facilities Management
Date: 9/23/2013 12:01:44 PM
Name: .ionesHank
Title: Project Manager, Principal,Facilities Management
Date: 9/23/2013 12:39:08 PM
Name: McCaughtryMary
Title: Operations Analyst,Pelican Bay Services
Date: 9/23/2013 4:25:38 PM
Name: MottToni
Title: Manager-Property Acquisition&Const M,Facilitie
Date: 9/23/2013 4:32:09 PM
Name: PriceLen
Title: Administrator, Administrative Services
Date: 9/26/2013 11:55:28 AM
Name: GreeneColleen
Title: Assistant County Attorney,County Attorney
Date: 9/27/2013 1:28:32 PM
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10/8/2013 16.E.3.
Name: PryorCheryl Amiok
Title: Management/Budget Analyst, Senior,Office of Manag
Date: 9/30/2013 8:30:03 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/30/2013 10:52:48 AM
Name: IsacksonMark
Title: Director-Corp Financial and Mgmt Svs,CMO
Date: 9/30/2013 12:24:48 PM
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10/8/2013 16.E.3.
THIS LEASE, made effective as of this day of , 2013.
BETWEEN: GULF SHORE ASSOCIATES LIMITED PARTNERSHIP
A Florida Limited Partnership
1499 Post Road, Lower Level
Fairfield, Connecticut 06824
(Hereinafter called the "Landlord")
-and-
COLLIER COUNTY, a political subdivision of the
State of Florida
3301 E. Tamiami Trail
Naples, FL 34112
(Hereinafter called the "Tenant")
WITNESSETH that in consideration of the rents, covenants and agreements herein contained
the Landlord and the Tenant agree as follows:
1. Premises
The Landlord does hereby demise and lease to the Tenant the premises (the "Leased
Premises") located on the Third Floor of the Building located at 801 Laurel Oak Drive, Naples, Florida
as outlined on the plan appended as Schedule "A" attached hereto. The Leased Premises are
expressly exclusive of any part of the exterior face of the Building and subject to Section 4.08, shall
have an aggregate Rentable Area of approximately 979 square feet, and known as Suite 302.
Except for the Landlord Work described on Schedule D attached hereto,Tenant accepts the Demised
Premises in"as is"condition.
2. Term
2.01 TO HAVE AND TO HOLD the Leased Premises for a period of three (3) years
commencing upon January 1, 2014 ("Commencement Date"); and ending on December 31, 2016
(the "Expiration Date"), (hereinafter called the "Initial Term" or "Term), unless the Term shall
otherwise terminate or be extended pursuant to any of the terms or conditions of this Lease or
pursuant to law.
If the Term commences on any day other than the first day of a month, and/or ends on any
day other than the last day of a month, the annual rent payable herein as applicable, for the
fraction(s) of a month at the commencement and/or at the end of the Term shall be pro-rated at a
rate per day equal to 1/365th of the annual Rent then applicable.
3. Rent
3.01 Except as otherwise provided in this Lease, the total annual compensation that the
Tenant shall pay to the Landlord for the rental of the Leased Premises shall be the aggregate of(a)
the annual rent as set forth in Section 3.02 (or for the Option Term if applicable), plus (b)the annual
"Additional Rent" which shall include, but not be limited to, Tenant's Proportionate Share of Taxes,
Tenant's Proportionate Share of Operating Costs, the annual cost of electrical current supplied to the
Leased Premises, if separately metered, and all other annual costs and expenses, which the Tenant is
obligated to pay to the Landlord as provided in this Lease and as set forth in herein.
3.02 Commencing on February 1, 2014 ("Rent Commencement Date"), Tenant shall pay to
the Landlord in lawful money of the United States of America,the sum of annual base rent excluding
applicable sales taxes (in the aggregate"Annual Base Rent") as follows:
Lease Year Rent/S.F. Annual Base Rent Monthly Base Rent
1 $ 27.72 gross $ 27,137.88 $ 2,261.49
2 - 3 $ 22.00 NNN $ 21,537.96 $ 1,794.83
3.03 Every amount payable by the Tenant hereunder in addition to Annual Base Rent shall
be deemed "Additional Rent." Base Rent and Additional Rent are herein collectively referred to as
the "Rent." Notwithstanding anything to the contrary contained herein, the Annual Base
Rent for Lease Year 1 shall be "gross"and inclusive of all Additional Rent but excluding
applicable sales tax. For Lease Years 2 through 3, Tenant shall pay the Annual Base Rent
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plus Additional Rent excluding applicable sales tax.
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3.04 All Rent shall be paid without demand, setoff or deductions of any kind, in equal
• monthly installments, in advance, on the first day of each calendar month of the Term at the
address of the Landlord stated above or such other place as the Landlord may designate in writing
from time to time, with payment in advance of appropriate fractions of a monthly payment for any
portion of a month at the expiration or prior termination of the Term. Time shall be of the essence
with respect to the payment of Rent.
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3.05 Except as otherwise specified herein, the Annual Base Rent shall be absolutely net to
the Landlord so that this Lease shall yield, net, to the Landlord, the Annual Base Rent specified and
that all costs, expenses and obligations of every kind and nature relating to the Leased Premises
which may accrue or become due during the Term shall be paid by the Tenant, including, without
limitation, all utilities and other services consumed or otherwise utilized by the Tenant in its
occupancy of the Premises. The Tenant shall indemnify and hold the Landlord harmless from and
against the same and all costs and expenses incurred by the Landlord in connection with claims for
the same, including attorney's fees.
4. Definitions
For the purpose of this lease:
4.01 "Building" means the lands and building, improvements or development constructed
or to be constructed from time to time in, under or upon the lands known as 801 Laurel Oak Drive,
Naples, FL 34108 and more particularly described in Schedule"B"attached hereto.
4.02 "Landlord's Statement", shall mean an instrument containing a good faith
computation and reasonably itemized breakdown of any Additional Rent due pursuant to the
provisions of Article 5 herein.
4.03 "Landlord's Work"shall have the meaning set forth in Schedule D, if applicable.
4.04 "Leased Premises" shall have the meaning ascribed to such term in Article 1.
4.05 "Lease Year" shall mean each consecutive twelve (12) month period during the Term
with the first Lease Year commencing on the Commencement Date.
4.06. "Leasehold Improvements" means all installations, alterations, improvements,
additions, partitions and fixtures (other than Tenant's personalty or moveable trade fixtures) from
time to time made, erected or installed by the Tenant (excluding former tenant(s)), or by the
Landlord or others on behalf of the Tenant (excluding former tenant(s)), in or on the Leased
Premises.
4.07 "Normal Business Hours", unless otherwise specified, means the hours from 8:00
a.m. to 6:00 p.m. from Monday to Friday and 8:00 A.M. to 1:00 P.M. on Saturdays of each week
inclusive(except those days which are holidays).
4.08 "Operating Costs" means the total of all commercially reasonable expenses incurred
in the complete maintenance and operation of the Building and allocable to the Term whether
incurred by or on behalf of the Landlord or (without any duplication) incurred by or on behalf of any
owner or owners of parts of or interests in the Building with whom the Landlord may from time to
time have agreements for the pooling or sharing of costs.
4.08.1 Operating Costs shall include but are not limited to (but subject to certain deductions
and exclusions as hereinafter provided) the cost of providing janitorial, supervisory, maintenance,
pest control and other services, fees for management services either rendered by Landlord (or
affiliate) or a•third-party property manager, the cost of operating elevators, the cost of heating,
cooling and ventilating all space, including both rentable and non-rentable areas which are not
separately sub-metered, the cost of providing hot and cold water, electricity (including lighting) and
other utilities and services to both rentable and non-rentable areas which are not separately sub-
metered, the cost of all repairs including repairs to any Building improvements including elevators,
the cost of window cleaning and providing security and supervision, the costs of all insurance for
liability or fire or other casualties which the Landlord may obtain pursuant to the terms of this
Lease, accounting costs incurred in connection with maintenance and operation of the Building,
including computations required for the imposition of charges to tenants generally, the amount of all
salaries, wages and fringe benefits paid to employees at or below the grade of property manager
engaged in the maintenance or operation of the Building, amounts paid to independent contractors
for any services in connection with such maintenance or operation, and other indirect expenses to
the extent allocable to the maintenance and operation of the Building. Operating Costs which vary
with occupancy shall be equitably adjusted to those costs which would have been incurred if the
Building had been fully occupied during the period in question.
4.08.2 Notwithstanding anything contained in subsection 4.08.1, Operating Costs shall not
include Taxes, income or like taxes of Landlord; interest and principal payments on or other costs
associated with any loans financing the Building; ground rental or master lease payments; any
costs, fines or penalties incurred because Landlord violated, or is otherwise responsible for the
violation of, any governmental rule or authority or made any late payment of any component of
Operating Costs; costs incurred because Landlord or another tenant violated the terms of any lease
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or other agreement; costs of preparing, improving or altering any space in preparation for
occupancy by any new or renewal tenant; expenses incurred in procuring other tenants and
preparing leases or extensions or other documentation relating thereto, including, without limitation,
advertising and legal fees; costs incurred to test, survey, abate, remove or otherwise remedy
Hazardous Materials; compensation, wages, fringe benefits, workers' compensation insurance
premiums and payroll taxes for employees above the grade of building manager or for officers,
trustees or partners of Landlord; all items, utilities, services and other costs for which Tenant or any
other tenant or occupant of the Building pays directly to third parties.
4.09 "Proportionate Share" means the fraction, which has as its numerator the Rentable
Area of the Leased Premises and has as its denominator the Total Rentable Area of the Building.
4.10 "Rentable Area" of any premises on any floor or level of the Building means the area
of the floor space therein as determined by the Landlord by actual measurement or from a floor plan
including a proportionate share of the common service areas comprised of the corridors, lobbies, •
bathrooms, air-conditioning rooms, fan rooms,janitor's closets, telephone and electrical closets and
other closets serving the Leased Premises in common with other premises including their respective
enclosing walls. The Rentable Area of the Leased Premises is deemed to be 68,487 rentable square
feet, and shall not be adjusted except to the extent any physical changes to same occurs during the
Term of this Lease.
4.11 "Total Rentable Area of the Building" means the aggregate of all rentable areas of the
Building and is deemed to be 68,593 rentable square feet and such calculation shall not be adjusted
except to the extent any physical changes to same occur during the Term.
4.12 "Taxes" means all taxes, rates, duties, levies and assessments allocable to the Term,
whether municipal, governmental by any homeowners association, property association or by the
Pelican Bay Improvement District or otherwise, levied, imposed or assessed agairist the Building and
the land appurtenant thereto or upon the Landlord in respect thereof or from time to time levied,
imposed or assessed in the future in lieu thereof, or for which the Landlord is liable with respect to
the Building, including those levied, imposed or assessed for special purposes and local
improvements, schools, annual assessments by the Pelican Bay Foundation and those assessments
which are special, unforeseen or extraordinary as well as those which are regular, foreseen and
ordinary and including all costs and expenses (including legal and other professional fees and
interest penalties on deferred payments) incurred by the Landlord in good faith in contesting,
resisting or appealing any taxes, rates, duties, levies or assessments, but excluding income or
profits taxes upon the income of the Landlord to the extent such taxes are not levied in lieu of taxes,
rates, duties, levies and assessments against the Building or upon the Landlord in respect thereof. If
any governmental authority imposes, assesses or levies any tax upon the Landlord as a substitute in
whole or in part for a real estate tax or assessment, the substitute tax shall be deemed to be
included in "Taxes" and shall be deemed to have been levied upon the Building. For all purposes of
this Lease, Taxes otherwise arrived at shall be adjusted to that amount which would be incurred if
the Building were fully improved during the period in question.
5. Taxes and Operating Costs
5.01 Landlord's Tax Obligations
The Landlord covenants with the Tenant to pay promptly, when dub to the taxing authority
or authorities having jurisdiction, all Taxes as well as all items of sales tax paid by Tenant to
Landlord in accordance with this Lease. The Landlord may postpone payment of any Taxes by it
pursuant to this section to the extent permitted by law and if prosecuting in good faith any appeal
against the imposition thereof.
5.02 Tenant's Tax Obligations
The Tenant covenants with the Landlord:
5.02.1 To pay promptly when due to the taxing authority or authorities having jurisdiction all
taxes, rates, duties, levies and assessment whatsoever, whether municipal, governmental or
otherwise, levied, imposed or assessed (a) in respect of any and every business carried on in the
Leased Premises by the Tenant or in respect of the use or occupancy thereof(including license fees),
and (b) on any leasehold interest of the Tenant in the Leased Premises or any personal property of
any kind, owned, installed or used by the Tenant, all of which the Tenant shall report to the
appropriate taxing authority, and
5.02.2 To the extent not otherwise provided for herein, to promptly pay all Taxes upon or
measured by rents reserved hereunder including all sales tax on the rental of real property and to
the extent the failure to do so could result in the imposition of a lien therefor on the Building or
liability to Landlord therefor;
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5.03 Payment of Tenant's Proportionate Share of Taxes
Commencing on the second anniversary of the Commencement Date, Tenant shall pay, as
Additional Rent, Tenant's Proportionate Share of all Taxes payable by Landlord in respect of any
calendar or fiscal year allocable to the Term. Landlord shall submit to Tenant Landlord's Statement
and Tenant shall pay the Additional Rent set forth on such Landlord's Statement(less the amount of
estimated payments paid by Tenant on account thereof) as set forth herein. Landlord, at its option,
may require Tenant to make monthly payments on account of Tenant's Proportionate Share of
Taxes. The monthly payments shall be one-twelfth (1/12th) of the amount of Tenant's Proportionate
Share of Taxes and shall be payable on or before the first day of each month during the Term, in
advance, in an amount reasonably estimated by Landlord and billed by Landlord to Tenant; provided
that Landlord shall have the right initially to determine such monthly estimates and to reasonably
revise such estimates from time to time. With reasonable promptness after Landlord has received
the tax bills for any calendar or fiscal year, Landlord shall furnish Tenant with Landlord's Statement
with respect thereto. If the actual amount of Tenant's Proportionate Share of Taxes exceeds the
estimated amount of Tenant's Proportionate Share of Taxes paid by Tenant for any calendar or fiscal
year, then Tenant shall pay to Landlord as Additional Rent the difference between the amount of
estimated Tenant's Proportionate Share of Taxes paid by Tenant and the actual amount of Tenant's
Proportionate Share of Taxes. This Additional Rent payment shall be due and payable within thirty
(30) days after delivery of Landlord's Statement in compliance with Local Government Prompt
Payment Act, Ch. 218, Fla. Stat. If the total amount of estimated payments made by Tenant in
respect of Tenant's Proportionate Share of Taxes paid by Tenant for any calendar or fiscal year shall
exceed the actual amount of Tenant's Proportionate Share of Taxes for such calendar or fiscal year,
then such excess amount shall be credited against the monthly installments of Additional Rent due
and payable from Tenant to Landlord hereunder with respect to Taxes, until such amount shall have
been refunded in full to Tenant, provided however, that any excess payments made by Tenant
during the Term that have not been so applied and are outstanding at the expiration or sooner
termination of the Term shall be paid to Tenant within thirty (30) days following such expiration or
sooner termination.
5.04 Payment of Tenant's Proportionate Share of Operating Costs
Commencing on the second anniversary of the Commencement Date, Tenant shall pay to
Landlord on account of Tenant's Proportionate Share of Operating Costs and as Additional Rent, a
sum equal to one-twelfth (1/12th) of the amount of Tenant's Proportionate Share of Operating Costs
for each calendar year allocable to the Term on or before the first day of each month of such
expense year, in advance, in an amount reasonably estimated by Landlord and billed by Landlord to
Tenant; provided that Landlord shall have the right initially to determine such monthly estimates,
and to reasonably revise such estimates from time to time. As soon as practicable after the end of
each fiscal year, Landlord shall prepare and furnish Tenant with Landlord's Statement setting forth
Tenant's Proportionate Share of the Operating Costs incurred during the most recent calendar year.
Within thirty (30) days after receipt by Tenant of Landlord's Statement, Tenant shall pay Tenant's
Proportionate Share of the Operating Costs (less the amount of estimated payments paid by Tenant
on account thereof) to Landlord as Additional Rent. If the actual amount of Tenant's Proportionate
Share of Operating Costs for such calendar year exceeds the estimated amount of Tenant's
Proportionate Share of Operating Costs paid by Tenant for said period, then Tenant shall pay to
Landlord the difference between the estimated amount of Tenant's Proportionate Share of Operating
Costs paid by Tenant and the actual amount of Tenant's Proportionate Share of Operating Costs.
This Additional Rent payment shall be due and payable within thirty (30) days following delivery of
Landlord's Statement in compliance with Local Government Prompt Payment Act Ch. 218, Fla. Stat.
If the total amount of estimated payments made by Tenant in respect of Tenant's Proportionate
Share of Operating Costs for such calendar year shall exceed the actual amount of Tenant's
Proportionate Share of Operating Costs for said period, then such excess amount shall be credited
against the monthly installments of Additional Rent due and payable from Tenant to Landlord
hereunder with respect to Operating Costs until such amount shall have been refunded in full to
Tenant provided, however, any excess payments made by Tenant during the Term that have not
been so applied and are outstanding at the expiration or sooner termination of the Term shall be
paid to Tenant within thirty (30) days following such expiration or sooner termination.
6. Landlord's Statements
6.01 Landlord's Statements shall be rendered to Tenant, but Landlord's failure to render
Landlord's Statement with respect to any fiscal year or Landlord's delay in rendering said Statement
beyond a date specified herein shall not prejudice Landlord's right to render a Landlord's Statement
with respect to that or any subsequent calendar or fiscal year. The obligations of Landlord and
Tenant under the provisions of this Article with respect to any Additional Rent incurred during the
Term shall survive the expiration or any sooner termination of the Term. If Landlord fails to give
Tenant a statement of projected Operating Costs prior to the commencement of any calendar or
fiscal year, Tenant shall continue to pay Operating Costs in accordance with the previous statement,
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until Tenant receives a new statement from Landlord.
6.02 If the Tenant has cause to believe that any Landlord's Statement is incorrect, Tenant
shall notify Landlord in writing within twenty (20) days after receipt of such Landlord's Statement
identifying with specificity the particular item(s) that the Tenant believes is/are incorrect. The
Tenant, acting by an independent firm of certified public accountants of national standing that is not
being compensated by the Tenant on a contingency fee basis, may inspect, audit and copy the
Landlord's books and records as applicable as more fully set forth below (each a "Tenant Audit").
The Landlord shall cooperate with the Tenant with any verification effort and shall provide the
Tenant with copies of invoices and other evidence of costs/payments as the Tenant may reasonably
request. Pending resolution of any verification request made by the Tenant or dispute between the
parties, the Tenant shall continue paying Additional Rent in the amounts determined by the
Landlord, subject to any adjustment after appropriate verification of the Additional Rent due and
payable by the Tenant or resolution of any dispute as set forth below. The Tenant Audit shall
commence by no later than ninety (90) calendar days after the Landlord's receipt of the Tenant's
notice thereof and shall be completed and a copy of the results of the Tenant Audit shall be
delivered to the Landlord within fifteen (15) business days after such commencement.
6.03 The Landlord shall maintain complete and accurate books and records of all Operating
Expenses paid or incurred by the Landlord and all payments of Operating Expenses received from
the Tenant or any other tenant or occupant of any portion of the Building. Such books and records
shall be kept at a location in the county in which the Building is located, or at Landlord's
headquarters in Westport, Connecticut, at Landlord's option. The Tenant, acting in the context of a
Tenant Audit shall have the right, to inspect, copy and audit such books and records at any time
during normal business hours subject to the conditions set forth in subsection 6.02 above. The
Landlord shall promptly repay the Tenant for any overpayments which Tenant's auditors identify. If
such overpayments exceed ten percent (10 0/0) of the Tenant's payments of Additional Rent for the
period, the Landlord shall pay for the reasonable thirds-party cost of the audit within ten (10) days
following receipt of the Tenant's invoice therefor. If the parties are unable to resolve their
differences as to the amount of any payment, the Tenant shall give notice to the Landlord
identifying a disinterested certified public accountant of recognized competency. Within ten (10)
days thereafter, the Landlord shall by written notice to the Tenant appoint a second disinterested
certified public accountant of recognized competency. The certified public accountants thus
appointed shall appoint a third disinterested certified public accountant of recognized competency
and such three certified public accountants shall as promptly as possible, determine such matter but
in no event later than thirty (30) days after the appointment of the third certified public accountant.
The determination of the majority of the certified public accountants shall be conclusive upon the
parties. Each party shall pay the fees and expenses of the accountant appointed by such party and
shall share equally the fees and expenses of the third accountant.
6.04 If the Tenant fails to timely request the Tenant Audit, or the results of the Tenant
Audit are not timely delivered to the Landlord as required by subsection 6.02 hereof, then such
statement shall be deemed to have been approved and accepted by the Tenant as correct.
7. Tenant's Covenants
Throughout the Term,the Tenant covenants with the Landlord as follows:
7.01 Rent
Tenant shall pay Annual Base Rent and Additional Rent, subject to and in accordance with
the terms of this Lease, without abatement, deduction or set-off, except as expressly provided
herein.
7.02 Electricity
7.02.1 Tenant shall pay all separately metered electricity consumed by Tenant and not
included in Operating Costs as defined. Tenant shall pay for the cost of installing submeters and/or
checkmeters to measure Tenant's consumption of electricity; and
7.02.2 Tenant shall pay the actual and reasonable Building-standard cost of any replacement
of electric light bulbs, tubes and ballasts in the Leased Premises to replace those installed at the
commencement of the Term. The Landlord shall have the exclusive right to attend to such
replacement on a commercially reasonable basis. The Landlord may adopt a system of re-lamping
and re-ballasting periodically on a group basis in accordance with good practice in this regard.
7.03 Repair
Tenant shall maintain the Leased Premises during the Term hereof, or any extensions thereof
in good repair (reasonable wear and tear, damage resulting from fire, lightning or wind, and other
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casualty only excepted (hereinafter collectively called the "said exceptions")); and that the Landlord
may at all reasonable times enter and view the state of repair, and the Tenant shall repair according
to notice in writing; and that in default of the Tenant carrying out such repairs, the Landlord may,at
its option, make such repairs at the expense of the Tenant and in any and every such case the
Tenant covenants with the Landlord to pay to the Landlord forthwith as Additional Rent all
reasonable, out-of-pocket sums which the Landlord may have expended in making such repairs and
shall not have previously received from the Tenant; and that the Tenant shall leave the Leased
Premises in a clean state and in good repair the said exceptions only excepted, and provided further
that the making of repairs by the Landlord shall not relieve the Tenant from the obligation to repair.
7.04 Repair where Tenant at Fault
Notwithstanding anything in this Lease to the contrary, if the Building, including the Leased
Premises, the elevators, the boilers, engines, pipes and other apparatus (or any of them) used for
the purpose of heating, cooling or air conditioning the Building or operating the elevators, or if the
Building or the roof or outside walls of the Building get out of repair or become damaged or
destroyed as caused by the negligence or willful misconduct by the Tenant, its servants, agents or
employees, the reasonable, out-of-pocket expenses of the necessary repairs, replacements or
alterations shall be borne by the Tenant which shall pay the same to the Landlord within ten (10)
days after receipt of invoices therefor.
7.05 Licenses, etc.
The Tenant shall not permit any part of the Leased Premises to be used or occupied by any
persons other than the Tenant, any subtenants permitted under Section 7.06 and the employees of
the Tenant and any such permitted subtenant, and their respective clients, guests and others having
lawful business with them, or permit any part of the Leased Premises to be used or occupied by any
licensee or concessionaire, or permit any persons to by upon the Leased Premises other than the
Tenant, its employees, such permitted subtenants and their respective employees, clients and
others having lawful business with them.
7.06 Assignment and Subletting
7.06.1 Neither the Tenant nor any party claiming under or through the Tenant shall assign,
mortgage or encumber this Lease, or sublease all or any part of the Leased Premises, or suffer or
permit the Leased Premises or any part thereof to be subleased to or used by others, without the
prior written consent of the Landlord in each instance. As provided in subsection 7.06.3 below, the
Landlord shall not unreasonably withhold its consent to a proposed subletting or assignment. The
transfer (or transfers in the aggregate) of more than a 30% interest in the Tenant to one not an
owner of the Tenant on the date hereof, shall be deemed an assignment of this Lease for the
purposes of this Section. If this Lease be assigned, or if the I''A Pd Premises or any part thereof be
sublet to or occupied by anybody other than the Tenant, the Landlord may, at the Landlord's option,
collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the
Rent herein reserved (and any sublease shall confirm such option by the Landlord), but no such
collection shall be deemed a waiver of the Tenant's obligations hereunder, or the acceptance of the
assignee, subtenant or occupants, or a release of the Tenant from the obligations and liabilities of
the Tenant under this Lease.
7.06.2 If the Tenant desires to assign this Lease or to sublease all or substantially all of the
Leased Premises in the aggregate, the Tenant shall first give written notice to the Landlord of the
proposed transaction which notice shall include (i) the name and address of the proposed transferee,
• (ii) the proposed effective date of the transaction, which shall be no less than forty-five (45) days
nor more than 180 days after the date of delivery of the Tenant's notice, (iii) all of the terms of the
proposed transaction and the consideration therefor, (iv) a copy of all existing and/or proposed
documentation pertaining to the proposed transfer, (v) current financial statements of the proposed
transferee certified by an officer, partner, member or owner thereof, (vi) such other information as
the Landlord may reasonably require. The Landlord shall have the right, by notice to the Tenant
within thirty (30) days after receipt of the Tenant's notice, to terminate this Lease. If the Tenant
desires to sublease less than substantially all of the Leased Premises in the aggregate, the Tenant
shall first give notice to the Landlord as aforesaid, and the Landlord shall have the right, by written
notice to the Tenant within thirty (30) days after receipt of the Tenant's notice, to terminate this
Lease with respect to the portion of the Leased Premises proposed to be subleased. If the Landlord
exercises-its right to terminate this Lease with respect to such portion of the Leased Premises, then
the Annual Base Rent and Tenant's Proportionate Share shall be proportionally reduced, and an
adjustment shall be made for amounts, if any, paid in advance and applicable to the portion of the
Leased Premises no longer leased by the Tenant.
7.06.3 If the Landlord elects not to so terminate this Lease, then Landlord shall not
unreasonably withhold its consent to the proposed subletting or assignment. The Tenant shall pay
to the Landlord as Additional Rent, within ten (10) days after receipt of payments from a subtenant
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or assignee, any "Profit" on a subletting or assignment. For purposes of this subsection, the term
"Profit" shall mean the excess of consideration of any type received by the Tenant from the
subtenant or assignee, over (in the case of a sublease only) a pro rata portion of the Rent payable
by Tenant hereunder. Whether or not the Landlord shall grant its consent, Tenant shall pay
Landlord's review and processing fees, as well as any reasonable attorneys' fees incurred by the
Landlord, within ten (10) days after written demand by the Landlord. The Landlord shall not in any
event be obligated to approve of or consent to any proposed assignment or subletting unless:
(a) in the reasonable judgment of the Landlord the proposed assignee or subtenant is of
a character and engaged in a business such as are in keeping with the standards of
the Landlord in those respects for the Building and its occupancy;
(b)the proposed assignee or subtenant is of a financial strength and creditworthiness as
the Landlord, in its sole and absolute discretion, deems sufficient to meet the
monetary obligations of the Lease or sublease, as the case may be;
(c) in the reasonable judgment of the Landlord the purposes for which the proposed
assignee or subtenant intends to use the Leased Premises sublet or assigned to it are
such as are in keeping with the standards of the Landlord for the Building and its
occupancy, it being understood and agreed that any such written request for consent
to a subletting or assignment shall specify the purpose for which the assignee or
subtenant intends to use the Leased Premises so assigned or sublet and the Landlord
shall not be required to consent to the use of the Leased Premises for such specified
purposes should such proposed use be prohibited by this Lease, be a violation of
applicable law,or violate any provision of the lease of any other tenant;
(d)if any space is available in the Building at the time of the proposed assignment or
sublet, the proposed per square foot rental rate of the assignment or sublet equals or
exceeds 110%of the rental rate at which the Landlord is offering the available space.
(e) the proposed assignee or subtenant shall not be a then-existing tenant or occupant of
the Building, or a person or entity with whom the Landlord or its representatives is
then dealing with regard to leasing space in the Building, or with whom the Landlord
or its representatives has had any dealings within the past six months with regard to
leasing space in the Building.
7.06.4 Notwithstanding the foregoing, without Landlord's consent and without being subject
to Landlord's rights under subsections 7.06.2 and 7.06.3 above but upon sixty (60) days' prior
notice to the Landlord, this Lease may be assigned, or the Leased Premises may be sublet, to any
entity which is an "Affiliate" or "Successor" of the Tenant provided that (i) such entity has assets
and a net worth at least equal to that of the Tenant on the date of such acquisition or corporate
transaction, (ii) the Tenant shall not then be in default with respect to any of the Tenant's
obligations under this Lease, and (iii) such transaction shall be made for a valid business purpose
other than (and not principally for) the purpose of transferring the leasehold estate created hereby.
Within ten. (10) days after the execution of any such assignment or sublease, the Tenant shall
deliver to the Landlord (i) a complete copy of the documentation pertaining to the transfer, and (ii)
current financial statements of the Affiliate or Successor certified by an officer, partner, member or
owner thereof. For the purposes of this Section, an "Affiliate" means any entity controlling,
controlled by or under common control with the Tenant. A "Successor" means any entity which
acquires all or substantially all of the assets of the Tenant or which survives a statutory merger or
consolidation with the Tenant. If, at any time thereafter, the transferee shall no longer be an
Affiliate of the Tenant, that shall be deemed a new assignment or sublease, as the case may be,
subject to this Section.
7.06.5 No assignment, sublease or other transfer of this Lease, whether with or without the
Landlord's consent, shall relieve the Tenant or any guarantor of this Lease from its obligations and
liabilities under this Lease or any guaranty including, without limitation, the obligation to pay Rent
and the obligation to obtain the Landlord's consent to any further assignment, subletting or other
transfer.
7.07 Rules and Regulations
The Tenant and its employees and all persons visiting or doing business with it on the Leased
Premises shall be bound by and shall observe and perform the Rules and Regulations attached to
this Lease as Schedule "C" (which may not uniformly applied to all tenants of the Building, but shall
be enforced on a non-discriminatory basis), and any further and other reasonable Rules and
Regulations made hereafter by the Landlord of which notice in writing shall be given to the Tenant,
and all such Rules and Regulations shall be deemed to be incorporated into and form a part of this
Lease.
7.08 Permitted Use of Premises and Insurance
The Leased Premises shall be used for the operation of general purpose professional business
offices, and lawful uses customarily ancillary thereto. The Tenant shall not do, omit or permit to be
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done anything upon the Leased Premises which, after giving effect to its permitted use hereunder,
shall cause the rate of insurance on the Building to be increased, and that if the rate of insurance on
the Building shall be so increased by reason of anything done or omitted by the Tenant or by anyone
permitted by the Tenant to be upon the Leased Premises, the Tenant shall pay as Additional Rent
the amount of the such increase.
7.09 Tenant's Insurance
The Tenant shall take out and keep in force during the Term:
7.09.1 Insurance with respect to fire and such other perils as are from time to time defined
in the usual extended coverage endorsement (including flood, plate glass and malicious damage
insurance) covering the Tenant's Leasehold Improvements for full replacement costs and which
insurance shall include the Landlord a named insured, as its respective interest may appear with
respect to the Tenant's Leasehold Improvements and shall provide that any proceeds recoverable in
any event of loss to the Tenant's Improvements shall be payable to the Landlord (but the Landlord
agrees to make available such proceeds towards the repair or replacement of the insured property if
this Lease is not terminated pursuant to any other provisions hereof). Tenant shall also maintain
insurance coverage on its furniture, equipment, inventory and files;
7.09.2 Comprehensive insurance of the type commonly called commercial general liability,
which shall include coverage for personal liability, contractual liability, tenant's legal liability, non-
owned automobile liability, bodily injury, death and property damage, all on an occurrence basis
with respect to the business carried on, in or from the Leased Premises and the Tenant's use and
occupancy thereof or any other part of the Building, which coverage shall be in the amount of $
1,000,000 maximum combined single limit which insurance shall include the Landlord as an
additional insured and shall protect the Landlord in respect of claims by the Tenant as if the
Landlord were separately insured. Nothing within this provision shall waive the County's sovereign
immunity limitations pursuant to§ 768.28, Florida Statutes.
7.09.3 Insurance against such other perils and in such other amounts as the Landlord may
from time to time reasonably require based upon the standard in the community or buildings of an
equivalent class and nature. Such changes shall be subject to the approval of the parties.
7.09.4 Any insurance maintained by the Tenant may be maintained under a blanket policy or
blanket policies covering the Lease Premises and other premises leased or owned by Tenant or any
affiliate of Tenant. Any casualty policy shall contain a waiver by the insurer or an authorization for
Tenant to waive on behalf of the insurer any rights of subrogation or indemnity or any claim to
which the insurer might otherwise be entitled against the Landlord or the agents or employees of
the Landlord and shall also contain an undertaking by the insurer that no material change adverse
to the Landlord or Tenant will be made, and the policy will not lapse or be cancelled, except after
not less than tern (10) days written notice to the Landlord of the intended change, lapse or
cancellation. The Tenant shall furnish to the Landlord, if and whenever requested by it, certificates
as to the insurance from time to time required to be effected by the Tenant and its renewal or
continuation in force.
7.10 Observance of Law
The Tenant shall comply with all provisions of law including without limitation federal,
state and local governmental legislative enactments, and any other federal, state or local
governmental regulations which relate to the Tenant's particular manner of use of the Leased
Premises, and the conduct of any business conducted in the Leased Premises.
7.11 Waste and Nuisance
The Tenant shall not do or suffer any waste or damage, disfiguration or injury to the Leased
Premises or the fixtures and equipment thereof or permit or suffer any damage to the floors thereof;
and not to place therein any safe, heavy business machine or other heavy objects without first
obtaining the consent in writing of the Landlord (not to be unreasonably withheld); and not to use or
permit to be used any part of the Leased Premises for any dangerous, noxious or offensive trade or
business and not to cause or permit any nuisance in, at or on the Leased Premises.
7.12 Pelican Bay General Covenants
The Tenant acknowledges that the Leased Premises and the Building are subject to the
Declaration and General Protective Covenants for Pelican Bay as recorded in the Official Records
Book 825 at pages 1755 to 1788 inclusive of the Public Records of Collier County, Florida, as they
may be amended from time to time, and the Declaration of Restrictions and Protective Covenants for
Pelican Bay as recorded in the Official Records Book 849 at pages 933 to 937 inclusive of the Public
Records of Collier County, Florida, as they may be amended from time to time.
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7.13 Entry by Landlord
The Tenant shall permit the Landlord, its servants or agents to enter upon the Leased
Premises at any reasonable time and from time to time for the purposes of inspection, window
cleaning, maintenance, providing elevator service, making repairs, alterations or improvements to
the Leased Premises or to the Building, or for the purpose of having access to utilities and services,
(including under floor trench header ducts and access panels which the Tenant agrees not to
obstruct), and the Tenant shall provide free and unhampered access for such purpose, and shall not
be entitled to compensation for any inconvenience, nuisance or discomfort occasioned thereby, but
the Landlord, in exercising its rights hereunder shall proceed to the extent reasonably possible so as
to minimize interference with the Tenant's use and enjoyment of the Leased Premises.The Landlord,
its servants or agents may at any time and from time to time enter upon the Leased Premises to
remove any article or remedy any condition which, in the opinion of the Landlord reasonably arrived
at, would be likely to lead to cancellation of any policy of insurance referred to in Section 7.09, and
such entry by the Landlord shall not be deemed to be a re-entry.
7.14 County Indemnification Subject to z? 768.28 Fla. Stat.
Subject to the limitations set forth in § 768.28, Fla. Stat., the Tenant shall indemnify,
defend and hold harmless the Landlord, its parent, subsidiaries or affiliates and their respective
officers, directors and employees from and against any and all third-party claims caused by the
• other party's actions or inactions. To the extent legally possible, the parties will continue the
insurance arrangements in effect at the time of the commencement of this Lease, adjusted only
so far as necessary to account for their change in legal position vis-à-vis.
7.15 Exhibiting Premises
The Tenant shall permit the Landlord or its agents to exhibit the Leased Premises to
prospective tenants and mortgagees during Normal Business Hours and upon reasonable prior notice
(which may be verbal) during the last 210 days of the Term provided, however, that Landlord shall
give the Tenant 24 hours notice (which may be verbal) of proposed entry to the Premises, the
Landlord shall comply with the Tenant's reasonable security requirements and procedures, and all
entries shall be made and performed so as to minimize the extent and duration of any
interference to the Tenant's business.
7.16 Alterations, etc.
7.16.1 The Tenant will not make or erect in or to the Leased Premises any installations,
alterations, additions, partitions, improvements or fixtures without submitting drawings and
. specifications to the Landlord and obtaining the Landlord's prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed, in each instance, and the Tenant must further
obtain the Landlord's written consent to any changes or changes in such drawings and
specifications, which consent shall not be unreasonably withheld, conditioned or delayed, by
competent contractors and subcontractors which the Landlord shall have approved, such approval
not to be unreasonably withheld, conditioned or delayed.
7.16.2 Any work performed by or for the Tenant shall be performed by competent workmen
whose labor union affiliations or lack of union affiliations do not conflict with those of any workmen
who may be employed in the Building by the Landlord, its contractors or subcontractors; all such
work shall be subject to inspection by the Landlord and shall be performed in accordance with any
reasonable conditions or regulations imposed by the Landlord and completed in good and
workmanlike manner in accordance with the description of the work approved by the Landlord, and
the Tenant shall deliver to the Landlord a certificate of the Tenant's architect in form and terms
reasonably satisfactory to the Landlord confirming that all such work has been completed in
accordance with the plans and specifications approved by the Landlord; and the Tenant shall
promptly pay to its contractors and subcontractors when due, the cost of all such work and of all
materials, labor and services involved therein and of all decoration and all changes in the Building,
its equipment or services, necessitated thereby. Tenant covenants that it will not suffer or permit
during the Term hereof any mechanics or other liens for work, labor, services or materials ordered
by it or for the cost of which it may be in any way obligated to attach to the Leased Premises or to
the Building and that whenever and so often as any such liens shall attach or claims therefor shall
be filed, the Tenant shall within ten (10) days after the Tenant has notice of the claim or lien
procure the discharge thereof as a matter of record by bonding or otherwise. Except with respect to
the Landlord's Work, the interest of the Landlord shall not be subject to liens for improvements
made by the Tenant and the Tenant shall notify any contractor making any improvements of this
provision. Tenant understands that the knowing or willful failure of the Tenant to provide such
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notice to the contractor shall render the contract between the Tenant and the contractor voidable at
the option of the contractor. Prior to the commencement of any work requiring a permit, Tenant
shall deliver to Landlord (i) plans of such alterations, installations or improvements in form and
quality acceptable for the purposes of filing and approval for all necessary permits and approvals,
which Tenant shall obtain at its sole cost and expense, and (ii) all certificates of insurance required
pursuant to law naming Landlord and Landlord's mortgagee as additional insureds.
7.17 Glass
The Tenant shall pay the cost of replacement with as good quality and size of any glass
broken on the Leased Premises during the Term.
7.18 Window Coverings
The Tenant shall not remove, add to or change curtains, drapes or other window coverings.
So that the Building may have a uniform appearance from the outside, the Tenant shall cooperate
with the Landlord in keeping window coverings open or closed at various times as the Landlord may
from time to time direct.
7.19 Signs
The Tenant shall not paint, display, inscribe, place or affix any sign, symbol, picture,
advertisement, notice, lettering of any kind anywhere on any of the windows of the Leased Premises
or the Building or any part of the inside or outside thereof or within the Leased Premises so as to be
visible from the outside of the Building. The Landlord will prescribe the pattern and location of
identification signs for the Tenant. The Tenant on ceasing to be a tenant of the Leased Premises
shall, before leaving them, cause any sign, advertisement or notice as aforesaid to be removed at its
own expense and in a workmanlike manner.
7.20 Name of Building
The Tenant shall not to refer to the Building by any name other than "SunTrust Building" or
the Building's street address or such other name as may be reasonably designated from time to time
by the Landlord and the Tenant may use the name of the Building for the business address of the
Tenant but for no other purpose.
7.21 Keep Tidy
At the end of each business day the Tenant shall leave the Leased Premises in a reasonably
tidy condition for the purpose of the performance of the Landlord's cleaning services hereinafter
referred to.
7.22 Estoppel Certificate
Within ten (10) days after each request by the Landlord, the Tenant shall deliver an estoppel
certificate to the Landlord. Each estoppel certificate shall be certified to the Landlord, any
mortgagee, any assignee of any mortgagee, any purchaser or any other person reasonably
specified by the Landlord. Each estoppel certificate shall contain, without limitation, the following
information certified by the person executing it on behalf of the Tenant:
(a) Whether or not the Tenant is in possession of the Leased Premises;
(b) Whether or not this Lease is unmodified and in full force and effect. (If there has been a
modification of this Lease, the certificate shall state that this Lease is in full force and effect as
modified, and shall set forth the modification);
(c) Whether or not the Tenant contends that the Landlord is in default under this Lease in
any respect after notice thereof;
(d) Whether or not there are then existing set-offs or defenses against the enforcement of
any right or remedy of the Landlord, or against any duty or obligation of the Tenant (and if so,
specify the same);
(e) The amount of Annual Base Rent then being paid hereunder and the dates to which the
same, by installments or otherwise, and other charges hereunder, have been paid.
7.23 Legal Status of Tenant
If Tenant is a corporation, limited partnership or other legal entity then the Tenant shall
maintain such legal entity's status as active and authorized and registered to do business in the
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State of Florida, and shall annually provide proof acceptable to the Landlord of the continued
existence and active status of such entity on request no more frequently than annually. If the
Tenant is other than a corporation or partnership (example, a sole proprietorship or venture) then
the Tenant shall take those steps necessary to comply with applicable laws to register said entity,
enterprise or venture including but not limited to, complying with the Florida Fictitious Name Statute
and shall supply upon demand by the Landlord of such compliance, including copies of registration
with applicable governmental agencies.
7.24 Environmental Matters.
The Tenant shall, at the Tenant's expense, keep and maintain the Leased Premises in
compliance with all local, state and federal environmental laws, ordinances and regulations,
including, without limitation, 42 U.S.C. §9601 et seq., 42 U.S.C. §6901 et seq., 49 U.S.C. §1801 et
seq., 15 U.S.C. §2601 et seq., and the regulations promulgated thereunder, (all of the foregoing
being referred to collectively as the "Environmental Laws"). During the Term, the Tenant shall
permit no spills, discharges, or releases of any hazardous, radioactive or polluting substances,
including without limitation any oil or petroleum products or any chemical liquids or solids (all of the
foregoing being referred to collectively as "Hazardous Materials"). The Tenant shall indemnify,
defend and hold harmless the Landlord, its successors and assigns from and against any claim,
liability, cost, damage, expense, response or remedial action costs (including without limitation
attorneys' fees, and costs of investigation or audit) relating to: (i) the presence, use, or storage on
or under the Leased Premises, or any spill, discharge or release from the Leased Premises, of any
Hazardous Materials during the Term; and (ii) any failure of the Leased Premises to comply with any
applicable Environmental Law during the Term. The foregoing indemnity shall survive the expiration
or termination of this Lease.
8. Landlord's Covenants
Throughout the Term, the Landlord covenants with the Tenant as follows:
8.01 Quiet Enjoyment
That, so long as the Tenant is not in Default hereunder beyond any applicable notice and
cure period, the Tenant shall peaceably hold the Leased Premises during the Term hereof without
interference, subject however,to the terms of this Lease.
8.02 Air Conditioning and Heating
To provide throughout the Term, commercially reasonable and appropriate air conditioning,
heating and ventilation equipment and systems in the Building which will provide a source or
sources of processed air to the existing location or locations thereof within the Leased Premises,
such processed air to be provided at all times during Normal Business Hours and at such,other times
as Tenant requires, except during the making of repairs, in such quantities and at such
temperatures as shall be capable of maintaining in the Leased Premises conditions of commercially
reasonable and appropriate temperature and comfort. Landlord shall make every effort possible to
maintain a temperature in the Premises of approximately 72-75 degrees. The said air conditioning
equipment and systems provided by the Landlord are designed for normal occupancy of the Leased
Premises for office purposes on the basis of one person for every 100 square feet of space on an
open floor basis and based on the window shading being fully closed in those offices having exterior
windows during those hours directly exposed to the sun. Any use of the Leased Premises not in
accordance with the aforementioned design standards, or arrangement of partitioning which
interferes with the normal operation of said system may require changes or alterations in the
system, or ducts through which the same operates. Any changes or alterations so occasioned, if
such changes or alterations can be accommodated by the Landlord's equipment and if the Landlord
consents to such changes or alterations, shall be made by the Landlord at the Tenant's cost and
expense. The Landlord reserves the right to reasonably and temporarily stop the service of said air
conditioning or heating equipment when necessary, by reason of accident or repairs, alterations or
improvements, in the judgment of the Landlord desirable or necessary to be made, until such
repairs, alterations or improvements shall have been completed (and which the Landlord shall
complete diligently), and the Landlord shall further have no responsibility or liability for failure to
supply said air conditioning or heating service when stopped as aforesaid or when prevented from so
doing by strikes or by any cause beyond the Landlord's reasonable control, or by orders or
regulations of any federal, state or municipal authority, or by failure of electric current, steam water
or other suitable power supply, or by inability upon the exercise of reasonable diligence to obtain
such electric current, steam, water or other suitable power supply for the operation of the said
equipment. The Landlord shall not be liable for direct, indirect, consequential damage or economic
loss or for damages arising from personal discomfort in each case by reason of the operation or non-
operation of such equipment. The Tenant acknowledges that one (1) year may be required after the
Tenant has fully occupied the Leased Premises in order to adjust and balance the air conditioning
and heating systems, which it installs on the Leased Premises. If Tenant shall install any
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supplemental air conditioning or heating systems in the Leased Premises following the Landlord's
Work, it shall be responsible for the cost of connecting to, extending and maintaining the said air
conditioning and heating systems provided by the Landlord, from the Tenant's demising walls into
the Leased Premises in accordance with drawings and specifications and by a contractor first
approved by the Landlord, such approval not to be unreasonably withheld, conditioned or delayed.
8.03 Elevators
To furnish, except when repairs are being made, reasonable and appropriate dual elevator
service on a 24 hour, 7 days per week, 52 weeks per year basis; operator-less automatic elevator
shall be deemed "elevator service" within the meaning of this Section 8.03; and to permit the
Tenant and the employees of the Tenant to have free use of such elevator service in common with
others. All deliveries to the Leased Premises shall be made by elevators reasonably designated by
the Landlord and during such reasonable times, during Normal Business Hours, as may be
reasonably regulated by the Landlord.
8.04 Access
To grant Tenant access to and use of the Leased Premises and use of designated dual
elevator service 24 hours per day, seven (7) days per week, 52 weeks per year, subject to the
operation of Landlord's computerized access system at the Building's entrance and to Landlord's
Rules and Regulations attached hereto as Schedule C. To permit all persons lawfully desiring access
to or communication with the Tenant to have the use during Normal Business Hours in common with
others of the main entrance and the stairways, corridors and elevators in the Building leading to the
Leased Premises, except during times of repair service. At times other than during Normal Business
Hours, persons lawfully desiring access to or communication with the Tenant shall have access to
• the Building and to the Leased Premises and the use of the elevators only in accordance with the
Rules and Regulations.
8.05 • Washrooms
To permit the Tenant and the employees of and other persons having business with the
Tenant in common with others entitled thereto to use those washrooms in the Building on the floor
or the floors on which the Leased Premises are situated and which are not entirely within the
premises of another tenant. -
8.06 Janitorial Service
To provide cleaning of the Leased Premises five nights per week, except holidays.
8.07 Insurance
Subject to Section 5.03 hereof, to take out and to maintain in full force and effect throughout
the Term of this Lease such insurance for the sole account and benefit of the Landlord as the
Landlord from time to time considers useful, expedient or beneficial, including, without limitation,
the following:
8.07.1 Insurance against all risks of loss or damage to the Building (excluding, however,
any items required to be insured by Tenant pursuant to Section 7.09.1) in an amount not less than
the full replacement cost of the Building (excluding foundations); thereof under an "all risk" policy
written by a responsible insurance company authorized to do business in Florida.
8.07.2 Insurance against all explosion, rupture or failure of boilers, pressure vessels, air
conditioning equipment and miscellaneous electrical apparatus on a blanket basis with broad form
coverage, including repair and replacement;
8.07.3 Insurance against loss of any rent and Additional Rent payable by tenants which loss
may arise due to damages or destruction of the Building or any part thereof:
8.07.4 Commercial general liability insurance coverage, including insurance against third party
liability hazards including exposure to personal injury, bodily injury and property damage on an
occurrence basis, including insurance for all contractual obligations arising from the management or
operation of the Building, and covering also actions of all employees, other persons, subcontractors and
agents while working on behalf of the Landlord.
8.07.5 Insurance against any other form or forms of loss that the Landlord or its mortgagees
may reasonably require from time to time.
8.07.6 Notwithstanding any contribution by the Tenant to insurance premiums as provided
for in this Lease, no insurable interest is conferred upon the Tenant under policies carried by the
Landlord.
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8.07.7 Landlord and Tenant each hereby waives any and every claim or right for recovery
from the other party, or from the other party's employees, agents, contractors, customers, invitees,
or business visitors, for any and all loss or damage to the Leased Premises or the remainder of the
Building or to the contents thereof, to the extent such loss or damage is insured or is required to be
insured by it under the terms of this Lease, whichever amount of coverage is greater, regardless of
whether such loss or damage is due to the negligence of such other party or its agents, employees,
contractors, customers, invites, or business visitors. Landlord and Tenant will cause their respective
insurers to issue or provide for appropriate waiver of subrogation endorsements or provisions to all
casualty policies of physical damage carried in connection with the Building or the Leased Premises
or the contents of either of them, and each of Landlord and Tenant herby waive each of its insurer's
rights of subrogation to the extent it is authorized to do so. Said endorsements shall provide that
such insurance policies shall not be invalidated by reason of the foregoing waiver.
8.08 Maintenance, Repair and Replacement
Landlord shall be responsible for and shall maintain, repair, replace and keep in good
operating condition, comparable to similar first-class commercial office properties in the Pelican
Bay, Naples, Florida area, the common areas (including, without limitation, the lobbies, elevators,
stairs, grounds, loading areas, corridors and common restrooms), the roofs, foundations, floors,
ceilings, walls, load-bearing elements, conduits and structural walls and other structural elements
of the Building, the underground utility and sewer pipes of the Building, all base building
mechanical, electrical, plumbing, HVAC system and the sprinkler system and other fire and life-
safety systems, and the underground parking structure and surface parking facility; provided that,
to the extent the need for any such repairs or replacements arise as a the result of the negligence
or willful misconduct of Tenant (or Tenant's subtenants, agents, employees, subcontractors,
contractors, licensees, invitees (while within the Premises), assignees or sub-tenants) and the
same is not covered under the policies of casualty insurance which are required to be carried by
the parties pursuant to this Lease, the cost of such repairs or replacements shall be reimbursable
by Tenant to Landlord as Additional Rent under this Lease.
8.09 Operation and Repair Standards
Landlord shall operate the Building in a manner consistent with the standards of a first-
class commercial office property in the Pelican Bay, Naples, Florida area. All repairs,
replacements and maintenance required of Landlord pursuant to this Section or elsewhere in this
Lease shall be performed in accordance with standards applicable to comparable first-class
commercial office buildings in Pelican Bay, Naples, Florida, and performed in a timely and diligent
fashion.
9. Fixtures
Any trade fixtures, furnishings, equipment and personal property placed in the Premises that
are removable without damage to the Building or the Premises, whether the property of Tenant or
leased by Tenant, are herein sometimes called "Tenant's Property". Any of Tenant's Property not
removed from the Premises prior to the Expiration Date shall, at Landlord's option, become the
property of Landlord or Landlord may remove such Tenant's Property, and Tenant shall pay to
Landlord, Landlord's reasonable, out-of-pocket cost of removal and of any repairs in connection
therewith. All appurtenances, additions, fixtures and improvements (other than Tenant's Property)
attached to or installed in or upon the Premises, whether placed there by Tenant or by Landlord,
shall be Landlord's property and shall remain upon the Premises at the termination of this Lease by
lapse of time or otherwise without compensation or allowance or credit to Tenant.
10. Damage and Destruction
10.01. If the Building shall be partially damaged by fire or other casualty so that the
damage can reasonably be repaired by the Landlord within 180 days from the date of the damage
(90 days in the case of damage within the last twelve (12) months of the Term), then the damage
shall be diligently repaired by and at the expense of the Landlord (to the extent of net insurance
proceeds actually received by the Landlord for restoration), subject to the Landlord's obligations
under any mortgage, applicable law and insurance requirements, and the Rent until such repairs
shall be made shall be apportioned according to the-part of the Leased Premises which is tenantable.
10.02. If the Building is destroyed or rendered wholly untenantable by fire or other cause, or
if the Building shall be so damaged that it cannot reasonably be repaired by the Landlord within 180
days (90 days in the case of damage within the last twelve (12) months of the Term) from the date
of the damage, or if the Landlord shall elect not to restore the same but to demolish it or rebuild it,
then in any of such events the Landlord may, within sixty (60) days after such casualty, give the
Tenant a notice in writing of intention to terminate this Lease, and thereupon the Term shall expire,
effective the date of the casualty, and the Tenant shall vacate the Premises and surrender the same
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to the Landlord within ten (10) days after receipt of the Landlord's notice. If the Landlord does not
elect to terminate this Lease, the provisions of subsection 10.01 shall govern.
11. Condemnation
Amftk
11.01 The Tenant shall have no right to the proceeds arising from any condemnation by the
. power of eminent domain unless part or all of the Leased Premises are condemned or access
thereto is materially and adversely affected thereby in which event Tenant's right to proceeds
shall be limited to the extent expressly attributable to Tenant's leasehold interest and to the
extent they do not diminish Landlord's proceeds.
11.02 If any part of the Leased Premises is condemned and as a result thereof the area of
the Leased Premises is physically reduced, then from and after the date of such physical reduction
the Rentable Area of the Leased Premises shall be adjusted to take into account any such reduction
in area and the Annual Base Rent and Additional Rent payable by the Tenant herein shall be
adjusted on the basis of the Rentable Area set out therein.
12. Damage to Property
The Landlord shall not be liable or responsible in any way for any loss of or damage or injury
to any property belonging to the Tenant or to employees of the Tenant or to any other person while
such property is on the Leased Premises or in the Building whether or not such property has been
entrusted to employees of the Landlord and without limiting the generality of the foregoing the
Landlord shall not be liable for any damage to any such property caused by steam, water or rain
which may leak into, issue or flow from any part of the Building or from the water, steam or
drainage pipes or plumbing works of the Building or from any other place or quarter or for any
damage caused by or attributable to the condition or arrangement of any electric or other wiring or
for any damage caused by anything done or omitted by the Landlord or by other tenant of the
Building. All property of the Tenant kept or stored on the Leased Premises shall be so kept or stored
at the risk of the Tenant only and the Tenant shall defend and indemnify the Landlord and save it
harmless from any claim arising out of damage to the same. Under no circumstances shall Tenant
have any obligation to pay Landlord for damages otherwise compensated by insurance.
13. Exculpation
The Landlord and, in case the Landlord shall be a joint venture, partnership, tenancy-in-
common, association or other form of joint ownership, the members of any such joint venture, -
partnership, tenancy-in-common, association or other form of joint ownership, shall have absolutely
no personal liability with respect to any provision of this Lease or any obligation or liability arising
from this Lease or in connection with this Lease in the event of a breach or default by the Landlord
of any of its obligations. The Tenant shall look solely to the equity of the Landlord in the Building for
the satisfaction of Tenant's remedies requiring the payment of money. Such exculpation of liability
shall be absolute and without any exception whatsoever.
14. Impossibility of Performance
Except as otherwise provided in this Lease, whenever and to the extent that either party
shall be unable to fulfill or shall be delayed or restricted in the fulfillment of any obligation
hereunder in respect of the supply or provision of any service or utility or the doing of any work or
administrative function or the making of any repairs, by reason of being unable to obtain the
material, information, goods, equipment, service, utility or labor required to enable it to fulfill such
obligation or by reason of any statute, law or executive order or any regulation or order passed or
made pursuant thereto or by reason of the order or direction of any administrator, controlled or
board, or any governmental department or officer or other authority, or by reason of not being able
to obtain any permission or authority required thereby, or by reason of any other cause beyond its
control, whether of the foregoing character or not, such party shall be entitled to extend the time for
fulfillment of such obligation by a time equal to the duration of such delay or restriction and the
other shall not be entitled to any compensation for any inconvenience, nuisance or discomfort
thereby occasioned or to cancel this Lease, except that financial incapacity shall not give rise to any
such extension.
15. Default
15.01 Events of Default
Each of the following events shall constitute Default:
15.01.1 If an insolvency of the Tenant shall occur, any of the following events shall be regarded as
insolvency:
(a) If the Tenant shall make an assignment for the benefit of creditors.
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(b) If the Tenant shall file or acquiesce to a petition in any court (whether or not pursuant to
any statute of the United States or of any State) in any bankruptcy, reorganization, composition,
extension, arrangement or insolvency proceedings.
(c) If the Tenant shall make an application in any such proceedings for, or acquiesce to, the
appointment of a trustee or receiver for it or all or any portion of its property.
(d) If any petition shall be filed against the Tenant to which it acquiesces in any court
(whether or not pursuant to any statute of the United States or any State) in any bankruptcy,
reorganization, composition, extension, arrangement or insolvency proceedings, and the
proceedings shall be not dismissed, discontinued or vacated within ninety (90)days.
(e) If the Tenant shall be adjudicated a bankrupt, or if any petition referred to in subsection
15.01.1(d)shall be approved by any court.
(f) If, in any proceedings pursuant to the application of any person other than the Tenant to
which it acquiesces, a receiver or trustee shall be appointed for the Tenant or for all or any portion of
the property of either, and the receivership or trusteeship shall not be set aside within thirty (30) days
after such appointment.
15.01.2 If the Tenant's interest in this Lease shall be assigned by operation of law unless
expressly permitted under this Lease.
15.01.3 If the Tenant shall refuse to take possession of the Leased Premises on the
Commencement Date of the Term.
15.01.4 If the Tenant shall fail to pay any installment of Annual Base Rent, Additional Rent
or any other charge required to be paid by the Tenant under this Lease when the said payment shall
be due and payable, whether lawfully demanded or not.
15.01.5 If there is a breach or non-observance or nonperformance of any of the covenants,
agreements, provisions, conditions or Rules and Regulations on the part of the Tenant to be kept,
observed or performed hereunder and such breach, nonobservance or non-performance shall
continue for fifteen (15) days after receipt by Tenant of notice thereof (provided, however, that if
such matter cannot reasonably be cured within fifteen (15) days,Tenant shall not be deemed to be
in Default if Tenant shall have commenced to cure such matter within such fifteen (15) days and is
diligently proceeding therewith).
15.02 Right of Termination
This Lease is subject to the limitation that, if a Default shall occur for nonpayment of Rent or
any other reason, Landlord may give to Tenant a notice of its intention to terminate this Lease at
the expiration of three (3) business days from the date of service of the notice as required by Florida
statute §83.20. At the expiration of the three (3) business days, the Landlord may then terminate
the term of this Lease. Upon such termination, the Lease shall expire and all of the right, title and
interest Tenant shall have under this Lease shall end. The Tenant shall then quit and surrender the
Leased Premises to the Landlord. The Tenant's liability under all of the provisions of this Lease shall
continue notwithstanding any expiration and surrender and notwithstanding any re-entry,
repossession or dispossession under Section 15.03.
15.03 Right of Re-entry
If the term of this Lease shall expire, the Landlord or its agents or employees may
immediately or at any time thereafter lawfully reenter the Leased Premises and lawfully remove the
Tenant, Tenant's agents, any subtenants, any licensees, any concessionaires and any invites, and
any of its or their property from the Leased Premises. Re-entry and removal may be effectuated by
summary dispossess proceedings or by any suitable action or proceeding at law, by lawful force or
otherwise. If the term of this Lease shall expire, the Landlord may repossess and enjoy the Leased
Premises. The Landlord shall be entitled to the benefits of all provisions of law respecting the speedy
recovery of lands and tenements held over by the Tenant or proceedings in forcible entry and
detainer. The Tenant waives any right to the service of any notice of the Landlord's intention to re-
enter provided for by any present or future law. The Landlord shall not be liable in any way in
connection with any lawful action it takes pursuant to this clause. The Tenant's liability shall survive
the Landlord's re-entry, the institution of summary proceeding, and the issuance of any warrants
with respect thereto.
15.04 Deficiency
15.04.1 If this Lease shall be cancelled under clause 15.02,the Tenant shall remain liable for
all Rent and all other charges the Tenant would have been required to pay until the date this Lease
would have expired had such cancellation not occurred. The Tenant's liability for Rent shall continue
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notwithstanding re-entry or repossession of the Leased Premises by the Landlord.
15.04.2. If this Lease shall be cancelled under subsection 15.02, the Tenant shall pay
"Agreed Current Damages" to the Landlord. As used in this Article 15 "Agreed Current Damages"
means the difference between (a) the sum of(i) Rent as set forth in subsection 15.04.1, above; (ii)
the expenses to which the Landlord may be put in re-entering the Leased Premises; repossessing •
the Leased Premises; making good any Default of the Tenant; putting the Leased Premises in proper
repair; reletting the Leased Premises (including reasonable attorneys' fees and disbursements,
marshal's fees, tenant improvement allowance, fit-up costs, and brokerage commissions, in so
doing); (iii) the full amount of any tenant improvement allowances provided by Landlord to Tenant,
(iv) the full cost of any tenant improvements made by Landlord for the benefit of Tenant, and (v)
the sum of any leasing commissions paid by Landlord in connection with the Lease, each calculated
without regard to principles of depreciation or amortization; and (b) the proceeds of any reletting of
the Leased Premises actually received by the Landlord.
15.04.3. At the end of each month, the Tenant shall pay Agreed Current Damages for that
month, if any. Each payment shall be made to the Landlord at the Landlord's notice address or such
other address as the Landlord may designate by giving notice to the Tenant. Any suit brought by the
Landlord to enforce collection of Agreed Current Damages for any one month shall not prejudice the
Landlord's right to enforce the collection of Agreed Current Damages for any subsequent month, nor
preclude Landlord's right to enforce the collection of Agreed Final Damages, as Landlord chooses, in
its sole discretion.
15.04.4. The Landlord may relet all or any part of the Leased Premises for all or any part of
the unexpired portion of the then current term of this Lease or for any longer period and may accept
any Rent then obtainable; grant any commercially reasonable concessions of Rent; and agree to
paint or make any special repairs, alterations, and decorations for any new tenant as it may deem
advisable in its sole and absolute (but reasonable) discretion and in all cases the Tenant's liability
for Rent shall continue.
• 15.05 Agreed Final Damages
If this Lease shall be cancelled in accordance with subsection 15.02 and the Landlord so
• elects by notice to the Tenant, the Tenant shall pay the Landlord "Liquidated and Agreed Final
Damages". As used in this Article 15, "Liquidated and Agreed Final Damages" means the difference
• between (a) (i) the Rent and all other Charges which would have been payable by the Tenant from
the date of the election to the date when •this Lease would have expired if it had not been so
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cancelled, (ii) the expenses to which the Landlord may be put in re-entering the Leased Premises;
repossessing the Leased Premises; making good any Default of the Tenant; putting the Leased
Premises in proper repair; reletting the Leased Premises (including reasonable attorneys' fees and
disbursements, marshal's fees, tenant improvement allowance, fit-up costs, and brokerage
commissions, in so doing); (iii) the full amount of any tenant improvement allowances provided by
Landlord to Tenant, (iv) the full cost of any tenant improvements made by Landlord for the benefit
of Tenant, and (v) the sum of any leasing commissions paid by Landlord in connection with the
Lease, each calculated without regard to principles of depreciation or amortization; and (b)the"Fair
Rental Value" of the Leased Premises for the same period both discounted to present worth at an
annual interest factor of seven percent (7%). Upon payment of Liquidated and Agreed Final
Damages pursuant to the terms and conditions of this Section 15.05, Tenant shall be under no
further liability with respect to the period after the date of cancellation. "Fair Rental Value" of the
Leased Premises for purposes of this Section 15.05 shall conclusively be determined to be as agreed
by the parties in writing for this purpose or, absent such agreement, the rent called for by any lease
entered into by the Landlord for the Leased Premises subsequent to Tenant's surrender or removal.
15.06 Waiver of Right of Redemption
The Tenant hereby waives (to the extent legally permissible), for itself and all persons
claiming by, through, or under it, any right of redemption or for the restoration of the operation of
this Lease under any present or future law in case the Tenant shall be dispossessed for any cause,
or in case the Landlord shall obtain possession of the Leased Premises as herein provided.
•
•
15.07 Waiver of Trial by Jury
Each of Landlord and Tenant hereby waives all right to trial by jury in any claim, action,
proceeding or counter-claim by either the Landlord or the Tenant against each other on any matters
arising out of or in any way connected with this Lease, the relationship of the Landlord and the Tenant,
and/or the Tenant's use or occupancy of the Leased Premises.
15.08 Late Fee
Any Rent not paid by Tenant by the date said payment is due shall incur an aggregated late
charge equal to five percent(S%) of the unpaid installment, payable as Additional Rent on or before
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the first day of the succeeding month and every month thereafter. If the Tenant shall fail to pay
any Rent within ten (10) days of the date said payment is due, the Landlord shall be entitled, in
addition to the aggregate late charge described above, to interest on the outstanding balance from
the date on which the same was due to the date of payment at the annual rate equal to the lesser of
(i) ten percent(10%), and (ii) the maximum amount allowable under Florida law.
15.09 Additional Remedies Waivers Etc.
15.09.1 The rights and remedies of the Landlord set forth herein shall be in addition to any
other right and remedy now and hereafter provided by law. All rights and remedies shall be
cumulative and not exclusive of each other. The Landlord may exercise its rights and remedies at
any times, in any order, to any extent, and as often as the Landlord deems advisable without regard
to whether the exercise of one right or remedy precedes, concurs with or succeeds the exercise of
another.
15.09.2 A single or partial exercise of a right or remedy shall not preclude a further exercise
thereof or the exercise of another right or remedy from time to time.
15.09.3 No delay or omission by the Landlord in exercising a right or remedy shall exhaust or
impair the same or constitute a waiver of or acquiescence to Default.
15.09.4 No waiver of Default shall extend to or affect any other Default or impair any right or
remedy with respect thereto.
15.09.5 No waiver of Default shall be effective unless it is in writing.
16. Distress
In the event Tenant fails to cure any Default within the time frame set forth herein and shall
abandon the Leased Premises, leaving trade fixtures, goods and chattels thereon,then, in that event
only, the Tenant waives and renounces the benefit of any present or future statute taking away or
limiting the Landlord's right of distress and covenants and agrees that notwithstanding any such
statutes, all of the trade fixtures, goods and chattels of the Tenant on the Leased Premises at any
time during the Term shall be subject to levy by distress for rent and all other charges payable
under this Lease that are in arrears.
17. Overholdinq
If the Tenant shall continue to occupy the Leased Premises after the expiration of this Lease
without the consent of the Landlord and without any further written agreement, the Tenant shall be
a hold over tenant at sufferance with a monthly rental rate of one hundred fifty percent (150%) of
the sum of the last monthly Annual Base and Additional Rent payment made prior to such
expiration, and Tenant waives any further notice or demands for rent due upon hold over.
18. Recovery of Adjustments
The Landlord shall have (in addition to any other right or remedy of the Landlord) the same
rights and remedies in the event of Default by the Tenant in payment of any amount payable by the
Tenant as provided in this Lease, as the Landlord would have in the case of Default in payment of
Annual Base rent.
19. Notice and Payments
19.01 Notice to Landlord and Tenant
Any and all payments to be made by the Tenant to the Landlord as provided in this
Lease shall be payable to the Landlord at the following address:
Gulf Shore Associates, 1499 Post Road, Fairfield, CT 06824
or at such other address as the Landlord may from time to time notify the Tenant.
19,02 All notices, demands and other communications ("notices") permitted or required to
be given under this Lease shall be in writing and sent by personal service, telecopy transmission (if
a copy thereof is also sent on the same day by a nationally recognized overnight courier service),
certified mail (postage prepaid) return receipt requested or by a nationally recognized overnight
courier service, (a) to Tenant (i) at the address first set forth above, with copies to (ii)Tenant at the
Premises (except prior to the Commencement Date, copies of notices shall be sent to Tenant's
address at 801 Laurel Oak Drive, Naples, FL 34108, and (b) to Landlord at 1499 Post Road, Fairfield,
Connecticut 06824 Attn: Property Manager with a copy to Stephan B. Grozinger, Esq., 249 Lyons
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Plain Road, Weston, Connecticut, 06883, or (c) to such other address as either Landlord or Tenant
may designate as its new address(es) from time to time for such purpose by notice given to the
other in accordance with the provisions of this Section 19.02.
19.03 Notices shall be deemed to have been given (i) when hand delivered (provided that
delivery shall be evidenced by a receipt executed by or on behalf of the addressee if delivered by
personal service) if personal service is used, (ii) the sooner of the date of receipt or the date that is
three (3) days after the date of mailing thereof if,sent by postage pre-paid registered or certified
mail, return receipt requested, and (iii) one (1) day after being sent by FedEx or other reputable
overnight courier service (with delivery evidenced by written receipt) if overnight courier service is
used.
19.04 Notice to Mortgagee
If the Landlord shall notify the Tenant that the Leased Premises are encumbered by a
mortgage, and shall notify the Tenant of the name and address of the mortgagee, then,
notwithstanding anything to the contrary, no default or termination notice intended for the Landlord
shall be deemed binding on such mortgage unless a copy of the notice is simultaneously sent to the
mortgagee by certified mail, return receipt requested. If any mortgagee shall perform any obligation
that the Landlord is required to perform under this Lease, the performance by the mortgagee shall
be deemed to be performance on behalf of the Landlord insofar as the Tenant is concerned, and the
performance shall be accepted by the Tenant as if performed by the Landlord.
20. Transfers and Encumbrances by Landlord
The Landlord may sell, transfer, lease, mortgage, encumber or otherwise deal with the
Building or any portion thereof or any interest of the Landlord therein, in every case without the
consent of the Tenant and without restriction, provided that any purchaser, transferee or lessee
•
from or of the Landlord shall become bound by and covenant to perform the covenants and
obligations of the Landlord under this Lease. In such case,the Landlord shall without further written
•
agreement be freed and relieved of liability thereafter arising for such covenants and obligations.
21. Subordination and Attornment
At the option of the Landlord, this Lease, all obligations of the Landlord hereunder and all
rights of the Tenant hereunder shall be subject and subordinate to any and all mortgages now or at
any time hereafter existing (including all charges and deeds of trust and mortgages securing bonds
and all instruments supplemental thereto) which may now or at any time hereafter affect the Leased
Premises or the Building in whole or in part, whether or not any such mortgage, charge or deed of
trust affects only the Leased Premises or the Building or affects other premises as well and to all
renewals, modifications, consolidations, replacements and extensions thereof. Tenant, whenever
requested, at any time and from time to time by the Landlord or by any mortgagee (including any
trustee under a deed of trust or mortgage) shall promptly (i) attorn to and become the tenant of
such mortgagee, trustee (or any purchaser from such mortgagee, or trustee in the event of an
exercise by such mortgagee or any permitted power of sale contained in any of the said mortgages
or deeds of trust) for the then unexpired residue of the Term of this Lease on all terms and
conditions contained herein and the Tenant shall not disaffirm this Lease or any of its obligations
under this Lease, or (ii) postpone and subordinate this Lease to such mortgage or deed of trust to
the intent that this Lease and all right, title and interest of the Tenant in the Leased Premises shall
be subject to the rights of such mortgagee, or trustee as fully as if such mortgage or deed of trust
had been executed and recorded and the money thereby secured had been advanced before the
execution of this Lease (and notwithstanding any authority or consent of such mortgagee or trustee,
expressed or implied, to the making of this Lease). The Tenant agrees to execute promptly any
commercially reasonable instrument in confirmation of such attornment or postponement and
subordination, as the case may be, as the Landlord may reasonably request.
22. Lease Entire Agreement
The Tenant acknowledges that there are no covenants, representations, warranties,
agreements or conditions, expressed or implied, collateral or otherwise, forming part of or in any
way affecting or relating to this Lease and that this Lease constitutes the entire agreement between
the Landlord and the Tenant and may not be modified except as herein explicitly provided or except
by subsequent agreement in writing executed by the Landlord and the Tenant.
23. Recordation
The Tenant covenants and agrees with the Landlord that the Tenant will not record or deposit
this Lease in this form in any public office. If the Tenant desires to have a recorded notice of this
Lease, then the parties hereto shall contemporaneously with the execution of this Lease execute a
Memorandum of Lease solely for the purpose of giving notice thereof.
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24. Construction of Lease
This Lease shall be governed by and construed in accordance with the laws of the State of
Florida. The captions appearing in this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of this Lease nor any of
the provisions hereof. Should any provision or provisions of this Lease be illegal or not enforceable,
it or they shall be considered separate and several from the Lease and its remaining provisions shall
remain in force and be binding upon the parties hereto as though the said provision or provisions
had never been included.
25. Effect of Lease
This Lease and everything herein contained shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, administrators, successors, assigns and
other legal representatives, as the case may be, subject to the granting of consent by the Landlord
to any assignment or sublease as and to the extent required under this Lease.
26. Brokers
Landlord.and Tenant each represent and warrant that they have not dealt with any real
estate broker or agent in connection with this Lease or its negotiation. Landlord and Tenant shall
indemnify, defend and hold each other harmless from any claims made by any other real estate
agents or brokers in connection with this Lease or its negotiation arising from any communication by
the indemnifying party.
27. Parking
•
• Throughout the Term, the Tenant shall have the right to have its employees, agents, clients,
guests and invitees park their cars or vehicles in the parking lot for the Building in common with
other tenants of the Building, at no additional cost to the Tenant. The Landlord reserves the right to
designate the location for parking bicycles. The Landlord shall operate, maintain and repair such
parking lot, the striping and parking blocks thereon and access thereto from dedicated streets, the
cost thereof being part of the "Operating Costs".
28. Security Deposit
Intentionally Omitted.
29. Extension Options
Intentionally Omitted.
30. Miscellaneous.
30.01. Consents. Any provision of this Lease which requires Landlord not to unreasonably
withhold its consent shall never be the basis for an award of damages or give rise to a right of setoff
or termination to Tenant, but may be the basis for a declaratory judgment or specific injunction with
respect to the matter in question.
• 30.02. Financial Reporting. The Tenant agrees to furnish, without expense to the Landlord,
within ten (10) days after the request therefor, such financial information as may from time to time
be reasonably requested by any existing or potential lender with respect to the obtaining or
maintaining of the financing for the Building or any potential purchaser of the Building, which
information shall include, but not be limited to, the Tenant's then current financial statements and
operating statements indicating income, expenses, profits and losses of the Tenant's business
operation (accountant prepared, where available).
30.03. Attorney's Fees. Landlord and Tenant, in the event of any action or legal proceeding
to enforce its rights created by this Lease, shall be entitled to recover from the other non-prevailing
party all its reasonable, out-of-pocket costs incurred in connection therewith, including reasonable
attorney's fees.
30.04. Representations. The Landlord and the Landlord's agents have made no
representations or promises with respect to the Building or the Leased Premises, including the
uses permitted under applicable law, except for representations herein expressly set forth.
30.05.Time of Essence. Time is of the essence to this Lease and to all dates and time
periods set forth herein.
•
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30.06. Survival. Obligations under this Lease which accrue during the Term shall survive the
expiration or sooner termination of the Term.
30.07. Counterparts. This Lease may be signed on separate signature pages and shall be
effective once this Lease has been signed by both of the parties and all signature pages have been
attached to one another, it not being necessary for the parties to have physically signed the same
signature pages of this Lease. Such signatures may also be by facsimile or other electronic means,
which the undersigned all specifically agree shall be deemed to be binding upon each of them and
each other as if an original signature.
30.08. Interpretation. The Landlord and the Tenant each acknowledge each to the other that
both they and their counsel have reviewed and revised this Lease and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall not
be employed in the interpretation of this Lease or any amendments or exhibits hereto.
• 30.09. Governing Law; Consent to Jurisdiction. This Lease shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of Florida, without
regard to principles of conflicts of law. Each of the parties submits to the exclusive jurisdiction of
any state or federal court sitting in Fairfield County, Connecticut in any action or proceeding
arising out of or relating to this Lease. Each of the parties waives any defense of inconvenient
forum to the maintenance of any action or proceeding so brought and waives any bond, surety or
other security that might be required of any party with respect thereto.
•
• .• 30.10. Proper Execution. The submission by the Landlord to the Tenant of this Lease in
unsigned form shall be deemed to be a submission solely for the Tenant's consideration and not
for acceptance and execution. Such submission shall have no binding force and effect, shall not
constitute an option, and shall not confer any rights upon the Tenant or impose any obligations
upon the Landlord irrespective of any reliance thereon, change of position or partial performance.
The submission by the Landlord of this •Lease for execution by the Tenant and the actual
execution and delivery thereof by the Tenant to the Landlord shall similarly have no binding force
and effect on the Landlord unless and until the Landlord shall have executed this Agreement and
a counterpart thereof shall have been delivered to the Tenant.
30.11. Mortgagee Approval. Notwithstanding anything herein to the contrary, this Lease
and the Tenant's rights hereunder remain subject to the Landlord's receipt of the unconditional
approval of the Landlord's current mortgagee. In the event this Lease is rejected by the
Landlord's mortgagee, the Landlord shall provide written notice to the Tenant no later than twenty
(20) days following the Landlord's receipt of such final unappealable rejection and this Lease shall
immediately terminate and be of no further force or effect.
31. Roof Top Antenna
During the Term of this Lease, Tenant shall continue to have use of the existing roof top
area at no cost to accommodate one (1) whip style antenna for the purpose of operating a two-
way radio system in addition to the existing location in the 8"' floor equipment room to
accommodate a 1'x 1' rainbird box. No further expansion of either area is permitted.
32. Early Termination
At any time following the twenty fourth (24th) month of this Lease, Tenant shall have the
option to terminate this lease upon ninety (90) days written notice to Landlord.
IN WITNESS WHEREOF, the Landlord and Tenant have hereto executed this Lease the day
and year first above written.
LANDLORD
WITNESSES: GULF SHORE ASSOCIATES
LIMITED PARTNERSHIP
• By: Pequot Capital South, Inc.,
Its General Partner
By
Its:
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TENANT
AS TO THE LESSEE:
DATED:
BOARD OF COUNTY COMMISSIONERS,
ATTEST: COLLIER COUNTY, FLORIDA
DWIGHT E. BROCK, Clerk
BY: BY:
Deputy Clerk GEORGIA A. HILLER, ESQ., CHAIRWOMAN
Approved as to form and legality:
U
l }
leen M. Greene, Assistant County Attorney
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SCHEDULE A
PLAN AND DESCRIPTION OF LEASED PREMISES
I, PLAN
Appended as part of this Schedule is a plan(s) of the floor(s) of the Building containing the
Leased Premises showing and identifying the Leased Premises by a red outline.
II. DESCRIPTION
The Leased Premises are as shown on the plan(s) appended as part of this Schedule. The
exact boundaries of the Leased Premises intended to be demised are the same perimeter boundaries
as delineate Rentable Area (excluding any Additional Area included in Rentable Area) and extend
from the top surface of the structural sub-floor to the bottom of the structural ceiling, and include all
interior space whether or not occupied by interior projections, shafts, duct work, ventilation spaces,
columns, pipes, conduits or other physical features, and the plan(s) referred to shall be interpreted
accordingly.
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SCHEDULE B
LEGAL DESCRIPTION
A portion of Parcel "B", 'PELICAN BAY UNIT ONE, a subdivision in part of Sections 4 and 9,
Township 49 South, Range 25 East, Collier County, Florida, recorded in Plat Book 12, Pages 47
through 52, Public Records of Collier County, Florida, described as follows:
Commence at the Southeast corner of said Parcel "B", thence North 00 39' 32" West,
along the Easterly line of said Parcel "B", said line also being the Westerly Right of Way line of
Tamiami Trail (U.S. 41), a distance of 1549.58 feet to the Point of Beginning; thence continue North
00 39' 32" West, a distance of 150.00 feet to the Southeast corner of Parcel "A" of said PELICAN BAY
UNIT ONE; thence South 89 20' 28" West, along the Southerly line of said Parcel "A", a distance of
700.00 feet; thence South 00 39' 32" East, a distance of 378.28 feet to the beginning of a curve
concave to the Northeast having a radius of 25.00 feet and a central angle of 90 00' 00"; thence
Southerly, Southeasterly and Easterly, along the arc of said curve, a distance of 39.27 feet to the
point of tangency; thence North 89 20' 28", East, a distance of 25.00 feet to the beginning of a
curve concave to the Northwest having a radius of 350.00 feet and a central angle of 33 00' 00";
thence Easterly and Northeasterly, along the arc of said curve, a distance of 201.59 feet to the point
of tangency; thence North 56 20' 28" East, a distance of 136.28 feet to the beginning of a curve
concave to the Southeast having a radius of 450.00 feet'and a central angle of 33 00' 00"; thence
Northeasterly and Easterly, along the arc of said curve, a distance of 259.18 feet to the point of
tangency; thence North 89 20' 28" East a distance of 50.00 feet and a central angle of 90 00' 00",
thence Easterly, Northeasterly and Northerly along the arc of said curve, a distance of 78.54 feet to
the Point of Beginning.
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SCHEDULE C
RULES AND REGULATIONS
The Tenant shall observe the following Rules and Regulations (as amended, modified or
supplemented from time to time by the Landlord as provided in the Lease.
1. The sidewalks, entries, corridors, passages, elevators and common staircases shall
not be obstructed or used by the Tenant, its agents, servants, contractors, invites or employees for
any purpose other than ingress to and egress from the Leased Premises. The Landlord reserves
entire control of all parts of the building used for the common benefit of the tenants and without
restricting the generality of the foregoing, the sidewalks, entries, corridors, passages, not within the
Leased Premises, washrooms, lavatories, air-conditioning closets, fan rooms, janitor's closets,
electrical closets and other closets, stairs, elevator shafts, flues, stacks, pipe shafts and ducts, and
shall have the right to place such signs and appliances therein, as it may deem advisable, provided
that ingress to and egress from the Leased Premises are not unduly impaired thereby.
2. The Landlord may require that all or any persons entering or leaving the Building at
any time other than normal Business Hours satisfactorily identify themselves and register in books
kept for the purpose, and may prevent any person from entering the Leased Premises unless
provided with a key thereto and a pass or other authorization from the Tenant in a form satisfactory •
to the Landlord, and may prevent any person removing any goods therefrom without written
• authorization. Any person found in the Building at such times without such keys or passes will be
subject to the surveillance of the employees and agents of the Landlord.The Landlord shall be under
no responsibility for failure to enforce this rule.
3. The Tenant shall not change any locks or place or cause to be placed any additional
locks or other security devices upon any doors of the Leased Premises without the approval of the
Landlord and subject to any condition imposed by the Landlord. Additional keys may be obtained
from the Landlord at the cost of the Tenant.
4. Canvassing, soliciting and peddling in the Building are prohibited.
5. It shall be the duty of the Tenant to assist and cooperate with the Landlord in
preventing injury to the Leased Premises and the Building.
6. The Tenant, its agents, servants, contractors, invites, or employees shall not bring in
or take out, position, construct, install or move any safe, business machine or other heavy office
equipment or heavy merchandise liable to overload, injure or destroy any part of the Building
without first obtaining the consent in writing of the Landlord. In giving such consent, the Landlord
shall have the right in its sole discretion, to prescribe the routes for moving such heavy items into or
out of the Building, the weight permitted, the position thereof and the use and design of planks,
skids, or platforms to distribute the weight thereof. All damage done to the Building by moving or
using any such heavy equipment or other office equipment or furniture shall be borne by the Tenant •
and any such work shall occur only between 6:00 P.M. and the following 8:00 A.M. or at any other
time consented to by the Landlord, and the persons employed to move the same in and out of the •
Building must be acceptable to the Landlord. Safes and other heavy office equipment may be moved •
through the halls and corridors only upon steel bearing plates. No freight or bulky matter of any
description may be received into the Building or carried in the elevators, except during hours
approved by the Landlord.
•
7. Any hand truck, carryall or similar appliance used in the Building shall be equipped
with rubber tires, side guards and such other safeguards as the Landlord may require.
8. The water closets and other water apparatus shall not be used for any purpose other
•
than those for which they were constructed, and no sweepings, rubbish, rags, ashes or other
substances shall be thrown therein. Any damage resulting by misuse shall be borne by the Tenant
by whom or by whose agents, servants or employees the same is cause.The Tenant shall not let the
water run unless it is in actual use.
9. The Tenant shall not mark, paint, drill into or in any way deface the walls, ceilings,
partitions, floors or any other parts of the Leased Premises or the Building except with the prior
written consent of the Landlord and as it may direct.
10. The Tenant must observe strict care not to allow its doors or windows to remain open
so as to admit rain or so as to interfere with the heating or air-conditioning of the Building. Any
injury or damage caused to the Building or its appointments, furnishings, heating, air-conditioning,
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or other appliances or to any other tenant or the premises occupied by any other tenant, by reason
of doors or windows being left open so as to admit rain, or by interference with or neglect of the
heating, air-conditioning, or other appliances, or by reason of any other misconduct or neglect upon
the part of the Tenant or any other person or servant subject to it, shall be made good by the
Tenant in whose premises the neglect, interference or misconduct occurred.
11. The Landlord will have the care of all heating and air conditioning appliances and give
all information for the regulation of same. •
12. The Tenant shall give the Landlord prompt notice of any accident to or any defect in
any plumbing, heating, air conditioning, mechanical or electrical appliance or any other part of the
Building.
13. The Tenant shall not do or permit anything to be done in or upon the Leased Premises
or bring or keep anything therein which will in any way increase the risk of fire, or obstruct or
interfere with the rights of other tenants, or violate or conflict with the laws relating to fire or with
the regulations of the Fire Department, of the Health Department, or with any of the rules of the
applicable governing authority.
14. The Tenant shall not permit the use of any electrical apparatus likely to cause an
overloading of electrical circuits.
15. No inflammable oils or other flammable, dangerous or explosive materials shall be
kept or permitted to be kept in the Leased Premises or the Building.
16. Nothing shall be placed on balconies or the outside of windowsills or projections.
17. -Nothing shall be thrown by the Tenant, its clerks or servants, out of windows or
doors, or down the passages or elevator shafts of the Building.
18. The Tenant shall keep the Leased Premises in a good state of preservation and
cleanliness, and shall not suffer any accumulation of useless property or rubbish therein. The Tenant
will not place or allow to be placed in or on the sidewalks, entries, corridors or common staircases
any waste paper, dust, garbage, refuse or anything whatever that would tend to make them unclean
or untidy.
19. The Tenant shall permit window cleaners to clean the windows of the Leased Premises
during Normal Business Hours.
20. Furniture, effects and supplies shall not be taken into or removed from the Leased
Premises; except at such time and in such manner as may be previously approved by the Landlord.
21. No one shall use the Leased Premises for sleeping apartments or residential purposes
or for the storage of personal effects or articles other than those required for business purposes.
22. The Tenant, its clerks or servants shall not make, commit or permit any improper
noises in the Buildings nor shall they operate or permit to be operated any musical or sound
producing instrument or other device inside or outside the Leased Premises, which in the opinion of
the Landlord is disturbing to the other tenants of the Building.
23. The Tenant, its clerks or servants shall not lounge about doors or corridors or
interfere in any way with other tenants or those having business with them.
24. No animals or birds shall be brought into the Building or kept in or about the Leased
Premises.
25. The windows, glass doors and the lights that reflect or admit light into the corridors,
•
common areas or other places in the Building shall not be covered or obstructed by the Tenant, and
no awning shall be put up, without the written consent of the Landlord. Nothing, whether books,
packages, flower pots or any other articles whatsoever shall be placed upon or hung from the
window sills.
26. The lining of all window drapes facing the interior surface of exterior windows shall be
subject to the prior approval of the Landlord as to color and materials and the Tenant shall not hang
and will remove any draperies which in the opinion of the Landlord do not conform to any uniform
scheme of window coverings established for the Building.
27. The parking of cars in the parking garage of the Building shall be subject to the
reasonable regulations of the Landlord.
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28. No bicycles or other similar vehicles shall be brought within the Building.
29. The Landlord shall have the right to make such other and further reasonable rules
and regulations as in its judgment may from time to time be needful for the safety, care, cleanliness
and appearance of the Leased Premises and the Building and the occupants thereof and visitors
thereto, including rules and regulations imposed by any governmental agency or any governmental
statute, rule, law, resolution or act and for the preservations of good order therein and the same
shall be kept and observed by the Tenant, its clerks and servants.
• 30. The foregoing Rules and Regulations, as from time to time amended, are not
necessarily of uniform application, but may be waived in whole or in part in respect of other tenants
without affecting their enforceability with respect to the Tenant and the Leased Premises, and may
be waived in whole or in part with respect to the Leased Premises without waiving them as to future
application to the Leased Premises, and the imposition of such Rules and Regulations shall not
create or imply any obligation of the Landlord to enforce them or create any liability of the Landlord
for their non-enforcement.
31. The Tenant agrees to the foregoing Rules and Regulations, which are hereby made a
part of this Lease, and each of them, and agrees that for such persistent infractions of them, or any
of them, as may in the opinion of the Landlord be calculated to annoy or disturb the quiet
enjoyment of any tenant, or anyone under it, the Landlord may declare a forfeiture and cancellation
of the Lease and may demand possession of the Leased Premises upon one week's written notice to
the Tenant.
32. Smoking is prohibited in the Building. Tenant shall require its employees and
'visitors to smoke outside of the Building and shall adhere to any rules and regulations set forth by
Landlord for smoking.
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SCHEDULE D
LANDLORD WORK
1. Landlord shall construct demising walls within the Leased Premises in accordance with
the Schedule A floor plan attached hereto. In addition, Landlord shall install building
standard carpeting and paint the Leased Premises. Landlord's cost for the above work
shall not exceed ten thousand dollars ($ 10,000.00) and Tenant shall pay for all costs
which exceed ten thousand dollars ($ 10,000.00). Landlord shall not make
improvements in excess of $10,000.00 without prior approval by the Board of County
Commissioners.
2. Landlord shall arrange and pay for the cost of moving Tenant from the temporary
premises on the fourth floor to the third floor.
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