Backup Documents 05/08/2012 Item #14B 214B 24
MEMORANDUM
Date: May 11, 2012
To: Ashley Caserta, Grants Coordinator
Bayshore Gateway Triangle CRA
From: Martha Vergara, Deputy Clerk
Minutes & Records Department
Re: Extension and Second Amendment to Commercial Lease
Agreement
Attached for your records is a copy of the document referenced above, (Item #14B2)
approved by the Collier County Board of County Commissioners May 8, 2012.
The original will be held on file in the Minutes and Record's Department for the
Board's Official Record.
If you have any questions, please feel free to contact me at 252 -7240.
Thank you.
14B 21
EXTENSION AND SECOND AMENDMENT TO COM IERCIAL LEASE AGREEMENT
THIS EXTENSION AND SECOND AMENDMENT TO COMMERCIAL LEASE
AGREEMENT entered into the &L4 day of A\ ' 2012, between PALMYRA CLUB
INVESTORS, LLC, a Florida Limited Liability Compan by and through Bank of Naples under an
Assignment of Rents dated June 27, 2006 more particularly described below (hereinafter referred to
as "Landlord "), and the COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY
BAYSHORE GATEWAY TRIANGLE (hereinafter referred to as "Tenant ").
WITNESSETH
In consideration of the mutual covenant s contained herein, and other valuable
consideration, the parties agree as follows:
WHEREAS, PALMYRA CLUB INVESTORS, LLC, and Tenant have previously entered
into a Lease Agreement dated July 1, 2008, a copy of which is attached hereto; and
WHEREAS, the parties acknowledge that Bank of Naples enters into and executes this
Extension and Second Amendment to Lease Agreement pursuant to the provisions of an
Assignment of Rents dated June 27, 2006, recorded in O.R. Book 4063, Page 3024, and an
assignment of commercial lease dated January 20, 2012; and
WHEREAS, the Landlord and Tenant are desirous of extending the Expiration Date of the
Lease Agreement to June 30, 2014; and
WHEREAS, the Landlord and Tenant are desirous of amending the Lease Agreement in the
manner set forth below.
NOW THEREFORE, in consideration of the covenants and conditions set forth herein,
together with Ten Dollars ($10.00) and other valuable consideration, the Lease Agreement is
amended as follows:
1. The Expiration Date of the Lease Agreement as set forth is Section 1.8 is hereby extended to
June 30, 2014.
2. Section 1.1 — Premises: Exhibit "A" is hereby amended and replaced by Revised Exhibit
"A" (the "Premises "), a copy of which is attached hereto and incorporated herein.
3. Sections 1.2 and 1.3 — It is noted that payment for rent has been assigned from Palmyra Club
Investors, a Florida Limited Liability Company, to Bank of Naples, whose address is 4099
Tamiami Trail North, #100, Naples, Florida 34103.
4. Section 1.10 — The Base Monthly Rent through the extended term is decreased by
approximately 20% to $8.00per sq. ft., or $1,298.00 (one thousand two hundred ninety eight
dollars and 00 /100). The security deposit remains the same.
5. Section 2.7 (new) — Either party, Tenant or Landlord, may terminate this Lease Agreement
by providing thirty (30) days written notice.
14B 2 *
6. Except as expressly provide herein, the Lease Agreement dated July 1, 2008 by and between
Palmyra Club Investors, LLC, and the Collier County Community Redevelopment Agency,
as amended on June 22, 2010, remains in full force and effect according to the terms and
conditions contained therein, and said terms and conditions are applicable hereto except as
expressly provided otherwise herein.
IN WITNESS WHEREOF, the Landlord and Tenant have hereto executed this Extension
and First Amendment to Lease Agreement the day and year first above written.
TOLL DL• : BANK OF NAPLES
W ness (Signature) LINDY DAMIC 0, VP, Bank of Naples
. R\; h a - PerlQ
(Print Name)
tkAA Witness (Signa re)
Dem FraA4G5
(Print Name)
AS TO TENANT:
ATTEST:` ° •.•^ COLLIER COUNTY COMMUNTY
DWIGHT E.BROC1teClerk REDEVELOPMENT AGENCY
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B y: ���e ... .aa.' frf B y:
Attest t! �1:14 W * / DONN FIALA, CHAIRMAN
11..tl^i Ail1
Approved as to form
and legal sufficiency:
7.Lj�
Steven T. Williams
Assistant County Attorney
EXHIBIT A
Second Revision 2012
4069 Bayshore Drive'
' CRA LEASE SPACE
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14B 24
EXTENSION AND FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT
THIS EXTENSION AND FIRST AMENDMENT TO COMMERCIAL LEASE
AGREEMENT entered into this 22 day of June, 2010, between PALMYRA CLUB
INVESTORS, LLC, a Florida Limited Liability Company by and through Bank of Naples under an
Assignment of Rents dated June 27, 2006 more particularly described below (hereinafter referred to
as "Landlord "), and the COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY —
BAYSHORE GATEWAY TRIANGLE (hereinafter referred to as "Tenant").
WITNESSETH
In consideration of the mutual covenants contained herein, and other valuable consideration,
the parties agree as follows:
WHEREAS, PALMYRA CLUB INVESTORS, LLC, and Tenant have previously entered
into a Lease Agreement dated July 1, 2008, a copy of which is attached hereto; and
WHEREAS, the parties acknowledge that Bank of Naples enters into and executes this
Extension and First Amendment to Lease Agreement pursuant to the provisions of an Assignment of
Rents dated June 27, 2006, recorded in O.R. Book 4063, Pages 3024, et seq., of the Public Records
of Collier County, Florida; and
WHEREAS, the Landlord and Tenant are desirous of extending the Expiration Date of the
Lease Agreement to June 30, 2012; and
WHEREAS, the Landlord and Tenant are also desirous of amending the Lease Agreement in
the manner set forth below.
NOW THEREFORE, in consideration of the covenants and conditions set forth herein,
together with Ten Dollars ($10.00) and other valuable consideration, the Lease Agreement is
amended as follows:
1. The Expiration Date of the Lease Agreement as set forth is Section 1.8 is hereby extended to
June 30, 2012.
2. Section 1.1 — Premises: Exhibit "A" is hereby amended and replaced by Revised Exhibit
"A" (the "Premises "), a copy of which is attached hereto and incorporated herein.
3. Sections 1.2 and 1.3 — It is noted that payment for rent has been assigned from Palmyra Club
Investors, a Florida Limited Liability Company, to Bank of Naples, whose address is 4099
Tamiami Trail North, #100, Naples, Florida 34103.
4. Section 1.4 — The tenant is now solely Bayshore Gateway Community Redevelopment
Agency, a component of the Collier County Community Redevelopment Agency, and
Exhibit "B" is accordingly eliminated.
5. Section 1.10 — The Base Monthly Rent through the extended term is reduced to $10.02 per
square ft., or $1,920.50 (one thousand, nine hundred, twenty .dollars and 501100). The
security deposit remains the same.
148 21
b. Except as expressly provided herein, the Lease Agreement dated July 1, 2008 by and
between Palmyra Club Investors, LLC, and the Collier County Community Redevelopment
Agency remains in full force and effect according to the terms and conditions contained
therein, and said terms and conditions are applicable hereto except as expressly provided
otherwise herein.
IN WITNESS WHEREOF, the Landlord and Tenant have hereto executed this Extension and
First Amendment to Lease Agreement the day and year first above written.
AS TO LANDLORD:
- I A, , - , i'A Qf::A r, M c4s�__
Witness (Signature)
rint Name)
AS TO THE TENANT:
ATTEST:
DWIGI 3•� ` I ; Clerk
B
Approved 4,Jgq�tn
and legal sufficiency:
Jeffi &A. Klatzkow
County Attorney
BANK OF NAPLES
By:
MARY CONE, EVP, Bank of Naples
COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY
By: $,,,- 'g"
DONNA FIALA, CHAIRMAN
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EXHIBITA
First Revision 2010
4069 Bayshore Drive
CRA LEASE SPACE
Approx. 2300 sqft
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14B 20
COMMERCIAL LEASE
THIS COMMERCIAL LEASE (hereinafter the "Lease ") is made on this 1" day of July, 2008,
by and between PALMYRA CLUB INVESTORS, LLC, a Florida limited liability company,
(hereinafter referred to as "Landlord ") and the COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY — BAYSHORE GATEWAY TRIANGLE (hereinafter referred to
as "Tenant ").
In consideration of the rents, covenants and agreements set forth below, the parties hereby
agree as follows:
ARTICLF. 1
INFORMATION PROVISIONS
The following terms shall have meanings assigned hereby:
1.1 Premises: A portion of the real property located at 4069 Bayshore Dr. Naples, FL 34112
containing approximately 2300 square feet, as indicated on the sketch of the premises
attached hereto as Exhibit "A" (the "Premises "), and incorporated herein.
1.2 Landlord. Palmyra Club Investors, a Florida limited liability company
1.3 Address of Landlord for notice purposes under this Lease:
Palmyra Club Investors LLC
P.O. Box 112545
Naples, FL 34108
1.4 Tenant: Bayshore Gateway Triangle Community Redevelopment Agency, a component of
the Collier County Community Redevelo ment Agency, and non-exclusive use by Ba shore
Cultural Arts, Inc. as noted in attached N emorandI of Understanding (Exhibit `B "�.
1.5 Address of Tenant for notice purposes under this Lease:
4069 Bayshore Drive
Naples, FL 34112
1.6 Tenant's Trade Name: N/A
1.7 Commencement Date: July 1, 2008
1.8 Lease Term: following the Commencement Date, expiring on June 30, 2010 (the
"Expiration Date "), unless sooner terminated as herein provided. The Lease Term shall
include any renewal or extension which may be exercised by Tenant. This Lease shall be
effective after both Landlord and Tenant execute it.
1.9 Permitted Use of the Premises. CRA office uses to include public and governmental
meetings, conferences, workshops, events and public informational meetings. CRA is
allowed to sublease any space under CRA use provided by this lease and any future
addendums, as approved by the Landlord. All other use is prohibited without prior written
consent of Landlord.
1.10 Initial Base Rent for Month. $3450.00 Three Thousand Four Hundred Fifty and no 100
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1.11 Operating Costs l'ro rated based on Percentage of square footage under CRA controll.
Electricity, water, refuse pickup and basic maintenance are the responsibility of the Tenant
1.12 Guarantors.
Bayshore Gateway Triangle component of the Collier County Community
Redevelopment Agency
1.13 Address of Guarantor(s).
3301 Tamiami Trail East
Naples, FI. 34112
1.14 Security Deposit. $3450.00
1.15 ELgperty. The real property owned by Landlord which includes the Premises and located at
4069 Bayshore Drive Naples, Florida 34112
ARTICLE 2
PREMISES AND TERM
2.1 Premises. In consideration of the rents, covenants and agreements to be performed by Tenant,
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the Premises, subject to
easements, restrictions and other matters of record, as of the date hereof.
2.2 Lease Months. The term "Lease Months" as used herein shall mean consecutive TWENTY
FOUR (24) months periods commencing on the Commencement Date.
2.3 Tenant's Duty to Open for Business.
[Intentionally Deleted]
2.4 Surrender of Premises. At the expiration of the Lease Term, "Tenant shall (i) surrender the
Premises in the same condition as existed upon the Commencement Date, ordinary wear and tear
excepted, unless Tenant elects not to remove trade fixtures, signs and other personal property at the
end of the Lease Term, in which case such improvements shall become the property of the
Landlord, and (ii) deliver all keys for and all combinations on locks, safes and vaults in the Premises,
if any, to Landlord.
2.5 Holding Over. If Tenant holds over or occupies the Premises after expiration of the Lease
Term, or the earlier termination of this Lease, without Landlord's prior written consent, the lease
shall automatically become a month -to -month lease with the monthly rent in an amount which
reflects the annual cost of living increase noted in Article 3.2. No extension of the Lease Term will
be valid unless and until the same will be reduced to writing and signed by both Landlord and
Tenant.
2.6 Option to Renew. Tenant shall have the option to renew this Lease for one additional year
(the "Renewal Term "), provided (i) that at the time of exercising the option, Tenant is not then, or
thereafter during the balance of the Lease term, in default hereunder; (u) Tenant has not been late in
the payment of rent including the grace period more than three (3) times within the twelve (12)
month period preceding the exercise of the option; (iii) that written notice of the exercise of this
2
146 2"
option is given by the Tenant to the Landlord at least one (1) month prior to the Expiration Date,
and (iv) Landlord provides written notice to Tenant's request to renew this lease.
ARTICLE 3
RENT
3.1 Rent. During the Lease Term, Tenant covenants to pay to Landlord all of the Rent provided for
herein. Rent shall be due on or before the first (1 st) day of each month in advance, without demand,
notice, deduction or setoff of any kind.
3.2 Rent amount and Schedule. The Parties acknowledge that the base rental amount under section
1.10 is due and payable along with and any escalations as specified below.
An additional 5% annual cost of living increase shall be added to the base rent at the beginning of
the second year of the lease.
In the event Tenant elects to renew this Lease as provided for in Section 2.6, above, Tenant shall
pay to Landlord the base monthly rent, plus an additional five percent (5 %) for each Renewal Term.
3.3 Additional Rent. Any and all other sums of money or charges required to be paid by
Tenant pursuant to the provisions of this Lease, whether or not the same be so designated, shall be
considered as "Additional Rcnt ", and shall be payable and recoverable in the same manner as Rent.
3.4 Past Due Rent and Additional Rent. If "Tenant shall fail to pay, within ten (10) days from the
date due, Rent, Tenant shall pay to Landlord, on demand, a late charge of five percent (5 9/6) of the
late amount. If Tenant shall fail to pay, within ten (10) days from the date due and Tenant's receipt
of Landlord's proper written notice of the same, all other changes designated as Additional Rent,
Tenant shall pay to Landlord, on demand, a late charge of five percent (5 0/6) of the late amount. In
the event Tenant fails to pay such late charge, such unpaid amounts shall thereafter bear interest
from the due date thereof to the date of payment at the highest rate chargeable by applicable law
( "Applicable Rate ").
3.5 Expenditures by Landlord. If after the expiration of any applicable notice and cure periods,
Landlord shall make any expenditure for which Tenant is liable under this Lease and Landlord
provides Tenant with advance written notice of the same together with receipts and evidence of
payment, the amount thereof shall be deemed Additional Rent due and payable by Tenant with the
succeeding installment of Rent (unless some other date is expressly provided herein for payment of
such amount) together with interest at the Applicable Rate.
3.6 Sales Use and Excise Taxes (!his Article Not Applicable to CRA as Tenantl. Any sub - lessees
submitted by the CRA and approved by the Landlord shall pay all sales, use and other taxes
imposed by any government authority upon the manufacture, sale, use, transmission, distribution or
any other process necessary or incidental to the furnishing of sewer, water, and electricity, or any
other utility services to the premises. Tenant shall pay, before delinquency, all personal property
taxes and assessments on the furniture, fixtures, equipment, and other property of Tenant located in
the Premises and on any additions and improvements on the Premises belonging to Tenant. Tenant
shall also pay, as Additional Rent, all sales tax assessed against the Rent by governmental authority,
even though taxing statute or ordinance may purport to impose such sales tax against Landlord.
Tenant shall make the payment of sales tax on a monthly basis, concurrently with the payment of
the Rent.
3.7 Utility Service. Tenant shall be responsible for and promptly and timely pay all charges for use or
consumption of all utility services used or consumed within the Premises, for the lease space noted
14B 2"
in Exhibit A. If any such charges are not paid when due, Landlord may, at its option, pay the same,
and any amount so paid by Landlord shall thereupon become due to Landlord from Tenant as
Additional Rent. Landlord reserves the right to install flow meters on the water lines and charge
Tenant accordingly for its use of water. In no event shall landlord be liable for an interruption or
failure in the supply of any such utilities to the Premises, except in the event of Landlord's gross
negligence or intentional acts or omissions.
ARTICLES 4
USE OF PREMISES
4.1 Use. Tenant shall use the Premises solely for the purpose of conducting business in accordance
with Paragraph 1.9 hereof. Tenant shall not use, permit or suffer the use of the Premises for any
other business or purpose. In the event Tenant desires to use the demised premises for any other
use not specifically permitted herein, 'Tenant must first obtain Landlord's written approval.
Landlord may arbitrarily and in its sole discretion, withhold consent to the same.
4.2 Intentionally Omitted.
4.3 Compliance With Laws and Regulations Tenant shall, at Tenant's sole cost and expense, comply
with all laws, statutes, ordinances, rules, and regulations (including orders concerning environmental
protection) of all federal, state, county, municipal, and other applicable governmental authorities,
now in force, or which may hereafter be in force, pertaining to Tenant or its use of the Premises
(collectively the "Regulations ").
4.4 Rules and Regulations.
(a)Tenant covenants to comply with the following:
(1) No auction, fire, bankruptcy, going - out -of- business, relocation, or other distress
sales may be conducted in the Premises.
(2) Tenant will keep all mechanical apparatus free of vibration and noise that may be
transmitted beyond the confines of the Premises that may unreasonably annoy or disturb any
persons occupying adjacent premises. This covenant shall restrict Tenant from utilization of any
advertising medium which can be heard or experienced outside of the Premises, including, without
limiting the generality of the foregoing, flashing lights, search lights, loudspeakers, phonographs,
radios, or televisions. No radio, television, or other communications antenna equipment or device is
to be mounted, attached or secured to any part of the roof, exterior surface or anywhere outside the
Premises.
(3) Tenant will keep the Premises and the outside areas adjoining the Premises, free
from all insects, rodents, vermin, and other pests, litter, dirt, and obstruction and shall not sell
merchandise on sidewalks.
(4) All store floor area of Tenant, including vestibules, outside docks, entrances and
exits; doors, fixtures, storefront windows, storefront window areas and plate glass shall be
maintained in a safe, neat, and clean condition and in accordance with all applicable fire and safety,
codes.
(5) Tenant will not permit or suffer the Premises, or the walls or floors thereof, to be
endangered by overloading.
4
148 2
(6) Tractor - trailers are to be removed from the loading areas immediately
after unloading.
(7) All garbage and refuse shall be kept in the kind of containers designated by
Landlord and shall be placed outside the Premises within said containers prepared for collection in
such manner and at such times and places specified by Landlord.
(b) Landlord reserves the right from time to time to suspend, amend or supplement the
foregoing rules and regulations, and to adopt and promulgate additional reasonable rules and
regulations applicable to the Premises, but only to the extent that such rules and regulations do not
materially limit or interfere with Tenant's rights hereunder. Notice of such rules and regulations and
amendments and supplements thereto, if any, shall be given to Tenant.
(c) Tenant agrees to comply with all additional, amended and supplemental rules and
regulations upon reasonable notice of the same from Landlord.
5.1- 5.3. Intentionally Omitted.
ARTICLE 5 OPERATING COSTS
ARTICLE 6 INSURANCE.
6.1 Insurance Coverage by Landlord Landlord shall maintain during the Lease Term (and the cost
thereof shall be included in the Operating Costs), insurance for fire, flood, windstorm, vandalism
and malicious mischief, insuring the improvements located on the Premises and all appurtenances
thereto (excluding wall covering, floor covering and drapes). Landlord may also maintain at its sole
cost and expense (i) rent or rent value insurance including an extended coverage endorsement with
respect to the Premises in an amount equal to the annual Rent for the Premises; and (ii) such other
insurances as Landlord deems reasonably necessary or desirable to protect the Premises against loss.
Payments for losses under any such insurance policies shall be made solely to Landlord.
Notwithstanding the foregoing, if any loss sustained by Landlord is caused by the negligence of
Tenant, its agents, servants, employees, licenses, invitees, or guests, then "Tenant shall be liable to
Landlord for the amount of the deductible under Landlord's insurance. Further, Landlord shall not
be responsible for loss or damage to items for which Tenant is responsible, as is more fully set forth
below.
6.2 Insurance Coverage by Tenant. Tenant agrees to carry and keep in full force and effect: (A)
bodily injury, public liability insurance on the Premises against the liability of Tenant and its
authorized representatives arising out of or in connection with Tenant's use or occupancy of the
premises, with limits of coverage on of not less than One Million Dollars ($1,000,000.00) per
accident and injury or death; (8) property damage insurance in an amount not less than One Million
Dollars ($1,000,000.00) for Tenant's personal property and fixtures; (C) workers compensation
insurance in the maximum amount permitted under Florida law; (D) insurance against fire, flood
and such other risks as are, from time to time, included in standard extended coverage insurance,
including insurance against sprinkler damage, vandalism and malicious mischief for Tenant's
personal property and fixtures; (E) plate glass insurance covering all the plate glass of the Premises,
in amounts satisfactory to Landlord. The proceeds of such insurance, so long as this Lease remains
in effect, shall be used to repair or replace the fixtures and equipment so insured, for the full
replacement value (without provision for coinsurance) of all of Tenant's merchandise, trade fixtures,
furnishings, wall coverings, carpeting, drapes, equipment and all other items of personal property- of
Tenant located on or within the Premises. The replacement of any plate glass damaged or broken
from any cause whatsoever in and about the Premises shall be Tenant's responsibility. The public
14B 2"
liability insurance policy under (A) above, shall name Landlord, any person, firms, or corporations
designated by Landlord, as additional insured(s), and shall contain a clause that the insurer will not
cancel or change the insurance without first giving Landlord ten (10) days prior written notice.
Tenant shall provide Landlord, upon request, with copies of the policies or certificate evidencing
that such insurances are in full force and effect and stating the terms thereof The limits of such
insurance shall not, under any circumstances, limit the liability of Tenant hereunder. In the event
Tenant fails to procure, maintain and /or pay for the insurance required by this Lease, at the times
and for the durations specified in this Lease, Landlord shall have the right, but not the obligation, at
any time and from time to time, after fifteen (15) fifteen days written notice to Tenant, to procure
such insurance and /or pay for the premiums for such insurance, in which event Tenant shall repay
Landlord immediately upon demand by Landlord as Additional Rent hereunder, all sums so paid by
Landlord together with the interest at the Applicable Rate, together with any costs or expenses
incurred by Landlord in connection therewith, without prejudice to any other rights and remedies
of the Landlord under this Lease. Each policy evidencing the insurance to be carried by Tenant
pursuant to this Lease shall contain a clause that such policy and the coverage evidenced thereby
shall be primary with respect to any policies by Landlord and that any coverage carried by Landlord
shall be excess insurance.
6.3 Waiver of Subrogation. Landlord and Tenant waive, unless said waiver should invalidate any
such insurance, their right to recover damages against each other for any reason whatsoever to the
extent the damaged property owner recovers indemnity from its insurance carrier.
6.4 Tenant's Contractor's Insurance. Tenant shall require any contractor of Tenant performing
work on the Premises to carry and maintain, at no expense to Landlord:
(a) Comprehensive general liability insurance, including contractors liability coverage,
contractual liability coverage, completed operations coverage, broad form property damage
endorsement, and contractor's protective liability coverage to afford protection, with limits for each
occurrence, of not less than One Million Dollars ($1,000,000.00) with respect to property damage,
unless higher amounts are required by any applicable law; and
(b) Workers' compensation or similar insurance form and amounts required by Florida
and /or Federal law.
6.5 Increase in Fire Insurance Premium. Tenant agrees it will not keep, use, sell, or offer for sale in
or upon the Premises, an article that may be prohibited by the standard form of fire and extended
risk insurance policy. Tenant agrees to pay any increase in premiums for fire and extended coverage
insurance that may be charged during the Lease Term on the amount of such insurance which may
be carried by Landlord on the Premises or the building of which they are a part, resulting from the
type of merchandise sold by Tenant in the Premises, or resulting from Tenant's use of the Premises,
whether or not Landlord has consented to the same. In determining whether increased premiums
are the result of Tenant's use of the Premises, a schedule issued by the organization making the
insurance rate on the Premises, showing the various components of such rate, shall be conclusive
evidence of the several items and charges which make up the fire insurance rate on the Premises.
Tenant agrees to promptly make, at Tenant's sole cost, any repairs, alterations, changes and /or
improvements to equipment in the Premises as to any condition created by the Tenant or existing
after the date of this Lease required by the company issuing Landlord's fire insurance so as to avoid
the cancellation of, or the increase in premiums on said insurance.
0
14B 20m
ARTICLE 7
MAINTENANCE, REPAIR AND ALTERATIONS
7.1 Maintenance Oblations.
(a) Tenant agrees that, from and after the Commencement Date, and until the expiration of
the Lease Term, Tenant will be responsible for all repairs, maintenance and replacements to all
interior portions of the Premises under this lease and control of the CRA as shown in Exhibit A (or
as amended), and those certain exterior portions of the Premises specifically identified herein as
being the 'Tenant responsibility, including but not limited to, the interior and exterior portions of all
doors, windows, and plate glass on the Premises; the mechanical, plumbing, heating and electrical
equipment and systems servicing the Premises that are located in, or on the Premises; partitions and
all other fixtures, appliances, grease traps and facilities furnished by Tenant or Landlord.
Notwithstanding anything to the contrary contained herein, Tenant shall not be responsible for
repair, maintenance, or replacement of the structural components of the Premises, including exterior
foundations, the roof and structural portions of the Premises, the mechanical and plumbing
equipment and other systems servicing the Premises that are located adjacent to the Premises, or any
other exterior portion of the Premises not specifically identified herein, except to the extent that
Tenant's proportionate share of costs incurred by Landlord to repair, maintain or replace any
structural component or other such component of the Premises shall be chargeable to Tenant.
Tenant shall not be responsible for repair of any damage caused by any act or gross negligence of
Landlord, its employees or agents. Tenant shall be required to make structural repairs or alterations
to the Premises that may be required by any Regulations. Landlord, without notice, may, but shall
not be obligated to, perform Tenant's obligations and add the cost of such work to the next
installment of Rent due hereunder.
(b) Tenant will not install any equipment that exceeds the capacity of the utility lines leading
into the Premises or the building of which the Premises constitute a portion.
(c) Tenant, its employees, or agents, shall not undertake any alterations which would require
permitting or authorization from any governmental body or entity without Landlord's written
consent.
(d) Tenant shall give Landlord prompt written notice of any accident, fire or damage
occurring on or to the Premises or to any defects therein or in any fixtures or equipment.
(c) Neither Landlord nor Landlord's agents or servants shall be liable for any damages
caused by, or growing out of any breakage, leakage, or defective condition of the electric wiring, air
conditioning or heating pipes and equipment, closets, plumbing, appliances, sprinklers, other
equipment, or other facilities, serving the Premises, except for the gross negligence or intentional
acts or omissions of Landlord. Neither Landlord nor Landlord's agents shall be liable for any
damages caused by or growing out of any defect in the Premises or any part thereof for fire, rain,
wind, or other cause, except for the gross negligence or intentional acts or omissions of Landlord.
(f) All property belonging to "Tenant shall be there at the risk of Tenant or such other person
only, and Landlord shall not be liable for damage thereto or theft or misappropriation thereof,
except for the gross negligence or intentional acts or omissions of Landlord.
(p) Intentionally Omitted.
7.2 Alterations by Tenant. Tenant will not make any alterations, renovations, improvements or
other installations in or to any part of the Premises (including, without limitation, any alterations of
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the storefront, signs, structural alterations, or any cutting or drilling into any part of the Premises or
any securing of any fixture, apparatus or equipment of any kind to any part of the Premises), unless
and until Tenant shall have caused plans and specifications therefore to have been prepared, at
Tenant's expense, by an architect or other duly qualified person and shall have obtained Landlord's
written approval thereof. If such approval is granted, Tenant shall cause the work described in such
plans and specifications to be performed, at its expense, promptly, efficiently, competently and in a
good and workmanlike manner by duly qualified or licensed persons or entities. All such work shall
comply with an applicable local and state building, health and safety codes.
7.3 Preparation of Premises by Landlord. Intentionally Omitted.
7.4 Renovation and Change. If at any time the building of which the premises are part undergoes
renovation and change, Tenant shall use its best efforts to facilitate the Landlord's and other
Tenant's activities and work provided that it does not unreasonably interfere with Tenant's use of
the Premises. If any lawful authority, law or code requires Landlord to install any fixture or service
for the benefit of the premises occupied by Tenant, Landlord shall pay the cost for same.
ARTICLE 8
FIXTURES, PERSONAL PROPERTY AND SIGNS
8.1 Fixtures and Personal Property. Any trade fixtures, signs and other personal property of Tenant
removed from the Premises by the Tenant at the end of the Lease Term shall remain the property
of Tenant. All improvements to the Premises by Tenant not removed by "Tenant at the end of the
Lease Term, including, but not limited to, light fixtures, floor coverings and partitions, but excluding
trade fixtures and signs, shall become the property of Landlord upon the expiration or earlier
termination of this Lease. After removing any trade fixtures, signs and other improvements or
personal property of Tenant from the Premises, Tenant shall restore the Premises to the same
condition as existed at the Commencement Date, ordinary wear and tear excepted.
8.2 Siigm. Tenant may erect a sign within the area designated by Landlord, which sign shall be
subject to the prior written approval of all applicable local government agencies, as required. Tenant
will not place, without Landlord's prior written approval, or permit to be placed or maintained on
any exterior door, wall or window of the Premises any sign, awning or canopy, or advertising matter
or other thing of any kind, and will not place or maintain any decoration, letter or advertising matter
on the glass of any window or door. Any such signs, awning, canopy, decoration, lettering,
advertising matter or other thing as may be approved by Landlord, shall be maintained in good
condition and repair at all times and shall conform to the criteria established from time to time by
Landlord. As long as Tenant does not advertise any clothing or memorabilia on the frontage of the
Premises, and is in accord with applicable regulations regarding same, Tenant is permitted to
decorate as it deems fit. Notwithstanding anything herein to the contrary, Tenant agrees to
indemnify and hold Landlord harmless from and against any and all fines, claims, losses, and
expenses (including reasonable attorney fees and costs) that may arise as a result of Tenant's failure
to comply with any and all governmental regulations pettaining to Tenant's signage.
ARTICLE 9
ASSIGNING, MORTGAGING, SUBLETTING, CHANGE IN OWNERSHIP
9.1 Consent Required. Tenant shall not sell, transfer, assign, sublet, enter into any license,
management or concession agreements, change ownership, pledge, mortgage or hypothecate this
Lease, or Tenant's interest in and to the Premises (hereafter referred to as a "Disposition ") without
the prior written consent of Landlord which may be arbitrarily and unreasonably withheld. Any
disposition without the Landlord's written consent shall be void and confer no rights upon any third
person. Notwithstanding any provision of this Agreement, should Tenant wish to make a
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Disposition hereunder, it shall provide financial documentation suitable to Landlord illustrating the
creditworthiness and stability of the prospective new Tenant (or owner of Tenant in the event the
ownership of Tenant changes). Tenant shall provide Landlord with written notice of any intended
Disposition. Nothing in this paragraph shall relieve or release 'Tenant and any Guarantor from its
covenants and obligations for the Lease Term, including any option period. No interest in this Lease
shall pass to any trustee or receiver in bankruptcy, to any estate of Tenant, to any assignee to Tenant
for the benefit of creditors, or to any other party by operation of law or otherwise without
Landlord's written consent. If this Lease is assigned, or if the Premises or any part thereof is sublet
or occupied by any party other than Tenant, Landlord may collect rent from the assignee, tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no such assignment,
subletting, occupancy, or collection shall be deemed a waiver of this covenant, or the acceptance of
the assignee, tenant or occupant as tenant, or a release of Tenant from the further performance by
Tenant of the covenants herein contained. This prohibition against a Disposition shall be construed
to include a prohibition against any assignment or subleasing by operation of law, legal process,
receivership, bankruptcy or otherwise, whether voluntary or involuntary and a prohibition against
any encumbrance of all and any part of Tenant's leasehold interest in the Premises.
9.2 Chan e in Ownership s Article Not Applicable to CRA as Tenan t). Any sub - leases
submitte by the CRA and approved by the Landlord, without limiting the foregoing, if sub - tenant
is a corporation, an incorporated association or partnership, the transfer, assignment or
hypothecation of any stock or interest in the corporation, association, or partnership in the
aggregate of forty-nine percent (49 %) or less shall not be deemed a Disposition for purposes of this
],ease.
ARTICLE 10
QUIET ENJOYMENT
10.1 Landlord's Covenant, Provided Tenant timely pays Rent, Additional Rent and all other
amounts required by this Lease, and observes and performs all the covenants, terms and conditions
of this Lease, Tenant shall peaceably and quietly hold and enjoy the Premises for the Lease Term
without interruption by Landlord or any person or persons claiming by, through or under Landlord,
subject to the terms and conditions of this Lease.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 Damage to Premises. (a) If the demised Premises are, or any part thereof shall be
damaged by fire or other casualty, 'Tenant shall give immediate notice thereof to Landlord and this
Lease shall continue in full force and effect except as hereinafter set forth; (b) If the demised
Premises are partially damaged or rendered partially unusable by fire or other casualty insured under
the coverage obtained by the Landlord, the damages thereto shall be repaired by and at the expense
of the Landlord and the Tenant shall receive a pro -rata Rent abatement based on the portion of the
Premises rendered partially unusable until such time as the Premises are restored; (c) If the demised
Premises are totally damaged or rendered wholly unusable by fire or other casualty, then the Rent
shall be proportionally paid up to the time of the casualty and thenceforth shall cease until the date
when the Premises shall have been repaired and restored. Landlord shall restore the Premises,
provided that insurance proceeds are sufficient to rebuild the Premises. and Landlord is paid Rent
from its business interruption insurance; or (d) If the demised Premises are rendered wholly
unusable or, if the building be so damaged that the Landlord shall decide to demolish it or rebuild it,
then, in such events, Landlord or Tenant may elect to terminate this Lease by written notice to the
other given within 30 days of such fire or casualty specifying a date for the expiration of the Lease,
which will not be more than 30 days after giving such notice, and upon the date specified in such
notice the term of the Lease will expire fully and completely as if such date were the date set forth
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above for the termination of this Lease. In such event, Tenant will forthwith quit, surrender and
vacate the Premises without prejudice however to Landlord's rights and remedies against Tenant
under the Lease provisions in effect prior to such termination, and any Rent owing will be paid up
to such date, and any payment of Rent made by Tenant which were on account of any period
subsequent to such date will be returned to Tenant. Unless Landlord will serve a termination notice
as provided for herein, Landlord will make the repairs and restorations under the conditions of (b)
and (c) hereof, with all reasonable expedition, subject to delays due to adjustment of insurance
claims, labor troubles, and causes beyond Landlord's control. After any such casualty, Tenant will
cooperate with Landlord's restoration by removing from the Premises as promptly as possible, all of
Tenant's salvageable inventory and moveable equipment, furniture and other property. Nothing
contained hereinabove will relieve Tenant from any liability that may exist as a result of damage
from fire or other casualty.
Tenant acknowledges that Landlord will not carry insurance on Tenant's inventory and /or
furnishings or any fixtures or equipment, improvements, or appurtenances removable by the
Tenant, and agrees the Landlord will not be obliged to repair any damage thereto or replace the
same, except in the event of gross negligence or intentional acts or omissions of Landlord. Except
as expressly provided herein to the contrary, this Lease shall not terminate nor shall there be anv
abatement of Rent or other charges or items of Additional Rent as a result of a fire or other casualty
which is the fault of, or caused by the Tenant. Except as provided for in this Lease, the Tenant does
not have the right to cancel or terminate this Lease.
ARTICLE 12
EMINENT DOMAIN
12.1 Condemnation. In the event that any portion of the Premises shall be appropriated or taken
under the power of eminent domain by any public or quasi -public authority, this Lease shall
terminate and expire as of the date of such taking, and both Landlord and Tenant shall thereupon be
released from any further liability, and Tenant shall have no claim against Landlord for the value of
any unexpired Lease Term. In the event more than ten percent (10 9/6) of the gross square footage of
floor area of the Premises is taken under the power of eminent domain by any public or quasi -public
authority, or if by reason of any appropriation or taking, regardless of the amount so taken, the
remainder of the Premises is not usable for the purposes for which the Premises were leased, then
the Landlord shall have the right to terminate this Lease as of the date Tenant is required to vacate,
upon giving notice in writing of such election within sixty (60) days after the date of such taking. In
the event of such termination, both Landlord and Tenant shall thereupon be released from any
further liability to each other. Landlord affirmatively represents that, as of the Commencement
Date, it has received no notification that the Premises is to be appropriated or taken under the
power of eminent domain.
12.2 Damages. Whether or not this Lease is terminated, Landlord shall be entitled to the entire
award or compensation ( "Award ") in any condemnation proceedings, but nothing herein shall be
deemed to affect Tenant's right to pursue from the condemning authority, but not from Landlord,
above, compensation for the value of Tenant's interest in the Lease and the improvements
constructed by Tenant on the Premises, including all items of Rent, Additional Rent, Security
Deposit, and other charges for the last month of T'enant's occupancy, and Landlord agrees to refund
to Tenant any Rent, Additional Rent or other charges paid in advance.
12.3 Restoration. If this Lease is not terminated, 'Tenant shall remain in that portion of the Premises
which shall not have been appropriated or taken, and Landlord agrees, to the extent of the proceeds
of the Award, as soon as reasonably possible, to restore the remaining portion of the Premises to a
similar quality and character as existed prior to such appropriation or taking.
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Thereafter, Rent shall be adjusted on an equitable basis, taking into account the relative value of the
portion taken as compared to the portion remaining. For the purpose of this Article, a voluntary sale
or conveyance in lieu of condemnation, but under threat of condemnation, shall be deemed an
appropriation or taking under the power of eminent domain.
ARTICLE 13
LIENS
13.1 JLeps. Tenant hereby acknowledges that the interest of Landlord in the Premises shall not be
subject to liens for improvements made by Tenant. In confirmation of the foregoing, nothing
contained in this Lease shall be construed as consent on the part of Landlord to subject the estate of
Landlord to such liability. Tenant shall strictly comply with the construction lien laws of the State of
Florida. In the event that a claim of lien is filed against the property in connection with any work
performed by or on behalf of Tenant, Tenant shall satisfy such claim, or shall transfer the same to
security, within fifteen (15) days from the date of written notification from Landlord of the filing of
a claim of lien. In the event that'Tenant fails to satisfy or transfer such claim within said ten (10) day
period, Landlord may do so and thereafter charge Tenant, as Additional Rent, all costs incurred by
Landlord in connection with satisfaction or transfer of such claim, including all its attorneys' fees.
Further, Tenant agrees to indemnify, defend and hold Landlord harmless from and against any
damage or loss incurred by Landlord as a result of any such claims of lien. If so requested by
Landlord, Tenant shall execute a short form or memorandum of this Lease, which may, in
Landlord's discretion be recorded in the Public Records for the purpose of protecting Landlord's
estate from claims of lien, as provided in Florida Statutes. This paragraph shall survive the expiration
of the Lease Term or the earlier termination of this Lease.
ARTICLE 14
DEFAULT
14.1 Events of Default. The occurrence of anyone or more of the following events shall
constitute an "Event of Default" and breach of this Lease by Tenant:
(a) If Tenant fails to pay, on or before ten (10) days after the date due, Rent, Additional Rent
or any other charge required to be paid by Tenant under this Lease; or,
(b) If Tenant fails to promptly and fully perform any other covenant, condition, rule,
regulation or agreement contained in this Lease, or perform within the time periods set forth in this
Lease, and such failure continues for fifteen (15) days; or
(c) If a writ of attachment or execution is levied on this Lease or on any of Tenant's
property located within the Premises; or
(d) If Tenant makes a general assignment for the benefit of creditors, or provides for an
arrangement, composition, extension or adjustment with its creditors, or is generally insolvent or
unable to pay its obligations as they come due; or
(e) Lfhis Article Not Applicable to CRA as Tenantl. Any sub - leases submitted by the
CRA and approved by the Landlord, if Tenant files a voluntary petition for relief, or if a petition
against Tenant under the federal bankruptcy laws or other insolvency laws is filed and not withdrawn
or dismissed within ninety (90) days thereafter, or if Tenant is adjudged a bankrupt; or
(1) If, in any proceeding or action in which Tenant is a party, a trustee, receiver, agent or
custodian is appointed to take charge of the Premises, or Tenant's property (or has the authority to
do so) for the purpose of enforcing alien against the Premises or against Tenant's property; or
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(g) If Landlord discovers that any financial statement delivered to Landlord by'Tenant is
materially false; or
(h) In the event Tenant, before the expiration of said Lease Term, and without the written
consent of Landlord, vacates said premises or abandons the possession thereof, or uses the same for
purposes other than the purposes for which the same are hereby leased, or ceases to use the
Premises for the purposes herein expressed.
14.2 Landlord's Remedies If any Event of Default occurs, then, Landlord shall have the following
options, without further notice or demand of any kind:
(a) do 1. Sue for Rents as they become due; or
(b) Option 2. (1) Terminate this Lease; (2) Resume possession of the Premises for its own
account; and (3) Recover immediately from Tenant damages for Tenant's default in an amount equal
to the difference between the Rent and fair rental value of the Premises for the remainder of the
Lease Term, together with all other charges, rental payments, costs and expenses herein agreed to be
paid by Tenant. Notwithstanding the foregoing, Landlord shall have a duty to take all reasonable
steps to mitigate its damage; or
(c) Option 3. (1) Resume possession; (2) re -lease or re -rent the Premises for the remainder
of the Lease Term for the account of Tenant; (3) Recover from Tenant at the time each payment of
Rent becomes due under this Lease, the difference between the rent for which provision is made in
this Lease, and the rent received on the re- leasing or re- rental, and the cost of all repairs or
renovations reasonably necessary in connection with the re- leasing or re- rental. Landlord is
authorized to make any repairs to the Premises and /or to subdivide or restructure the Premises as
Landlord sees fit "Tenancy Repairs and Modifications ". Further, Landlord is authorized to enter into
new leases in which the lease term or other terms and conditions are different from this Lease
("Lease Modification "). Concerning any Tenancy Repairs and Modifications and any Lease
Modifications, Tenant agrees that such Tenancy Repairs and Modifications and Lease Modifications
are being performed for the purpose of re- letting and mitigating Tenant's damages, and, as such are
done for the benefit of the Tenant and are valid costs of re- letting; and (4) Recover from 'Tenant
immediately any other damages occasioned by or resulting from the abandonment or a breach or
default, other than a default in the payment of Rent; or
(d) Option 4. Pursue all remedies provided under Florida Law, including, but not limited to
remedies provided in Chapter 83, Florida Statutes.
Notwithstanding the foregoing, with respect to re- leasing or re- renting the Premises,
Landlord and Tenant agree that Landlord shall only be required to use the same efforts Landlord
then uses to lease other properties Landlord owns or manages; provided, however, that Landlord
shall not be required to give any preference or priority to the showing or leasing of the Premises
over any other space that Landlord may be leasing and may place a suitable prospective Tenant in
any such available space, regardless of when such alternative space becomes available; provided,
further, that Landlord shall not be required to observe any instruction given by Tenant about such
re- letting or accept any 'Tenant unless such offered Tenant has a credit worthiness acceptable to
Landlord, leases the entire Premises, agrees to use the Premises in a manner consistent with the
Lease, and leases the Premises at the same or greater rent, for no more than the current Lease Term,
on the same terms and conditions of this Lease, and does not require an expenditure by Landlord
for Tenant improvements or broker's commissions.
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14.3 Remedies Non - Cumulative. The remedies given to Landlord in this Article shall be in addition
and supplemental to all other rights of remedies which Landlord may have under law or in equity,
or as specified elsewhere in this lease agreement.
14.4 Non - Waiver. The failure by Landlord to strictly enforce or declare a breach of any term,
covenant or condition of this Lease shall not be deemed to be a waiver of that or any subsequent
breach of the same or any other term, covenant or condition. The subsequent acceptance of Rent
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay the rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent.
Acceptance of a portion of the Rent shall not be deemed a waiver of the Landlord's right to
immediately enforce this Lease to the extent of any outstanding Rents or other breaches. No
covenants, term or condition of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord.
14.5 Rent Payments Under Default. In the event of a default of any payment due under this Lease,
Landlord may in Landlord's notice to Tenant of such default, require that Tenant's payment to cure
the default be in cash, cashier's check, and /or certified check. Landlord and Tenant agree that
should Landlord so elect to require payment by cash, cashier's check or certified check, a tender of
money to cure the default, which is not in the form requested by Landlord, shall be deemed a failure
to cure the default. Nothing contained in this paragraph shall in any way diminish or be construed as
waiving any of Landlord's other remedies as provided elsewhere in this Lease, or by law or in equity.
14.6 Expenses of Enforcement. In the event any payment due Landlord under this Lease shall not
be paid on the due date, said payment shall bear interest at the Applicable Rate from the due date
until paid, but the payment of such interest shall not excuse or cure any default by Tenant under this
Lease. In the event that it shall be necessary for Landlord to give more than one (1) written notice
to Tenant of any violation of this Lease, Landlord shall be entitled to make an administrative charge
to Tenant of$150.00 for each such notice.
AR'T'ICLE 15
SECURITY DEPOSIT
15.1 Security Deposit. Tenant, concurrently with the execution of this Lease, has deposited
with Landlord the sum of $3,450 Three "Thousand Four Hundred Dollars (the "Security Deposit "),
the receipt of which is hereby acknowledged by Landlord, which sum shall be retained by Landlord
as security for the payment by Tenant of the rents and all other payments herein agreed to be paid by
Tenant and for the faithful performance by Tenant of the terms, provisions, covenants and
conditions for this Lease. It is agreed (i) that Landlord may, at any time during the continuance of
any Event of Default by Tenant under any of the terms, provisions, covenants or conditions of this
Lease, apply said Security Deposit or any part thereof towards the payment of the rents and all other
sums payable by 'Tenant under this Lease, and toward the performance of each and every one of
Tenant's covenants under this Lease, but such covenants and Tenant's liability under this Lease shall
thereby be discharged only pro tanto. (u) that "Tenant shall remain liable for any amounts that the
Security Deposit shall be insufficient to pay; (iii) that Landlord may exhaust any or all rights and
remedies against Tenant before resorting to said Security Deposit, but nothing herein contained shall
require or be deemed to require Landlord to do so; and (iv) that, upon application of all or part of
said Security Deposit by Landlord, Tenant shall be obligated to promptly deposit with Landlord the
amount necessary to restore the Security Deposit to the amount held by Landlord immediately prior
to such advance by Landlord. In the event the Security Deposit shall not be utilized for such
purposes, then said Security Deposit shall, after the payment in full of all sums due Landlord
hereunder, be returned by Landlord to Tenant within sixty (60) days next after the expiration of the
Term of this Lease. Notwithstanding the foregoing, in the event of the sale or transfer of Landlord's
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interest in the Premises, Landlord shall have the right to transfer the Security Deposit to the
purchaser or transferee, in which event Tenant shall look only to the new landlord for the return of
the Security Deposit and Landlord shall be released from all liability to Tenant for the return of such
Security Deposit.
ARTICLE 16
SUBORDINATION, NON - DISTURBANCE, AND A'TTORNMENT
16.1 Subordination by Tenant. Tenant hereby subordinates its rights hereunder to the lien of any
mortgage or mortgages, or the lien resulting from any other method of financing or refinancing,
now or hereafter in force against the Premises, and to all advances made or hereafter to be made
upon the security thereof. This shall be self - operative and no further instrument of subordination
shall be required by any mortgagee. However, Tenant, upon request of any party in interest, shall
execute promptly such instrument or certificates.
16.2 Estoppel Certificate. Within ten (10) days after request by Landlord, or in the event that, in
connection with any sale, assignment or hypothecation of the Premises and /or the land thereunder
by Landlord, an estoppel certificate shall be required from Tenant, Tenant agrees to deliver, in
recordable form, an estoppel certificate to any proposed mortgagee or purchaser or to Landlord
certifying (if such be the case) that this Lease is in full force and effect and that there are no
defenses or offsets thereon, or stating those claimed by "Tenant.
16.3 Attornment. In the event of a sale or assignment of Landlord's interest in the Premises, or if
the Premises comes into the hands of a mortgagee, or any other person, whether because of a
mortgage foreclosure, exercise of a power of sale or other reasons, Tenant shall recognize said
mortgagee or other person as the same as Landlord hereunder. Tenant shall execute, at Landlord's
request, any attomment agreement required by any mortgagee, or other such person containing
such provisions as such mortgagee or other person requires.
16.4 Non - disturbance by Landlord. The Landlord shall obtain for the benefit of the Tenant, a
non - disturbance agreement from any mortgagee, which agreement shall be on such mortgagee's
standard form and shall provide that, in the event of a foreclosure or deed in lieu thereof, the
tenancy of the Tenant shall not be disturbed.
ARTICLE 17
LIABILITY, INDEMNTTY AND "AS -IS" PREMISES
17.1 Limitations of Landlord's Liability: Indemnity. Landlord shall not be liable or in any
way responsible to Tenant or any other person for any loss, injury or damage suffered by Tenant or
others in respect of (a) property of Tenant or others that is stolen or damaged, (b) injury or damage
to persons or property resulting from fire, explosion, falling plaster, escaping liquid or gas,
electricity, water, rain or leaks from any part of the Premises, or from any pipes, appliances or
plumbing work therein, or from dampness, (c) damage caused by other occupants or persons in the
Premises, or the public, or caused by operations in the construction of any private or public work,
(d) loss or damage, however caused, other than loss or damage directly caused by fault (i.e., gross
negligence, act or omission) of Landlord, and which is not otherwise excluded by the provisions of
this paragraph. Tenant shall look solely to the estate and property of Landlord in the land and
building comprising the Premises for the collection of any judgment, or in connection with any
other judicial process requiring the payment of money by Landlord, in the event of any default or
breach by Landlord, under this Lease, and no other property or estates of Landlord shall be subject
to levy, execution or other enforcement procedures for the satisfaction of "t'enant's remedies and
rights under this Lease.
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17.2 Tenant's Indemnity of Landlord. Tenant shall indemnify and hold harmless Landlord
against any and all damages or expenses arising out of or in connection with any accident or other
occurrence on or about the Premises, and from all costs, liabilities, claims, charges, injuries,
damages or expenses, including, without limitation, attorneys' or other professionals' fees and court
costs, due to, arising out of, or in connection with loss of life, personal injury-, damage to property,
or any work done by, or act or omission of Tenant or its officers, partners, agents, servants,
employees, customers, contractors, invitees, concessionaires or licensees, in and about the Premises,
or due to, arising out of, or in connection with Tenant's use or occupancy of the Premises, except in
the event of gross negligence, act( s) or omission( s) of Landlord, its officers, directors,
shareholders, managers, employees, customers, guests and /or invitees. In case Landlord shall be
made a party to any litigation against Tenant and except in the event of negligence, act(s) or
omission(s) of Landlord, its officers, directors, shareholders, managers, employees, customers,
guests and /or invitees, then Tenant shall protect and hold Landlord harmless, and pay all costs and
attorneys' fees incurred by Landlord in connection with such litigation, and any appeals thereof.
ARTICLE 18
W ASTE, ENVIRONMENTAL, GOVERNMENTAL REGULATIONS
18.1 Waste or Nuisance. Tenant shall not commit, or suffer to be committed, any waste upon the
Premises, or which may adversely affect Landlord's interest in the Premises.
18.2 Environmental Provisions. Tenant agrees to comply strictly and in all respects with the
requirements of any and all federal, state and local statutes, rules and regulations now, or hereinafter
existing, relating to the discharge, spillage, storage, uncontrolled loss, seepage, filtration, disposal,
removal, or use of hazardous materials, including but not limited to the Comprehensive
Environmental Response, Comprehensive and Liability Act of 1980, the Superfund Amendments
and Reauthorization Act, the Resource Conversation and Recovery Act, the Hazardous Materials
Transportation Act and the Florida Hazardous Substances Law (collectively the "Hazardous Waste
Law ") and with all similar applicable laws and regulations. Tenant shall notify Landlord promptly in
the event of any discharge, spillage, uncontrolled loss, seepage or filtration of any hazardous
materials (a "Spill") or the presence of any substance or material presently or hereafter identified to
be toxic or hazardous according to any Hazardous Waste Law, including without limitation, any
asbestos, PCBs, radioactive substance, methane, volatile Hydrocarbons, acids, pesticides, paints,
petroleum based products, lead, cyanide, DDT, printing inks, industrial solvents or any other
material or substance which has in the past, or could presently or at any time in the future cause or
constitute a health, safety or other environmental hazard to any person or property (collectively
"Hazardous Materials ") upon the Premises. Tenant shall promptly forward to Landlord copies of all
orders, notices, permits, applications or other communications and reports, in connection with any
such Spill or Hazardous Materials. Tenant shall not handle, use, generate, manufacture, store or
dispose of Hazardous Materials in, upon, under or about the Premises. Tenant shall indemnify
Landlord and hold Landlord harmless from and against all loss, penalty, liability, damage and
expense suffered or incurred by Landlord related to or arising out of the presence of Hazardous
Materials on the Premises, where such loss, penalty, liability, damage, and /or expense resulted from
a condition created or caused by the actions of Tenant, its officers, directors, shareholders,
managers, employees, customers, guests and /or invitees upon the Premises. Such loss, damage,
penalty, liability, damage and expense shall include, but not be limited to (1) court costs, attorney's
fees and expenses, and disbursements through and including any appellate proceedings, (2) all
foreseeable and unforeseeable consequential damages, directly or indirectly, arising out of the use,
generation, storage or disposal of Hazardous Materials by Tenant; (3) the cost of any required or
necessary repair, clean -up or detoxification of the Premises; and (4) The costs of preparation of any
closure or other plans required under the Hazardous Waste Law, necessary to sell or lease the
Premises.
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ARTICLE 19
MISCELLANEOUS
19.1 First -Class Operation. Tenant covenants and agrees that at all times the business to be
conducted at, through and from the Premises, and the kind and quality of services to be offered in
the conduct thereof, will be first -class in every respect.
19.2 Accord and Satisfaction. Landlord is entitled to accept, receive and cash or deposit any
payment made by Tenant for any reason or purpose and apply such payment, at Landlord's option,
to any obligation of Tenant; any such payment shall not constitute payment of any amount owed
except that to which Landlord has applied it. No endorsement or statement on any check or letter of
Tenant shall be deemed an accord and satisfaction or otherwise recognized for any purpose
whatsoever. The acceptance of any such check or payment shall be without prejudice to Landlord's
right to recover any and all amounts owed by Tenant and Landlord's right to pursue any other
available remedy.
19.3 Attorneys' Fees. In any litigation arising out of this Lease, the prevailing party shall be entitled
to recover from the non - prevailing party-, reasonable attorney's fees, costs, and expenses of such suit
and any appeal thereof, including any reasonable attorneys' and paraprofessional fees and costs,
through and including all trial and appellate levels and post - judgment proceedings.
19.4 Entire Agreement. It is understood and agreed by 'Tenant that Landlord and Landlord's agents
have made no representations or promises with respect to the Premises or this Lease, except as
expressly set forth in this Lease, and that no claim or liability or cause for termination shall be
asserted by Tenant against Landlord for, and Landlord shall not be liable by reason of, the breach of
any representations or promises not expressly stated in this Lease. This Lease supersedes all prior
agreements, written or verbal, with respect to the Premises, including, without limitation, any letter
of intent.
19.5 Interpretation. The parties agree that it is their intention to create only the relationship of
Landlord and Tenant, and no provision hereof or act of either party shall be construed as creating
the relationship of principal and agent, or a partnership, joint venture or enterprise between the
parties. Each of the parties has participated jointly in the negotiation and drafting of this Lease. In
the event an ambiguity or question of intent or interpretation arises, this Lease shall be construed as
if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party- by virtue of the authorship of any of the provisions of this Lease.
19.6 Force Majeure. If either party shall be delayed or hindered in or prevented from the
performance of any act required hereunder by reason of strikes, lockouts, labor trouble, inability to
procure material, failure of power, restrictive governmental laws or regulations, riots, insurrection,
war or other reason of a like nature not the fault of the party delayed in performing work or doing
acts required under this Lease, the period for the performance of any such act shall be extended for
a period equivalent to the period of such delay. Notwithstanding the foregoing, the provisions of
this paragraph shall at no time operate to excuse Tenant from any obligations for payment of Rent,
Additional Rent, or any other payments required by the terms of this Lease when due, and all such
amounts shall be paid when due;
19.7 Notices. All notices from Tenant to Landlord required or permitted by any provision of the
Lease shall be directed to Landlord by certified mail postage prepaid, hand delivery or by Federal
Express or other nationally recognized overnight courier service at the address set forth in
Paragraph 1.3 hereof, or at such other address as Landlord may designate by written notice. All
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notices from Landlord to Tenant required or permitted shall be directed to Tenant by certified mail
postage prepaid, hand delivery or by Federal Express or other nationally recognized overnight
courier service at the address set forth in Paragraph 1.5 hereof, or at such other address as Tenant
may designate by written notice; or by posting on, or delivery to the demised Premises. Notice given
as described above shall be sufficient service and shall be deemed given as of the date received as
evidenced by the return receipt of the registered or certified mail or the refusal of acceptance of
such notice, or after one (1) business day if any hand delivery or overnight courier service.
19.8 Captions and Section Numbers, This Lease shall be construed without reference to titles of
articles and paragraphs, which are inserted only for the convenience of reference.
19.9 Number and Gender The use herein of a singular term shall include the plural and use of the
masculine, feminine or neuter genders shall include all others.
19.10 Broker's Commission. 'Tenant represents and warrants that it has caused or incurred no claims
for brokerage commissions or finders' fees in connection with the execution of this Lease, and
Tenant shall indemnify and hold Landlord harmless against and from all liabilities arising from any
such claims incurred by Tenant (including, without limitation, the cost of attorneys' fees in
connection therewith).
19.11 Partial Invalidity. If any provision of this Lease or the application thereof to any person or
circumstance shall be invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and each provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
19.12 Recording. Landlord or Tenant may not record this Lease; except as required by Florida
Sunshine Laws, and as certified by the Collier County Clerk of Courts for the CRA, this
document will become a public record.
19.13 Governing Law. This I.,ease shall be governed exclusively by the provisions hereof and by the
laws of the State of Florida. Venue for any action arising out of this Lease to enforce or interpret its
terms or conditions shall be in Collier County, Florida.
19.14 Provisions Binding. Except as otherwise expressly provided, the terms of this lease shall be
binding upon and shall inure to the benefit of the successors, legal representations and assigns,
respectively, of Landlord and Tenant. Each term and each provision of this Lease to be performed
by Tenant shall be construed to be both a covenant and a condition. The reference contained to
successors and assigns of Tenant is not intended to constitute consent to assignment by 'Tenant
which is controlled by the provisions of Paragraph 9.1.
19.15 CoMorate Tenant (This Article Not Applicable to CRA as Tenant). Any sub - leases submitted
by the CRA and approved by the Landlord, the parties executing this Lease or any other documents
related to this Lease on behalf of sub- tenant, hereby covenant and warrant that sub - tenant is a duly
qualified business entity in good standing, and all steps have been taken prior to execution to qualify
sub - tenant to do business in Florida; that the undersigned is authorized to execute this sub -lease on
sub- tenant's behalf; all franchise and corporate taxes (if any) have been paid to date, and all future
forms, reports, fees and other documents necessary to comply with applicable laws will be filed
when due.
19.16 Amendments or Modifications No amendment or modification of this Lease or any consents
or permissions of Landlord required under this Lease, shall be valid or binding unless reduced to
writing and executed by the party against whom enforcement is sought.
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148 2'
19.17 Easements. Landlord reserves the right to grant any easements on, over, under and above the
property on which the Premises is located for such purposes as Landlord determines in its sole
discretion, provided that such easement will not materially adversely interfere with Tenant's
business.
19.18 Right of Entry._ Landlord and Landlord's agents shall have the right to enter the Premises at all
reasonable times (except in the event of an emergency in which case Landlord may enter at any time
and without notice) and to show them to prospective purchasers or lessees of the Premises, and to
make such repairs, maintenance, servicing, alterations, improvements or additions as Landlord may
deem necessary or desirable. Nothing herein contained, however, shall be deemed and construed to
impose upon I..andlord any obligations, responsibility or liability whatsoever, for the care,
maintenance, or repair of the building, or any part thereof, except as otherwise herein specifically
provided.
19.19 joint and Several Liability. If two or more individuals, corporations, partnerships or other
business associations, or any combination thereof shall sign this Lease as Tenant or as Guarantors,
the liability of each such individual, corporation, partnership or other business association to pay
rent and perform all other obligations under this Lease shall be deemed to be joint and several, and
all notices, payments, and agreements given or made by, with or to anyone of such individuals,
corporations, partnerships or other business associations shall be deemed to have been given or
made by, with, or to all of them.
19.20 No Discrimination Tenant will not discriminate in the conduct and operation of its business
in the Premises against any person or group of persons, including, but not limited to, reasons of the
race, handicap, creed, sexual orientation, color, sex national origin or ancestry.
19.21 Time of Essence. Time is of the essence with respect to the performance of every provision
of this Lease.
19.22 WAIVER OF A JURY TRIAL. EXCEPT AS PROHIDITED BY LAW, LANDLORD
AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LEASE, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITIEN) OR ACTION OF LANDLORD, TENANT OR ANY GUARANTOR.
THIS WAIVER IS A MA'17ERIAL INDUCEMENT FOR LANDLORD TO ENTER INTO
THIS LEASE. FURTHERMORE, NEITHER LANDLORD NOR TENANT SHALL SEEK TO
CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH
ANY LITIGATION IN WHICH A JURY TRIAL CANNOT BE WAIVED.
19.23 Parking. Intentionally Omitted.
19.24 Radon Gas. Radon is naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal state guidelines have been found in buildings in Florida.
19.25 Legal Representation. Intentionally Omitted. 19.26
19.26 Exclusivitv. Intentionally Omitted.
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14B
IN WITNESS WHEREOF, Landlord and Tenant have signed this lease as of the date set forth
above:
LANDLORD: PALMYRA CLUB INVESTORS, LLC
A Florida/itnited liability company /
4
By. ?; :1 i ,L � Date: Ile, ! Z
v /IOhn Steffan, M ger
(as to Landlord):
' 60,0cfwrxi,tn /�Iess _._..._.
Signature of Witness
AS TO TENANT:
ATTEST:
DWIGHT E. BROCK
By:
e 'ttty Clerk
fttw Ii. t0 1
An *V*t*%n, ai4`,1,egal sufficiency:
n i �'
Marjori tuderii= Stirling
Assistant County Attorney
Printed Name //of Witness
I i/1 Gl t- — cC. cS --7 -
Printed Name of Witness
COMMUNITY REDEVELOPMENT AGENCY
OF COLLIER COUNTY, FLORIDA
By:
lt7�
DONNA FIALA, CHAIRMAN
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EXHIBT A
The Premises
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14B
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EXHIBIT B
MEMORANDUM OF UNDERSTANDING
Non - Exclusive Use by Bayshore Cultural Arts, Inc.,
of a portion of 4069 Bayshore Drive Naples, Florida
This Memorandum of Understanding is made and entered into this I" day of July 2008,
between the Collier County Community Redevelopment Agency, doing business as Bayshore
Gateway Triangle CRA, hereinafter the "Primary Tenant," and the Bayshore Cultural Arts, Inc., a
Florida Non - Profit Corporation, hereinafter the "Subtenant."
1. Owner of the Property ( "Landlord "). Palmyra Club Investors, LLC, is the fee owner of
4069 Bayshore Drive, Naples, Florida, 34112, further described in Exhibit A of the original lease
( "Property ").
2. Primary Lease. Primary Tenant and the Landlord have entered into a Lease Agreement to
Lease the Property and, pursuant to Paragraph 1.8 of the Lease Agreement; have agreed to the 24
month lease term to June 30, 2010.
3. Non - Exclusive Use of the Property. Primary Tenant agrees to the Subtenant's non-
exclusive use of that portion of 4069 Bayshore Drive, generally depicted in the attached Exhibit
"A," ( "Subleased Property ") and Primary Tenant has obtained the written consent of the Landlord
pursuant to Paragraph 9.1 of the Lease Agreement. Primary Tenant will allow Subtenant's
employees, guests and invitees to enter upon and use the Subleased Property for the uses noted
below and subject to the following conditions.
4. Term. The term of this Memorandum of Understanding shall be concurrent with the
Primary Lease, as amended and as may be further renewed.
5. No Changes to Property by Subtenant. Subtenant shall make no alterations, additions and
improvements to the Property except to the extent, if any, authorized by Primary Tenant in
writing and permitted by the Primary Lease.
6. Liens. Subtenant shall not cause or allow any Lis Pendens or any liens to be filed against
the Property, and if filed arising out of any act or omission by Subtenant at the property,
Subtenant shall secure the lien's release.
7. Security to Property. Primary Tenant is under no obligation to provide additional security
to the Property by virtue of this Memorandum of Understanding.
8. Utilities. Primary Tenant shall pay for all utilities with respect to the Property and pursuant
to the Primary Lease. Subtenant shall have access to potable water, restroom facilities, and
electricity during its use of the Property. The Subtenant shall, at its expense, provide its own
dedicated telephone, facsimile and Internet connections within the Subleased Property and pay all
associated costs for labor and materials.
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14B
9. Signs. Subtenant will not post any sign, card or placard on the Property except as approved
in writing by the Primary Tenant and Landlord, and in no instance shall said approval exceed that
permitted pursuant to the Primary Lease.
10. Waste to the Property. Subtenant shall not commit waste, nor suffer any waste to the
Property. Subtenant shall be responsible for any damage caused by its guests and clients.
11. Indemnification from Subtenant to Primary Tenant. Subtenant shall save and hold
harmless and indemnify Primary Tenant from and against any and all liabilities, losses, damages,
costs, expenses, causes of action, suits, penalties, claims, demands, and judgments, attorneys'
fees, witness fees, and other expenses of defense (through all appeals and/or remands), alleged to
arise out of intentional torts and/or negligent acts, errors or omissions of Primary Tenant's
employees, guests and/or invitees, and notwithstanding all insurance coverages whatsoever
throughout the entire term of this Memorandum of Understanding including all term extensions,
if any.
12. Insurance. Subtenant shall maintain a liability insurance policy which is acceptable to
Landlord and lists the Primary Tenant as an additional insured.
13. Subtenant Uses. Subtenant shall be allowed to use the Subleased Property for office space
and routine meetings. Subtenant's use of the Property's main conference room shall be controlled
by the Primary Tenant.
14. Revisions to this Memorandum of Understanding. This Memorandum of Understanding
may be revised as necessary by mutual consent of both parties and the Landlord by written
amendment or a revised Memorandum of Understanding.
15. Termination. Either the Primary Tenant or the Subtenant may terminate this
Memorandum of Understanding by providing thirty (30) days' written notice to the other party;
otherwise this Memorandum of Understanding will remain in force, subject to the duration of the
Primary Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of
Understanding to be executed by their appropriate officials, as of the date first above written.
ATTEST:
DWIGHT E. BRO.GK
By:
ty Clerk
tlgna%re onl •
Approved )as to. form. and legal sufficiency:
p ci.
Mar & e Student- Stirlin
Assistant County Attorney
COMMUNITY REDEVELOPMENT AGENCY
OF COLLIER OUNTY, FLORIDA
Y
DONNA FIALA, CHAIRMAN
22
z
AS TO BAYSHORE CULTURAL ARTS, INC.
Signed, se lamed anlivered in the presence of:
Si nature of Witness
0- n 0 SN a ra
Print Nam
el ure of W itn s
at
,d L_ o yr
Printed Name of Witness
STATE OF FLORIDA
COUNTY OF COLLIER
By:
Printed Name: JUnc� r �i v� r
Title: ? l e S' A e I,` �
14B
_ The foregoing instrument was acknowledged before me this 134k day of
2008, by :�go�a QQ (i_ ul(Wl, as Sidkjo jr� of Bayshore
Cultural Arts, Inc., who is personally known to me or has produced
as identification.
NOTARY MLIC -STATE OF FLORIDA
Shirley M. Garcia f1lotary ublic
Commission #DD501305 '
�•• � Expires: DEC. 21, 2009 Print Name: 5;41
BONDED THRUATUYTIC BONDING CO.,INC. My Commission Expires:
AS TO LANDLORD: PALMYRA CLUB INVESTORS, LLC.
A Florida limited liability company
Approval f6rp y Ire Gateway Triangle CRA to sublease space within Exhibit "A" lease space:
BY: ,�, Date:
John Sieffan ager
23
Printed Name of Witness
l GT L < 'j C&S5 ilk
Printed Name of Witness
�14