Backup Documents 06/22/2010 Item #16B 31683
MEMORANDUM
Date: June 25, 2010
To: Jean Jourdan, Project Manager
Bayshore Gateway Triangle CRA
4069 Bayshore Drive
Naples, Florida 34112
From: Ann Jennejohn, Deputy Clerk
Minutes & Records Department
Re: Bayshore Gateway Triangle CRA Extension and
First Amendment to a Lease Agreement for
office space at 4069 Bayshore Drive
Attached for your records is a copy of the document referenced above (Item #16133)
approved by the Board of County Commissioners on June 22, 2010.
The original lease agreement will be held with the Board's Official Records in the
Minutes & Records Department.
If you have any questions, please contact me at 252 -8406.
Thank you.
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BAYSHORE
GATEWAY
��•� TRIANGLE RECEIVED
tt r.r n r
Board or County Commissioners
June 25, 2010
CRA Board
Comm,ssener
PLEASE DO NOT FORWARD TO THE CLERK'S OFFICE
Donna Fiala
Cha, men
Commissioner RE: June 22, 2010 Agenda Item 16113
James N Coletta
con,nnsslnner Recommendation for the Community Redevelopment Agency to approve an
Fred w Coyle
Extension and First Amendment to Lease Agreement for the Bayshore Gateway
Commissroner Triangle CRA to continue leasing its current office space for a term of (24) twenty -
Frank Haias four months, and authorize the Chairman to sign the Lease Agreement.
Commissioner
r ° ", He „ni ^° Attached is:
Advisor
Board Extension and First Amendment to Commercial Lease Agreement for the CRA
Chairman, Donna Fiala.
Chairman
in(key Thomza
Vice-Chair Please provide CRA Chairman, Donna Fiala's signature on page two (2)) of the
Jan Hany agreement.
Ka,en Beatty
iowie PLEASE DO NOT FORWARD TO THE CLERK'S OFFICE AND
Chw:k Gunpre, CALL JEAN JOURDAN at 643 -1115 for pick up.
Haunce
Gunerrei
Thank you.
W 11;i , rAea's
Jean Jourdan
B., e P,enie
Project Manager
Bayshore /Gateway Triangle
CRA stall
CRA
Phone 643 -1115
[avid L Jarklon
Execunvs
D,n"ctor
Jean Jourdan
Project Manage,
Sue Trone
Operaationtion
s
Anelysl tt
4069 Bayshoie Drive . Naples, Florida 34112
P: (239) 643 -1115. R (239) 775 -4456
www.colhercra. com
166`
r.�
EXECUTIVE SUMMARY
Recommendation for the Community Redevelopment Agency to approve an Extension and
First Amendment to Lease Agreement for the Bayshore Gateway Triangle CRA to continue
leasing its current office space for a term of (24) twenty-four months, and authorize the
Chairman to sign the Lease Agreement. (Fiscal Impact $23,046.00)
OBJECTIVE: To approve an Extension and First Amendment to Lease Agreement for the
Bayshore Gateway Triangle CRA to continue leasing its current office space (4069 Bayshore Drive)
for a term of (24) twenty -four months, and authorize the Chairman to sign the Lease Agreement.
CONSIDERATIONS: The CRA currently leases office space at 4069 Bayshore Drive. The CRA
and Palmyra Club Investors, LLC, a Florida Limited Liability Company previously entered into a
Lease Agreement dated July 1, 2008. The payment of rents has been assigned from the Landlord,
Palmyra Club, Investors, LLC, a Florida Limited Liability Company, to Bank of Naples. The Bank
of Naples warrant and represent to the Tenant that it is authorized to enter into this Extension and
First Amendment to Lease Agreement by virtue 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.
The current lease is scheduled to expire on June 30, 2010. The CPA has the option to extend the
lease for (24) twenty -four months by executing the Extension and First Amendment to the Lease
Agreement. The Extension and First Amendment to Lease Agreement reduces the base monthly
rent through the extended term from $19.80 per square foot to $10.02 per square foot. Except as
provided in the Extension the lease dated July 1, 2008 will remain in full force and effect according
to the terms and conditions contained therein.
FISCAL IMPACT: Total lease cost is $1920.50 /month or a total of $23,046.00 /year, saving the
CPA $22,597.00 per year. The CRA office lease is budgeted each fiscal year in the Bayshore
Gateway Triangle CRA Fund (187) budget.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSDERATIONS: The Executive Summary been reviewed by the County Attorney's
Office for legal sufficiency. JAK
RECOMMENDATION: For the Community Redevelopment Agency to approve an Extension
and First Amendment to Lease Agreement for the Bayshore Gateway Triangle CRA to continue
leasing its current office space for a term of (24) twenty -four months, and authorize the Chairman to
sign the Lease Agreement.
Prepared by:
Jean Jourdan on June 3, 2010
Executive Director, Bayshore /Gateway Triangle Community Redevelopment Agency
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 50 /100). The
security deposit remains the same.
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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:
n
Witn ss (Signature)
,I y
(P 'nt ame)
AA
Witness (Signature)
rint Name)
AS TO THE TENANT:
ATTEST:
DWIGFI '- 2.°jjdfRb€ I ; Clerk
RJ
By M.
Approved'a'� ren`
and legal sufficiency: L �f
AA
Jeff(Sy)A. Klatzkow
County Attorney
BANK OF NAPLES
By:
MARY CONE, EVP, Bank of Naples
COLLIER COUNTY COMMUNITY
REDEVELOPMENT y AGENCY
B "'��"LC/ v`
DONNA FIALA, CHAIRMAN
Agenda
Date
Dated
EXHIBIT 16 B 3
COMMERCIAL LEASE ORIGI N
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:
ARTICLE 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 Redevelopment Agency, and non - exclusive use by Bayshore
Cultural Arts, Inc. as noted in attached Memorandum 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 Tenn 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 Iandlord. 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
I�
1.11 vpetating_Costs orated based on percentage of square footage under CRA contro
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(sl.
3301 Tamiami Trail East
Naples, FL 34112
1.14 Sec Deposit. $3450.00
1.15 Pro . 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 1Pase Months The term " T ease Months" as used herein shall mean consecutive TWENTY
FOUR (24) months periods commencing on the Commencement Date.
2.3 Tenanes Duty Lo 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, of
thereafter during the balance of the Lease term, in default hereunder; (ii) 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
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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 (1st) 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 Rent', 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 %) 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 (59/0) 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 Lxcise Taxes (Phis Article Not Applicable to CRA as Tenantl. Any sub - lessees
submitted by the CPA 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 fumiture, 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
1663
in Exhibit A. If any such charges are not paid when due, Landlord tray, 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'renant 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, Etter, 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.
MOM
(G) 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 G INSURANCE
6.1 Insurance Covetage 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
he responsible for loss or damage to items for which Tenant is responsible, as is more fully set forth
below.
6.2 Insurance Coverapix 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 compensaon
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; (F.) 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
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liability insurance policy under (A) above, shall name Landlord, any person, ferns, 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 ate 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. Iandlord 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 TcnMt'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.
16B3
ARTICLE 7
MAINTENANCE, REPAIR AND ALTERATIONS
7.1 Maintenance Obligations.
(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.
(e) 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 ommssions of Landlord. Neither Landlord not 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.
(g) 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 of 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 sQV- ert3L--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 Sighs. 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 pertaining 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 Tenants 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 Iandlord 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 patty 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 h e Ownershi s Article No A li ble t 'RA s Tenant). 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 of interest in the corporation, association, or partnership in the
aggregate of forty-note percent (49%) or less shall not be deemed a Disposition for purposes of this
Lease.
ARTICLE 10
QUIET ENJOYMENT
10.1 Landlord's ovenant. 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 Da Wage to Pre i es. (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 ate 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 Ixase shall not terminate nor shall there be any
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"/0) 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'fenant 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 Damaees. Whether or not this Ixase 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 Ixase and the improvements
constructed by'renant on the Premises, including all items of Rent, Additional Rent, Security
Deposit, and other charges for the last month of Tenant'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 liens. 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) alis 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 a lien 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) tion 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
Ixase 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) Qption 3. (l) 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 Ixase, 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 releasing 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
("Ixase 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- Icning 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, cashiers check, and /or certified check. Landlord and Tenant agree that
should Landlord so elect to require payment by cash, cashiers 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.
ARTICLE 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 Iandlord, 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; (ii) that Tenant shall remain Gable 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, he 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 ATTORNMENT
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 attornment 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, INDEMNITY AND "AS -IS" PREMISES
17.1 Limitations of Landlord's Lability. 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 Tenant's remedies and
rights under this J case.
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17.2 T'enant's Indernnity 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 a,y 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 parry, 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 parry 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
IS
1683
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 Brokers 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 RecordiU. 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 Lease 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 Bin", 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'Lenant 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 Coroorate Tenant CO § 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.
17
1683
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 RRi ht of Entrv. 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 Landlord 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 MATERIAL INDUCEMENT FOR LANDLORD TO ENTER INTO
THIS LEASE. FURTHERMORE, NEITHER LANDLORD NOR TENANT SHALL SEEK TO
CONSOLIDATE ANY ACTION IN WHICH A) URY TRIAL HAS BEEN WAIVED WITH
ANY LITIGATION IN WHICH A JURY TRIAL CANNOT BE WAIVED.
19.23 Parking. Intentionally Omitted.
19.24 Radon GasRadon 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 !-Peal Representation, Intentionally Omitted. 19.26
19.26 Exclusivity. Intentionally Omitted.
18
IN WITNESS WHEREOF, Landlord and Tenant have signed this lease as of the date set forth
above:
LANDLORD: PALMYRA CLUB INVESTORS, LI_C
A Flooda ted liability company
Date:
of
(as to Landlord):
Signature of Witness
AS TO TENANT:
ATTEST:
DWIGHT E. BROCK
ti,4n0'14al sufficiency:
Assistant County Attomey
�i,�P(SNDf Nit �f6��
Printed Name of Witness
Printed Name of Witness
COMMUNITY REDEVELOPMENT AGENCY
OF COLLIER COUNTY, FLORID--Aaa ��--
i
By:_--_
DONNA FIALA, CHAIRMAN
19
ss
16B3
EXHIBT A
The Premises
20
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 1" day of July 2008,
between the Collier County Community Redevelopment Agency, doing business as Bayshore
Gateway Triangle CPA, 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.
21
A
9. Sims. 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. HROCK
AA
Ch
Uty Clerk
..Approoveo to f'grm-atrd Iegal sufficiency:
Marj a Student- Stirlin
Assistant County Attorney
COMMUNITY REDEVELOPMENT AGENCY
OF COLLIER ouNTY, FLORID_A
DONNA FIALA, CHAIRMAN
22
AS TO BAYSHORE CULTURAL ARTS, INC.
Signed, sealed anA-0ivered in the presence of:
of Witness
N
Name
STATE OF FLORIDA
COUNTY OF COLLIER
By: -_
Printed Name: SOAJ f A Vi h v.
Title: �'feSldev.
1683
The foregoing instrument was acknowledged before me this %3 day of
2008, by �c>,_ && n �1 — of Bayshore
Cultural Arts, Inc., who is personally known to me or has produced
as identification.
ROTARY PURLIC STATE OF FLORIDA
Shirley K Garcia
Commission *DD501305
'• Expires: DEC. 21, 2009
BONDED TBRU ATI.ANDC BONDING M, INC.
A�2QJl C�-
Notary Aublic
Print Name: S�! ���
My Commission Expires: _
AS TO LANDLORD: PALMYRA CLUB INVESTORS, LLC.
A Florida limited liability company
Approval f6r,IB�y re Gateway Triangle CRA to sublease space within Exhibit "A" lease space:
!7 i
BY: ' ° °' Date:
12-d
John S4�ffan, ager
(as
Signature of Witness
23
�Ae Iry vie,
Priu� ted Name of Witness
3 I G L • �-G( e�CJe+ rl
Printed Name of Witness
RECORDATION REQUESTED BY:
Sank of NaWs
Main ONloe
4099 Tamlaml Trail N. Suite 1GO
Naps, FL 34103
WHEN RECORDED MAIL TO:
Bank of Naples
4099 T"Ided Trail! N. Sul" 100
Nepte•, FL 34103
This ASSIGNMENT OF RENTS prepared by;
3864181 OR: 4063 PG: 3024
RHCORDHD in OFFICIAL RHCORDS of COLL3HR COUNTY, FL
06/29/2006 at 03:05P1 DWIGHT 1. BROCH, CLHRH
RIC FHB 44.00
RetO:
GOOD1HTTH COLHNAN HT AL 16B.3
4001 TANIANI TR N 1300
RAPLHS FL 34103
Name: Cynthia Salo, Lo,WW AdmWStraaoe
Company: seek of Naples
Address: 4099 Terblwnl Troll N. Sol" 100 , Naples. FL 34103
ASSIGNMENT OF RENTS
THIS ASSIGNMENT OF RENTS dated June 27, 2006, is made and executed between Paknyre Club Investors,
LLC., A Florida Limited Liability Company, whose address is 1415 Panther Lane Suits 223, Naples, FL 34109
(referred to below as "Grantor) end Bank of Naples, whose address is 4099 Tamiami Trail N, Suite 100 .
Naples, FL 34103 (referred to below as "Lander")__��',
y ,
ASSIGNMENT. For valuable considers r y a`aI nts a continuing security interest In, and
conveys to Lender all of Grantor's and interest Rents from the following described
Property located in ColBsr County Florida:
Lots 106, 106 and 107, Loo Kai ording to the nap rot �erwf as recorded in Plat Book 3,
at Page 93, of the Public r Of r Co To edl wi she of Owner's invest in and to
that certain 20' vacated ecent to M operty a e.
/�, h
The Property or its address . com n natsr/e s aphri FL 34112.
FUTURE ADVANCES. In addition t the e, Is As gn ent e a e an .. by Lender to Grantor whether or not the
advance{ ere male pursuant to a m on 'tic Ity , k o I ' ation. 'a sd rTnt ecuras, in addition to the amounts
specified in the Note, ell future a on ay n to nt or "n arty (20) years of the date of this
rn /'�
Assignment, together with all inte n. 1'
THIS ASSIGNMENT IS GIVEN TO (1) PAYMENT OF THE IN EDN A PERFORMANCE OF ANY AND ALL
OBLIGATIONS OF GRANTOR UNDER E. THIS ASSIGNMENT, AN ERIS. THIS ASSIGNMENT IS GIVEN
AND ACCEPTED ON THE FOLLOWING r.' L',
PAYMENT AND PERFORMANCE. Except • Yes provided in this Assignment r nyiiao aid Documents, Grantor shall pay to Lender
all amounts secured by this Assignment as ayAwc a due, and shell strictly p• r II Grantor's obligations under this Assignment.
Unbar and until Lender axncises its right to (WOt�IN is as provided ba a o g as there is no default under this Assignment,
Grantor may remain in possession antl control o p casect the Ions, provided that the granting of
the right to roNect the Rento shall not Gonad ute 1i il�rAT'tryRkL / castor in a bankruptcy proceeding.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Gr 1 l� 1aa4�tndT
OwmarsNp. Grantor is entitled to receive the Rents hoe and dear of all rights, loans, liens, encumbrances, and claims except as
disclosed to and accepted by Lender in writing.
Right to Assign. Grantor hen the full right, power and authority to enter imo thb Assignment and to assign and wnyey the Rents to
Lender
No Prior Assignment Grantor has not previously assigned or conveyed the Rents to any other person by any instrument now in force.
No Further Trarufr. Grantor will not sell, assign, encumber, or otherwise dispose of any of Grantor's rights in the Rents except as
provided in this Assignment.
LENDER'S MIGHT TO RECEIVE AND COLLECT RENTS. Lander shall have the right in any time, and even though no default shall have
occurred under this Assignmem, to collect and receive the Rents. For this purpose, Lender is hereby given and granted the following
rights, powers end outherity'
Notka to Tempts. Lender may send notices to any and all tenants of the Property advising them of this Assignment and dhecting NI
Rents to be paid directly to Lender or Lendei a afford.
Enter the Property. Lender may enter upon and "ke possession of the Property; demand, collect and receive from that tenants or from
any other persons liable therefor, all of the Rents; institute and carry on all (pal proceedings necessary for the protection of the
Property, including such proceedings as may he necessary to recover possession of the Property; collect the Rants and remove any
tenant or tenants or other parsons from the Property.
Makhyo g" property. Lender may enter upon the property w maintain the Property and keep the soma in repair; to pay the costs
thereof and of all service{ of ell employees, including their aeuipment, and of all continuing car. and expenses of maintaining the
Property in proper rpab and condition. and also to pay all taxes, assessmMts and water utilifp{, and the premium{ on fee and whom
insurance eHectid by Lender on the Property.
Complaints when Laws. Lender may do any and all things to execute and comply with Me laws of the State of Floods and also all
other lawn, rules, ardrs, eminences entl rarruirements of oil other governmental agmcias -Netting the Property.
Lease lee Property. Lender may rent or lease the whole or any pan of the Property for suh, term or terms and an such coMitians as
Lender may deem appropriate,
Employ Agar". Lender may engage such agent or agents as Lander may deem aprpriste, aidu r lo Lender's name or in Grantor's
name, to rent and manage me Property, including the collection and application of Rents.
Other Ac". Lander may do dl such other thing. and acts with respect to the Property as Lender may deem pprpriae and may em
exclusively and solely in the place and steed of Grantor and to have dl of the Powers of Grantor for the purposes stated above.
1603
ASSIGNMENT OF RENTS
Leal 1110: 1190024159 IContlnued) Page 2
No R"grersert to Act. Lander shall not be required to do any of the foregoing acts or things, and the fact that Lendar shall have
performed erne or more of the foregoing acts or things shall not require Lender to w any other specific act Of thing
APPLICATION OF RENTS. All costs sM sxperaas Incurred by Lander in connection with the Property shell be for Grantor's acemaa and
Lender may pay Such meta and reranees from me ReMS. Lender, in its sole discretion, abet datartnine dos apposition of any and ag ROWS
received by N: however, array such Rant. received by Lander which are not WpIW to such costs end eapensae Ma11 be applied to the
Indebtedness. All expenditures made by Lender under this Assignment and not reimbursed from the Roma shall became a part of the
Indebtedness secured by this Assignment, end MN be payable on demand, with Interest at the Note rate from data of expenditure until
paid.
FULL PERFORMANCE. If Grantor pays all of the Indebtedness when due and otherwise performs al the obligations imposed upon Grantor
under this Assignment, the Note, and the Related Documents, Lander shall execute and deliver to Gramor a suitable satisfaction of this
Assignment and Suitable awedsrrents of termination of any financing Statement on file evidencing Lender's security interest in the Rents and
the Property. Any termination fee requited by law mall W paid by Grantor, it permitted by applicable law.
LENOER'S EXPENDITURES. If any action on proceeding is commenced that would metsnally "fact Lender's inerat in the Property w if
Grantor who to compW with any Provision of this Assignmant or any Related Document,, including but not limitad to GraMOr's failure to
discharge or pay when due any amounts Grantor is rewired to discharge or pay under this Assignment or any Rafated DOWMM s, Lender
on Grantor's banal may (but shall not be obligated tai take any action that Lander deems appropriate, including but not limited to
discharging or paying all taus, Ilene, Security interests, ancumbances and other claim., a any time lavled or pieced on the hints or the
Property and paying al costs for Insuring, maintaining and preserving the Property. All Such expenditures inwimal or paid by Lander for
such purposes wig gun beer interest at the rate clwgad under the Notes from W data insured or paid by Larder to that data of repayment
by Grantor. AN Such exlanea. will become a part of me lwSd myasa and, at Lender's option, will (Al be payable on demand: 18) as
added to tha balance of the "a and be apportioned among and be payable with rw hatowent Payments h become we during attar
(1) the term of any appece"o insurance policy: " (21 the mr wrniny farm of to Notes; or (c) be treated as a beli000 payment which wig
be due and payable at the Note's maturity. The Assignment alma wk secure payment of mess amounts. Such right shall Win addition to
a other rights and remedies to which Lander may W entitled upon Default.
DEFAULT. Each of the following, at Lander's option, shell constitute an Event of Default under two Assignment:
Payment Default. Grantor fails to make any payment when due under the Indebtedness.
Ocher Dohdh. Gramor feib to rompN wim awI�mI �lhi1ll abligarbn, mvenarn or condition contained b this
Assignment or in eny of me R.laled Dpw top/%Wiaw y term, oblgstien, mwnant her condition ontobad
in any other agreement between Lender a �u'�� --
Default an Otla Payments. Failure
insurance, or any other payment nee
Default in Favor of 7Mrtl PerMs
agreement, or any mhv apt t.
tremor's ability to perform Gran r'a
False SbWneents. Any wawa . t%
this Assignment Or' RWetad Sur
or become lobe or find. p t any
Detective, CaSSmaralWtion. Thi Mail
any collateral document to cm d6Yr
Death or Insolvency. The diem
the limbed liability company, or yy
inwlveucy of Grantor, the appo' Ile
any two of creditor workout, or
Grantor.
Nn two time rewired Mies
filing of or to affect dlecha n
ar any ban, enana In
did that m
esty. Aagnment or y of the
termkmtion of Grantoi s
a receiver for any pan of
lmencament of any pmci
to make any payment for room or
severity agreement, Purchase m sal"
lags "fact any of Grantor'. progeny or
Grantor or m Grantor's behalf under
tow a al five time made or furnished
I force and effect (Including failure of
u any reason.
made), any member with@aws from
as or the deem of any member, the
ipnmem for the benefit of creditors.
:y or insolvency lows by or against
Creditor or Furfoltura ProeeeGrlp,. c [ of foreclosure or forfeltur gs, whether by judicial proceeding. sett -help,
rapou"aion or enY other method. by f GreMOr on by s n tai apaneY against the Rants or any Property
sewrirg the insists esa. This inckde m rr/l unto, including deposh accwml with Larder.
However, this Event of De "uit Mell not r qd' Sbpyta Grantor as to the validity or raasenaben..a of the
claim which is the basis of the creditor or forfeiter gtepd t a r give. Lander written notice of the creditor or forfalture
proceeding end daposhs with Lendar monies w a surety a creditor or forfeiture pmoceedin &ban amount determined by
Lender, in as sole discretion, as being an adequate reserve or bond for the dispute.
property Damage or Lea. The Property is last, stolen, substantially damaged, sold, or borrowed against.
Evans Afactlrq Gurenbr. Any of the preceding events occurs with ...Pact to my Guarantor of any of the Indwommea or arty
Guarantor die. or boWnrim i ... notation, or revokes or disputes the validity of, or liability under. any Guaranty of the Indebtedness. In
the event of a death. Larder, at its option, may, but mall of W required to, coma the Guarantor's estate to aseumer unaordidonelly
the obligation, rising under the guaranty in . manner sonstactory to Lender, and, in doing So, core any Event of Default.
Adver" Change. A material adverse change occurs in Grantor's financial condition. or Lender believes the prospect of pawnent or
prformmce of the Indebtedness is impaired.
knw y. Lender in good faith believes itself insecure.
Core Provision.. it any def"IL pmt than a default in payment Is curable and if Grantor has not been gorm a notice of a bath of
the same provision of this Assignment within des preceding twelve 112) months, it may be cured if Grantor, after receiving minan
notice from Lander demanding cure of such default: 11) worse the default within ten 00) days; of (2) 0 the urn requires tore than
ten 110) days, Immediately outlaws etas which Lander clowns in Lander's sole discretion to be sufficient h cons the defwk and
thereafter continoes and completes all reasonable and neva.eary steps sufficient to Produce omPlmce as Soon u reasonably
practical.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Dotal and at any time thereafter, Lander, may exercise any
one or more of wen following rights and remedies, in addition to any Other right. or remedies provided by low:
Amelent, Indobbtlrhsse. Lender shell have the right r its option without antics to Orator to declare the entire Indebtedness
immediately des and payable, including any prepayment porosity which Grantor would be required to pay.
Coal Soh. Lander Mali have the right, without notice to Grantor, to take poswabn of the Property and collect the Ran ",
Including amounts put due and unpaid. and apply the net Proceeds, over end above Lander's mate, against the lndabedeea. In
furtherance of two right, Lendar Shall have ell the rights provided for in the La den's Right to Receive and Cogent Rant, Section.
aura. If the Rents are collected by Lender. than Grantor irrevocably designed" Lender a Grentafs sttomay -in -far to endorse
instruments rmwwad in peymmt threw in the name of Grantor and h npotMe the sa as and cagect the Proceads. Payrrrns by
"hems or otter, users to Lander in responses to Lwlder'a demand shall satisfy the obligations for which the Payments ere made,
whether or not my proper grounds for the demand existed. Lander may exercise its rights under this Subparagraph Behr In arson,
by swot, or through • receiver.
Assistant Reca"ar. In the event of a Sun "" In wh9d to terecbss two Assignment, Lander MW be anmled to apply r any time
pending wed foreclosure wit to the court having judedictkm thereof for the .ppoinorlent of a receive, of any or ell of the Property,
and of all rents, Incomes. Profits, issues and revenues moi from whatsoever source. The parties agree that the court Mail
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ASSIGNMENT OF RENTS
Loan No:19002459 (Continued) Page 3
torthwith appoint such receiver with Me usual powers end duties of receivers in like cases. Such appointment mall be made by the
won as a matter of strict right to Lender add without notice to Grantor, and without reference to the adequacy or in towacy of the
valve of the property, or to Grantor's solvency or any other party defendant to such wk. Grantor hxeby specifically w'aivas the new
to object to the epmentmem of a receiver and agrees that such appointment shall M made " an admitted equity and ss s mattar of
absolute right to Lander, and consents to the appointment of my officer or employee of Lender as reeaning . Larder shall have to
right to have s receiver appointed to take possession of sit or any pan of the Property, with the power to prefect and preeero the
Property, to operate the Properly orecerMg foreclosure or sale, and to milaot the Rams from Me Property end apply the Proceeds,
Own ere above the teat of the receivership, against ten Indebtedness. The receive may serve whhout bed if permuted by law.
Lender's tight to the appointment of a reviver shall exist whether or not Me apparent value of the Property exceeds the IndebwdMe"
by a substantial amount. Employment by Larder shell not disqualify a Person from serving as a receiver.
Other Remedles. Lender shag have all other rights and remedies provided in this Assignment or the Note or by law.
EMetlan of Readedlse. Election by Lender to pursue any remedy shall not exclude pursue of any other remedy, and an election to make
expenditures or to take action no perform an obligation of District undan this Asskpr t, after Grantor's failure to perform, shed riot
affect Lender's right to declare s default and exercise its remade-.
Attorneys Faits: Expenses. If Lender instlhnes any suit or &talon to enforce any of the tens of the Assignment Lender Nail be
entitled to recover such sum as the court may ediadga reasonable as ettomill fns at trial and upon any appeal. Whether or net any
court action is involved, anal to the extent not prohibited by law, all reasensbb expenses Lender incurs that in Lender's opined are
necessary a any time for the promotion of its Warner w Me enforcement of its right, shag became a pact of the krdeMWness payable
on diamond and shag bear interest at the Nola rata from the data of the expwximme until repaid. Expenses covered by this paragraph
include, without limitation, awever subject to any limits under applicabe law, Lender's reasonable attorneys feet and Lender's legal
expends", whether her not there is a lawsuit, including reasonable attorneys fees end expenses for bankruptcy proceedings gneludeg
efforts to modify or vacate any sutomenic stay or injunction). appeals, and any anticipated post- jtgmam collection services, the cost
of searching records, obtaining tips ISPOns lincluding foreclosure reports), aurveyori reports, and appraisal fees, thin insurance, and
fees for the Trustee, to the extent permitted by applicable law. Grantor also will pay any coup coats, in addition to all other some
Provided by few.
MISCELLANEOUS PROVMONS. The following mist ommuc provisions are a part of this Assignment:
Amertdmente. This Assignment, together with an Do
onstituters the entire understanding and agreement of the
carts, as to the mattes set forth a this As e(t. t • n
ram to this Assignment shall be effective unless
given in writing end siged by the part/ or e�e rV
Ma dtesdon or amedmam.
C+Ptlon Haedkea. Cpan haedinpe i tla mart[ era far convener
s only at are not to be used to interpret or
define the provisions of this Assign
Governing Law. This Aaelgmnerrt M nW by federal sw pplicable W a . w to "pant net pta craned by federal
Way, Me laws d the Stets d taefgete d
Pra This salgmrnt Ides Men accepted by Larder
In the Sate of Rod
Choke ef Venus. ti mare is laws . Grantor pre n darer
eat W so it to jurisdiction of the Owns of Collar
County, State of Florida.
Mega. Tars shall be no mar of i re, r me ere
n w' any her interest a estate N the Property
at any time has by of for der, note Le der in nv an
e w an der.
Intereewvm. 11) a all tae r th m n sow
[tof
or ant r I Ir9g rds used in this Assignment in the
singular shag be d "mad to he us PI a ext a u requite. 121 If more Men one person
signs this Assignment as "Gran ." t Obligations of each Grantor a
he and sever . i means that It Ladder brings a lawsuit,
Lender may sue any one a mor Grantors. If Borrower and Of
an t person, Lender need not sue Borrower
first, ad Met Borrower need net in any lawsuit. Of The it
' e to a or semiona in this Assignment w for
convenience purposes only. They be used to aterprst or defin
pr or k Assignment.
No Weider by Larder. Lender shell be mad to hew waived any rights Assignment unless such waiver is given in
writing and signed by Lender. No de n on Me pan of Lender 'i1L!ye cis' any right half owe- as • waiver of such
right or any other right. A waiver by V Q inn of Mle A d ` lot prejudice or constitute s weiver of Lender
right otherwise to demand strict compliant Ihitara. d on of this Assignment No prior waiver by Ladar,
car any course of dealing between Unit - �"'__''a�/!,''SJtJ rw vas of any of Lader's rights or of any of Gramm's
Obligations as to env future transactions. Wane r is required under this Assignment, tie granting of such
minaret by Lender m any instance eat not constitute continuing consent to subsequent instances where such consent is required and
in st cases such content may be granted or withheld in the sole disoretion of Lender.
Modest. Any notice required to be given under this Assignment shall W given in writing, end shell be effective when actually
delivered, when actually received by msfacsimile (unless otherwise repu red by law), when deposited with a notionally recognized
overnight courier, or, if mailed, when deposited in the United Stet" mall, as first class, emitted or registered mini Postage Prepaid,
directed to the eddresses shown near the beginning of this Assignment. Any pony may change its address for notices under this
Assignment by giving written notice to the other parties, specifying that the purpose of the notice is to change the party's address.
For notice purposes, Grantor agrees to keep Lander informed at all times of Grantor's current address. Unless otherwise provided or
required by low, it Mere is more Men one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all
Grantors.
Powers of Atte ay The various agencies and powers of Mornay conveyed an Leda under this Assignment are granted for
Purposes of security ad may not be invoked by Grantor until such time as Me sera are renounced by Later.
Savareo". it a coun of competent jurisdiction finds any provision of this Assignment to M illegal, invalid, or unenforceable as to
any circumstance, Met finding shall not make the offending provision Illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shag be considered modfied so Met it becomes legal, valid and enforceable. If the offering
provision cannot be so modified. it shed W considered deleted from this Assignment. Unless otherwise required by law, the igegagfy,
invalidity, or unenforcesbilky of any provision of this Assignment shell not affect Me legality, validity at enforceability of any otter
provision of this Assignment.
Sucawors mall Assigns. Subject to any limitations stated in this Assignment on tranafer of Grantor's interest. tits Assignment shall
be biting upw end more to the bends of the parties. their successors Net assigns. If ownership of ten Property becomes waited n
e Person order Man Grants, Litre, without notice to Grantor, may deal with Grentor's succ "son with rdeence TO this Assignment
and the Indebtedoese by way of forbearance er extension without releasing Grants from the meig eta of ale Assignment or liability
under the Indentednees.
Tine Is d Me Eaeence. Time Is of the essence in the performance of this Assignment.
Wear Jury. Aa wtax; te thle Asegrrmre heaby waha ale rider[ to ere jerY trial in ever aunbn, Praaeedsg, as --for ati n brought
by any Perry against My Other party.
WAVER OF RIMT OF REDEMPTION. NOTWITHSTANDING ANY OF THE PROVISIONS TO THE CONTRARY CONTAINED IN THIS
ASSIGNMENT, GRANTOR HEREBY WAIVES ANY AND ALL MITTS OF REDEMPTION FROM SALE UNDER ANY ORDER OR JUDGMENT
OF FORECLOSURE ON GRANTOR'S BEHALF AND ON BEHALF OF EACH AND EVERY PERSON, EXCEPT JUDGMENT CREDITORS OF
GRANTOR. ACQUIRING ANY INTEREST IN OR TITLE TO THE PROPERTY SUBSEGUENT TO THE DATE OF THIS ASSIGNMENT.
DERNITIONS. The following capitalized words and tams shall have the foftowing maensgs when wed in this Assignment. Unless
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Loan No: 19002459
ASSIGNMENT OF RENTS
(Continued)
16B3
Page 4
specifically stated to the contrary, a0 references to dollar amounts shell mean amounts in lawful money of the Unhsd States of America.
Word. and terms used in the singular shall Include the plural, and the Plural shell include the singular, as the Combat may reoube. Word.
and terms not otherwise defined In this Assignment shall have the meanings attributed to Such terms in the Uniform Commercial Code:
Assignment. The word 'Assignment' means this ASSIGNMENT OF RENTS, as this ASSIGNMENT OF RENTS may be emerkad or
modified from time to time, together with all exhibits end schedules attached to this ASSIGNMENT OF RENTS from time to time.
Borrower. The word "Borrower' mean. Palmyra Club investors, LLC., A Rands Limited LlebNhy Company.
Default. The word'DOII means the Default set forth in this Assignment in the section titled'Defeult'.
Event of Dateult. The words "Even of Oefauh" mean any of the events of default set forth In this Assignment In the default sactich
of this Assignment.
Grantor. The word "Grantor" means Palmyra Club Investors, LLC., A Florida Limited Liabilhy Company.
Gwramor. The word "Guarantor' mean any guarantor, mraty, or accommodation parry of any or all of the Indebtedness.
GuaenW. Thar word "Guaranty" means the guaranty from Guarantor to Lander, including without limitation a gue enty of ell or Part of
the Not..
Indebtedness. The word'ledehtedneea' means all principal, interest, ark other amounts, costa and swans.* payable uno, this Note
or Related Docomema, together with ere renew W of, .aansbns of, modifications of, consolidations of and aubxthuhon, for the Note
or Related Documents and any impostors expanded or advanced by finder to discharge Granter's obligations or expanses inconed by
Leader to enforce Grantor's oWgatbnt under this Assignment, together with interest on such amounts as provided in this
Assignment. SpscificaNy, without limitation. Indebtedness Includes the future advances ea forth in the Future Advance. Provisbn of
this Assignment, together with ell interest thereon.
Laker. The word "Leedar" mans Bank of Naples, es successor and .-Signs.
Nob. The word "Note' mans the promissory note sated Jun, 27, 2006, In the orighbal princlPd amount of $927,500.00
from Grantor to Lander, together with ere renewals of, estensine of, mpdi iwtbns of, refinancings of, consolidations of, and
aubaritutions for the promissory note or agreement.
Property. The word -Property- means
'Assignment' eacdon of this Aaalgnmad.
Relined Dauarrares. The woma'RelatW
agreements, guaaaoec, security so
Instruments, agreemenn act doer eC
Rants. The word 'Rente" mans a of GI
future leas.*, including. withem ' Betio
deposits, advance rentda, ProTna ed Pr
lease. of every kind act name, whet r
receive and collect Payment a prOC y
and to all the Property a described in the
aments, ban agreements, environmental
Is, collaeral mortgages, and all other
section with the Indebtedness.
b, to and under any and as present and
e, accounta receivable. cash or security
l efna derived or to be derived from such
t 'a right to enforce such leases and to
AND NOT PERSONALLY BUT AS
eALF OF GRANTOR ON JUNE 27,
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ASSIGNMENT OF RENTS
Loan No: 19002459 (Continued) Papa 5
'`
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF 1 Val
ISg
couerr of )
The foregoing irnmumant wee acknowledged before me this day ut
by Donald M. Wagner, M•nogw of Pak"n, Club Invwto s. LLC., A Florida Unread Usti tr Comeamr, member for agent), an behalf of
P•bnyra Ckp {� A • l�At!d u sbMW Company. a fimked liability company. P w she ie personally known t ms or her
produpad 'i1� \ `'LC k ` ea kMntHication all not take an oat
1 m re of Pwwn Taking knowledomantl
k OWDYA raRyrwC Name of Acknowbd{pr Typed, Printed or Stwnpadl
a i NY(bMINS810NtDD1SN78
+�a 6otltl TMu Blol iy y Mtn, or Rank)
ISwial Number, if aryl
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