Agenda 06/24/2008 Item #16G 1
Agenda Item No. 16G1
June 24, 2008
Page 1 of 25
EXECUTIVE SUMMARY
Recommendation for the Community Redevelopment Agency to approve the relocation of the
Bayshore Gateway Triangle CRA office, approve new office lease with Palmyra Club
Investors, LLC (landlord) and authorize the Chairman to sign the lease agreement. (4069
Bayshore Drive) (FY08 Fiscal Impact $3,696)
OBJECTIVE: To receive CRA approval for the relocation of the Bayshore Gateway Triangle CRA
office to 4069 Bayshore Drive, approve new office lease with Palmyra Club Investors, LLC
(landlord) and authorize the Chairman to sign the lease agreement.
CONSIDERATIONS: The CRA staff has identified new office space to meet the CRA's future
space needs. The current office lease for the Bayshore Gateway Triangle CRA will expire August
2008. The new lease would commence July 1,2008 to provide adequate time to relocate furniture
and IT operating systems prior to the end of the existing lease. Currently the office works out of two
900 square foot spaces that are not co-joined (separated by 250 feet). The new office consists of
2300 contiguous square feet of space at a lease rate of $18/sqft or $3450/month. Collier County
Budget Guidelines stipulates "t)pical lease rates per square foot per year" as $20 - $26 for East
Naples Storefront.
On May 6, 2008, the Local Advisory Board unanimously approved a recommendation to relocate to
~ a location that has more floor space, more professional stetting, and is in a very visible location for
the public to conduct CRA business.
LEGAL CONSIDERATIONS: The lease has been reviewed by the Office of the County
Attorney, Facilities Management Department, and Risk Management. (MMSS)
FISCAL IMPACT: Sufficient operating funds are available in the FY08 budget to cover associated
costs with the new lease for July - September: $13,800 ($10,350 rent plus $3,450 security deposit).
Actual FY08 difference between renewal of current lease ($6,654) and new lease ($10,350) for the
same period is $3,696. Relocation expenses for Collier County IT, phone service and signage will
be covered by the existing FY08 Operating Budget. The proposed FY09 Bayshore Gateway
Triangle CRA Fund (187) budget contains sufficient funds to cover FY09 annual lease.
GROWTH MANAGEMENT IMPACT: Policy 4.7 of the Future Land Use Element of the
Growth Management Plan states that redevelopment plans may be developed for specific areas
within the County, including the Bayshore Gateway Triangle CRA, that may consider alternative
land use plans, modifications to development standards, improvements to infrastructure and
incentives to encourage redevelopment.
RECOMMENDATION: For the CRA to approve the relocation of the Bayshore Gateway Triangle
CRA office to 4069 Bayshore Drive, execute a 2-year office lease with Palmyra Club Investors,
LLC (Exhibit A) to commence July ], 2008 and authorize the CRA Chairman to sign the lease
agreement.
,-
Prepared by: David L. Jackson, Executive Director, Bayshore/Gateway Triangle CRA
Page 1 of 1
Agenda Item No. 1681
June 24, 2008
Page 2 of 25
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16G1
Meeting Date:
Recommendation for the Community Redevelopment Agency to approve the relocation of the
Bayshore Gateway Triangle eRA office, approve new office lease with Palmyra Club
Investors, LLC (landlord) and authorize the Chairman to sign the lease agreement. (4069
Bayshore Drive) (FY08 Fiscal Impact $3,696)
6/24/2008 9:0000 AM
Prepared By
David Jackson
Executive Director
Date
Community Redevelopment
Agency
Bayshore~Gateway Redevelopment
Approved By
David Jackson
Executive Director
Date
Community Redevelopment
Agency
Bayshore-Gateway Redevelopment
6/12/200811:36 AM
Approved By
OMS Coordinator
OMS Coordinator
Date
County Manager's Office
Office of Management & Budget
6/12/20082;51 PM
Approved By
Mark Isackson
Budget Analyst
Date
County Manager's Office
Office of Management & Budget
6/13/2008 9;31 AM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
6/17/20088;50 PM
file://C:\AgendaTest\Export\ 11 0-June%2024,%202008\ 16.%20CONSENT%20AGENDA \ 1... 6/18/2008
I EXHIBIT -A:
I
Agenda Item No. 16G1
June 24, 2008
Page 3 of 25
COMMERCIAL LEASE
THIS COMMERCl.\L LEj\SE (hercinafter the "J ,case") is made on this 1" day of July, 2008,
by and bctween PALMl.'R.A CLCB J"JVESTORS, LLC, a Florida limited liability company,
(hereinafter referred to as "Landlord") and the CULLlER COT l'\jTI' CUtvlMlNJTY
REDFVELOP~IENT AC;ENCY - BA YSJ-IORE GATEWA Y TRIANGLE (hereinafter rcferred to
"T ")
as cnant.
Tn consideration of the rents, covenants and agreenlcnts set forth below. the parties hereby
agree as foDows:
ARTJCLE I
JNI-OR.c'vL\TlO'\J PROVISIONS
The following terms shall ha\-e meanings assigned hereby:
1.1 Premises::\ portion of the real propcrty located at 4069 Bayshore Dr. Kaples, PI. 34112
containing approximately 2300 square feet, as mdicated on the sketch of the premises
attached hereto as Exhibit "/\" (the "Premises"), and incorporated herein.
1.2 Landlord; Palmyra Club Invcstors, a Florida limited liability company
1.3 Address of Landlord for notice purposes under this I ,case;
Palmvra Club Im'estors LLC
P.O. 'Box 112545
Naples, FL 34101\
1.4 Tenant; Bayshore Galeway Triangle Community Rcdevelopment Agency, a componcnt of
the C:ollier County C:ommunir}' Redevelopment Agency, and non-exclusnce ~sc by Bavshore
Cultural Arts, Ine. as noted in artached Memorandum of Understanding (Lxhibit "B").
1.5 j\ddress of Tenant for notice purposes undcr this Lease;
40(,9 Bavshore Oriye
Kaplcs, FL 34112
1.(, Tenant's Trade )Jame: N/A
I. 7 Commencement Date; July 1, 20118
1.8 Lease Term; follo\Vtng the Commencement Dare. expiring on June 30, 2010 (tbe
"Expiration Date"), unless sooner terminated as hcrell1 provided. '1'he Lcase Term shall
include an\' renC\val or extension wnich may he exercised bv Tenant. This Lease shall he
effective ilfter both Landlord and Tenant c;ccute it. .I
1.9 Pcnnitted L'se of the Prclluscs. CR....\ office uses to include public and governmental
m_ccungs, conferences, \vorkshops, e\Tcnts and public informational meetings. CR.:-\ is
allowed to sublease any space under eRA use provided by this lease and any future
addendums, as approved by the Landlord. Another use is prohibited without prior written
consent of Landlord.
1.10 Initial Base Rent for Month. $3450.00 Three Thousand Four Hundred Fift:\' and no 1()O
Agenda Item No. 16G1
June 24, 2008
Page 4 of 25
1.11 Operating Costs (pro-rated based on percentage of square footaRe under eRA control).
Electricity, water, refuse pickup and basic maintenance are the responsibility of the Tenant
1.12 Guarantors.
Bayshore Gateway Triangle component of the Collier County Community
Redevelopment Agency
1.13 Address of Guarantor(s).
3301 T amiami Trail East
Naples, FL 34112
1.14 Security Deposit. $3450.00
1.15 Property. The real property owned by Landlord which includes the Premises and located at
4069 Bayshore Drive ~aples, Florida 34112
ARTICLE 2
PREl\HSES AND TERM
2.1 Premises. In consideration of the rcnts~ 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 lnatters of record, as of the date hereof.
2.2 Lease Months. The term "Lease Months" as used herein shall mean consecutive n'V'ENTl'
,.OUR (24) months periods commencing on the Commencement Date.
2.3 Tenant's Du~' to Open for Business.
[Intentionally Delered]
2.4 Surrender of Premises. Ar the expiration of the Lease Term, Tenant shall (i) surrender the
Premises in the same condition as existed upon the CommencctTIcnt Date, ordinary wear and tear
excepted, unless Tcnant elects not to remove trade fixtures, sib'115 and other personal property at the
end of the r ,casc 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 Lcase
Term, or the earlier tennination of this Lease, without Landlord's prior written consent, the lease
shall automaticallv become a month-tn-tnonth lease with the n10nthlv rent in an anlount which
reflects the annu;l cost of living increase noted in Article 3.2. No extOension of the Lease Term will
be valid unless and until the same will bc reduced to writing and signed by both Landlord and
Tenant.
2.6 Option to Renew. Tenant shall have the option to rene'i.V this Lease for one additional year
(rhc "Rencwal Term"), provided (i) that at the time of excreising the option, Tenant is not then, or
thereafter during the balance of the Lease tcrm, in default hereunder; (ii) Tenant has not been late in
the payment of rent including the grace period more than thrcc (3) times within the twelve (12)
month period preceding the exercise of the option; CUi) that written notice of tne exercise of this
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Agenda Item No. 16G1
June 24, 2008
Page 5 of 25
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 reguest to renew this lease.
ART1CLF .'\
REKl
3.1 Rent. During the] .ease Term, Tenant covenants to pay to J ,andlord all of the Rent prm'ided for
herein. Rent shall bc 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 Parrics ackno\vledge that the base rental an10tmt under section
1.10 is due and payable along with and any escalations as specified below.
:\n additional SO/o annu.d cost of living 1f1CreaSc shall be added to the base rent at the beginning of
the second year of the lease.
In the event Tenant elects to rene'\\-" this Lease as provided for in Section 2.6, ab()\'c, Tenant shall
pay to Landlord thc base monthly rent, plus an additional fIve percent (5010) 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, \vhcther or not the saIne be so designated, shall be
considered as "Additional Rent", and shall be payable and recoverable in the same Inanner as Rent.
3.4 Past Due Rent and Additional R.ent. If Tenant shall fail to pay, within ten (10) days from the
date due, Rent, Tenant shall pay ro Landlord, on demand, a late charge of five percent (5':-,,) of the
latc amount. 1f'l'enant shall fail to pay, wirhin ten (10) da"s from the date due and Tenant's receipt
of Landlord's proper written notice of the same, all other changes designated as :\dditlonaJ Rent,
Tenant shall pay to Landlord, on demand, a Jate charge of five percent (5%) of rhe 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 Fxpenditures bY" Landlord. If afrer the expiration of any applicable notice and cure peliods,
Landlord shall make an" cxpenditure for which T enam is liable undcr this Lease and Landlord
provides Tenant '.vith adyance written noricc of the same togcther \vith receipts and evidence of
payment, the amount thereof shall be deemed Additional Rem due and payable by Tenant with the
succeeding installment of Rent (unless S0111C other date is expressly proyided herein for paytnent of
such amount) together wlth interest at the :\pplicable Rate.
3.6 Sales. Use and Excise Taxes (lhis Article Not Applicable to eRA as Tenant). "\ny sub-lessees
submitted by the CRA and approved bv the l,andIord 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 se\ver, \vater, and electricity, or any
other utility services to the premises. Tenant shall pay, before delinquency, all personal property
taxes and assessn1cnts on the furniture, fixnlres, equipment, and other property of Tenant Jocatcu in
the Premises and on any additions and ilnprovements on thc Premises belonging to Tenant. Tenant
shall also pay, as Additional Refit, all ~ales tax assessed against the Rent by goverolTlental authority,
C"\'t'O though taxing statute or ordinance ll1ay purport TO impose sLlch sales tax ag;:l,inst Landlord.
Tenant shall n1akc 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
consmnption of all utility services used or consumed within the Premises, fnr the lease space noted
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Agenda Item No. 16G1
June 24, 2008
Page 6 of 25
in Exhibit A. If any such charges are not paid when due, Landlord may, at its option, pay the same,
and any amount so paid by LandlorJ shall thereupon become due to Landlord from Tenant as
Additional Rent. LanJlord reserves the right to install flow meters on the water lines and charge
Tenant aeeordinglv for its use of water. In no event shall Landlord be liable for an interruption or
failure in the suppiy of any such utilities to the Premises, except in the event of l,andlord's gross
ne.gligence or intentional acts or omissions.
ARTICLES 4
CST'. OF PREMISES
4.1 Use. Tenant shall use the Premises solely for the purpose of conducting business in accordance
wirh 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 dcnllsed 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,
no\v in force, or which may hereafter be in force, pertaining to Tenant or its use of the Prclnises
(collectivelv the "Regulations").
4.4 Rules and Regulations.
(a)'l'enant covenants to comply with the following:
(1) No auction, ftre, 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 an)'
persons occupying adjacent prclnises. This covenant shall restrict Tenant from utilization of any
advertising medium which can be heard or experienced outside of the Pretnises, including, without
limiting the generality of the foregoing, flashing lights, search lights, loudspeakers, phonographs,
radios, or televisions. No radio, television, or other cOlmnUllicat1ons antenna equipment or device is
to be mounted, att.ached or secured to any part of the roof, exterior surface or anywhere outside the
Premises.
(3) Tenant will keep the Premises and the outside areas adjoining the Premises, free
from all insects, rodents, vermin, and other pests, litter, dirt, and obstruction and shall not sell
merchandise on sidewalks.
(4) ,\ll store floor area of Tenant, in eluding vestibules, outside docks, entrances and
exits; doors, fixtures, storefront windows, storefront "vind.ow areas and plate glass shall be
m.aintained in a safe, neat, and clean condition and in accordance with all applicable flIe and safety
cooes.
~.
(5) Tenant will not permit or suffer the Premises, or the walls or floors thereof) to be
endangered by overloading.
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Agenda Item No. 1681
June 24. 2008
Page 7 of 25
(6) Tractor-trailers are to be removed from the loading areas immcdiately
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
sueh manner and at such t.imes and places specified by Landlord.
(b) Landlord resen'es the right from time 10 time to suspend, amend or supplement the
foregoing rules and regulations, anJ to adopt and prOlTIulgatc additional reasonable rules anu
regulations applicable to the Premises, but only to the extent that such rules and regulations do not
nlatcrially litnit or interfere with Tenant's rights hereunJcr, 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.
ARTICLE 5 OPb:JC\TI'\IG COSTS
5.1- 5.3. Intentionally Omitted.
ARTIC!.!'. G I'\ISllR..\NCE
G.1 Insurance Coverage bv Landlord. Landlord shall maintain during the !.ease Term (and the cost
thereof shall be included in the Operating Costs), insurance for fire, flood, windstorm, vandalism
and malicious mischief, insuring the inlprnvements located on the Premises and all appurtenances
thereto (excluding wall covering, floor co\~ering and drape:,;). Landlord may also maintain at its sole
cost and expense (i) rent or rent value insurance including an extended cO\Terage endorsement with
respect to the Premises in an alTIOunt equal to the annual Rent for the Premises; and (ii) such other
insurances as Landlord deems rea!.'onably necessary or desirable to protect the Premises against 10ss_
Payments for losses under any such insurance policies shall be made solely to Landlord.
Notwithstanding thc foregoing, if any loss sustained by Landlord is causcd bv the negligence of
Tenant, its agents, servants, employees, licenses, invitecs, or guests, then Tenant shall b~ liable to
Landlord for the amount of the deductible under l.andlord's insurance. Further, Landlord shall not
be responsible for loss or uan1agc to items for ,vhich Tenant is responsible, as is more fully set forrh
below.
6.2 Insurance C:overare bv Tenant. Tenant agrees to carry and keep in full force and effect; (,\)
bodily injury, public liability insurance on the Premises against the liability of Tenant and its
authorized rcprescntatlvcs arising out of or in connection with T enant's u~e or occupancy of the
premises, with limits of coyerage on of not less than One Million Dollilrs ($1,000,000.00) per
accident and injury or death; (~) property damage l11SlnanCe in an amount nor less than ()nc 1\1illion
Dollars ($1,000,000.00) for Tenant's pcrsonal propcrty and fixtures; (C) workers compensatIOn
insurance ill the lnaxll11LUTI amount pernutted under Florida la,\'; (D) insurance against fire, flood
and such other risks as are, from time to time, included in standard extended co\~erage Insurance,
including insurance against sprinkler damage, vandalism and malicious mischief for Tenant's
personal property and fixtures; (E) plate glass inSUr<111Ce covering all the plate glass of the Prcrnises,
in amounts satisfactory to T ,andlord. The proceeds of such insurance, so long as this T ,case remains
in effect, shall be used to repair or replace the fixtures and equipnlent so insured, for the full
replacement value (without provision for coinsurance) uf all of Tcnant1s n1erchandise, trade fixtures,
furnisnings, wall coverings, carpeting, drapes, equipnlent and all other items of personal property of
Tenant located on or within the Pn::mi,es. TIle replacement of any plate glass damaged or hroken
from any cause whatsoever in and about the Premises shall be Tenant's responsibility. The public
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Agenda Item No. 1681
June 24, 2008
Page 8 of 25
liability insurance policy under (1\) above, sha]] name l,andlord, any person, fIrms, or corporations
designated by Landlord, as additional insured(s), and shall contain a clause that the insurer will not
cancel or change the insurance without fIrst giving Landlord ten (10) days prior written notice.
Tenant shall provide T .andlord, upon request, with copies of the policies or certificate evidencing
that such insurances are in full force and effect and stating the terms thereof. The limits of such
insurance sha]] 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, bur 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
T .anJJord immediately upon demand by f ,andlord 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 Landloro 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 prin1ary with respect to any policies by Landlord and that any coverage carried by Landlord
shaU be excess insurance.
6.3 Waiver of Subrogation. Landlord and Tenant waive, unless said waiver should im'alidate any
such insurance, their right to recover damages against each other for any reason whatsoever to the
extent the dalnaged property owner recovers indemnity from its insurance carrier.
6.4 Tenant's Contractor's Tnsurance. Tenant shall require any contractor of Tenant performing
work on the Prenllses to carry and maintain, at no expense to Landlord:
(a) Comprehensive general liability insurance, including contractor's liability coverage,
contractual liability coverage, completed operations coverage, broad form property damage
endorsement, and contractor's protective liability coverage to afford ptotection, 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 re'luired by any applicable law; and
(b) \'\Iorkers' compensation or similar insurance form and amount~ required by rlorida
and/or Federal law.
0.5 Increase in Fire Insurance Prenuun1. 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 fIte and exlendcd coverage
insurance that may be charged during the J .case Term on the amount of such insurance which may
be carried by Landlord on the Premises or the building of which they arc 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 sallle. In detennining whether increased premiun1s
arc the result of Tenanes use of the Premises, a schedule issued by the organization making the
insutance 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 prolnptly make, at Tenant's sole cost, any repairs) alterations, changes and/or
improvctnents to eqwpn1cnt in the Prenuses as to any condition created by the Tenant or existing
after the date of this Lease requi.red by the cOlnpany issuing Landlord's fue insurance so as to avoid
the cancellation of, or the increase in premiums on said insurance.
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Agenda Item No. 16G1
June 24, 2008
Page 9 of 25
ARTICLE 7
~L\INTI 'NANCE, RI,:PA JR Al'<D AJ TFRA TIOl"S
7.1 "hintenance 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, nlaintcnance and replacement::; to all
interior portions of the Premises under this lease and control of the CRi\ as shown in r:xhibit ,\ (or
as amended), anJ those certain exterior porrjons of the Premises specifically identified herein as
being the Tenant responsibility, including bllt not limited to, the intelior and exterior portions of all
doors, windo\vs, and plate glass on the Premises; the n1ecnanical, plumbing. hearing and electrical
equiplnent and systems servicing the Premises that are located in, or on the Premises: partitions and
aU other fIxtures, appliances, grease traps and facilities furnished hy Tenant or Landlord.
Notwithstaniling anything to the contrary contained herein, Tenant shall not be responsible for
repair, maintenance, or rcplacelnent of the strucrural components of the Premises, including exterior
foundations. the roof and stmctural portions of the Premises, tbe mechanical and plumbing
equipment and other systen1S servicing the Premises that arc located adjacent to the Pren1ist's) or any
other exterior portion of the Premises not specifically identified herein, except to the extent that
Tenantts proportionate share of costs incuned by Landlord to repair, maintain or replace any
structural component or other such con1ponent of the Prelniscs shall be chargeable to Tenant.
T cnant shall not be responsible for repair of any damage caused by any act or gross negligence of
I ,andlord, its employees or agents. Tenant shall be required to make stmcrural repairs or alterations
to the Premises that may be required by any Regulations. Landlord, \vithout notice, Inay. but shall
not be obligated to, perform 'lenant's obligations and odd the cost of such work to the next
instalhncnt of Rent due hereunder.
0)) Tenant will not ltlstall anv equipment that exceeds the capacity of the utility line> 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 \vhich \\'ould require
permitting or authorIzation frol11 any governmental body or entity \vithout I .andlord's \vrinen
consent.
(d) Tenant shaU give 1 ,andlord 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 liahle for any damages
caused by, or growing out of an~' 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, SelYIDg the Premises, except for the gross negligence or intentional
acts or omissions of J ,andlord. Neither Landlord nor J .andlord's agents shaU be liable for any
damages caused by or growing out of any defect in the Premises or any part thereof for fire, rain,
\vinu, or other cause, except for the gross negligence or intentional acts or omissions of I,andlord.
(f) AU property belonging to Tenant shall be there at the risk of Tenant or such other person
only, and Landlord shaU not he liable for dama~e thereto or theft or misappropriation thereof,
except for the gross negligence or intentional acts or onussions of T .:andlord.
(g) fntentionally Omitted.
7.2 Alterations bv Tenant. Tenant will not l1nke any alterations, renovations, ilnprovements or
other installations in or to any part of the Premises (including, without limitation, any alterations of
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Agenda Item No. 16G1
June 24, 2008
Page 10 of 25
the storefront, signs, structural alterations, or any cutting or drilling into any parr of the Premises or
any secming of any fixture, apparatus or equipment of any kind to any part of thc Premises), unless
and until Tenant shall have caused plans and specifications therefore to haye 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. A 11 such work shall
comply with an applicable local and state building, health and safety codes.
7.3 Preparation of Premises bv Landlord. Intentionally Omitted.
7.4 Renoyation and Chan?e. If at any time the building of which the premises are part undergoes
renoyation and change, Tenant shall use its bcst efforts to facilitate the I.andlord's and other
Tenant\ activities and work provided that it does not unreasonably interfere with T enanes use of
the Premises. If any lawful authority, law or code l'equires I ,andlord to install any fixture or service
for the benefit of rhe premises occupied by Tenant, ] ,andlord shall pay the cost for same.
ARTICLE 8
FIXTURES, PFRSONAL PROPEKIY AND SIGNS
8.1 Fixtures and Personal Proper\y. J\ny trade fL"tures, signs and other personal properry of Tenant
removed from the Premises by the Tenant at the end of the Lease Teml shall remain the property
ofTenanr. AlI improvements to the Premises by Tenant not remowd by Tenant at the end of the
1 .case Term, including, but not limited to, light /i"tures, floor coverings and partitions, but excluding
trade fL"tures and signs, shall become dIe property of I .andlord upon the expiration or earlier
termination of this Lease. After removing any trade fixtures, signs and othet improvements or
personal property of Tenant from the Premises, Tenant shall restore the Premises to the same
condition as existed at the COll1mCnCement Date, ordinary wear and te~lr excepted.
8.2 Sig:ns. Tenant may erect a sign within rhe area designated by Landlord, which sign shall be
subject to the prior wtitten approval of all applicable local gcwernment 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
00 the glass of any windo\v or door. ~A.ny such signs, awning, canopy, decoration, lettering.
advertising matter or other thing as may be appro\'ed by Landlord, shall be maintained in good
condition and repair at all times and shall conform to the criteria established from rime to time bv
I.andIord. As long as Tenant does not advertise any clothing or memorabilia on the frontage of the
Premises, and is in accord ,xllth applicable regulations regarding same, Tenant is permitted to
decorate a~ it Jccms fit. Notwithstanding anything herein to the contrary, Tenant agrees to
indemnify and hold Landlord harmle" from and against any and all fines, clainls, losses, and
expenses (including reasonable attorney fees and costs) that may arise as a result of Tcnanfs failure
to comply with any and all governmental regulations pertaining to Tenant's signage.
ARTlCLE 9
ASSIGN1NG, J\IORTGAGING, SUR] .FTT1NG, CH1\NGE IN OWNERSHIP
9.1 Consent Required. Tenant shall not sell. transfer, assign, sublet, enter into any license,
Inanagement or concession agreements, change o\\mership, pledge, mortgage or hypothecate this
Lease, or Tenant1s interest in and to the Prclmses (hereafter referred to as a IIDisposition") without
the prior written consent of Landlord which may be arbitrarily and unreasonably \vithheld. Any
disposition without the Landlord's written consent shall be void and confe.r no rights upon any third
person. Notv.Tithstanding any provision of this Agreement, should Tenant \vish to make a
8
Agenda Item No. 16G1
June 24, 2008
Page 11 of 25
Disposition hereunder, it shall prodde fmancial documenration suitable to Landlord illustrating the
creditworthiness and srability of the prospective new Tenant (or owner of'l'enant in the evenr the
ownership of Tenant changes). Tenanr shall provide I ,andlord with written notice of any intended
Disposition. Nothing in this paragraph shall relieve or release Tenant anti any Guarantor from its
covenants and obligations for the Lease Term, inclnding any option period. No interest in this Lease
shall pass to any trustee or receiver in bankruptcy, to any estate of Tenant, tn any assignee to Tenant
for the benefit of creditor::;, or to any other party by operation of law or othef\vise \vithout
Landlord's written consent. If this Lease is assigned, or if the Premises or any part thereof is sublet
or occupied by any parry other than Tenant, LanJlord 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 dectned a waiycr of this covenant, O! the acceptance of
the assib'1.1ee, tenant of occupant as tenant, or a release of Ten ant from the further perfortnance by
Tenant of the covenants herein contained. Tlus prohibition against a Disposition shall be construed
to include a prolubition agaInst any assignment or subleasing by operation of law, legal process,
receivership, bankruptcy or otherv,71se. '\vnLthcr voluntary or involuntary and a prohibition against
any encumbrance of all and any part ufTcnant's leasehold interest in the Premises.
9.2 Chang-e in Ownership (1'Ius Article '\Jot Applicable to CRe\ 'IS Tenant). Any sub-leases
submitted by the CIC\ and approved by the Landlord, witbout hmJting the foregOing, if sub-tenant
is a corporation. an incorporated association ot partnership, the transfer, asslgnment or
hypothecation of any stock or interest in the corporation, association, or partnership in the
ags:rregate of fort)~-ninc percent (490.'0) or less shall not be deemed a Disposition for purposes of rIlls
Lease.
,\RT1CU: HI
QUET EN]UY!\IENT
10.1 ] .andlord's Covenant. Provided Tenant timely pays Rent, .\dditional Rent and all other
amounts required by this] .case, and observes and performs all the covenants, terms and conditions
of this Lease, Tenant shall peaceahly and quietly hold and enjoy the Premises for the Lease Term
without interruption by I .andlord or an)' person or persons claiming by, through or under l.andlord,
subject to the tenus and conditions of this Lease.
"\RTICI.F 11
DAMAGE ,\)\;D DESTRl'CTTON
11.1 Dama~e to Premises. (a) If the demised Premises are, or any parr thereof shall be
damaged by fIre or other casualty, Tenant shall give immediate notiee thereof to Landlord and this
Lease shall continue in full force and effect except as hereinafter set forth; ~)) lf the demised
Prelnises arc partially damaged or rendered partially unusable by fire or other casualty insured under
tbe cO\'erage obtained by the l.andlord, 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 parti:111y unusable until ~uch time as the Premises are restored; (c) I f the demised
Premises are totally uarnaged or rendered \vholl)' unusable: by tire or other casualty, then the Rent
shall be proportionally paid up to the titTle of the casualty and thenceforth shall cease until t.he date
when the Premises shaH have been repalIed and restoreu. I.andlord shall restore the Premjses,
provided that in:,;urance proceeds are sufficient to rebuild the Premises. and Landlord is p~id Rent
from its business interruption insurance; or Cd) If the dt:1nised 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, J ,andlord or Tenant tuav elect to tcr1l1inatc this Lease by written notice to the
other given \vithin 30 days of such fIre or Gl.;ualty :;pccifying a date for the e~pirati()n of the Lease.
which \vi11 not be more than 30 days after gi\~ing such notice, and upon the d::l[e specified in such
notice the term of the Lease will expire fully and completely as if such date were the date set forth
9
Agenda Item No. 16G1
June 24, 2008
Page 12 of 25
above for the termination of this Lcase. In such event, Tenant will forthwith quit, surrender and
vacate the Premises withom 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 paYlnent of Rent made by Tenant '.vhich 'were on account of any period
subsequent to such date \vill 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 1110veable eguiplTICnt, fLlrruture and other property. Nothing
contained hereinabove will relie\~e Tenant from any liability that may! exist as a result of damage
from fIre or other casualty.
Tenant ackno\vledges 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 danlage thereto or replace the
sanle, except in the event of gross negligence or intentional acts or omissions of I.andlon.l. Except
as expressly provided herein to the contrary, this Lease shall not terminate nor shall there be any
ahatement of Rent or other charges or items of Additional Rent as a result of a firc or other casualty
which is the fault of, or caused by the Tenant. Except as provided for in this Lease, the T cnant docs
not have the right to cancel or terminate this J ..case.
~
ARTICLE 12
EMINENT DOl\Lo\IN
12.1 Condemnation. In the event that any portion of the Premises shall be appropriated o! taken
under the power of eminent domain hy any public or guasi-public authority, this Lease shall
terminate and expire as of the datc 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 (IO%) of the gross sguare footage of
floor area of the Premises is taken under the power of cnunent domain by any public or quasi-public
authority, or if by reason uf any appropriation or taking, regardless of the amount so taken, the
remainder of dle Premises is not usable for the purposes for which the Premises were leased, then
the Landlord shall have the right to terminate this I.e",e as of the date Tenant is reguired to vacate,
upon giving notice in writlng of such election within sixty (60) days after the date of such taking. In
the e"ent of StIch termination, both Landlord and Tenant shall thereupon be released from any
further liability to each other. Landlord afftnnatively represents that, as of tbe Commencement
Date, it has received no notification that the Premises is to be appropriated or taken under the
pov,.:cr of eminent domain.
12.2 Damages. \'Vhether or not thi, 1 ,ease is terminated, I ,andlord shall be entided to the entire
award or compensation ("Award") in any condemnation proceedings, but nothing herein shall be
deen1ed to affect Tenant's right to pursue from the condemning authority, but not from J .andlord,
above, compensation for the value of Tenant's interest in the I....ease and the improvctuents
constructed by Tenant on the Premises, including all itelns of Rent, Additional Rent, Security
Deposit, and other charges for the last month of Tcnant'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 Prclnises
which shall not have been appropriated or taken, and Landlord agrees, to the extent of the proceeds
of the A ward, as soon as reasonably possible, to restore the ren1aining portion of the Premises to a
similar qualiry ano character as existed prior to such apprOpL;at10n or taking.
10
Agenda Item No. 16G1
June 24,2008
Page 13 of 25
Thereafter, Rent shall be adjusted on an e'luitable 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 convevance in lieu of condemnation, but under threat of condemnation, shall be deemed an
appropri;cion or raking under d1e power of eminent dOlTIuin.
ARTICU-: 13
LIENS
13.1 Liens. Tenant hereby acknowb.lges 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 Lea~e shall be construed a~ consent on the part of Landlord to subject the estate of
] ,andlord to such liability. Tenant shall strictly conlpIy with the construction lien laws of the State of
};lorida. In the event that a claim of lien is filed against the property in connection with any work
performed by or on behalf of Ten ant, Tenant shall satisfy slIch 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 slIch claim \\'ithin said ten (10) day
period, Landlord may do so and thereafler charge Tenant, as ,\dditional Rent, all costs incurred b)'
I.andlord in connection \vith satisfaction or transfer of such claim, including all its attorneys' fees.
Further, Tenant agrees to inden11ufy, defend and hold Landlord harmles~ from and against any
danlage or loss incurred by Landlord as a result of any such claims of lien. If so requested by
] .andlord, Tenant shall execute a shan [orn1 or ITlelTlOranclum of this Lease, which nlar, in
Landlord's discretion be recorded in the Public Records for the purpo~l' of protecting T .andlord's
estate fronl clain1s of hen, as provided In Flotlda 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. 'lbe occurrence of anyone or Inore of the folknving 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 prompdy and fully perform an)' 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) I fa \vrit of attachlncllt or execution is le"ied on this Lease or on any of T enant's
property located within the T>remises; Of
(d) If Tenant makes a general assignment for the benefit of creditors, or provides for an
arrangement, composition, extension or adjustment \vith its creditors, or is generally insolvent or
unable to pay its obligations as they come due; or
(e) ([his Article Not Applicable to eRA as Tenant). An)' sub-leases submitted by the
ClL\ and approved by the Landlord, if Tenant flies a voluntary petition for relief, or if a petition
against Tenant under the federal bankruptcy laws or other insolvency laws is filed and not \\lithdrawn
or dismissed 'within ninety (90) days thereafter, Of if Tenant is aojudgcd a bankrupt; or
(1) If, in any proceeding or action in which Tenant is a party, a trustee, receiver, agent or
custoilian 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
I]
Agenda Item No. 16G1
June 24, 2008
Page 14 of 25
(g) If I ,andlord discovcrs that any financial statement delivered to Landlord by Tenant is
nlaterially false; or
(h) ln the event Tenant, before d,e 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 satnc are hereby leased, or ceases to use the
Premises for the purposes herein expressed.
14.2 Landlord's Remedies. If any Event of Default oecurs, then, r ,andlord shall have the following
options, without further notice or demand of any kind:
(a) Option 1. Sue for Rents as they become due; or
(0) Oprion 2. (I) Terminate this Lease; (2) Resume possession of the Premises for its own
account; aod (3) Recover immediately from Tenant damages for Tenant's default in an anlount cgual
to the difference between tbe Rent and fair rental value of the Premises for the remainder of the
Lease Term, together with all other charges, rental payments, costs and expenses herein agreed to be
paid by Tenant. Notwithstanding the foregoing, Landlord shall have a duty to take all reasonable
steps to mitigate its damage~ or
(c) Option 3, (1) Resume possession; (2) re-lease or re-rent the Premises for the remainder
of the Lease Term for the account of Tenant; (3) Recover from Tenant at the time eaeh payment of
Rent becomes due under this Lease, the difference between the rent for which provision is made in
this Lease, and the rent received on the re-Ieasing or re-rental, and the cost of all repairs or
renovations reasonably necessary in connection with the re-Ieasing Of fe-rental. Landlord is
authorized to Inake any repairs Lo the Premises and/or to subdivide or restlucture the Premises as
Landlord sees fit "Tenancy Repairs and Modifications". rurther, Landlord is authorized to enter into
new leases in which the lease tCMn Of other terms and conditions are different from this Lease
("r ,ease Modification"). Concermng 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-Ietting and mitigating Tenant's damages, and, as such are
done for the benefit of the Tenant and are ,'alid 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 Chaptet H3, Florida Statutes.
~ON!ithstanding the foregoing. with respect to re-leasing or re-renting the Premises,
r ,andlord and Tenant agree that r ,andlord shall only be required to me the same efforts Landlord
then uses to lease other properties Landlord owns or tnanag-cs; provided, ho,vever, that Landlord
shall not: be required to give any preference or ptiority 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
an}' such available space, regardless of when such alternative space becomes available; provided,
further, that Landlord shall not be required to observe any instruction given by Tenant about such
re-letting or accept any Tenant unless such offered Tenant has a credit '\7orthincss acceptable to
Landlord, leases the entire Premises, agrees to use the Premises in a 111.anner consistent with the
Lease, and leases the Premises at the sall1e or greater rent, fot no more than the current Lease Term,
on the same terms and conditions of this Lease, and docs not require an expenditure by Landlord
for Tenant ilnprovcments or broker's cOlnmissions.
12
Agenda Item No. 1681
June 24, 2008
Page 15 of 25
14.3 Remedies N on-Cumulative. The remedies given to Landlord in this Article shall be in addition
and supplemental TO all other rights of remedies whicb I .andlord may bave under law or in equirv,
or as specified elsewhere in this lease agreement.
14.4 Non-\Vaiver. The failure bv l.andlord to strictlv cnforce or declare a breacb of am term,
covenant or condillon of this J .~ase shall not be de~med TO be a waiver of that or any ~ubsequent
breach of the same or any orner tenn, covenant or condition. The subsequent acceptance of Rent
bv Landlord shall not be deemed ro 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\ knowledge of such preceding breach at the time of acceptance of such renr.
Acceptance of a portion of the Rent shall nor be deemed a waiver of the LandJord's rigbt ro
unmeJiatcly enforce this Lease to the extent of any outstanding Rents or other breaches. :\Jo
covenants, term or condition of this Lease shall be deen1cd to have been \vaived bv Landlord unless
such \vaivcr is in \vriting signed by Landlord. '
14,5 Rent Payments Under Default,-Jn the event of a default of any papnent due under this Lease,
Landlord may in Landlord's notice to Tenant of sucb default, require that Tenant's payment to cure
tbe default be in casb, casbier's cbeck, and/or certified check. Landlord and Tenant agree that
should Landlord so elect to require paynlcnt by cash. cashier's check or certified check, a tender of
money to cure tbe default, \Vhicb is not in tbe form requested by I.andlord, shall be deemed a failure
to cure the default. Nothing contained in this paragraph shall in any way uiminish or be con::;trued as
waiving any of Landlord's other remedies as provided eise\vhere in this T ,case, or by la\\/ or in equity.
14.6 P.xpenses of Enforcement. In the event any payment due l.andlord under this Lease shall not
be paid on the due date, said payment ,ban bear interest at tl1e Applicable Rate from tbe 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 sball be necessary for Landlord TO give more tban one (1) written notice
to Tenant of any violation of this Lease, Landlord sball be entitled to make an administrative cbarge
to Tenant of$150.00 for each sueb nollee.
ARTICLE 15
SECL:Rny DEPOSIT
15.1 Seclint'" Deposit. Tenant, concurrently with the execution of this J .ease, has dcpusitctl
with Landlord tbe sum of $3,450 Three Tbousand Four Hundred Dollars (the "Security Deposit"),
the receipt of whicb is hcrcby acknowledged by Landlord, wbich 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 pcr[onnance by Tenant of the terms, provisions, covenants and
conditions for this Lease. It is agrccd (i) tbat I .andlord may, at any time during tbe continuance of
any Event of Default by Tenant under any of the terms, provisions, covenants or conditions of this
Lease, apply said Security DepDSit or any part tbereof towards the payment of the rents and all otber
sums payable by Tenant under this Lease, and toward tbe 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 discbarged only pro tanto: (ii) that Tenant sball remain liable for any amounto that tl1e
Security Dcposit shall be insufficient to pay: (iii) tl1at Landlord may exbaust any or all rigbts and
remedics against T cnant before resorting to said Security Deposit, but nothing herein contained shall
require or be decn1ed to require Landlord to do ~o: and (iv) that, upon application of all or part of
said Security Deposit by Landlord, Tenant sball be obligated to promptly deposit with Landlord the
amount necessary to restore the Security Deposit to the an10lltlt held by Landlord imn1ediately prior
to such advance by Landlord. In the event the Securiry Deposit shall not be utilized for such
purposes. then said Security Deposit shall, afrer tbe payment in full of all sums due Landlord
hereunder, be returned by T .andlunl to T cnant within sixty (OJ) days next after the expiration of the
Term of tlus Lease. Not>.vithstanding the foregoing, in the event of the sale or transfer of Landlord's
13
Agenda Item No. 16G1
June 24, 2008
Page 16 of 25
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 onl~ to the new landlord for the return of
the Security Deposit and Landlord shall be released from all !labtlity to Tenant for the return of such
Security Deposit.
ARTICLE 16
SUBORDINATION, NON-DISTURBANCE AND XnORNMENT
lo.t Subordination by Tenant. Tenant hereby subordinates its rights hereunder to the lien of any
mottg,lgc or mortgages, or the lien resulting from any other tncthod of financing or n:fmancing,
now or hereafter in force against the Premises, and to all advances Inadc 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 reyuest 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 PrclTu:'lcs and/ or the land thereunder
by Landlord, an estoppel certificate shall be required froln Tenant, Tenant agrees to deliver, in
recordable fann, an estoppel certificate to any proposed lTIOrtgagl:c or purchaser or to Landlord
certifying (if such be the case) that tbis T ,ease is in full force and effect and that there arc no
dcfct1:'icS 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 Prclluses comes into the hanos 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 Landlol"d hereunder. Tenant shall execute, at T .andlord1s
request, any attornment agreement required by any mortgagee, or other such person containing
sllch provisions as such mortgagee or other person requires.
16.4 NOll-disturbance bv Landlord. The Landlord shall obtain for the benefit of the Tenant, a
non-disturbance agreement from any mortgagee. \vhich agreement shall be on such n1ortgagee's
standanl 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.
l\RTICLE 17
LL\IlILlTY, INDEMNl'tY AND "AS-IS" PREMISES
17.1 Limitations of Landlord's Liabilirv; fndcmnirv. Landlord shall nol be liable or in anI'
way responsible to Tenant or any other person for al;Y loss, injury or datnage suffered by Tenant or
others in respect of (a) property of Ten ant or others that is stolen of damaged, (b) injury or dan1age
to persons or property resulting frorn fll"e, explosion, falling plaster, escaping liquid or gas,
electricity, water, rain or leaks from any part of the Prenuses, or from any pipes, appliances or
plumbing work therein, or from dampness, (c) damage caused by other occupants or persons in the
Premises, or dle 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 of ornission) of Landlord, ;lnd which is not othenvise excluded by the provisions of
this p~uagraph. Tenant shall look solely to the estate and property of Landlord in the land anu
building comprising the Prenuses for the coll cccion of any juugrnent, or in connection \-'lith any
other judicial process reguiring the payment of money by Landlord, in the event of any default or
breach by Landlord, under this T ,ease, and no other property or estates of Landlord shall be subject
to levy, executlon or other enforcen1ent procedures for the satlsfaction of Tenant's remedies and
rights under thi!'oi T .ease.
14
Agenda Item No. 1681
June 24, 2008
Page 17 of25
17.2 Tenant's Indemnitv of Landlord. Tenant shall indemnify and hold harmless Landlord
against any and all dalnage"s or expenses arising out of or in connection with any accident or other
occurrence on or about the Premises, and from all costs, liabilities, dalins, charges, injuries,
damages or expenses, including, \vithout 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 Of 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 Prenuses. except in
the event of gross negligence, act( s) or omission( s) of Landlord, its offi.cers, directors,
shareholders, managers, employees, custOlners, guests and/or invitees. 1n case J ,andlord 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 'lenant shall protect and hold Landlord harmle", and pay all costs and
attorneysl fees incurred by Landlord in connection with such litigation, and any appeals thereof.
ARTICLE 18
\\;' ;\STF, ENVJRONMF]'o;TAl., (;OVFRNi\lFNT:\l. RFC;l:l.!\T10NS
18.1 Waste or Nuisance. Tenant shall not commit, or suffer to be conlnutted, any waste upon the
Premises, or .which may ad,rersely affect Landlord's interest in the Premises. '
1 R.2 Environmental Provisions, Tenant agrees to comply strictly and in all respects \vith the
requirements of any and all federal, state ;:Jnd local statutes, nllcs and regulations now, or hereinafter
existing, relating to rhe discharge, spillage, storage, uncontrolled loss, seepage, filtration, disposal,
renloval, or use of hazardous materials, including but not limited to the Conlprehensive
Environmental Response. Comprehensive and r -iability Act of 1980, the Superfund ,\mendments
and Reauthorization Act, the Resource Conversation and Recoverv Act, the Hazardous Materials
Transportation ___\ct anu the rIorida Hazaruous Substances La\\' (c~)llectively the "Hazardous \Xlaste
Law") and with all similar applicable laws and re~ulatioJJs. Tenant shall notify r ,andIord 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 accoruing to any Hazaruolls Waste.: Law, incluuing '\virhout lin1itation, any
asbestos, PCBs, radioacti\Te substance, tnethane, volatile Hydrocarbons, acids, pesticides, paints,
petroleum based prouucts, leau, cyanide, DDT, printing inks, industrial sohrents or any otner
tnarerial or substance which has in the past, or coulJ presently or at any tiJl1c 10 the future cause or
constitute a health, safety or other environmental hazard to any person or property (collectively
"Hazardous j\,latcrialsl!) upon the Prcn1iscs, Tenant shall prolnptly forward to T.andlord copies of all
orders, notices, permits, applications or other comtnunications and reports~ in connection 'with any
~uch Spill or Hazardous ~latenals. Tenant shall not handle, use, generate, manufacture, store or r
dispose of f Iazardous tvlatcrials in~ upon, under or about the Premises. Tenant shall indemnify"
Landlord and hold Landlord harmless from and a~ainst all loss, penalT)', liability, damage and
expense suffered or incurred by Landlord rdated to or arising out of rhe presence of Hazardous
TVlatcrials on rhe Premises, where such loss, penalty, liability, dalnage, and/or expense resulted from
a condition created or caused bv the actions of T enatlt, its offtccrs, directors, shareholders,
tnanagers, employees, custotne;s, guests and/or invirees upon the Premises. Such loss. damage,
penalty, liability, oan1age and expense sha111nclude, but not be Enured to (1) court costs, attorney's
fees and expenses, and disbursements through and including any appellate proceedings; (2) all
foreseeable and unforeseeable cooscyuent1al damages, directly or indi.rectly, arising out of the use,
generation, storage or disposal of Hazatdous ~1aterials by Tenant; (3) the cost of any required or
necessary repair, clean-up or detoxification of rbe Prerruscs~ and (4) The costs of preparation of any
closure or other plans required under the Hazanlous \,\/aste La\v, nece~sary to sell or lease the
Premises.
15
Agenda Item No. 1681
June 24, 2008
Page 18 of 25
ARTICLE 19
~lISCEU"ANEOL!S
19.1 First-Class Operation. Tenant covenants and agrees that at all times the busine" 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 fust-class in evcfJ' respect.
19.2 i\ccord and Satisfaction. LancIJord is entitled to accept, receive and cash or deposit any
payment made by Tenant for any reason or purpose and apply such payment, at l.andlord's option,
to any obligation of Tenant; any such payment shall not constitute payment of any amount owed
except that to which LancIJord has applied it. No endorsement or statement on any check or letter of
Tenant shall be deemed an accord and satisfaction Of otherwise recognized fot any purpose
whatsoever. The acceptance of any such check or payment shall be without prejudice to Landlord's
right to recover any and all alnounts owed by Tenant and Landlord's right to pursue any other
available remedy.
19..) Attorneys' Fees. In any litigation arising out of this Lease, the prevailing party shall be entitled
to recover from the non-prevailing party, reasonable attorney's fees, costs, and expen::;cs of sllch 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 Ap:reement. It is understood and agreed by Tenant that Landlord and Landlord's agents
have made no rcprcsentacions or prolnises with respect to the Premise;.; or this Lease, except as
cxpressly set forth in this I .eaRe, 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, \vith respect to the Premises, including, without limitation, any letter
of intenr.
19.5 Interpretation. 111e parties agree that it is their intention to create only thc relationship of
Landlord and Tenant, and no provision hercof 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 parries and no presumption or burden of proof shall arise favoring or
disfavoring any party by virrue of the authorship of any of the provisions of this Lease.
19.6 Force Majeure. If eitller 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 olaterial, failure of power, restrictive governmental laws or regulations, riots, insurrection,
war or other reason of a like narure not the fault of the party delayed in performing work or doing
acts required under this Lease, the period for the performance of any such act shall be extended for
a period equivalent to the period of such delay. Notwithstanding the foregoing, the provisions of
this paragraph shall at no rime operate to excuse Tenant from any obligations for pa)'1nent of Rent,
.Additional Rent, or any other payments required by the terms of this Lease when due, and all such
alllounts shall be paid when due;
19.7 Notices. 1\11 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 I.andIord may designate by written notice. All
16
Agenda Item No. 16G1
June 24, 2008
Page 19 of 25
notices from Landlord to Tenant required or permitted shall be directed to Tenant by certified mail
postage prepaid, hand delivery or by Federa] Express or other nationally recognized overnight
courier sen-ice at the address set forth in Paragraph 1.5 hereof, or at such other address as Tenant
may designate by wfltten 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 NUlTIbcts. This Lease shall be construed "\virhout reference to titles of
articles and paragraphs, which arc 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
Inasculine, feminine or neuter genders shall include all others.
19.10 Broker's Commission. Tenant represents and \\'arrants that it has caused Of incurn:J no claill1S
for brokerage commissions or fmders' fees in connection with the execution of this Lease, and
Tenant shall indemnify and hold Landlord harmless against and from all liabilioes arising from any
such claims incurred by Tenant (including, without limitation, the cost of attorneysl fees in
connection therewith).
] 9.11 Partial Invaliditv. f f any provision of this I.ease or the application thereof to any person or
Clrcumstance shan be invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and each provision of thiS Lease shall be nlid and enforceable to the fullest extent
permitted by law.
19.12 Recording. Landlord or Tenant may not record this Lease; except as required by Florida
Sunshine Laws, and as certified by the Conier County Clerk "fCourt> for the eRA, 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 Counrv. Florida.
19.14 Provisions Bindin!,. 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,
respecrively, of Landlord and Tenant. Each term and each provision of this Lease to be performed
bv Tenant shall be construed to be both a covenant and a condidon. The reference contained to
s{lCcessors and assigns of Tenant is not intended to constirute consent to assignment by Tenant
which is controned hy the provisions of Paragraph 9.1.
19.15 Corporate Tenant (This Article Not Applicable to CRA as Tenant). ,"ny sub-leases submitTed
by the CRA and approved by the Landlord, the parties executing tills Lease or any other documents
related to this I,case 011 bt'half of sub-tenant, herebv covenant and warrant that sub-tenant is a duly
qualified business entity in good standing;, and all steps have been taken prior to execution tu '1uahfy
sub-tenant to do business in Florida; that the undersigned is authorized to execute this sub-lea~e on
sub-tenant's behalf; all franchise and corporate taxes (if any) have been paid to date; and all future
fOIms, reports, fees and other documents ncccssary to cOlnply \vith applicable la\vs win be filed
when due.
19.16 Amcndtnents or ~v1odifications. No am.enchnent or modification of this Lease or anv consents
or pennissions of Landlord required uncler this Lease, shall be valid or binding unless red~ced to
writing and executed by the party against ,-,-,'hom enforcement is sought.
17
Agenda Item No. 1681
June 24, 2008
Page 20 of 25
~
19.17 Easements. Landlord reserves the right to grant any easements on, over, under and abm'e the
property on which the Premises is located for such purposes as I,andlord determines in its sole
discretion, provided that such easement will not materially adyersely interfere with Tenant's
business.
19.18 Right of Entry. Landlord and Landlord's agents shall have the right to enter the Premises at all
reasonable times (except in the event of an cnlcrgcncy in which case Landlord may enter at any tUlle
and without notice) and to show them to prospectiye purchasers or lessees of the Premises, and to
make such repairs. maintenance, serv.icing) alterations, improvements or additions as Landlord l1laY
deem necessary or desirable. Nothing herein conL-uned, however, shall be deeIned 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 othcrv..'isc herein specifically
provided.
19.19 loint and Several l.iabilitv. If two or more individuals, corporations, partnerships or other
busin~ss 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 I ,case shall be deemed to be joint and seyeral, 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, "\vith, or to all of them.
,-
19.20 No Discrirnination. 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 TinlC of Essence. TUlle is of the essence with respect to the pcrfol11lancc of every provision
of this J ~ease.
19.22 WAIVER OF A TURYTRIAL. EXCEPT AS PROIlIDITf'D BY Ll\W, L\NDl.ORD
AND TENANT HFRP.1W KNOWINC;I.S, VOU;NTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT or, UNDER OR IN CONNECTION WITH 'II IE LEASE, OR
ANY COURSE or CONDUCT, COURSE OF DEALING, STATEMENTS (\.,(!HETHER
VERBAl. OR WRITIEN) OR j\CTJON OF LANDLORD, TENANT OR ANY GUARANTOR.
THIS WAIVER IS j\ lvL\TERIAL INDUCEMEKT FOR LA!\:DLORD TO ENTER I~TO
TIllS J ,f'~ASE. FURTHERMORE, NEITHER LANDLORD NOR TENANT SHALL SEEK TO
CONSOLlDj\TEJ\NY ACnON IN WHICH A Jl:RYTRI,,\L lIAS BFEN WATVFD WITH
ANY LITIGATION IN WI-IICl I A .J1'RY TRIAl. CANNOT BE WAIVED.
19.23 Parking. Intentionally Omittcd.
19.24 Radon Gas. Radon is naturally occurring radioactive gas that, when it has accuIDuIated in a
building in sufficient ,-!uantities, may present health risks to persons "\vho are exposed to it over time.
Levels of radon that exceed federal state guidelines have been found in buildings in Florida.
19.25 Legal Representation. Intentionally Omitted. 19.26
19.26 Exclusivitv. Intentionally Omitted.
18
Agenda Item No. 16G1
June 24, 2008
Page 21 of 25
;
IN WITNESS WHEREOF, Landlord and Tenant have signed this lease as of the date set forth
above:
L\J\'DLORD; PALMYRA CLL'B I]\.,\'ESTORS, LLC
A Florida .(muted liabilirv companv
I' l' .
I, . ~, - ./ '/'j r!
Ih: ' . /"""'1 LiZ, Date; (< C
fohn' Sreffan, \lsriag~r
~.
,
WI~,.2cS~<; (as to Landlord).
,'~7~
iftb tc of \Xhmess _
! 'G--' ,):
/
i "\; () \~t( SV\c / ~ {Dot U
Print~d "lame of Witness
'OIl II, {( L. ,.-b c (, S ,,-,,^-
Printed I\:ame of Witness
c/
,\S TO TENA'-'T;
ATTEST:
DWIGHT E. BROCK
COMMUNITY REDEVELOPMENT AGENCY
OF COLLIER COUNTY. FLORIDA
By:
l3y:
-----
DONNA FIALA, CHAIRMAN
, Deputy Clcrk
Approved as to form and legal sufficiency:
--rrv~L"':-_ ,/Ju .uO~ - mM./. .
~nt-Stirling ~
Assistant County Attorney
19
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"
Agenda Item No. 16G1
June 24, 2008
Page 23 of 25
EXHIBIT B
MEMORANDUM OF UNDERSTANDING
Non-Exclusive Use by Bavshore Cultural Arts, Inc.,
of a portion of 4069 Bayshore Drive, Naples. Florida
This Memorandum of Understanding is madc and cntcrcd into this 1" day of July 2008,
betwecn the Collier County Community Redevelopment Agency, doing business as Bayshore
Gateway Triangle CRA hereinafter the "Primary Tenanl;' and the Bayshore Cultural Arts, Inc., a
Florida Non-Profit Corporation, hereinafter the "Subtenant."
I. 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 Propertv. Primary Tenant agrees to the Subtenant's non-
exclusive use of that portion of 4069 llayshore 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 Propertv by Subtcnant. 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 Leasc.
6. Liens. Subtenant shall nol 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. Securitv 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
10 the Primary Lease. Subtcnanl shall have access to potable water, restroom faeililies, 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
Agenda Item No. 1681
June 24, 2008
Page 24 of 25
9. Signs. Subtenant will not post any sign, card or placard on the Property except as approved
in writing by the Primary Tenant and Landlord, and in no instance shall said approval exceed that
permitted pursuant to the Primary Lease.
10. Waste to the Properlv. 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.
II. 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,
ifany.
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 ofthe 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 Mcmorandum of
Understanding to be executed by their appropriate officials, as of the date first abovc written.
ATTEST:
DWIGHT E. BROCK
COMMUNITY REDEVELOPMENT AGENCY
OF COLLIER COUNTY, FLORIDA
By:
. Deputy Clerk
By:
DONNA FIALA, CHAIRMAN
Approved as to form and legal suflieieney:
~,i~OO,jItf
MarJ e Student-StJrhn
Assistant County Attorney
~
22
Agenda Item No. 16G1
June 24,2008
Page 25 of 25
AS TO BA YSHORE CULTURAL ARTS, INC.
Signed, sc led ano- ivered in the presence of:
Oy \h!,~'" ?if,,?: "'-- /
Printed Name: 5C'1"~ r,' Q lA., "'"
Title: \) (i' ':> I (. ( >\. '\
STATE OF FLORIDA
COUNTY OF COLLIER
.~ The foregoing instrument was acknowlcdged before me this
--..J"v:.,c , 2008, by <:;<01{\('9...~ (k N-\!.\I'\i\' as 01,,>..<;ick "'- '-,
Cultural Arts. Inc., who is personallv known to me or has produced
as identification.
J8'!!o day of
of Bayshore
:-<OTARY P1'BLIC.STATE OF FLORIDA
"""'"'''''' Shirley M. Garcia
~ ~ j Commissioo # DD501305
",.,,,,,,,.,, Explfes; DEC. 21, 2009
BONDED THRU ATL.ANTlC BO:i1lING CQ., l:Nc,
Ji-Il. cJ:1 '
". t,,~.lA'}- CkJ1Uo.,
Notarv JYublic
Print~ame: ~i~iQ.l~ (hfff~~(^-
My Commission Expires:
AS TO LANDLORD: PALMYRA CLen INVESTORS, LLC.
A Florida limited liability company
Approval fc\r-BaY:W9rc Gateway Triangle CRA to sublease space within Exhibit "A" lease space:
, tf/ '
"y / " 0 , ';5-~1 D" ') 'y
u: , !,/, '-, 'I. " ate: " ,L> ' ,
Jolm Steffan, Mmlager
l/
wnNESSEs Cas to Landlord);
~~
~/// c/ , '
Signaru" ~itnc:s ~t2
/. Q.~ t:d ,.,z: ~
Signature of \X7itness -
I /
1:;;1( 0, ,) Of So\<;' (Y J 1Ik'_
Prinrco Name of\Xl1rness
):r.uii { J(c)CS';, ",
Printed Name of \Xlitness
'/
V
23