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Agenda 12/02/2008 Item #16E 1 EXECUTIVE SUMMARY Agenda Item No. 16E1 December 2, 2008 Page 1 of 86 Recommendation for the Board of County Commissioners to adopt a Resolution acknowledging that the County's Tax Collector, Clerk of Courts, Sheriff's Office and Supervisor of Elections have directly entered into leases for branch offices and/or warehouse space in which limited County business is conducted. OBJECTIVE: To obtain approval from the Board of County Commissioners (Board) to accept and execute a Resolution acknowledging that the County's Tax Collector, Clerlt of Courts, Sheriff's Office and Supervisor of Elections (Constitutional Officers) have directly entered into leases for branch offices and/or warehouse space in which limited County business is conducted. CONSIDERATIONS: As a matter of law, a County Officer may not enter into contractual arrangements for a branch office outside of the County seat. Only the County Commission may lease buildings or office facilities for the conduct of County business by the County Officers. The purpose of the attached Resolution is for the Board of County Commissioners to acknowledge that the above-referenced Constitutional Officers perform limited County business in the branch offices cited in the Resolution and acknowledge that each has entered into those leases directly. ~ Staff shall forward a memorandum to each of the Constitutional Officers advising that all future requests for use of non-County owned office space for the conduct of County business will have to be submitted to the Board of County Commissioners for advance approval through Real Property Management. FISCAL IMPACT: The annual lease payments, where required, are paid from each of the Constitutional Officer's annual operating budget. GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan. LEGAL CONSIDERATIONS: The proposed Resolution is legally sufficient for Board action, - JAK RECOMMENDATION: That the Board of County Commissioners approves and authorizes its Chainnan to execute the attached Resolution acknowledging that the Collier County Constitutional Officers have entered directly into certain lease agreements. PREPARED BY: Michael Dowling, Sr, Property Management Specialist, Real Property Management, Facilities Management Department .-- Page I of I Agenda Item No. 16E 1 December 2, 2008 Page 2 of 86 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16E1 Recommendation for the Board of County Commissioners to adopt a Resolution acknowledging that the Countys Tax Collector. Clerk of Courts, Sheriff's Office and Supervisor of Elections have directly entered into leases for branch offices and/or warehouse space in which limited County business is conducted. Meeting Date: 12/2/2008900.00 AM Prepared By Michael H, Dowling Property Management Specialist Date Administrative Services Facilities Management 11/12/200810:04:09 AM Approved By Toni A. Matt Real Property Supervisor Date Administrative Services Facilities Management 11/15/20083:10 PM Approved By Skip Camp, C.F .M. Facilities Management Director Date Administrative Services Facilities Management 11/18/20081:28 PM Approved By Len Golden Price Administrative Services Administrator Date Administrative Services Administrative Services Admin. 11/18/20083:10 PM Approved By OMS Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 11/18/20084:03 PM Approved By Scott R. Teach Assistant County Attorney Date County Attorney County Attorney Office 11/19/20089:19 AM Approved By Laura Davisson Management & Budget Analyst Date County Manager's Office Office of Management & Budget 11/20/200810:29 AM Approved By Leo E. Oehs, Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 11/21/20084:46 PM tile:/;r::IA1!endaTestlF.xnortl I 17-f)ecemner%,202%20200RI llio;',20rONSF.NT%70AGF.N.. II/?S/?OOR ,l\genda Item No. 16E 1 December 2, 2008 Page 3 of 86 RESOLUTION 2008- RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, ACKNOWLEDGING THAT THE COLLIER COUNTY TAX COLLECTOR, THE CLERK OF COURTS, THE SHERIFF'S OFFICE, AND THE SUPERVISOR OF ELECTIONS HAVE INDEPENDENTLY ENTERED INTO LEASES FOR BRANCH OFFICES AND/OR STORAGE SPACE IN WHICH LIMITED COUNTY BUSINESS IS CONDUCTED. WHEREAS, it is within the sole purview of the Board of County Commissioners to enter into lcases agreements in ordcr to conduct County business on behalf of the County's Constitutional Officers; and WHEREAS, the Collier County Tax Collector, the Clerk of Courts, the Sheriff's Office and the Supervisor of Elections have directly entered into lease agreements for branch offices and/or storage space at the following locations: Tax Collector: 12668 East Tamiami Trail, Naples, Florida (Lease attached) 50 South Wilson Boulevard, Naples, Florida (Lease attached) Evcrglades City Hall City of Naples City Hall (Lease Attached) 2348 Immokalee Road, Naples, Florida (Previously recognized under Resolution 95 -368) 8771 Tamiami Trail North (Letter from Guy Carlton acknowledging use of space) Clerk of Courts: 12668 East Tamiami Trail, Naples, Florida (Lease attached) 50 South Wilson Boulevard, Naples, Florida (Lease attached) Everglades City Hall City ofJ\aples City Hall (Lease Attached) 2348 Immokalee Road, J\aples, Florida (previously recognized under Resolution 95 -368) Sheriff's Office: Professional Developmcnt Center, 615 Third Avenue South Records Storage - various locations Supervisor of Elections: Jim's Stowaway, 3527 Radio Road, Naples, Florida (Lease attached) Flinn Storage, 3427 Progress Avenue, Naples, Florida (Lea~e attached) WHEREAS, the Board of County Commissioncrs acknowledges that the Collier County Tax Collector and the Clerk of Courts perform limitcd County business in these branch locations, NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that the Board of County Commissioners hercby recognizes that certain County functions are conducted by thc Tax Collector and Clerk of Courts, in order to conduct County business at the Icased premises at the locations listed above, and that the Board linds such direct lease arrangements by the Tax Collector and the Clerk of Courts to be in the best interests of the citizcns of Collier County and require no further action by thc Board. BE IT FI:RTHER RESOLVED that this Resolution shall take effect upon adoption, Agenda Item No. 16E 1 December 2, 2008 Page 4 of 86 THIS RESOLUTION ADOPTED after motion; second and majority vote favoring same, this _ day of ,2008. ATTEST: DWIGHT E. BROCK, CLERK BOARD OF COUNTY COMMISSIONERS COLUER COUNTY, FLORIDA By: By:_ TOM HENNING, CHAIRMAN , Deputy Clerk Approved as to form and 1 al s fli iency: Jeffre Count A . .' Page 2 of2 Agenda Item No. 16E 1 December 2, 2008 Page 5 of 86 ~WI ~. eat~~on C, F.C, COlUER COUNTY TAX COLLECTOR COURTHOUSE. BLM. C-l NAPlES. FLORIDA 34112-4997 (Z39Jn4-8171 w~vw.eolHertllX.tom November J 5, 2(1()5 Mr. Raul Medilla Fi flh Third Bank 8771 Tamiam! Trail ?oJ Naples, rL. 34 108 Rc: LeUCr of Appreciation Dear Mr. Medina: J would like to lake this opportunity 10 personally thank YOlJ for the professional hospitality extended 10 n,e Collier ('oLlnty Tax Collector's office to mamtain an office in your Fifth Thin! banking Cacilit)'. Citizens arc able [0 comillel both banking and county business all in onc building, We look forward 10 enjoying this mUlually beneficial opportunity in the future and thank you Cor your cooperation regarding this matter. If I ean be of further assistance, please contact me at 774-8500, Sincerely, Guy L. Carlton Collier County Tax Collector Agenda Item No. 16E 1 December 2, 2008 Page 6 of 86 CLAUDE A. HAYNES DEPUTY TAX COLLECTOR COURTHOUSE COMPLEX BLDG C-I NAPLES. J"L, 34112 PRONE: FAX: EMAIL: 941-774-8051 941-793-5595 chayneslg!colliertax#cum MEMO TO: Guy L. Carlton FROM: Claude A. Haynes DATE: May 1.2001 RE: Pelican Bay Satellite Office in First Nationnl Bank Building Our Pelican Bay facility is now completed and opened l'or business from 9 "\,1\1. to 4 P.M. on Monday through Friday. The Fir'st National Bank of Naples is extremely gracious in providing us the office sl'ace for this satellite. Mr. Frank Cirone, Rank Vice-President, and Ms. Bernice Warner, Bank Branch Manager, were most cooperative and helpful during the construction and tbe furnishing uftbis Dew facility. It was an absolute pleasure working with the Bank personnel and we look fonvard to a long relationship. ('- Aqenda Item No. 16E1 ~ December 2. 2008 Page 7 of 86 Retn: AnN: 7 Nom cm 01 NAms 73! 8lH 57 S NAPLES II Hil/ 4131774 OR: 4332 PG: 1995 R!CORDED In tbe O!IICIAL RECORDS of COIII!R COUHlY, II 02//112008 at lHOA!! DWIGlI'I' !, !ROC!, eLBIJ 35.1o RRC lIB INTERLOCAL AGREEMENT: LICENSE FOI< USE OF CITY OFFICE SPACE THIS INTERLOCAL AGREEMENT (the "Agreement") is made this ~day of February. 2008, by and between THE COLLIER COUNTY TAX COLLECTOR (lhe "Tax Collector"), an independent Constitutional Officer, and THE CITY OF NAPLES, a Florida municipal corporation (tl1e "City"). WITNF;SSETH: WHEREAS, Section 163.01, Flo;ida Slalutes, also known as the Florida lnterlocal Cooperation Act of 1969, permits local governmental units to make the most el1icient use of their powers by enabling them to cooperate with each otl1er to provide services in a manner Ihat will accord best with geographic, economic, population and other factors ini1uencing the needs and development oflocal communities; and WHEREAS, the City and the Tax Collector have determined [hat it is in their best interest 10 maintain an office for the Collier County Tux Collcetor within the Naplcs City] Jail; and WHEREAS, such an office benefits the citizens of both the City and County by pruviding jncrea~cd and caSler acl.'CSS to the services provided by the Tax Collector: and WHEREAS. an InterlocaJ Agreement for the use of office space expires on February 1.2008: and \VHEREAS, the City is wi!ling to gnlnt lax Collector a license to USe space in the Naples City Hall lor a three (J) year period on the terms and conditions contained herein. NOW, THEREFORE, based upon the mutual eovenanls and premises p,ovided herein, and other valuable consideration, the panics hereby agree as follows: Recit,,!s ]ncofDoraled. The above recitals are true, correct and incorporated herein. 2. Terms. For purposes of tbis Agreement, the following terms shaJJ have the folfo\.ving meanings: a. "Building" shall mean the Naples City Hall which IS located 3t 735 Eighth Street South, Naples, Florida 34102. b, "Premises" shall mean the southwest '~nd of the first floor uf {he Budding, con.:;jsting ofapproxjmately 360 square fed. Agenda Item No. 16E1 December 2, 2008 Page 8 of 86 OR: 4332 PG: 1996 3. Descrilltion of the Premises, The City hereby grants to the Tax Collector a revocable license to occupy the Premises, subject to an of the terms and conditions contained herein. The Tax Collector shall have the right to share in the USe of any common areas and facilities appurtenant to the Building with the City. 4, Term. The fetom of this Agreement shaH be for three (3) years (the "Tenn''). The Term shall commencc on FebrLlary t, 200S and shall expire nn cebruary I, 2011 (the "Termination Date"), Under the prcvisJOlls of the City of Naples PurehllSing Policy, the City Manager has the authorit)' to extend the ferm for ten (10) one-year extensions, At the end of the Term or if terminated prior to the Termination Date by either party, this Agreement shall absolutely end. The Tax Collector acknowledges that it has nOt obtained any type of easemcllt or permanent interest in the real property upon which the Premises and Building is locat<d. 5. l.icense Fe~, There shall be no license fees due under this Agreement, 6. Sen'ices. The Tax Collector shall be responsible, at its sole cost and expense, for janitorial and cleaning services for the Premises. The City shall provide climate control, electricity, and tdephane s~rvjce 10 the Pt'emises. Costs for electricity shall be paid by thc Tax Collector based un t:w percemagc of olliee spIlce occupied in premises, 7, Use ami Occupancy. Tbe Tax Collector shall occupy and USe the Premises .,olely for on office of the Collier County Tax Collector. 8. ellten!!;ons and Improvements. The Tax Collector shall not alter, improve or change the Pn:miscsl including existing signagc, without the \Yrjtt~n consent of the Cily; provided, however, that the locating and relocating of moveable partitions, telephone and electrical outlets, light fixtures, equipmenr and trade tixtures shalJ not be deemed alterations, improvements or clHmges to the Premises, Such work shall b~ done Dt such lime and in such manner so that the conductor such work does not unroasonably inrerJere With tbe use and enjoyment of adjoining premises, ifon)'. by otber occupants oftlw Building. 9 Emplovee Pllrking.;iThe Tax Collector's employees working at Naples City Hall under the terms of this Agreement shall comply with cmploye~ parking policies of the City. 10. TerminatiDn. Neirher party may unilaterally terminate this Agn::ement dlJdng the firsl three (3 J~, Thereafter, either party may terminale this Agreement upon twelve (12) months written notice delil'e,'ed '.0 the other party. Agenda Item No. 16E 1 December 2, 2008 Page 9 of 86 OR: 4332 PG: 1997 II, Assignment. The Tax Collector shall not assign, sublet, or permit the Premises to be used by others without the prior written conSent of the City in cach instance. ] 2, Indemnification, To the extent pennitted by law. tbe Tax Collector shall indemnify, defend. save. and hold harmless the City. the City's on;cers, agents and/or employees from and against any and all losscs, penalties, damages, professional fces, including reasonable anorneys' fees and all costs of Jitig"tion and judgments, arising alii of any willful misconduct or negligent act, error, or omission of the Tax Colleclor arising out of Or incidental to the Tax Collector's use of the Building andlor Premises, Or the failure of the Tax COllector to perform any dlllics under this Agreement, and to the extent permitted by law the City shall indcnmlfy. defend, save and hole! r,armless the Tax Collector, the Tax Collector's omccrs, agents and/or employees from ,me! against any and all lo~s(;:,'i, penalties. c1~mages. prof'e::3sionaJ fees, including n;asonable attorneys' ICes and all cosls of litigation and judgments arising cut of any willii.d misconduct OT negligence. act, error or omission or the City arising out or or incidenml to the Ta>: Collector's use uf the building and/or premises or Ihe i"ilure of the City 10 perform ilIJ)' duties under this Agreement. This indcmnificu{Ion provisiDn shall not be cunstrued as a w~ljvcr of any limitation of liability ro which the Tax Collector nr City may be entitled under r'lorida Law. ] 3. Notices and Address of Record. All notices required or made pursuant to this Agreel1lenl to be given by Ihe Tax Collector to the City shall be in "Titing and shall be delivered by hand or by United Slales Posta] Service Department, first class mail service, postage prcpaid, return receipt requested, addressed to the following: City Council City oCNaples 735 Eighth Street South Naples. Flmida 34] 02 All "otices required or ",ade pUrsuanllO this Agreemem to be given by the City to the Tax Colleclor shall be made in writing and shaH be delivered by hand ur by the United States Postal Service Department, first class mail service, postage prepaid, return receipt requested, addressed 10 the following; Tax CoJlcclOr. Collier County, Fiorida 3301 Tamiami Trail East. Bldg. C-J Naples, Flo6da 341! 2 Ann; Guy L. Carlton, Collier Count)' Tax Collector Either p~rty may chunge its address of record by w:-itten notice to the other party ~jvcn in accordance \virh req:'liremcnts of this Article. . Agenda Item No. 16E 1 December 2, 2008 Page 10 of 86 *** OR: 4332 PG: 1998 *** 14, Counlcmarts. This Agreement may be executed in aDY number of eOlmterparts, each of which shall be deemed to be an original as against any party whose signature appe.ars thereon and all of which shall together constitute one and the same instrument. J 5, Effective Date. This Agreement shaH lake effeel on the day of exeeution by the last party to execute this Agreement. 16. Recording, This Agreemeot shall be recorded by the Tax Collector in the Offic;al Records of Collier County within thiny (30) days aftcr this Agreement is fully executed. IN \VITNIOSS WHEREOF, lhe parties hereto have executed this Interlocal Agreement on the day lirsl writ1cn above. COLLJER COUNTY TAX COLLECTOR COLLIER COUNTY, FLORIDA By ATfEST: By: Tara A. Nonnanl ~t!.. ?;;lJRIDA BY:~ ~ 13i arnell, Mayor Approved as to form and legal sut'tidency: /) rr-\' i\ 'J /(" By: l~J \...J. L~",,",,:\ Robert D. Pritt. City Attorney LEASE AGREEMENT FOR Wilson Plaza TENANT COLLIER COUNTY TAX COLLEcr0R "^",,.B:!:!rn~<""" tQ;~y / I~l Agenda Item No. 16E1 December 2, 2008 Page 11 of 86 r I LEASE INDEX I, \'no...... 39, Wamr or Jury Trjlll. 2. Leur Term Aad. CollllDebCeDeat Date 4G. Atteu By Lllndl6rd 3. Aec:cptame Of Premise.a; 41, Sale By Ludlord 4, FAilunTo Ope.a 42. Starreadcr Of Premises 5. Quiet Enjoylnent 43. Relocation Of PremI~. 6. Effa:ti"f [)ate ... Notica 7. U.. 4" inahUity To Perform B. Baaoe Rent ... !\dvudrdDl And PrornotiGoal Fund 9. Puceat:lige Rent 47. Ruler; Aud RegubtioDS lG. Ne! Lease ll.bd Addidlilnal Rent 4B. Arto.-ary'. Fees n. Pa}'mcnt Of Additional Rent ". IBtenst or PUt Due OblJgaliollS 12. Proratiou 50. Time Of Ewac:e 13. ApplJeauon Ot hyDw:ats From Tcllltnt 51, Hold"wg Over 14. &curlly D-"t 52. Partiallnvalldit)' 15. Prepaid Rent 53, Broker Disc:la.iJIIer 16. ConlroJ of COI1lD)(Ql Are..r 54. Wai\ICr l7, lmprovemcDIll Alld Alwratiom Of Shoppia: Center 55. LeaR GldraDteeo lB. Sbopptug Center "ComlUOII Area Mablteuauce" 56. Sqa;:ellGn Aad Aslips. 19. SigDt S7. Headillgl or LIUldt6rd & TeWil.Dt 2.. I.mpl1.1Y~meDtt and AJter.atiom By Tena.t SB. No &tate By Tenallt 21. RepaiR By La.wlWrd 59. Entire AgrtlelDCnt 22. Repairs By Tenant .... Gover.ing Law 23. Rabbhb Removal 61. Radon Gas 24. Sidcwatk~ <i2. Razardour Subrtallct 25. Utilities 63. Schedules And Addendltm U, l'erliOlUIJ Prf..lPt'l"t)' Abd Le.ueJaoJd lDlpr~meDt Schedule A . Site Pflm raxes 27. UablUty lnSutUlCe Schedule B . Lega' DeseciptiClA 'B. Penon.' Property lnsnrance Schedule C - Landlord Impcove.Qleflts 2.. Subrogation &iIedu1e D - Teoant Improvrmellts 30, Umitlld Liability &htdule E. PtnDnal Gu.ra.n~ 31. lndemnlflcadoq Scbedule F - As b Condition C1flTemisK 32. O..m.age Or Dnb"uction G4. No Roc:or-dinC 33. Coooenmadoll 65. Odhlit!.o_ 34. Afi:5il:l'meDt And Subletting 66. OpOonsroReDf.'lV 35. utoppeJ CerdfiCllte. Attor.woel1t, Sllbordi..tiua 36. Default 37, Bankruptcy 38, Rigbts And Remedies "''''~7lIO~'.lX.' j flY JljL Agenda Item No. 16E 1 December 2, 2008 Page 12 of 86 Agenda Item No. 16E1 December 2. 2008 Page 13 of 86 LEASE AGREEMENT FOR WILSON PLA7..A nus LEASE, madt: U ofiht!Jld:JY otiJiYtl 2008, byllIld ~ Ga1&trum. Retail Iowstawoa, LLC, h~ refi::mld to AI "'LANDWRO" and HoN6RAsLE GuY CARL TON. in bU capacity as the Collier COlmty Tn Conector, hcreindt:rrri:m:il to as JENANT"'. Sectiou 1. PREMISES In oon.sideostioo of the rent hereafta ~ {(! be paid brTENANr to tAND1...OlID. and in oonsidcntirm oCthe CO\ICDants. of the I'Q}leCtive parties, each to the ocho- 10 he p=rbmed by them lit the time md in the mantler hereafter provided, LANDLORD does bcrdly LEASE and let uoto TENA.NT, and TENANT docs; hr:rcbyhire fun lANDI..ORD. fbo!le (:(ria.in Pn::m.is:. (hc:reina.Jl:er adled: "Prmrislz" or "the Leased Premiqtl ex "the Demised ~") Known as Unit tn&8, BuiJdin::: "2" situated in the 8bopping CCD.lcr known tr to be !mown lIS WiIsoa "1lZ1, _aWl In Collier COUD.ty, FlaridL (h~ calicd "die shopping CCIlier"~ \With Pn:millell cxmist ofa office space- ba\ling a ....idth of approx.ima(cly ~ feet, by (I dqJlb of appmximateJY!R leet, containicB an area of apptlIX.imatdy b111. 1Iquan: lCet. AIl dinumsim!lshall bcmeasured from tbe exterior ofa WlIll C1oq>f iJrintrriorpartywalls, which sha1lbemciuuredii"om the CClterline. The 00u0d4ries and l(lCllt1on of the PremigeS are mditatcd by atlIiIWultcbing 00 lbe silt phw oftlx: shopping cmrec, annexed bc:rcto as "Schedule A" and madc a part heceofbyre&-ena, as furtberdtt;aibcd CEI attachM Schedule: B. The use and oo:upetiOtl: by TENANT of the LeaBo:! PraoillCll shalt include the U!Je in oonunOll with others entitled tba-eto of1hc common arcu, c:mplo~' parldng 8tt:8S, .'irl'Vioe roads, loodWg 6lcilit:ies. sidcwi.lh And CU5lancr Clll' parlcing areas desiJ:Ollted from rime to time by LANDWRD. wbjm, bowe-.u, to the lemu and COlIditim~ of this agreement aDd to rrasooablerules aud rcguJaticms for the USIe tiu.:toofprClCl'ibcd &an time to rime by lANDLORD, SeCtlOB 1. LEA..IiE TERM AND COMMENC.EMENT DATE The lerm of this LEASE (lbe "LEASE Term") shall comwcnoeon the earlier ofj) Six: (6) Monw Atler 'hI:' <ate the Pn:mi!leS is delivered to T1:.'NM"T, completed in accordance with Sclwdule C ("IANDWRD ImprO\lUncnts~) Of ii) flu: daft TENA}.7 opens for husin~s to tht public (the "'Commencement Date"). and shall o:.pire Five (5) years and 0 IDO'IIths fallowing the Commc:nco;:nent Date. However, in the event the Cornmetlce.ment Date sh.a1l OCCUr 011 a dale other thao the first da:y oftbe:mo:Uh,. then the Commo:teement Owe shall be Cl>teodcd to the 6rst dayafthemooCh nc:xt SUl:O:ltding 1be~g of the ~Premi.!leS.furbusinl:lS$. In that ~t, TENANf ehall pay reot trr the n..-tional moo.th ClIl .!I per diem buis (eakuJlI1ed 00 the basis 0( II thirty (30) day mcmth) llllbl the C;.mmenoe:mc:nt Date and ihereaflC'T the 1:ese rent WId additional I'mt man be paid. in advaru:e, in equal moothly imltallmc:nr.s on or hem Ibe ~ day of eaeb and every mooth duriui:' the tam of this LEA.SE. Ncnvithstanding the above, in the tvI:lIt TENANT, after ~e effurt. i~ unable lO(lbiain the permits roquin:d (0 :;ompktc the PremilCl ill it!; inteltded use, TENANT tnlIy lerminrlte this Lease upctlllotice to LANDLORD, any ~t pa)'Wents or dcpot;it2; paNJ to lANDLORD shall De refintded to TENA.,"lr. and neither party shall have JIJIY further ctiigatiUJl5 ba-eunder. Upon roqU1C8t of UJ{DWRD. TINAJ.iT siWl provide wrirren ackn~t of !he lEASE COO'lmtllcxme:cf and ex:pinrtinn dates to LANDLORD prier to 'fE.'IIANT'S possession of the Premisr::s. Sec:tlotl3. ACCEPTANCE OF PREMISES TENANT shall accept P05.V:!l..'1IOll of the Premises in i!I "while box" per Schedule C ("lANDLORD ImprovemCD(s"). Immediu.lcly fucrea.fl:er. 'fENA1..'T Ilh.oll COlnmmce with the design and permitting of all additional improvements to the Pn:mUec. and upon receipt of all required permits, shall c:cunmencc making ~ch improvements, as outlint'd IIWd described in Scl1edule D ("TENANT lmprove2DeJltS") and shall proceed with all due diligalU to optIl its office in the ?anise.:! ?remilltS.. Section 4. FAll,IIRE TO OPEN & EXClISE OF LANDLORD'S PF.JUURMANCE In the event TENANT shalJ fail to cpa1 fur businesl4 fully fix~, stocked and l:tafIed within Throe (3) Months, with the right of cxtcm:ion of Three (3) MClDths, ifDCcded fullowing \.he COIIlJUClloemcnt Dale.. lANDLORD tfu.a1l have, in addinQll to My and aU TenlcWes provided bcreia. lhe!Ole option to t.cmUnllte thi.~ LEASE .A.nything in this agreem(;JJ! to the c:maary ncmithstulding, providing !lUCh couse: is nol: due to !he willful lIet a:r neg~ of lANDWRD. LANDLORD shall noc be decml.'rl in dcfBuj( with reapea 10 tbepofrnmance ofanyoftbe tenns, OO\'l:XllUlts au:Jd COllditiuns of tlti~ U:ASE if!ame (lhaU ~ du::: !n :my ~,k, lud:\.oti1., ...ivj] camnotion, war-Iil:e operariOll, in"'asion, rebeUian, hostilities. nlilitury Of usurped po~. SlIbotage, g<m:mmcllta! rq:uLarioos or OOlltrol.5., inability to oblain any malena/, service-or financing, thr~ Act of('J()() ur otbc:r cause beyood lhecootrol ofL....NDWRD. Section 5, OUlIT ENJOYMENT N"'I'C..t:s.~._Ol () 1,11 f ~ S~ect lO 'fE1'lANT obscrvi.Da aad pcrinning aU of the ClJ't'CIUlI11ll cooditiom and provisions required of TENANT hEn:in, TENANT Mall h8-;e quiet pcue.uion of the Premises cturin.g the LEASE lenn. S6Ctto.n i. EFFECTIVE DA TIt 'Ilris LEASE shall b::ca:ne a bind.iu.g and c:lJWrceab1e agrc:cm.en.1 upon the date c:u::cut.ed by LANDLORD (the "EfIi,;;ti-;eDate..). Stct10b 1. USE of PREMISES It is ~ IDd agreed between the pa:rtiez blnro and TENANT COvenallts that: durir:lg the cootinuance of thil tEASE the PrecJ~ shall be usod .and occupied 0l11y as II local govt:m01cnt 1:nncb. o!6oe. including &ef\.'K:a: provided by the Collier County Tax Collector o.nd lUI)' otbet Icca.I 8ovettU'nent sc:rvices. mcluding smriceI; provided by I.oca! government oonstituriooal offices,. 1Nbic:b are alLowed by Tenant and fur no oth~ purpoo= or purpose&. 'Without. the prior writtOll consent of lAJ'.t'DWRD, and TENANT I.gI'1:IeI to cause thc: Lc:ascd ~ to be ~ed b' !IDCh use during the entire term of this LEASE and. co cooduc:t its I:lusinea at III timelI in . high-class.-ad reputable manner. TENANT exprualy agrees, du.riog the entire tam of thi.s LEASE. excepl in the evml of fire. wind.~1ml1, Of ather casualty tt Act of God, l~ koecp il1i sure on !be Danised Pn:ram opetI cmtinuously fir hrsiness dur1t18 !be cpcrating hourg pm:cribed by ~LORD. as more ~cally l:Cf fbrth iD &dioo 47(:1). In no event shall TENANT merclwtdile cr crnduct its business iD. aay DWlnc:r that would be !ijectilmllbl.e or unsuitable b- the Collier County bmiiy oornmwrity, and. lANDLORD shaD have the autb.crity to prescribe slIl;.b reasonable rules gO'YO'IlIog the coaduct ofhssintss in !be mopping ce:n.tel (or !:be madumdismg ther~f), as LANDLORD in its IIDle ~0lI shall deem neocssary to CD&llJ"e that ImI:b mmdards. arc ob8crvoi Scctim 47 of this LEASE containJ those Rules and RegulationB in ix-~ Bot !he time of '\his LEASE aecurioo, buc LANDLORD also ra;erves the right, from time to time during !be term of this LEASE, to add, modi{y, alter or rescind such mles governing the canduct o~ in and ~titm of fue sl'l(:wing cmtct, as 1..A.NDlORD iD its ROle disa'elion shall decm n~ ill crdtt to promote 8 first class rommercial errvi1"lXlttlcct far Ihe bcn~t of customen Md tenlU1U of the shopping center, cr to in&W"e and pn:::set"\!e the safety, Wl:lflu-e and cmuncrcial republtiou of1hc tbcpping ccnll:r. 11::""NANT covmanlJl and ag:N!!l!$ to oompJy 'With all such rules and regulatioos of which TENANT lw; notiec, provided that 1IC1 modiflcatioos or alteralioo ot'tbe rules and rcgulatioos r.hIlU prohibit lenInts busWcu or I~uirc a ch.imge in tmaDII. cp:ming hour&. TENANT agro:s that it wilt cooduct aU bu5ine."lS in a lawful manner and in,good filith,-ilO as to aeare the beRllIer'Vice pamble frr this t)pC' ofbusine.or:s a.nd to prcr.idelh~ rsnge ofllClVic:es typicaUyprovidcd by a tax coLlectorlnncb office IS ootlincd herein. Section 8. RASE RENT &ginning on the Cornme:nce:ment Date IlOd ~uing Ihrough the end of the I..EA.SE Tenn, TENANT shall pay to LANDLORD, at the addrea bcI'Cina1l.er provided in Sedioo 44. without notice, dr:mand, deduetioo Cf' set-off whatJoc:w:r, in lawf'u! Uniled StHa c:.urrmcy. the fOllQWjng Base Rent, in adwncc, 011 (r hefure the firwt day of each calc::o.dar month during the LEASE T cnn: B F~ To ~ Moo~'_1 Am.."." I I CD OOY I 20.00 4,,628.33 SS,S40.00 _.~ ~ , BOY 2 i EOn .20.&0 '.00% 4.81J..7 57,l61.60 _3 BOY) roy, 21.63 ."'" 5,006-01 &0.072.06 . -~Y4 FOY< 22." ".00",4 5.2D6.25 62,_414,95 -~ BOY S FOY> ~~ ~~.OO% 5.4].00 __ M,97~.~ , BOY 6 EOY' -1 . BOY'? EOY7 , ron -+-3---1 .. ~- OOY' OOYO roy, -i lQ BOY lO EOY 10 "CD".. Cowml:UCCn~t Date "EOY- .. End of Year "BOY" .. Be,inning ofYr The an. schWu1ed payment of Base Rem lUld Additional Rent., Il$ the I.a<<er is herem de:ii.ned, shall be paid by TENANT ~ \XlOUIJeIlOemetlt of this I~ agrecmeot, as pre\iioosly defined. If 1ENANT fails to pay AS aod wheo due the proper amount of guaranteed minimum rOltn~ or any ather amounts due tolANDLDRD under this lEASE.. !hen. iJ:I additioo lo I11Y otha- n:mtdi,a; awilable to LANDLORD unrlcr this LEASE. LA.NDWRD may rcquircTENANT to payro LANDU)RDa lAte charge equal to Tc:n DolWs 0'10.00) ix' each dlly anysucl1 atnourlt is O\ICI"~ in ocdcr to defray U\NDLORD'S e\JlO1stS of admlnictering and handling suth late pa,:.ment. In addition, if any checks JIf'C8el1tOO by 1mANI' shal.! be retUlt1Od. Of disbooored fur any re:a.'tOO. LANDLORD. at its ooJe ~cm, may require such payment and all future ptlymClllt'l to be: made by cash, Io::al casbla'~ cbcx:k oc oIhcr C"oiITO.Il funds lIIld. in ackiitK:c, TENANT iball pay to LANDWRD a fee of Fifty Dollarn ($50.00) fur r:acb J;UGb trfwv ~I'::S/'~..o: Agenda item No. 16E 1 December 2, 2008 Page 14 of 86 dishonored cht:d:: to defr!l)' lANDWRD'S castS and administrative c:x.pc;:a..a in coonectioo therewith. TENANT aclatowlodgC$ and 8g:t"eC\ that the AOOW charges rqm:&cnr I filii and R:IlllClDable ftlbmate and. liquidation nfLANDWRD'S eltpeDIJe il:l file management oftb.e Sbcwing Center resull:iDg from such .incidea.ls, fticb apcnse i..\; JIO[ COlltm:lp1ated nor includediII au.yotbeJ- fCDtall'J cllargcprovids;l kl be paid by'IENANT. Section I). PERCENTAGE RENT 17rif Section l"t~miONJJy Omittl!li SeCUOD 10. NET- LEASE M'D ADnmOSAL RENT Thi:s is a net LEASE und the base rent, adciitiaaal rent IlI1d all other sums pa)'llble he:curllx:r by TCIlllIlt mall b:: paid Without t:lotire, demlU'ld. setoff; countuclaim, dectnctim. ar cid'e:nse and, ex.cqX as otbc:wise ~y pI"O\;~ herein. without abatern.ent tr suspension. If 1& the intent fer the Base: Rent IlIId all sales or IJSC taxes imposed thenon pa)fthlL": to LANDWRD to be abscluidy net of all 8IlII.ua1~!le!I.!lIaIciatcd with the opetatiotI of the ShIWine: Cem:er. 111c:rmurc. in additioo to Base Rent, lI& airesaid, T.ENANf shall pay. 88 Additiawl Rmt,. its Pro Rata Share (lIS herein lk-fined). plua!mY salC6 ex- Wle taxes I.l~ !baron, of the ful.lowing: a) TAXES. The tmat gcneml and special n::aI estate tax.el!l and llS5ClI8meut! whidJ arc levio.:llmci 1I~ 01.1 all land aDd buildiogs in !he Shcpping Ca:lll!f, including 'the Pr~ and aI] c:omrnoo areas, during the Tenn, together with lANDlDRD'S cxpelJge1i in obtaining or atnmpring to obuUn any refuod (I"" nrluctian fuereo( TENANT'S !lll.id share oflllJ :'IUd! taxes aod ItS5CS!Ill"leDIS shall be paid in mODrhly lnstaUmoou on or beire~ first day of eacll calendar month, in ad:VI.DCe, in an amount atimatcd by LANDLORD, Upon receipt orull lID; bills and asses.<n1enl bilk Irtttiwtabl~ to acy Lease Year during the Term., LANDWRD shall furni:sb TENANT with a written lltatClllall of the actual amOWlt oflENANr'S saidsba:re oflaXCI:!. and IS!lC8SmOl.ts h- web LEASE Year, ffthetotnl amollOtpaid by TENANT unda-thil: Sectim ir any LEA.SE Year shall be less thao. the actual amoout due n-c.w TENANT Ii:r sud1 LEASE Year as!lhcwm OIl wch statement. TENANT shall pay to lANDLORD the differCJce betwo::o the amtUlt paid by TENANT IlJId !he actual amoont due, SId deficiency to be paid withm tQl (1O) daysafb:.r dt:ound IIlCtdxhy LANDLORD; IIIId lithe Iota] 4mOlmt paid n,.' TENANT hereunder fer any LEASE Year sn.u cxo::cd Ad ad1m\ amount due &o.:n TENANT fur !>IJI.lb LEASE Year, such excess mall be credited a~st paymc;ntll hereunder next due.. or uno pllytlle:nts life nw due, refunded b): LANDLORD. TENANT shall funtu:r pIIy, as additicw.t rent,. all sales, n:ntallT rc:uta! tl!le taxes related 1'0 the Premi!es assessed by any ~ovt:tIlIDCnt&l al.Ltbority wl1erbcr mc:ast.1red by Tl:."'NANT'S gmo;:; rental pIl.)ments ar othl:l"Ml:le. and whether charged against TENA}.,'T or L\NDLORD {but nor includiog inoom~ or francbi.!le taxes (Y my other tD.es imposed llpon or measured by lANDLORD'S net income, prOfilll or net worth \lnlaq; the same shall be imposed in lieu of rt:aI e!l:atc Well), Allmoum:s of IIdditional rmt payabk plJrs;uant to this Section shaJl be payable in the manna- and at the plllCe provided fur in Section 44 bc::reo( TENANT shall further pay and dlldutrge when due a::n)' i:da-aI, llbltc. oooot), or municipa.l tax Je..oied or asse~ againtd the l.e:aldw]d ClItate created hereby, aDd any tuC':S ]rned (If IIssessed against any tnide fixtures. fumisbin;!, equipnu:nl.. l.e.ase.hold lmproVttneJ1U, &!terariOlli or IIodd:irioos mBrle by TENANT. merchandise GIld p~al propc1yof any kind, owned, insl:all~ or tJ.sc:d by TENANT iD ex upw the Prem~ during the T crm. b) INSL'RANCE: LANDWRD Wll, durin!; the Tam, keep in fuD bee and ~ PlIblic habUil)', prq..erty damllge, fire. o..-u:udecl Cl:JIIelage. CllSWllty and oilier mlil.D'8J'lCe Clllried by lANDI.DRD ~g the PrcnjllCs and the ~ing Center (=iuding tile TENANT lmprovanen~ and ~y f<<JuU-ed to he ifU;ured by T'ENAA'T pursuant to Sectioo 27 hereof), with ~ and i.D amowus as are cwtOOlary with respect 10 like properties in the IlreIl where lhc Sbopping Canc::r is lo.:aed. TENANT'S share orall such m....l.liaJ1~ (!);petllleS WO bep;lid in moothly inQUmeuts, as Additional Reot,. Ol] or bcinthc fint day ofcach calendarmoo1h, iu advance, in an lilIlOOIlt estimated by LANDLORD. Any deficien...-y Of OVCrpa)ml::nt with respect w the amouot ov.ned by lENAI';T fa any period of time lihall be adjusted. in tile ltlIWIlO" provided WIder &ctioo f 1 r'Pll)mcnr of Additional Rent'1_ If TENANT'S approved use or OCl:l.lp8ncyofthc Premi'lQi.:;ball ca~ IDlY m=a.'lC in PrenUUlJJS far inwrancc- OOYCIaEt of the Shopping Center. TENANT shaD be respomdbJe fur payment of the entire prunium inata.'lC. c) COMMON AREA MAINTENANCE (CAMJ: YQr me Shqlplng Ccntais [Jpcral:il1g Costs (as hetclla/k:r defined under Scctioo 18). $t,ctiUD 11. PAYMENT 0.1- ADDITIONAL REl'.rT TENANT shall J'8!Y lANDWRD, togdher with Base Rent. a moolhly installinero of AddItional Rent in all UIlOWlI estimated b}' LANDLORD as pro'llided herem. By March 1 of each }'ear the LEASE is ic dfoct, Lo\NDI.DRD shaU endeavor to deliver to TENANT l'1 sta.twJ.ent of the ACttliIJ Additional Rent payable~' TENANT lOr the pria )ear. Any fwth.e:- AddiliooaJ Rent amC1UD1 due: In lANDLORD shaIJ be paid by TENANT, without ofiJet cr dtu:tand, within Len (lO) days fuUuwing LANDIDRD'S dQi~"::!j' of said s:aLtmenL II the lul~ Additiooal Rent p8){nrot recei\'td by r-.. /..,!.J ;"").] "'''I'U3f.!IOJ.l:>v.CU ~ Agenda Item r>Jo. 16E 1 December 2. 2008 Page 15 of 86 LANDWRD ill gn:alcr than the acnw.1 Addition.a! Rent due fa lbe sam.: period. TENANT Jb.dI n:o::ive 1I. credit in the amount of the OVCIpayma11 apiost the DeXI required PI)'ment of AddiIional. Rcol In !he eYen! l.ANDLORD cstimltt& AdditionaJ Rmt will be pu.~b1.e by tENANT .bUowing tEASE Cllpimim, lANDLORD may dedUl:t s.udl ~ !ll1'O5 .&om TENANl''S Sa:u-ity Depo$il prier trJ n:tunl of same: to TENANT, bw I1JCb deductiaJ. shall not rcm~ TENANT'S nb11aatiCll to pay its Pro Rw. Slwe of actual AdditiaoaI R=t CI1Ct:I such dc:mnnination is matIe. ~hoold 1I. credit be due TENANT lit the tcnninaticn ofu LEASE. LANDLORD shall reanit paymc::n11D 'ICNANT wiihin ten (10) da~ of stal:emcDt Usuance date. The mitia1 monlhJy coouillln:im 10 lx: paid by TENANT for the pl)'Dlenl of Additional Rt:n [ ilill be as lOUows: S~'i.OO DIU" saWin foot <2,771 J: 55.00 /11) _ $1.15'708 The ab:we stctcd mOllfuly estimated amOUDts do not illclude appJicebJe .cales tax, and lANDLORD &hall bave the right to lnCfC0.Se dUe: estimate &om rime tn time baso::I Ql1 the actu.a: Additi~&1 Rental obIigatioo oITENANf. TENANT Nuili have the audKrizatian to c:k,amim LANDLORD'S br:ds aad n:c:ord&, during normal buSnes& hours. to veriCyIANDWRD'S annUlI! statcmentof.u:tual Additia:aaI ~tpay.lble'l:o/T:ENANT'Witbm fi1b:Ul (15)dli}'ll fuUowmg l..ANDLORO's i.'llIU:IIIee of sairl lll8tement. FoUowin& Cllpimlioa of thi.o; inJpectioa p:riod and abics!.r.x: of TENANT'S wnuen Clltaptian to any a-'. item, lANDIDRD-S annual statonart of lICtWll A.dditional Reot shllll be OOO;~idcred ali final and acc:~ted c,.. TENANT, Seed.. 12. PRORA nON If the Canm~l Dace of the LEASE.is OIl Iny day other than the first day ofa mmth, or ifthiw LEASE dtds M any dHy other than the last day of A 11lOI'lth, any pa;mcnt due LANDI.DRD by relUIOO of any Base Rem << Additiooal Ra1t &ba1I bejusl.!yanO Wrlypmrated, Sec:tio.13. APPUCATJONOF PAl'ME""S fROM TENANT lANDLORD shall apply paymClltw ian TENANr ill [he ktllowing orda; First. toward in~ clwillS BCo-ued against TENANrS account; Secood, [OWard adminiMratM fi:cs.. 1Mc lEd. !'e'Vice cl:Iargcs. or iega!mpecses .BSSI::!iIIed agains:llENANf'S .lIccouot; Third, \o\IIia:rd lANDWRD'S rcimbunmblc: C1tpcnscs., lllKI tb;:t1 Fourth, IOward &s:: Reel. Sectilln J4, SEClIRm'DEPOSJT TENAh'T, caotonp<:ln:Dcou.sly wiCb the ~ecutioo of this 1..EASE, has de:po!Ur.ed with LAr\"DIDRD the wm of ($4,62&.33) FOUl Thousand Six Hwldred TwCllty Eishlalld 33/100 dollllTB, re:ceipt of~ i$ ho:ebyaclmowiedgoj by LANDlORD alii partial security " the full and :filicbful ~lCC by TENANT 0( aD !he terms, ~b; and cooditiOlUl of this LEASE UJXC TENANT'S part to beperiJnned, which sum sha1l CeJeM1Jcd to lENANT aftr:r the time fixed as the expiratiCdl of the term hattl~ provided TENANT has fully aw;i fiLithWlly c:arrWd out aU of the term.&, COVCDants and cooditiorn; w TENANT'S part 10 be perittmM.. lANDLDRD llhalJ heve the right. \xu not the obligAtion, to apply any part of the depo$it to cure lUly default ofTENAN''T, IUld if LANDLORD dues &0., TENANT shal1. LlpOll. <kmand, dcpogit with lANDLORD the amourn 110 applied-.so that l.ANDLORD shall haw- the full ~ on hand at all time..~ duringfhe term oflhi9 LEASE. TENM"T'S &iJ\Ut to pay to tANDLORD a sv.fEicicnt 4mounllo ~loR: the l'lC:curity to the original sum dc:posited within lhrec (3) da)'$lI!cr reccipl ofdemand t.bcre8x, shall tmWtule I default under the tEA.SE. Np interest sbaU be paid by L\NDWRD 10 TENANT en SLu:b security deposit Should TENANi cornplywim all ofilieterros, covenaotll and conditions o(tbis LEASE and prurnp(lypay all oftherClltal duehCll"euOOa as it :mils due and all echO' SWn!; payable by 'lliNANf to l.ANDWRD h!RUDder, the dq>O$il shall be retunl.o::l ill full to 1T:NANTwithin thirty (30)&)'5 fuUowing the end oftbe term of this LEASE oc At thc earlier tmDwatioc offuis LEASE, The security deposit un.ckr this LEASE Ii:tan not be mMpged, a.~ or eocuml:ucd b)' the TENANT without the wnttetl cmsc:nl of lANDLORD ilnd may be commiD.gled with other fundll oftANDWRD. SectiOJl; 15, .P.REPAlD RENT 1n lIddibon to the Secwily Deposit, TENANT, coctemponllleou;dy with the e:xec:uJion of this LEASE, has deposited with LANDLOIW the additiooal ~ of ($04,628.33) Four Thousaud Six lflUldred h,euty Eigbt aDd 33nOO dollars, receipt ofwtlldt iij:hc:rebyackwwb:lged bytANDLORD as! prepaymcntoftbe firstmoolhstalt Sec=dOJl16. CONTROL OF COMMON AREAS AU automobile parking areas, dri'\lCWoJya. QUITane:=; lUId ~it!l lhcn:to, and olber &eilitie, furnished by- LANDLORD from timc to r:i:mt in C&" mar tho Sh~ing Ceotet, inc1ud!ut =mplo)'ee and CUitOOicr parltin.g ur.a~, the lnd Wily or WO)'l[, lOo'ldml] decks, p<<:bge pid.:~up :itDtiOO&, Sboppmg Cd:ltet signs, podcstrilm si~ 2Uld 11lWpa. landrcaped IU1:aS. atcrior sWrwa)'S, hallways, display and exhibit areas and otlu:r areas and improvCIlents provided by I.ANDWRD for the gencraJ lL~ in eoounoo, OflQllmlS of the ShqJpmg Caucr, their offlCCn, agctltS, employocs and cwtom.-n. llh.al1 at all rimCll be subject kl the exclusive control and manaJ;ewort 1)[ lANDLORD IUld the A.'lIIOciation {T their desianec&. and l.ANDUJPD and tile All.'lo:lCiatioll shall have the right from time to time to establish, modify and enrnc reasotl.8blt: rules aruf rcgulJu:ioos (see Scnion 41) wrth respo::t to all facilities and areas menriOll,ed in this Secnoa. ,....,Ia...IBII.'l.lI...a: t, /'if I Agenud l[t:H11 I\lV. jU~, December 2. 2008 Page 16 of 86 All such facilities and areas, together with the fouoda1ioos, coo.C1etc (Jocn, exleru ~'IlIlS and roofs orall bWldin,gs within the Shopping Center and all dl.lC1.5, cond.uit$ and similar itens, hcmmg. \Itl:lti1llting, air cooditiroing, pJWDWng, IICCI.lrity and fire protectioo sygems ancl !ltl:rm, lIlUlitar)' cltainap and <<ha utilily !)*msnot inlllalJcd by or w:ltJ$'r'dy saving. !:ins1c tenant on the Shopping CenU:c. arc bc:reinafter cnUedively c:aI1ed the "Canmon Arc:a5". L-vIDWRD, the As&lciation. or their desigooes shall have: the right to ccmlnld, maintaiD and ~ lighti.og and parking f3cilities on all Comtna'l A:I:as; to police the ~ from time 10 time to change CI reduce: tbe area, level [lX:lltioo, size and arr.llIlgement of parking ueas and other i8ciJ.ities ha-ein abcrw: n:bet\ to; 10 1"ellt'riet parking by tenant&, their officers, agent5l1Dd anployecs to cmpI.oyccpmbng areas.: to close all or mypcrtion of said areas cr fiu:ilitiell to mch ~t:::D1 a~ IllS)', in the opmion DfI.ANDLORD'S COUlJscl, be legaliy sufficient 10 ~I a dedicacioo thereof or the ac.crual many rights to any pc:n;>:lD Of the public lhottn; tD close lcmporarily all oranypomon oftheplltking ueasor lacilities; to eI'o:t improvements or buildings on such palk:iJ1i areas and othtr ccmmoo areas and improvemeDts; In disa:Ange non- custolua pariciog; aod \coo and periornIlIUCb other IlCDI in and to said atcll!.an<l i.'l'IproVt:mOllSas, in the UlIeufgoocl busint:ll.'i judgment, the tAhTIlORD sba1l dc:ttJmine to be advisable with a view to the improv=nellt oftbe coovc:nicnce and use thcreofby tenants of the Shopping Cent!r, choir oflicen, agent!, ernp~ and eustnncrs; provided that no such changes shall deny Ofmateria1ly in~wi1h reasooabie vi.sibilityo.( ingress; loor egre&6 icm the Premises a.noproYido:t further that the aumber of parking spaces available in the iXlrDrD.al areas shall al alllimcs. meet the minimum number required b)' applicable Ioc.aI go'V'emm/'nl or~ In addition, Landkrd &ball provide tcDant with two (2) desigDalfrl parking spacell, in clO9C prorimity to the ~ with gCDfllimmng the 1l9C duricG tm&Ilm ~tinll houn fur Tn Collector Vchick In~tioos. Section 17, lMPROVEMEi'.'TS AND ALTERATIONS 0.' SHOPPING CENTER BY llANDLORD Sch<<iule A lOets. bth the general la)Wt of the Sheppin.!; C.cnlx:r and shall not be da::med to ~ a Vimranry. rcpresenlBlioo or agreement (If\ the part of LANDLORD that the Shopping Center will be or i, enalyao; indicaud QQ said diagmn. LANDLORD may ~se. reduce<< cbtmge the Gwoba, dimaLSions or locatioo. uftbe sidewalks, hlildin~ common Mea!!, 8etVicc roads, dri~ys, looctiag filcilities aod parlcing lImL~ prlJ'VJded that 1he generalla)UJt of !.he Shopp~ Ccnler i:; not wbstanti.ally modified, .md lANDLORD ~y res=rvcs the right to z:nakt minor aherutim.....O' additions to the bJildinS 10 wbk.h the Prcmi.ses are located, and m add buildings to the Shopping Cenlc". En the event LANDLORD sh/.lll reduce !he lotal gross leasable area of the Shopping Cml!!r at any time dmg the Term, tb!l denOlnm.alO:r used to calculllte TENANT's pr-oportionatc slllre, as hcrcinafic- dc1incd in Section 65 (c), shall be roduced as apprcpriate fO reflect the then revised Gross Leasable ,'\n:::I of the Shopping Cent(:f. Section l8. SHOPPlNG CENTER "COMMOi\\ AREA MAT1\'TENANC[" The Shcppin1l Cootc'5 \)pc:rating Cc~at Bhall be !be total of a/.l ~ of cost &nd e:tpenae ex.pondl:'d {includinG IIpplUpriate fC!lt:SVt:S) in operoting, managing, equipping. pm1e:tiug, lnlluriag. policing. lighting, repairing, replacing and maintaining the Canmon Amls MId their facilities (1QlS any irulura:ncc proceedIl colIo::ted with ~ to 811Y such repair or replacement) including, but not limited to, all aJfd!I acd expcnges of (1) main~ and npairinJ; the Canmon Aretts .a~ .'IhaJ] Ix: requiml in I..ANDLORO'S ~CIlt to preserve the utility and a:nditioo. of lhe ('.ammon Area.. io iUbstmtianY1be same condition and stlltusu the Common Areas \\Ia'e iD as oflbeCarnmc:nce:meat Date; (2) ECUrity, fire prorectiOD. II.tld tra.ffic direction 1100 oontrul.; (3) cleaning.!llld remow.! ofrubbillb, dirt, debrit, StJmI,' and ice (wcludWg removal of snow and ice from rooftops); (4) planting, repWJting and replacing f10wcrl and Jand.'lQrping; (5) W8t.er, drainage lIDd lleWemge; (6) wag~ health and \l.~ lx:nefits, pension benefits, anioo dues, vacatiC'll$, WlanpJO)Ulem taxes llll.d soci.al security taxes h the property manager (1) personal property taXes; (8) pcrmit1I and 'iomses; (9} supplies; (10) th(! opeTluim oflnud ~.and any oIher rquipment !llJflPlying muQc; (11) utility semces III1d ugb.ling (including (he COSl. of light bulbs and dectric current)i (12) de:pnriation ofmacbinc:ry and cqu:iprncot used in the op<<atioo of the CCflJmOrl Areas (but nO! including dqm=ciari~ of the original coo oflCX!Uirini: CnmmOll Areas ofd1e Shopping Cc:otcr); (3) adminimati\-e charges in lI.D IUOO'.Urt Dot 10 e1eeed fibc:n percent (ISl'I.) of the Shopping CcnIa'li Commoo Area Maintenance Ca>1. (ex.clusiveofsuch&dmlnislrativecharges); (14) mall8ganalt feai (15) lbecba:rgesofaoy iIl~t contractor u.bo, under contract with the: Lmdlard or its ~~tives, does IIl!Y of the wOO.: of opcnting, mamtaining or repairing the Common Areas; and (J5) anyotber exp:.-nfiecrdwgt, whether allot hC'reinlpeci6ca1lYrtJaltiOhed, wIticb in IlJ:'.OOrdance with gtDcrally accqJted accounting and manag~lrll:nt principles, would be comidcrccl /IS an expense of I1U:tlsgint, ~i:, maintaining or rqWring rue Common Areas. SectioJl19.~ "IT.NA]'I,"I shall not l:.tiJibit, inscribe, paint, cr a!li.1 nny.<cign, IIdvertisemc:nt, lUJCi,c;e or other kttering on any part llrthe 0UISidc of tho: Demi!ledPrernisesor oHhe building or tht:shopping CCIlta of which the Dem~ Pnmi~ i~apart, or inside the Dcmi.sed Prtmise.~ ifvisible from tht oouide, ",-nether U2Dpcnry, web. 11$ "Graod Opcnins", or p::rmam:llt, withoui: me prior ~tten IppTOva.\ of LANDl.DRD and the Ass.ociation. The f3l:riGariOll. and 1nstn1lation of signs and rela.tQ(f electrical coots .sb<lll be the responsibility of 1E'lANT, !Ill sign.oge shall comply with applicable governmenl ordinances, and all slpge shOlll at all times be maintained in <t good and llaB: andilioo at T.8\l.ANT'S ~se. TlNA.-""T shall repair any damllge to rh~ ~ I"eRllticg 1i-OOJ the installaticc. maintenance <r remo\'al of any sign.... t!nle5-~ otherwise provid..'"li fir herem.. the ful10wing sign crittril.l shall 8Fflly to the hemlsc:s: (Il) "f1lttt, cct..'1p!ete OOyies cfTENANT'$ si.gn .uawiugs!:ilia1J be sui:mitted to LANDLO~~~ation ,0{j/ yf N~~~'7Im:t".~ .L\genda item No. 16E 1 December 2, 2008 Page 17 of 86 not 1ess thlm 90 days prier to lhe G::mmenccmcat lJ&te of the l.EASE. Sign dnl\\-1ngs an: [0 be aulmitkd by au CSlab1isbed and pro&sional sgri maol;jilcturing COl'npIDy. No lAp mbicatilXl tt iDw:J.laJjCl) wtrl: lIhaJI be sIDt1<<l witbwt lANDWRD'S pritt vmttal approval. TENANT shalI ~ its store ~ fully and propa-ly installtd !lot late' 'than the date TENANT qlCllS ftr lusinca.. (b) Sign dnl.wing5 Ilb.aII spoc:ify 1c:ttcrins mat=na1 to be used, IUld carl)' mow graphic 113 well as COUSltOO:ioo. and attachment ddails. Complete W:lbrmlltloo regardins electrical mqlllrtmcnls and bulb ~toeu is.al.o!o to """'""""'- (e) All sigtlanachmentdcv1ce&.clips,. ~g.lUldtnmsftJnmna.relobeconcc:aled811dllll 6meners, JCTeWS, and "tclq,; UtICd ill the 18l:ricatioo and instaJ1atioo of signs shall be rustproof: (d) Alllig:hf 5Olll'CC$ alW.l be ml.emal and coosi.v: of 13 tn 15 milliar.eIcti OfDClOn tubWg with cocrdin.ated filsteDen to pt'e\lMt el3drolysill (e) Muintum height OfMCb aign letter shll.ll be tJu., lesser ofTwenty(20") inchtl>, or a he.ight equal 10 fifty (500A.) of tbe fascia to wbich the silP1 !lhall be mounted.. Matimum depth ofletrer I't.l1.ttus m.a.JJ be 6", No part of uigD may be ~ thnn 6" to the lop or bottcsn of the canopy fascia.. Sign width shal1 not ~ '5% of TENANT'S .-- (t) Wording of sigm shall be: limited to TENANr's trade name ooIy. StyIi.ztrl letters.. if a logo. may be used. No othc- (ego sigMgC shall 1:= permitted. (g) TENANT sh.U [lot pm:cit an:r k:nn of llCOrI lighted s.ignal:e solely illustrating the lelkrs "OPEN" tmm. bein8 displayed or vi!Q01e from aoy part oftbe Premise.". (11) TENANT Mill! oaIy be penuitted to have one (1) extericr !illOft:front .sign. (i) Landlord shall prQY:ide Tenlmt with apaoe fur a sign on the marquis Shopping Ce:nltt Sign located at the emrlwce to the Shopping Center, which .sbal.I allow fOT lettering at leaat the &amI: si.l.C liS any other laJlInt, lor a free periQd QfOne (1) Year. The IUllLindc;r of the leased spaoe iiar the Marquts Sign:'lpftce wall run with. a separate Pyloo. Sign Lease Agreemalt. attached as an ^ddO:ldum In this lease. SectioD .20, IMPROVEMENTS ANn AI.. TERA TIONS OF PREMISES BY TENANT T!?NAl-IT, llpXt obbi.uwg the writleu cooscnt of lANDLORD, which COIl!C01 shall 1101 be WU'l':8soo.ably wit.hbeJd. may make improvemc:nts or al~tioos to the ~ Il!l TENANI' may &em time to time cI=n ~ or ~nble., provided h~cr, TENANT shan not ha~ the right to make an)' imprOYClDfflt.ll tr alteration~ that a.t1f.ct- the SIlUctun:, or outward appearance oflhe Premises, the Ccmmoc Areas or the Shopping Center:. TENANT W1J. submit to l.ANDWRD complere plans and ipe(:ific:atioos fur sucb work at the time lANDLORD'S approval for same is ruqtJeS!cd. Any i:mplU\leQJCflu or aJtc.rations made to the Premi8eS shall be in c:unplia.nce with Illl UJ8lll1Ince .rl:Quiremwt5 and regular.ioos IllId ordinances of govoumeutal autbcrities. AlL alk:alims., additions, improv:menu and llxlUrCS (including earpcting, li.wlcwn and other fi<Xlr OOVO'inp) v.hiclJ a.<. II. IMttc- oflaw have become a part oftkc realty, Q" which maybe made or inslaIled i:rydth=- ofthepmies bt:rtto upon the Prc:millt$ and which. in any maun~ are att3cbed to the lloors, waIls or ceilings BhaU, af the expiratian tr earlier tc:minatioo of this l...EAS~ bec:om~ the Propo::rtyofI.ANDLORD without anYpIi)meQt by LANDLORD there'b: (UlI1l!&,~ LANDLORD shail ckctotherwise, which e1ectioo D.OI toovm shallb: made br tANDWRD 110 Ialerthan ixutccn(14) days a.ftr:te:xpiralion of the LEASE term), and at the taminalioo ofiliis LEASE such items sball remain l.lpoo and be .mJTCDdered with the Prcmi~ 8S a part (hereof LANDLORDln8)' at its ~tioo require TENANT torODoYe from the Premises. at TENANT'S expense, aU or any partioo. or iton bez-etofun:: 8pC(.'ifu:d at the I:Jfpiratian ortbis LEASE, TENANT llgra::S to remove aU 5lgns and perlDIaI insignia that may be dispu.~ in or about the Demised Premise:s at the tI:m1inatiOll of this lEASE. TENANT agrees to pay lANDLORD fur the rq>air of a.ny damage cauacd to the Demil!Ot'l Premise!; by 1l:'NANJ"'S ~I of $lJch items. AnytbinJ: in this LEASE to the contrary notwithaandiag. 1B-lANf sba1I not. remove an)' furniture, trade fixturt'S. equipment, pt:r!lOIIai prqx:ny, Of other Don-pcrmanmr ~l~ from tbe D::miso:! Premises without l.AJ.,'DWRD'S prior written COIll>e:lt ifTENANr is in ddilouJl under any ofTENANrS CO\QLant~ 01'" obligations. under thi! lEASE. Fmhennore, in the event TENANT maka; any i1l1pro"~Il:[Its or allZtatiOD~ to the Premise.", TENANTllball i:iIU5eal! ofTEKANrS ml.!!tructian dciri; 10 be removed from the I>remi.se.s Ilnd be: di~ofoots.ide the boundtu-ics of the Shopping C.ttlter. The construction ofIlllY imprcwemcnts sha1J be undectakcn lUX! m.aintaincd in a neat and orderly c:oodition at all tim12 willi C{U.<;t:fuctioo materials and equipmellt, if any, stored so AS to b:: l:iCfeecod from viewCOtbe~tCRtextentpoS!lible. TENANT COVenaots and warrant!; that all OOllS!Tuctioo work mu.dc: by TENMrr ~ dH'! Premis::s ",,"ill be perfOrmed by a liCCl.ged genmU COOlraclor and wi! b: c:om.pleled in IICCOfda:no: With kQ! Wilding cod.r.s or the then latest edirial of the Standard Building Code, wbidJt'\'I:r is applicable aud in eompliw:me with Rule5 and P.q;ulations. 1ENANT'S general oon.lractex shall be I"lXJWred 10 carry 4 canptche:nsrn: liability policy of insurance uuuring L',J,,'DLORD ag:i1in:n lID)' IiahUity ~tsoevrr occa..'lioned by 1lCcide.n1 on or ahlut the Dern.ised 1'n:mise!I or any r IJ /,/'d! ~ />I"'PLt.\~n~ ._ A~eilUo llC11. l';lv. 'Ul.- , December 2, 2008 Page 18 of 86 arpurle:naDccs therem, Such policy &hall be: wril1e:n by.a good and 1Ol\lt21! insuram:ccompany autb<rilJ:d woo ~in the: State offlarida and reasonably 8CcCptable 10 LANDLORD and such policy tbalI bin'!: single limit(oVI:l'll!CofnOllc:a: than SI,l)(X),OOO. The OOgirIaJ policy, Of a Cl:!1iiicatc thereof. ItWJ be delM:reci to lANDLORD prier to the commCllCCment of ~ in, 00 CU' ab:lut the Demised Premises.. In additiOll, TENANrs general cmbctar shaIJ abo provide to lANDWRD. !lIthe llmUe time as the cc:rt:ifiCllte oflillbilily insurance i$ due, evidmae thlt such con!nldor h.flS aDd lI1Ilintainswcrkets lXnlpeItsatian in5UTlmCe in tbell.D1lJUOis requited bylaw. lJnle:s~ olhc:rwise specifically Aaled:in this LEASE, It is uuda'StOOO llnd TENANT hereby apee!; thlt the cost of any and Ill.l alUratiOll:8 Imd impro\lCllle:nts, iocWding llll dcwoliti<m, ClXtJitnJcticu arid 1'tnJOdelira.g \.\OOc .PCrli:m1ed ~ the Pn:rnl!lt~ ~ TENANT rr at TENANT'S n:quest .shall be the sole rt:spOOsibifity otTENANT. lfTENANT desin::.;: to make any pcrmanl2lt lmprovemcut(s) or altt:ntlion(II), lANDLORD, llpOl1 appruvaJ of the p!an.~ and ~tiuu there&- may elect to malre eu::b rmproYCalClll5 ir T.t:NANT at TENANT'S aprmre in ~ tD insure !he structural integrity and quaJity of constI"UI:1icm wock ta the shopping cenler. In any such C'\'CD.t, TENANT &b.at1 deposit 14>itb LANDLORD such sums ofmooeyas l1l.Ily be necessary to mak.c, COlI.struct, or inSwl SlK'h work Anything in this So::tiOlll to the CODltary nctwilhstnndiog, and cU:q:rite any requirements he:rcin for lANDLORD'S appro.'a1, the parties aclcnowlcdge &lid agree: thaI 'T.elANT &ball be llOkJy mspanrible and lillbtc: b the ptq:lo" design of A:ay and aU Ilte.ratiOQ$, ~CDts, lIId otbe:r wori:" OOliJed by TENANT TENANT sbAU also be snicly r~$..(1:K- fur propc:r ClJDlltructicm th~eot; unless LANDLORD clect,q to COO5ttuct web. impmYernenl~ putwan! to the pnwi.<illms of this Sectial Aller the first fiVe {5J )'Cll.1'& of the tmn, 'fENJ\NT sb.aU, lit iu ettperull!l, upon rr.quest of LANDLORD, refur~ the ~ lO the c:xtent ~ 50 lhllt {i)!be furnishings., furaihm:.. fioaring', 'Walls, w;tuTc5, equipment and mhO' appoinlmcJ1s in the mtcilll of the Pn-.miJCli aha1I he in good and sightly c:mdition IU1d in neat, attractive and prtI1cnlable appea.nmce It Iea~ eqtlII[ tQ that aistioll 00 the Commencement n.t:e and (ii) the ~terior mthe PrcmU.-:es {incl:udlng the .Yarefront) shaD b:: neat, presentable and lIttrat:tive and shaJJ (;c.ttl:nn to the do;u of the Sbopping Center. 'TENANT shall stItmit plao~ and !lPCcific.1tjOrls 10 l.ANDWRD fi:r its ltpJ:"OVal covering suc:b re:furbilbing withw thirty (30) da)'B Ilter 1ENA;."(.rs receipt of lAI'IDLORD'S 8kmlaid request, v.iJ.ieh approval. LANDLDRD win tlot ulucasanably withhold, and TENANT I.l~ 10 lllake such l'CII5lmtIble changes then:to AlIl..ANoLoRD.Itlay~, TENA},T shall canplere the re.furbisbi.cg within ninety (90) da)'li aft=- LANDWRD has lIWfOVtd TENANT'S plans 4l'Id .lpeCWcariuns. TENM'TlihaIJ notl:e~iraJ to refurbish under this 6tCb[)ll more than mce every five (5) ~ Theintl:reSloflAJ->.'DLORDin lhePn:millf:Gnndthe.Sh~Cenlc:l' iSllol subject to lir:m ful impl'O\UDl:I'Itscr a.llcrati~s made byTf:'>.lANT, TENANT sha.U compJywith the MedwJk:'s Lien Ls.w ofd1e Stale: of Florida_ Sd -furtb in Florida Statutes, OIapte:- 713. TENAJ\.Twillllotcn:ate, nor pc:n:nij m be <::rtllted, nOl' .nOW lo rmuain as a resuh: ofatly action Ol'"work done Of COnlnu;let;! fur byTENANf. any lien, ettCJmm.n.ce or charge kMed tll accOl.l1t of any imposltiou, or allY llIeclumic'ii, laba-er's or lIulltcri.ahnac's lien 'Nhich might be, (I' bec:ttne a 1ieo., ~ c:I charge upon the Prem.isesa the Shq>pi.o.g Ceolt:r.lfanymed:lanic'g, lab::Jrer's or Itlalcrialmao's li=l Ih.U al any time be filed again.~ th.c .Pronises, or ilie Sh~ing eCOle, DJI II result of lIlJy actioo Ql" 'WOI'lc he an bdlllf o( or contraeted b- by TENANT, TENANT', within fifteeb (15) days after notice ofthc filing thc:reo~ shall came il '\0 be disciwgoo. o(record hypayment, deposit, bu.1.d, Ul ~dcr ofll eow1 ofcornpCtcul.jurisWctiOl1.1fTENANT llha11 WI tocma:: sur.h lierJ lObe liO di9Cbar.g-c.d withirl the period afur~wd, thCl ill w.lchtion 10 3.l1y other right CX' fClllc:d)' awil.abk to LANDLORD. L.I\NDwrUl II1llY, but shall not be obligated 10. dischar.ce snch lil'fl cilb.c:r bypeyjn& tht! &.mounrdainKd to be dl.le tt bytransCaring llalne to Sl'X:urity, lllld in an)' such ~'a1t, LANDLDRD shall be entitled, ifLA.,I'W10RD SO eleclli, to eootpel the prosecutioo of any action fix the fcr-t..t:lnsure of such lieo by the [i0lQ' arn:l to pay thc amount of any }udgeme:u in favor of the lienor with infer~t, c~~ and allOWances. ADyamount so ".id by lANDLORD, and IIll costs, C1(ptnaes. .md ~, including wilhow lunibrtioo. attorneys' Ii= incurred by lANDLDRD ill COm.IcctiQ[) with aoy mechanic's, J.qbore:r'~ or rtlllleri.alman'" Ii.en.. whether 01' nor the !lame ha.~ beal dischlltg.::d of re.cord, together \Uth inte.resl thereon II ate and ooc-hlI.lfperccnt (l \<i%) pc< month &om the: respective dates oftANDLORD'S ma.lcing of the payments and incurrir:JS of the OO:Sts and ~pen.~ sLall ~te Additional Rent payabic by 1ENANT to L\NDLORD tlpaIl demand Nothing e:ao.raWcd in lf1is LEASE ah.aI[ be deemed or COWtnlo:l.m I./lY way III eoosritJJ.tir:lll the CMSC:tIt or ~ r,f LAN'DWRO to any C:Onl11tctor. su1:X(ltUraClcr, lahxcr a materiallJ1aJl b- the perfOrmance of My !aba:, or the fumisiUo-g or any materialll, fa- aoy ahern.tiOll. atkIitioo., improvemGll or repair to the P.remises r.r the Shopping Ce:uta. or as giving l"'E'I/A.,"lT any righi, jXJWeJ'or '!-utharityto C<Jnlr.1c:t fa orpennillhe 1lZlderiJJg orAllY services, Cl!' the furnishing oflUlymaletiaIs duuWOUld giveriae to the lilrog many lien against the Prcm.l.a. a lbeShcpping (".c::o.ttr, DOCto~o;;t l..AJ't...DLORD'S ~tt: in the Premise..<: 0(' the Sh~ing C'..en!d' to liabi/it), UDder the Mechaoit's Uon l..n;. of the State of F1urida lnauyway. Sectioo 21. RE1>A1RS B\' LANDLOltQ LANDI.oRD .agrees 10 keep 2Ild mai!l~ in ijT.u..:l UlUc:r lUlli rt:paJT (01)' the Irtmcturaj compc.menLs of the roof: lll.lci the st/lJ.crural componetlPl of the ex.tcrior waIb (exdUllivt of aU siS'ls, doors, windows, p:laM nnd plate glass) of ~ Premise&. 1I any :!lucl:l maio.lCl.l.lUlce and repair obligati~ of lANOWRD are causa;j in part tlr in 'Ntlllle by the act, 1JI::g.!a;1, m.u!t Of omi~ioo by TENAJ.,rr, it..s ageots, llaVants, or em,xO}'l'CS., or by Ircakiac- md entering, TENANT 3ba1l Pll)' III 1..AJ\'DLORD .::he actual <'nS( of such I1W.lJtcnance and f'l.llair~ TENANr shal1 at axe report in ~tinl: to lANDU)RD lllIy knO\l.'lI d.efoctive COIJ{i!.tion \\-nich LA.NDWRD i~ tequired 10 repair pu'Rlaot to this P&'lIgraph and TENANT'S f:"Ulure to report to lANDLORD lIllY mch coorotitlll or defect M.1I.!l male 'rE1\'AA'T respcnsible to r, ,,1/ ",,~~=,.~ ;4!:f ~ ,'-\genaa Item I\lO. I OC I December 2, 2008 Page 19 of 86 LANDlDRD tOr any }jabili~ CClIItt, expenses. and attomeys' _ incurred by LANDLORD rI.li .a result Df such defect. lANDLORD shall not be liable fur fiWurc to mab RUCb repairs a: to perini. rmy maiDtr.:naooe unless such &Uure shall persist mr a period in o.ocss ofTen (to) days fuIJawing written nOOct to LANDLORD oftbe nc:d fir such rtpair (r maintenance iflhe npnits or mainteoaote is I'lCCC8lil1)' due to WIItc:r iD.trusion into !be p:rcmia.1r Six.ty (60) dIy.!. fOr any od1ct repaira o.r maintenance. E:wcpt ... b.creU:l provided regarding casualty ICIIS, thm: lIhalI be DD lll:Jetant:m of reDt, and no liability of LANDLORD by retl.!lOO cJany iojmyto or interi::rc:D.cc 'With TENANT'S busi.o.= ariaing fian the making ofanynpairs. a1re:rariOO$ or impravemccts in or to i:ny portion of the Shopping Cc:hte:r ~ (be I'n:mises, or iu Q' to fu:.turc5 and equipment tlmem. TENANT wuives me right 10 make TqB.in: at lANDWRD'S es.pcolle under aD)' law, stltUte a' ordinance now or ben:allc:r ill e~ Sec::tioa 22. REPAIRS BY TENANT TENANT shall acceptthe Premi_ in its lhCll "as is" coodirion illiowiag LANDLORD'S Improvement!;., if lillY, provided l..Il1der Schedule C. 1'EN:A.,'\IT shall, at TENANT'S a"peIR, be ICIIpOD81"ble fur the lIlahutnanoe and repair of all portions oftbc Premisos DOt maintained by l.ANDl.ORD including, but not iimjlM to, all plumbing. se:wer, clectrical, fire sprinIder, heating. \'l:Dtilatit:Jg and air c.onditioning equipment and S)SleolJ in tt serving [be Prrmilll!!&. and aU plate gtallll and the atcior doors., dolr bd.:s, doa fnunca, signs, windows. display windows and window franteIl Cl( the Dc:nisa:l Premil'lCll in em and,good order, CUbdition andnpair, and &.ball also keep tbcPrmriIeS in a e:1ean, IIIU1itarymul safi: oondition in lICCOI'dance with 1."" and in acaJrdana: with aU ru!elllll\d rc:gulaticm.$ of gove:mmcr:ltal and quasi_ guvenurn:otal agmdCll having ~1lD. aver the: Ihopping ceotcr. In camccticm tbcteWith; TENANT shan. at TENANT'S 1I01e expmse, m.ake all repain and repiar.c:mc:nto thereto that may be c.- b::ccme necessary lh.ring the trnn IUl aresultClfanyc:awJlll...watl;ceyfr, TENANT 1Wthec Ilgr<<'$ to pro....ide service: maint:eNmce cootractll b- a1J. equipmtUl on a' serving the Prem.i_ (inclUding, bu.1 no/: [imiloo to, all air cmditioning. heating and 'Y'/:D,tilating systems llRd equipment and aU boilers) which oon.tracts !hall be maintained with and periu:med by cantracmrs and service U'gaDizati0D$ re&6m8biy al;cqxabte tc and ~ by lANDLORD, The.service 00Ilb"8Cts sbalI rover the perbmance of fCiUlar mllintenaDce (incb.ldin1:, tnx 00( limited to, changing lilters.. 0IUn& lubricating and repl8CCDl.ent of an bdts and pulkys) and !he making of all ~ and replacemeats to !he system (map a: mma-, routine at a.traonlinary) an~ shalllioo nquire !he c.cmpan}'1D examine the: equipment at reasooab1e intervals. but no J~ frequently [ban quarterly. To the erte:nt any cootraclor wammti~ on said eqwpml!il:lt ClI' Ij/iIcln are m efiect at flu: time of TENANTS OCQ.lplwcy and use: of the Prcm1lles. LANDLORD shall assigll IX otherwise make available to TENMrr such wanaul:ies for TENANT'S use, TENANT shall return the PremiIlCS to LANDLORD al the lamioMioo ofdus LEASE in as good rondition /md repair as when first recei~ rmnlable. \\W' and tear excepted, Following the 1mninatiml. of l.bis LEASE, and prior to retum ofTENMTT'S !;CCUfitydepol>it, TENANT!ObaJl furnisb LANDLORD with ill inspection report from atl INAC nWntenatx:e company accqnabJe to LANDLORD tnat Slates lbe Pccm.ise's heating, vcntil.tioD. and air ccodiciOllmg ~5 are opellrting properly and have not Sllffis:ed u-om neglect. Fllilure by TENANf to provide: lANDLORD with an HV AC inspectioo repcct, IX Kl' the rcpart to s1a~ that the Premise'5 blZting, veoti1a.ticm and air cooditioning systems have belen damaged as a result of ueglcr;t,. shall result in 1..ANI>UlRD applying part or all oftENANf'S IitCUJ'ity dcpos;it to obWn the iospea:iCII n:port or repair or replace any damaged equipment. AJI damage or injury III the ShqJping Center, Proniaes, or theCowmcrn AreasClll.llll;:dbythe ad or n~ of TENANT, its llgmts., ~ or 1iCCIl8ee6mlJ b: pfWlpdy repauc:d by TENANT At its :cle ~ and t:XpClll9C.and to the DtU:mctioc of LANDLORD. LANDLORD fIl.Y mako such repairs tlw 8Itl DCJt promplly made o)'tENAA'T and charge1CNANT fur the COSl: I:hen:ofas A.dcbtiooal Rent Seetin 23. RUBBISH REMOVAL TENANT shall keep !be Premis5 cbn, both inside and 0ilWde., and win nmcwe .0 refuse fun the Premisd iJJ lIceCltdance with rules Ilnd regu1atims eslabliabed by IANDl.DRD and ~ the Association fur same.. TENANT shall t1attczl cr ofuerwiile '"break down" Hn cardboard Im:es prioc to placing them ia any tra9h dumpster or othl;[" di!lp(Sll !iy.'ltem en tbe prqlel1y. "IENANI man not burn any malCials or rubbish CJi any dcscriptioo. upoo lhe Prerni~ or Common AIe8!J, U\NDLORD may dirc;:t 1iUlt trash intensi'1le Tenants within the Shq,lping Center arnulge fa' the ~ of thcu ..-mn traah receplade mId removal service AI. the TENANT'S CIlpcD.se or, in the aJtcrua~, lANDLORD may a~ a surcharge fOr the TENM'T'S CI:~ tTa8h c:ollecrion and removal savi~ and TENANT hereby agrees to promptly pay fOr such e>u:es..'!ive trash. in the =l TENANT does ha'lll:: rJlccssM uasiJ :remOVal r1l%dt. SeCtiOD 24. SIDEWALKS YENANI' shaU neither en.cum1x:r DlY obstruct. !he sidewalks adjoinms the Prcmi5l:s na al.Iow the J;ame to be ubsmtcted or encumb:.7ed in MY manner. TENANT .shall not place, nor Cillme to be placed, tIDy m~M!dise, ~;;, itcllding machinE:;!; or anythmg else QrJ the sickwnlk a aterioc (J[ the Premises wilhoot the prior "tinc:n \XIlJ.Sl:rlt of lANDLORD. SectiPD 25. UTILITTF"s TENANT shall pay the cost ofWBtcr Wld 5eWtt, gas, cl.ectricity. fuel tight, beat, po\\'ct, tclepbon=, cable, and 1.0 o~ urih_ furnished tCl the Prtmiscs. or Che Shopping Ct:nter, and used by TENANT, whether such utility ctJSts are ~""l..n"~~~.ll;! lid) \J Agenda Item No. 16E 1 December 2, 2008 Page 20 of 86 detc:mtinod by sc:para[e metcriog a' are billed by LANDWRD. TI:NANT llhaIl net ~t1 any equipment noc WIll!! tbe Premia in a manna that wiD exceed or O'YOioad the ca:pacityofanyutilityf8cilitics. lfTENANrS U8e of the Pn:mlscs &ball require addjt.iooal utility fi.cil.itie&. the Il8me shall be insaIied only after obtainins LANDlORD'S writtco approval, and such. cost .shall be at TENANT'S expenJe and m llC:COrtLmcc with plans w lIpOcifit:al:Km ~ in writing by LANDLORD. If TENANT'S use cr oa:upancy r>f !be 1'remise6 rauh5 in an maatc to LANDLORD of my utility t;tpense. ex- OOIlnection or lL'!er i:es, cr dLarges lCr incIeued \WIge ex- aIpl!Cit)', cr lI8SC&5lJ1cntt of any kind wbal:SCevl:r, 1ENANT shall PfIythc entire amount Ihcreofwithin thirty ('30) days ofU.NDI.DRD'S written IUIkme:1l.t fur &arne. In DO event shall lANDLORD be liable fa aoy~ tX" fisilune in tM supply ofutiJjlics: to tbe Premises. Seedob 26. PF.RSONAL PROPERTY Mil l.EASEHOLD IMPRQVEMENT TAXES TENANT .shaIl pay all real pr~ taxes separately ~ ::gainsr: aJJY permanently con~ impruvemc:a1S to the .Premises made br TENANT, and all ~a1 p:ropcrty Wt'CS aSSleRlc:d "saDut or levio:l upon TENANT'S fixtures, signs, furnishintts. eqWpmt:Ilt, and all otha ~ ~. of any L-ind aMl00. by TENANT and used in oormoctiOll with the Premises.. S~l'tiou 27, LIABD.sITY INSURANCE Rocognizing thaI TENANI'is a g<:lVcmmema.l eDtily !i=ut;ect to ~gn immllnir.y undl:r thI: laWll ofthc Sta~ ofFkrida, 50 loog as TENANT Of its permittoj ggns and sublmant!l. are govcrnmmtal czatitiC:fi. no liability insunmec: is rcqu.icro. If this Lease is I71Instened or llA'ii,gned by 'fEN...\NT to a noo~govmuncntal enti!Y, whether !1.llch ttanlln:r lY as~enl is cpp1'Cl\o'e(!by LANDLORD << byoperation oHaw,!ben TENANr, at it:sexpMlle, lib.elI maintain dur:ioE the l.ealo1C Tam, oonunercial gmeralliability insurance on thc Prm1illCS a;l\'crmg TENANT liS li:Je named in.aared and identii)ing LANDLORD!l3 an w"dc!ilimal insured" wilb Ic'ms satirlactay to LANDLORD lUId with companies qu.a1i6ed !ooo ~ in the State: of}lorida., for limits afnot leu than $],000,000.00. Sectio. %8. PERSONAL PROPERTY INSURANCE TENANT shall solely re responsihle fee lItCW'1ng and maintaining any msurlUlce on T'EN"ANT'S atodc, trade fixtures., equipment or other pe.rnonal p10paty locato:i in the Premises. and lANDWRD &hall 001 nave ./lIly nbligation to repairornplBtelimQC. Seetioo 19_ SDBROGA 'nON AJi locg all SlJch coverage is available in florida, LANDLORD and TF.NANr \A'J;ive all rigbt& to ICOO\'I:r agains! each olber or against any other tenant or occupantnfme building, (V againsc. theofliocn;, directors, sirarehol.dm, parmeR, joint vr:nturers, empJo)\leS, asents, CUSlomtm, iDvi1ecs., a" businf'S.'l visitlJl"5 of each ocher a- of any atI1er tcnaot (l(" OCC:Uparll of the buiJding. fur an.)' J~ or damage arising fi-OOI any caux covt::red by MY insurance required to be Carried by each pf them pursuant to this. ~ anyothe:r inHUIllIlOl:' actually carried by c:acb oftb(2JI. LANDLORD and YENANI' will cause their ~rive m.'iUler.:: to i8llUe ~te waiver of subrogation righ~ eodCll"St:me1ltJ: 10 all pcJicies of insurance carried ill eumectioo ....itb the building ~ the PranililCll or the QXltent!> of tither ofthcm. 1~Attf will cause all ether occupunts of !be PremiSt:5 claiming by, under, or tbrollgh TENANT [Q execwr: aDd dc:liver to LANDLORD ~ wai\'q of daim~ illuilac to !he \liil,ivc- in this pIlf8graph md lO obtam such waiver of aul:rogatioo rights endorsements. SectiOD 30. LIl\lrrED LIABILITY l.A.NDWJID, or its Rgents, shill] not. be liable fOr any IO/\.'l. or damage to penoru or ~ r'C!'Iwting from fire, explosioo, falling plaster, stearo., gas, eleclricity, walb" or ram whk:b Jl'Lllylcak lITm an)'pI1t ofthePremisl:s, or Shopping Calter, a &om the ptpcs, .appliances or plumbing wOOcs therein, cr from Ute mof Sln:d CI' subsurface. or lImn MY other place resulting from dampoe8S, or any other cam;e wbaL1Oe\U, WlI5.. causa:! by or due b:J the gross negligc:ooe and cantinuing defuult oflA.NDWRD lANDlORD shall not be liabie fer inleTfi=reoce with the light, air or any latall deittt in the Prtmises, aacl lANDLORD sh.a1l not beliah1e fur any damage cawedbyothtr TENA.l.ITS oftheSh~Ceolcr, otperstllJ.s in or aboufthe Pre:mi'l(:S, or the ShoppiugCentc:r, OCCIJpantsoradj~propcrty, orthepublic, IX Ql.used fi-cru the can...uuctioo of any private or publi.:: work. TENANT aclml;lWletlgcs thaI the pohcc: and law eniJrcaneul security pr~ providl':d by IlIw (!ZJ6xremc:ru: ageocies fiy tbe Premises i~ limited to that provided to CXber blsines.ses or :::nterprises siluan:d m Collier CoI101)', and any special ~ty rneaSl1!e3. deemed nt'.CeQWj' for additional protection nftbe Preolises shall be at the sole responsihllity and expcrlllt:ofTE!'>l.4.NT. TENANT a~s to loot solely 10 lANDLORD'S esUlte and property in tOe ShnpriJ!g Cen~. or t.~e pro--.d.i rh~C ~ the !l!\tilili1ctioo of TENANT'S remedies for the collection of8 judgment or other judicial process requiring the pay.J:ne2Jt of DJooey by L\NI)WRD in the ~t of any Denmlt by LANDLORD, md no oth'Cl" propaty a- lWets of TANDLORD shAll be: lIUbjcct to lery, =lltioo or ath'Cl" cnfuroemCll( proct'odure fur the Slrtirlil.c:tioo of TENANT's ckU.nlS.. Seetion 31. JNDEMNIFJCA TION Jl:XJ\..NT C01!ena.~t.!; ;:u'.d agre.e:o; to iudemni.fy, Jdi:nd (with oounsd roasooably acceptable 10 lANOLORD~ and N~J.1.':..al /1& , " ~. Agenda Item No 16E1 December 2 2008 Page 21 of 86 save lANDLORD harmless from and againsIlUl)' and all claims ror damage or injuries to gcxds, Wares. merchandise and prqJCrty (RiiI.I CI" po'fIOn.al) and/or far any persooal:injury or ltxllS of life in, upon, Q'".about the DrmillC!d Prcmi!lCS tt' that may be causcd by the illegal., willNl Of negligent act or omi8slat of TENANT or its agents, tmp~ contract<n CI" m'll1ee5 in or 00 anyportim oftheshoppins center, cauxd or arising &:'-IDYIQQI ~duriDgthetcral of this LEASE, ex.o:pt to ~ extenl that such may be the result oftbc &'J'OSi aegligenc.e or am.tioWn&: detilult ofLANDWRl). TENANT shan also indemnity LANDLORD and hold LANDLORD bartn1ea from any and aJl clainu or cxpe:ose far dam.8.ge or wjlry lIS a resuJt of pollutim (]f itnpropcr handling cr cbsposal of hwurlout wa.stet by TENANT t:I: TENANr'S empl~, agmts and a:Xl.tr:lIcton 01 any ctber petIO:l:1 00 the Pranisc$ with TENANT'S c.oosent. The pwvisic:m of this paragraph relating to indemnity and b~ lANDLORD harmleu from claims, damages DI" ClCpCnlle caw;c,d by lbe illegal, williW or negligmt actS a- omissions of TENANT tIT ita age:cls, emplo)ee:l and contraClOl1, shall survive the expiration or ten:rJ.Dation oftbis LEASE. Sutioll32. DM1AGE OR DF..sTRIJCTION If the Prem*'" are damaged by an inBund. casual1y and ins1hnc:e proceeds haw been made swilable to lANDLORD. SlIiKf damage sbaU Ix: repaired by I.A.7<.JDWRD, ID !he e:ctcD.t of sucb 1Iv.rilahk: insurzmce proc:ecd$.. provided. aucl1 repairs can be made '\Vithin ninety (90) days aftcr tbco:;cun'C])CC of the casuallY, and without lbe payma'ltoI overtime or ether ~lI. Until sw::h repairs are ccmpIeted, Ball! Rmi and Additional Rent shan be 1l.1::ated in proportion to tbat part mthe Premiu:s l,ID.w;ab1e by 1ENANT. LANDLORD ahall baVl: no obligation to restore.reWiltl, or repla<:c TENANT'S pcrsooaI Jlf'CJlCtly .nd trade fixtures and LANDLORD IIhaIl nol be liable fur .any damage to or any incon~ce or il1lal'\1Plion oflwineas ofTENANI' or T.ENANT'S ageJ:l1S OttUianod by any CMUalt)' to the Prcm..iACS. If the damage is due to the fault <X" negJoeI of TENANT, oc its employees, cantrackn, ~ agent&, then shall be no abatement of Base ReDt IJ Additional RenL Should tire Pn:mileS be d:Ittn.aBed a& II rr;sult of any CllWle not W'I"Cl:'Cd by insurance, or if the insunmce pl"ClCeleds have not ill:=. Old lIV8.ilabte to l.ANDLORD, or ifn:pairs ClIllDOt be completed within ninety (90) days fullow:inS the casual1y dal:c, u- if the WIeltpi:rcd LEASE TE1tM ill less than two (2) ~ C1.cluding any ~sting bu1 une.xerc.il'lOd LEASE renewal optiCIJ(~). TENANT shall have the cptiOl1 tD: (I) Iernlinate the lea9C, or (2) request that the lANDLORD repair the damage. with this LEASE cwtinuint: in e~ bll.t with Base Root and AdditiOllal Rr.nt being abated a.~ provided aooVl: until such rcpain an: completed. lfTClWIt requelltS Landlord to repair damage notice of election llha.I.l be made within Thirty (30) da)'S ofihe CIIM1llty da'& and the Landlord'. notice of cJo::tiOl1 $hall be mOOe within Thirty (30) days ofrecciptofTeruwts Notice. Sedion33. CONDl."MNATiON [fthe whole of the I.ea.o;ed Prcmi!itlll shan be taken by anypublk: autharityundcr the powerofeminmt dcmain, then the tenn of this !..EASE shall cease frWl the day possession of the portion of the Dc:mised Pn:miscs ~ taken sbaU be reqo.ired by the condemning authority. If any pan of the LeallCd P'em_ man be takm by my public authcwiry under the power of Cl'l:1inetrt domain which docs n<X materially impact the usefu1ner.s of the I.eucd PIanUcs tOr the putpolle for wbid1 the ~ were: leased, fuel) the Lee.'IC gbllll ranain in Ji.d1 ~ and effi:ct, ~ that the base rat .IIIld additional rent shall be red'lJoo:l. in proportioo to the amcunt of the: premises tabn. If any part of the l.ea9I:ld Premises shall be tak= by any public ItUtharity uuder the j)O\'rCr of eminent cIomai.n iIO H tel dcsttoy !he UIlefu1ne&s oIthe Prc::rniscs fur thl.: Purp<IiC iJr whir.h the Premises were 10l.~ lENANf shall hne the right dO' 10 tr:nninate this LEA..<;E aJld decluethe!Wl:lC ow! and void eX" to txntinue in the ~ of1he rcmaic.do- o(tIle Prcmi!lell\Dtder the termshae.in provided. cxcept that the ~ rent shan be r~ in prcportioo to 1hc amoonl of the PrernillCE taken. lfl'ENANT sMlI fB.il to terminate this LEASE within thirty (30) daYK om it! rnccipt of notice of the taking, TENANT'S failure llhall be regarded lIS (I: waiva of its right to cnncci, whereupon this LEASE shaI1 COOtinliC fer the then balance of the term. If TENANT exercillCS its right to cancel, base rent shall be atljusted to the date poi9lJClllIioo .is required by the coodemning authaity md any unearned prqJaid base rent shan be refunded (0 TENANT. inENAN!' t.ills to C:XO'cJse its right to cancel,LANDLORD shan, at. its own cost and expcns:c. make the repairs made necessary due to theo paniallaking to the alent oftbell'lWrd paid by tbe coodemning aulbority. The; partieos f1.gree that LANDLORD sha.11 b: entitled 10 lbe entire award io any IIUcb taking and that TENANT shan not be. entitled l(l any damages by retI800 oftbe takiag of its Leasehold, ~t &ball be entitled to prove mul oollo;:t fir lIB o:iamages to nx.tlI1'e!i and any Leasehold improvements made by it, to the exta:tt that IIllCh impro'\lmlenls shaU not have hew improvements that are replac:.mJmbl or su!stitutioos of UnprlMJl)ellts previoosIy installed by LANDLORD. The parties furtbcr Jlcluwwkdge and agree that If the ~'hole or any part of the Decni.sedl'remis=i. dudllx: takuI by any public a.mllCrityunder the poweI' (lfemincnt dom.aLn, thae.shall ~ DO aba.tone:nt oflhe pttoo:ltage rent rcquirt:d b). Sc:ctioo 9 of this LEASE. Secti(lll 34. ASSIGNMENT AND SUBLETTING 1ENANT shaU not have the right at MY time to pledge, hypotbocate, mortgage or w.ign this LEASE or ;my estate or inttl!'est tbaein by ~3ti;m of law Ui c.therwUe, IJ to sublet tile IJrcmiscs 01' any pIlrt thereof; or to grant any cooocssion or licmse, or to .dICM' anyone 10 occupy the.Premise&, without the prior "'T'ittcD consent of LANDLORD. In additioo. TENANT shan n{lt permit fKT grant so::uricy mlcl'ort$ upoo TENANT'S trade fixlUl:es, penonal properf)' and e.quipment on the ~ without first olxaining lANDLORD'S writtm. ron!101t lberekl. The c:or=ot of u.NDWRD to any ooe or mon: IWioignmcntll. w~ ~ eX" lio:!s shall l30t operate to ~ust u.NDLORD'S ri~ under this section, nor tdWl tANnWRD'S OOCllImt OfC1Ite to rclelllle TENANT frOOl any ofjts obligations under this LEASE. () ft5r ~ "^,,l~.,(ll. Agenda Item No. 16E1 December 2, 2008 Page 22 of 86 In the event that TENANT shall desire LA.!\;'DLORD'S cement to the subletting of the PraWSCI or the lUi8ignment of Ibis LEASE, 1"alANT ahaIl give LANDLORD a riuy (60) day priIr written notice tbenm. Sucb ootioe shall be deemod to be an ol'ftr by TENANT to subkue the Premi6es to l.ANDLDRD ir the b&Ianoe of the tQ-m llpClD aU tht ~e terms, cmulanlS and coodi[iau IU are COIUIiocd in this UAsE cr to _go this lEASE tD lANDLORD, at LANDLORD'S optiOl'l. Tn the ~t tbal: lANDWRD does not accept IIdl offi:r ill. writing within &e sh:fy (60) day notice period, then lANDLORD'S right to wblc:ase the ~ &an TENANT q' 10 acqttire this. lMSE by aSSIgnment sball be deemed to be waM:d, b.rt nothing he:rein coutai:atd tha1l be dc:emccl to be a COOllalll by lANDLORD 10 my subletting or .a.'lSignment to a third part}' W:lless. lANDLORD deJiym; to lENANT its Wl'itlQ) tolUlenI tblll'eto. Notwicbstal:uling LANDLORD'S consent 00 my one occasiOll, the right 10 rccapturc stilled ill this sullparagr;qili. shau IIpplytoanyfilzth.er subl~g cr assipne:nt An~g herein to the contrary notwithstanding, DO l18Signntc:Dt approvI:rl by lANDLORD under the provisiau of thb Ageemmt ~.ilU be dlective uolCSli wi Wttil the as&gDl'.e ctpre&siy llSSlJmes an of the TENANT'S obligations under !his LEASE 38 and 10 the 9lIlne extent as if su::b assignee 'W':!"e the criginalletlant named in this LEASE. In addition to the IDregow,&. if LANDLORD IRlf'<I\'CS any pr<lpCL'Ied subCmaot, LANDLORD'S cooscnt to any proposed !Sublease shall be fi.u1hc- Wllditioned, ioJI:t ali" upoo. the requirements that the sub1ea!le shall exprC!l9ly provide (i) that the subleMe is, withou1 cooditioo, subied 10 all of the limitations, tenus and CXXlditions of this 1..EASE. and (ii) that the BUblcslieC's right!! Rh.a1J not BUTVive the emlitr ~alKm of thiB .LEASE, 'M1eth~ e:1Iectod by volUlltary wmulIatiOll by lANDLORD IItld TENANT, or otherwise. If TENANT or :toy prantor, if any, i.~ a COIpCll"atioo or pannriip-, flDd jf at any time durinS the {em! the perstXl or pcrson&1,l,.no. on the dale of this LEASE. owns or 0WIl a majority of such oocpanttionls voting abl.{CS ct such patll1ership's pan:nerllhip in~ as the ease may be,. ceases. Q[" cease to OWII 8 majority (If sueb. sIwes or inl1::'CKl, lIS the casc may be (whether wc:b sak CttUrli at one time or at inter'V8.1s 9::1 thac. in the llggre.entt:, such a t:nutsfa- shall b.a~ occurred, mc.luding a reWt of transfer by gift eX" inheritanoe), a- ifTENANrS guanmtor, ifaoy, IS dUsolY!:d. ex- iflhi:; LEASE i~ traaskrred bymcrger.consolidatim, liqujdatiw, asslpment lOr the be.ncllt ofc:n-4itorsor byoperatioo o(!.aw, thtlD in any ruch eM::nt., such lraWIfer shall be deemed to be un mgnmC!lQ1 prohibited uncia' this LEASE and LANDLORD mlI)' o:.ac:ise MY of its remedies as a result of a dc:6nut hcrtunder; provided, bawevc:r, tlWi sectioo shaJJ not be appliCll.b1e to any corpomtioo who!le voting stock i$ lilltl!d 00 a national 8eCUritioi exchange (88 defu10d in the Securities Exchange Act of 1934, as amCtlded). For the pll1p05eS of this Se..::tioo 34, stock ownership shall be deLtnninM ill IIccardance with the principles set b1h in Section 544 of the Internal Revenue Code or 1954, and the term "voting ~" shall refer to thacesoflllock reguJllrlycntitlcdto YW: flTthe doctioo ofdireclurs ofthe~on. Section 35. ESTOPPEL CERTIF1CATE. AITORNMENT. SUBORDlNATJON TIlls I..E.ASE is wbjc;t and 81.11xniio:ate to IUlY and all mortga~ or de!l(.ig of lru8l, ~ve land COVenants, OJ" icaseb.oId estatt:S purlllWlt to a ground lc:alie (hcrciD collo;ti.vcly remed !:o as "Title InlO'Uls'1, now etisting, or whicb may htsea.tk:r be Oi:ecuted, oovaing the PrWliJes or the real prq>l.'rty of 'W'hic.h the SlIme are A part, lUld to all advanCC$ mOOe or h<<caJicr to be: made upoo. the security thcrc:o[ This pt'O\fisioo sh.all be self.operati~ IInd no funher lnSlJ\lmeot of subcrdinatioo nerxl be required by any m0Tt8agee a' ground LANDWRD. FUJtbenntt'e, IEN.M'7 agrees to cxecute, acknowledge iUld deliverupoo wilhin ten (lO) days lifter making:request, withM charge or expense to lANDLORD, any and all docum~ls or mSlJ\lmCD~ requested by LANDlORD to evidence the subordination of this LEASE to any Title Interests, orovided, hou'e\'tt, the rights ofTEN'ANf lilill.lI continue in full furce lUld ~ fa- so loog as TENA}."T L~ 001 in DclinJlt bcreundcr and furtne: provided, the holder of any Title Interests shill! not be liable fa- IlllY aeaucd obligation of lJ\..J,ffiLORD, nor b" any act or omi58ioo of LAND[DRD, nor subjoct trJ II(lY of&ets or oounterda.in:J.<l ~ truly have acaued 10 T1:'NANT apinsr LANDLORD pria- In the date upon wbich such holder- becane&; the Owtlcr of the Premises. TENANT hereby agrees tl:> attorn to any pen;on, firm or corporuticm purclllw,ng or olh~ Ilcquiring (be Premises al any sale CI" other procc:eding, as if sucl:t person, cotity, firm or COlpOI";ItiOO l1ad belen turned liS tANDLORD herein. TENANT agrees In execute, acknowledge and ~ in re:adable bm to any eri&tin,g Of p~ bokler of Title Interests, or !lllANDLORD, within ten (10) days after making request, withotu charge a: expa'lliC 10 lANDWRD a certificate cen:if)r'ing the fullowing, ifsuc.b be tbeC&3e: fa) t1Us LEASE i6m full furceand effi!ct and there are nodefi:.oscs or off<;etS thereto, or if TENANT claims an)' de&ases ... offilet&, Ill:ating those claimed by TB-lANT; (b) Tfl\;AN"T has 8.ccepted po~iOl1 of the P!'emjse;> as oftbe damofsucb certi.6~te; and I~) TENANT a~ro m:ci.fY all Title mtere.<;ts of any Default by LANDlORD hereunder. TENANf'S failure to dc1i'lf:t SUGb certiiicalc withio lelJ (10) cia).,: afte:r lANDLDRD'S writIm. request lhe.refoc sbaU be conclusiw that !his LEASE is in fun. farce .and em.cr without tnndifi~t:ion C'l:cepl lIS may be ~rn:{ by lA."illLORD. TENANT'S billJte 10 deliver such 8. Clrtificate within leo (lO) day.:afkr l.A}.'DLORD'S written request thadi:r shaU coo.stitute a del3.ult by TENANT under thi.~ LEASE. SeeDoD 36. DEFAULT lithe TE1\A.'NT shall Litil to pay any I'Cltal cr otbct"ebflI"geS~ to be paid by 'lRA'....Thereundertr to OI~l'e au)' of !he covenant'l or obl.igations on TEl"iANT'S part to be perilrmcd hereunder or III comply with 0Jry-' of the other prcwilliOM of this LEASE, or- any of the provisicm of1hc Dc:cw.t:ion. the ArticLes oflncorparatiun, ByLaws (X' the RuJe&a.tJo &:gulatioo."ofthc As."Iociarion, IX" if TENANT vacatcs cr abandonstbc Demised Pronises, sud'l act or omiSSlOll shall eolI!ltLMe 8. default under this lEASE. In !be event: ofa defillllt byTEN.e..NT.lANDLORD mal give \Witten notice to the TENANT in the DUltlIlo" bcrein.ll.ftcr provided b- giving notices, and if TENANT th~1iet iitiis to cure lUll web default im'Olving lhe pa)lIliXIl of money .....ithin three (3) da)1l after the date on 'Mtich such notice W!ll: gjvl:n, or if the delimit involves 901ne ad or omis..uC!:l other thlUl the payment ofmoocYaIld shall i10l be .::unxl within t.eIl (10) clays after I'd ~ "~-~~':I;O!::}'.J:l; Agenda Item No. 16E1 December 2. 2008 Page 23 of 86 the date aD whicb SlCb notice was given, or if the defal.ll.t in'llOlVCl scme act or cmission other than (be pa)mCDt ol'moocy which carmct be ~ within 1eIl (10) days aicr the date QI1 which sw:h notice W1l& giVCllllDd the cure lhcreofis net uodcrtakc:a promptly within such period IUld thcrcafttt C7.pediticmJy 00D3.plNd, tbcr:i in lID}' Md. cvmt tbe u.NDLORD &ball have Cbe fOD.owing rights and nmcdies; N.u'U1A"''''','dl1 A. I..ANDLORD. after due procell&, shall have till:: right. at its ejection. to cancel and terminate this LEASE and TCDlOVC all pcrsow: and prapc:rty thcn:from by 5WZUIla1Y proceedings; pr('l'Vided. bowew:r, that any such t.onninatioo of this LEASE shall be ..t the optino or dectifID of the :L.P.NDLORD only, and such lmnmarioo and caooeJlation shall not take effect unless the lANDLORD elecC:!l t1ut '1 shalL Ii LANDLORD ,ball have the right (i) to accelerate and declMe immediately due and p.BYBbJe all fcntS Ilhd other clJargCli to be paid by TENANT hereund~ 10 the end of the term, and to coDcct roch rentals and charges immediately by distress proceedings or otherwise at LANDLORD'S election or, (ii) in the event the TENANT abandons the Dem.illed Premises or in the event the LANDLORD dispot:;sc:sses!he TENANfbul does. not elect to terminatetbis lEASE, then, 'Without waiving l.tlI right to accelerate.,. LANDLORD &hall have the: ri~t to fe-let the Demised Premi!le5, Of portian~ therClOf. for the TENANT'S 9CCt'lunt. for M1Cb pcriod.s af IUnc and a1 such rentals. fur web Uf,c and upon luch covenants and conditions u LANDLORO may elect, applying the net rootw or Bv;,.ils of such letting first to the paymall of LANDLORD'S cxpC05l:lil in dispossessing the TENAA'T and the COSts 01' expenses of making such repairs m the Demised Premises as may be neccc:sa.ry in order 10 enable the LANDLORD to re-Iet the same, wd to the paymcul of any brokerage commissioas or ather l1ecellsary apelnc~ of tbe LANDLORD in connection with ,ucb rc-letting; and the bBJ.lloce, if auy, shall be applied by the LANDLORD from lime 10 time. but in any even no less than once I mouth, on a<:OOWlt of the payment due or paYllble by the TENANT hen:under, if an)', with the right rCscrY(ld to the LANDLORD 00 bring such eteriOll or procceding~ iOr" the r~ of IIOY dc:.6c.its rctnaining unpaid as it may deem advillable from time to tim~. without being obliged to await the end of the te.rm heri:Of fur a final dete:rminatioo of the TF..NANT'S account. 1br:: commClU::e:lJ)eIlt or maintenance of any !me Of' m<:Jrt actions shall not bar the LANDLORD from bringing otber or subsequent actioos for further accrull.ls put$Ulnt 10 the provi.'lionS' of this paragraph. Any balance remaining, however, after full payment and liquidatioo of the lANDLORD'S accounts as aforesaid, ~all ~ paid to the TENANT llOI1l. Lime to time with the rigbt n:se:rved to the LANDLORD at any time to give notice ill writing to the TENANT lJf LANDLORD'S election to CllJ1ceI and tennieate tI1is lEASE aDd all of the TENANT'S obli~ations thereund<<, and upon the giving of such Dotice lIJ1d the $imultaDeou~ payment by LANDWRD to TENANT of any uedit balance in TENANT'S mvor that may at the time be owing i1 sballl;:ODstitute a final and efkctive cancellation and termination of thir; LEASE and the obligations tbereofon the part of either party ttl the otlIcr. c. In the event of the lemJilUlrion of this LEASE by lANDLDR.D because of TENANT'S default. LANDLORD mall, notWithstanding any other provisions of this LEASE, be entitled to recover from TENANT as agreed upon liquidated dllDlages and [10( Ai .. penalty, an amouut equal to tile mea fair and reltSOOable rental ..-a1ue of the Le:tsed PremiHes for the unexpired portion of the: term, D. lANDLORD may also pursue such otber rem.edics as may be allowed by law or equity, and all such rights and remedies, whether cxprusly stilted above oc wbether available at law or in equity, shall be deemed separate IUld cumulative and llO one: remedy shall be deC:Elled to be exclu.sive of any &uclt othCl' remedy, eJl.eept that the remedies in subpa:ragraplui a and C above shall be altcrniltiv~rcmodies of the: Landlord, oot cumulative. E. N"otwithsu.nding anything to the contn.ry heTcin, it is agreed that wherever it i& provided in this seclioo that this LEASE snaIl automatically tennimrtc. the .-me Mall be d=me<l and construed to mean that ,<;Ucl!. termination shllll be: at the option or election of LANDLORD only, and that such termination and can~ation sh,all not take effoct unless LANDLORD elects thai it shall. F. TENANT acknowledges and ab>rees that if TENANT defaults in the payment of IIn)' mont:y due to LANDLORD Wlder the terms of rltis LEASE, then from and afl.ec the dale of such default, all sums due to I..AN!JLORD hereunder shall bear .inter~t allhe maximum tate then penn.iUed to be charged by priva1e parties in cOOlncu: go~'etlled by the laws of the Stale off1orida. In addilion. if tENANT fails to pay any taxes, assessments, or lIIlY other payments required to be paid by TENANT hereundC1 (other tlw:l. amounts paytlble as rCllts), 01 to perform any of its other obligatioos hereunder, LANDLORD may, on behalf of TENANT, make any sueh pa)mellt or payments or perform such obligatiooll on TENANT'S bcluU; and TENANT covcmmts thereupon to reimburse and pay LANDWRD 3$. additional rent 'Within len (10) days of LANDLORD'S demand theretor, any amounl SO paid IlUd cx.pended, with ioterc81 tlu~eon at the therl maximum legal contract rue from the dale of the payment made by LANDLORD until such amount is pllid by TENA.).ff to L.vIDLORD. Nothwb hereinl!lbo~ shall roquir~ LAhTILORD to cure: a ddilult trY' Agenda Item No. 16E 1 December 2, 2008 Page 24 of 86 on TENANT'S bebalt: Settioll37. BANKRUPTCY TENANT agrees that iflbe estale c:rcaled hereby &ball be takco upon ClCCUtioa.. atraclunOlt., cr anyotber PT'Oc:e!J: ofla\\', or ifTENANT shall bcadjOOgedl bankrupt a insolvent, CI" ifanyrecei\W CCO'\lliteebeappointed fur TENANT'S business and prq:c1y, Of if TENANT maker 8ftylflSigD:n\Olf of TENANT'S ~bthe bale6t nfa-=litcn, IX if TENANT sJuill file Jl volunl:uy peti.IiDo in bWoup~ ar Ippl)' b teorgan.i7.-licm. or My cxtrmicm Ig;lftment "'~U:I its crediton llnch lhe bankruptcy ex- other r.deraJ or state Jaw now in Ii:n:c or hcn:a!tct cnaacd /UJd IllI:Y !IUCh Clccuti.:n, lItlKbment on:lc:r, lI&'lignmeoc, .... actiOlJ. be not \xated Q' set a~ witb.i.c thirty (30) dRys tflereafur, tb<<llANDWRD may, if it ~ dects, upon ten (10) days' written nctite to TENANT, tcmUnate this LEAS.E, or LANDLORD, II IANlJLORD'S cpticn, &haJJ have !be right to pursue.such other- remedies 48 mIIy be allowed at la..... eX" in a:;uity llgaw:t TENAl'IT Mid any and an other parties ~o may be liable. Sec60D 3&. RIGHTS AND REMEDIES The various rights and cc:mcdi.es herein grut:ed to l..ANDWRD may be CIlcn:i&cd CCIl1CWrmdy, md shan be cumulatiyc and in addition to any Cllhera LANDLORD may be enlitJ<<{ to by law, and \he ~ of Me ex: ttKn right.<! or remc:dies d1aU ntt impair .lANDLORD'S right to cxcrciJe aoy other right ar rc:medy. The Glillll'e or bb::arauce of rANDLORlJ en c:aJOree an)'rigbt oc remedy in ettmtrti\:r1 with 8IJy DemuJt maU not be.&oned a ~'lIiw:r of iIUc:h Dclitult, nor I COl:l!lC:Df 10 a t:On.tinuacian lhcn:o( na- a Waiver of the same Defaull at: any subIiequm1 d.tc. Section 39. WAIVER OF JLJRY Neither LANDLORD nor TENA1\'!'J' shall seck a jwy trial in IIIlY lawsuit, ~ COO111erclaim, ~ my other litigation 00xd upon. or arisi.ng out of this LEASE, &0)' Jdated ins:l:n.rmen~ any co.llalenlJ IT the dealmg.'l or the tclarionship between or IQ)OJlg the parties, oc any of them.. No pany wiU led.:: III consolirlBte any.Q:Icb action, in v.t1ich I juryhu been waived, with any other action ill which iI.]urytr'W e.annoiClt hasnotbcen ~ved. THE ~RDVISIONS OF TIns PARAGRAPH !lAVE BEEN f'UU.y DISCUSSED BY THE PARTIES HERETo. NO PARlYIJAS IN ANY WAY AGREED WITH OR Ra>RESENTED 1'0 ANY 0lHER PARlY TIlAT TIlE PROVISIONS OF 1lils PARAGRAPH WILL NOr BE AJILY ENFORCED IN lu.L INSTANCES. Section 4U. ACCESS BY LANDLORD lANDLORD, and its ag=ts. maU have the right to aJJa the PrerniSllli 1Il all times in which Tenant is 0f)Q) fur busi:tt~ uJlOO prior notice to Tenant, (I:\:~ in cascs of an eDler8cncy w~ prior :d~ is not IlllJuired and entry trUly hi:: made during 000 busin.cst hours), fur tho purpose of e%aI.llinint. Ulllpc:cting. or shO'lltling the ~ to protpee:tive purcl1.al/e1'5 or to other TENANTS of the Premise&, or Sh~ing Cmler,.and to make such altcrarian5., repain., i.tnprovemans IX' additi:.cw. to the Prtmi:r-", IIlI LANDLORD may deem ueceswy c.- desirable. NodIins hc:n:in contained however. shaU Ix dcema:I or consu-L1cd to impose upon lANDLORD any obiiption, respc:n51bi.lity or liabilitywhalsoe\'el", fur the c.are, mamletWJce or rep.1ir of the Prauises, or the ShOpping Center. ~cqx as OtherwillC h~cin spa:ificaUy provided. During tbe IIl5t three (3) months oftbis LEASE, LANDlDRD s.hall ha~ the righllo place \I}'OO the Prani..,.e$ Ihc ~ notic;:e, i.ndicatin,g the Premises to be b: LEASE and TENANT shall nO! inrtrlere with m::.b notices. lA."IDWRD.mayen1er lhePn:m.ises whcoever ncx:.c.1Sa.Ty in the e\'etJ1 Oral} emergOlcy. Sectioll41. SALEEY LANDI ORD In the event LANDLORD tnumten it.!; ownenmip mt.eresr.in the Sh<Jlping CtlJler, lANDLORD shalla: released ofall LEASE obligarioos and liabilities which oxur afto- the date ofsuch Inln=. An.y Se.=urit)' OeposJtor other fund:;. controlled by lANDLORD in which TENANT has an ioteresl thcn:in sha/J be de!ivc:rod to !he nL'lW lANDLORD at the time of O\loDmdlip D::Il'>'ey.lnce, it bein.g understood and acknowkdgod by theJl;artic8 that thecoYen8nts and obligatioas contained in this LEA.sE 00 the pan of !.ANDWRD are to be bindine; only durin(: C&cb tANDWRD'S respecH~ prriod ofowncrship interest in the Shopplng Center. m connectian with a sale or tnmdi:r of the ShCWiDg Centa- by lANDLORD, TENANT a~ to provide lANDLORD with. an appropriate Esl:q:pd CertitiCllte purhUIInl to the provi.RioollofSectkxt35. Section 42. SURRENDER OF PHEMTSF,5 At the lerminalilDl of lh.ill tEASE. TB-IANr mall lilllTelIde:r the Premise; to lANDLORD troom dean and in as good II CD!lditioo and repair as Iea9rXlllible and prqx'%, lmd jf not thetl in Deliwlt, T:ENANT shall, except 1I!t provided otherwise withill thi~ LEASE, have the rigbllo remove its equipm.ent. funutur~ fnlde lixt:urfs ct" other pe:rsonilf flmperty placed in the Premj.~, provid~ llat UNANT promptly repair~ ilny da.rnagt: to the PleiW1iCS, oc ftu: ShopPing Center. ca:118Od by such removal. Ar,ylillbility ofTENANThercunder shall survivc:!bel api.r.ation or termination oflhis l.EASE. If IENA.W falls tD remove any pr~ belon.gi.og to it within time (3) da)'1l of lANDLORD'S nonce tI'> IQ1.10\le such property. or !>llbseque:nl to a court o.-Ua direcling such n::movnl. all 5UCh p~ shall bo: dccuu:d ahaudooed by TI::NANT and shall become the PmpenyoflANDLORD. Section 43. REI.OCATION OF PREMISES ..,uolF!;~1"L'''1Il A/',j) /!:J yf .4genda Item No. 16E1 December 2, 2008 Page 25 of 86 TInS SECfJON IN'I'ENTJONALL Y OMJITED. SectioD.u. NOTICES Unlrss and unril TENANT is notifia::l. otbc:rwUle in 'll.riting, reulal accruing he:eu:nder shall be ~ble to lANDLORD and mail~ to the following; All notices given (0 LANDLORD herewtda shall be bwardt:d to I.ANDLDRD at the fu1Iowmg addras.. postage prepaid, by r~ered cr certified malt return receipt: tequ.eSted,<< by courier seMcc. until TENANT is ooti..6ed otherwillt io'll.Titing: A ccpy of all ooti= 10 LANDLORD:mU al!tO be provided to I.ANDWRD'S maollgetDCllt company: CB Richard Ellis, Ft Mycn; - Napls 1100 Fifth Avccue Scutb Suite 100 Naples. n 34102 Attn: DircctorofA.uetM~ ~ lllld until I..ANDLDRD is oolified oth.tnvi.t: in 'Io'riti.ng. all noriacIS given II> TENANT htnlUIlder 1iuI[J be fi:::lrwarded to TENANT at the: Premises or ar the fullawing Post Offioe Ilddrcss: Collier County Tax Collector 3401 F..ut Tamiami Trail Napl~ FL 341]2 Ann: Deputy Tax Collo::tor and shall by registend or certified mail, rt:tun'l reo:apt rtquestOO, postage prepaid, or by person.aJ deIi~ IX courier lG"Vioe. Any notice or demand required to be gi\lttl or that may be gMn berct:mdcr shall be deemed complete upoo the dateofrec:eipt thereof. or ifde1jveryia refused, otl tbedate ofattemplCd dcIj~thm:of Etbcrpartyllctetom..ychangc: jn: a~ by notilZ in writioll givro 10 the cdlt~:r partY in the tnannCT herein provided. Section 45. lNABR,IT\' TO PERFORM TbiI LEASE, and the obligations of TENANT hereunder. shall not be irnpairttl. bc:c:aU9C LANDLORD is \lQlIble to fullilllDyofltB: obligatiorul hereunder, or is dcla:s-ul in doing so if such iDabiliryfX' delay iscausod bytQSO() ofSlril..~ or othCf I:abtr troubles, civil cammotioo, in\l491on., rebellion, hostilities., military or lo1SUlpOd piNier, saOOuage, govemt1lOltal regulatiow. or ccrltrol.1, inability [() obbUn any m.a.terial or 1etVice, eo~ shcrtagca, acts of God, a by my olhfr couses be)ood the cootrol of lANDLORD. If lANDLORD is unab1e to gi~ poll.'ICIlSioo of the Pranises to TENANT within NinCl)' (90) v..,. from the dale hc=t; t1U. !.EASE >hall ._ClIIy _inate ",d LANDLORD, by reason 00"', shaD no( be subject to any liability tbe:rcb ~ccpt IA.NDlDRD shall return to lmANT aJl deposit monies lmd rrny pre-- paid rent which LANDlORD has ba-cioim:!';:C;C:ived &om TENANT. Section 46. ADVERT1SlNG AND PROMOTIONAL FUl\'D This Seellon lrnennolUllly Omitted Section 47. RULES AND RF.Gm.ATIONS LANDWRD res=ves the right to prnmulpie, and TENANT b~ agrees to comply with, the Rub~ and Regulatioo.s fur the PremUes., Sbupping Ceo.ta:, and Ccmmon Areas, including but nol limital to !he Dll~g: a) TENANT shall continu.ously keep me Premises occupied and q')eD fur btlsiness durin~ the hours specified within Para.graph 47(1) herrin. b) TENANT shall load .llDd unload goc& only a.t such limes, in such IlTCAS lUld througb sucb entrJl.nee!; Oil may be d~jgnated for such pmpose.~ by LANDLORD. Trailers. trUCks, or other \'ebicles shall nrn be permitted to remoin parked o\'emigbt in any area oftbe Shopping Center. c) TENANT :Wan k:cep all garbage and refuse and to place same outsidtl of the Premises prepared fur collection in a manner a.nd at limes !lJ'ecdierl by I.ANDLORD. d) TENANT ahaIll..-eep the outside areall imrnedja~Jy adjoining the Premises clean. and not to bum, plaCl: or pennit any mbbisb. obstructiun ur merdumdise in such areas. ( .f l(3, N~Jl;l.,D2 Agenda Item No. 16E1 December 2, 2008 Page 26 of 86 e) TENANT shall 1::~ !he Premile~ clean, orderly. sanitary and nee from objOCtionabk odors. and in&ects, vermin andotherpest!t f) TENANT Matlnol distribute any handbilh or odLcr advertist.cg manc:r 00 or about atlYpart oEthe Sbcrpping Center outside of the Premi~. g) TENANT shall not ollpply any signs. pClStttG, mcn:handisc, ad-w:rrising litcrrrture, charge card 01" credit card decaJs or aoy other item, rq,vdless of iu intended use, wectly 10 the glass pands ~ing the storefronf or entry door{$} of the Premises. in ljeu thereo~ TENANT shall be pcrm.itted to display !ill such ligns or other items It the tlturea-Ol1t by 8UspcDding liU.id iter:rui from the inferior- ceiling at 11 distance 00 clOlle:T than l.lUe (I 'J from tilc inleric. service oftbe glass. No hand~itten signs or mher- display item~ shall be visible from the Slorc::uom. the lIqlla1'e fOCltllge sum of all signs and other items displayed I" or greater from the storefront mall Dol ~ceed leQ (10%) of the total area of the ~ore1ront glaas. In other words, in the event TENANT'S SlOrefroot shall contain 1.SD~, fl. of glass., the swn o[ aJI s.igIl~ and other dispra~ mOUD~ I" from tb.e storefront shall not e.xceed 15llQWlte feeL h) TENANT ab.nlf n01: use or operate llJly machinery that, iJ1 LANDLORD'S -Dpinian. i. harmful or dilltUrbing to other lena.ttts in the Sh(]pping Ceoter. nos sba" TENANT u,'ie any loud speakera. tdevilAOIlS, phonographs, radios or other deviCd in a mannCt" iO IllI to be heard outside of lhe Premise.<;, nor displll)' merchandise 00 the eximer oftbe Pre.rc.isea for saJe or promotional purpo9CS. i) TEl'o:ANT shall nol conduct ally 8uctlotl, -fire, btmhuptt> ClJ ~olng OUt ofbusioen SIlle on Of Itbout rhe Premises. j) TENANT shall keep its .signs and exterior lights properly OPerating, every dEl)' during the term of tIlis LEASE from dusk to 6:00p.m.. excluding SatWTIays SUnday! and legal boJjda~ Excluding-legal bolid.l!~ when govemmenta.l offices I}pically dose for busines&, TENA"'T agrees that its office tll1all be ope11t"d for busmw dW'ing the minimurn period of...-J.O!OO-9:00 A1\.f. to 6;00 r..M:. MooOa)'i: througb Fridays. In the ev=nt 'TENANT wis (0 maintain store operating hours in ilc.oordanee with this Pamgrllph., TENANT agree!; 10 pay, as AdditiODAI RelIt, $100.00 per day until TENANT'S operating hourI> BJ"e in acCOTdance with the provisiOQli oflhi~ Perl!!nlPb. k) "fENA.N-r, atJd iti employees, 8ha1l park their vehicles only in areas Gesignaled by lANDLORD. LANDLDRD re~the right tOusess TENANTs charge often dollars ($IO) per dIly, or any part th~!:o~ when TENANT, or TENA.""JT'S I::Il1ployee.s, use parking spaces bot designated b)' LANDLORD. All \'Chicles O'II.'Ded or Used by TENANT, OJ" TENANT'S employees, must be CUrTeo.t1y licea.<;ed and operable, with no Hal tires. capable of being lltarted by internal battery capocity, and movable by the vehicle'$ MVn engine and drive train. Vehicles not confonniog to the aforesaid requirements may ~ removed by LANDLORD, w;tbO\lt notice, with the cost of IUc.b remo\'lll to be paid by TENANT. Any lIign8gt displa)'tld on operable vehicle& is re:stTicted to a si:z:e that does lIot roquire- the illSuance (If" permit by govemmc:nj authar-itie: fOT use. I) LANDLORD sball not be riable to TENANT for fillY v-iolalioo of the rules Iud regul~rions, or fur th( breQch of any eovQliWt at conditioo by any otIler 7'Ef\'ANT'S in the Shopping Center. Sec:tiou 48. A'!TORNEY'S FEES TENAh'T shllll be liable fur aod sbtlJ] PI)' LANDLORD for the exponse of lANDLORD'S atrorney'~ ~ for any legal malter, dispute, action or pnx:eOOing commenced by LANDLORD to enforce TENANT'S obligations under this- LEASE provided howevC", i:c the event rocb 41ction or proceeding is adjudicated., lbe non-prewiling party shall be liable for and shall pay the expense of the prevailtng party'. attorney's fees and COUJ1 COSlS.. If either part)' hereto without Glull is made 8 party 10 any litigation instiMed by or against aay otber party to this LEASE, sucb oilie:; party .shall indemnifY and hold ham/less the other party againlll: al! CC61.!1 and CJqla!!ICS. iI1cluding reasonable attnmtYs fe:ell incUJTed in cour.ecuon lhcrewith, . AttOrney's fees", as tt1fctred to in this LEASE, shall include fues incurred by LANDLORD after au occurrence of a mOUetary or oonmonelM)' De.!.aull. tIT II fier the recognition of an issue by tANDLORD decrno:d signiiicMl'f enough, in the exclusive jUdgmem ofLANDLOJill, Lo be the: L1lt.~i~ of ao)' le.gal Action, wbether or Oaf sueh action is OOmml:t1ced, thai secb any !)pC: of relief or declaratory Judgment, which shall include fees IlIld cxpeuses of iu attorneys for all legal m'J"Vlces, negotiati(ttl services And c.ollcction senicetl through trial and appeal. Sei:UOO 49. INTEREST ON PAST DtJE OBLIGA1101\'S Any atlll\1l.nt due from TENANf to LANDLORH hereunder u..hieb i~ not pllid ~tll::o. due ~.balJ bear mtcre8l; at one and one-bulfperc.ent (Hi%) per montb (or the then mAXimum rate poe'm'littod under law) from the due dale until paid. """'lro.l:'.IUl.~dl;.' ./) />1/')'/ . j ,- ~ Agenda Item No. 16E1 December 2, 2008 Page 27 of 86 Sectku.l so. TIME OF ESSENCE Time is of the ClISCll.ce with respect '0 tb~ perronn.noe of each of Landlords and TENANT'S coven.antll of dUs LUSE, and the strict performAuce of tilIch IhaU be a cooditjoa precedent to Landlords lll1d TENANT'S rights hereunder. ~tioJl 51. ROLDING OVER Should TENANT continue occupancy ofllie Premises der Cllpiratioo ofthiB tEASE with the COOSCll( of lANDLORD but without illY written agreemCIJt betwee.tt rho: panies. TENANT shall bo::omc a TENANT from mcm.th to month UPOQ each and all of the terms herein, but ill no t\OeOt shall any such holding over constitute a mlewal or e)ltcruliM of this I..EASE. During JUcb holding over TENANT; at lA.NDLORD'S sole discl'l~tion. shaU pay Bale Rent at twice the monthly amount which was payable by TENANT immedialcly prior to tm hold over occurt'eocc, SccdoD 52. PARTIAl, INVALIDITY Any provi~on of this LEASE which Ihall be held to be invalid, '-'oid or illegal snaIl in no way effeet, impair or invalidate any other prov:isian herw( and the remainder ohhis LEASE lIhatl cOlllmu.e in full throe, Sediws 53. BROKER DL~AIMER. TI:.""NA..l.[f warrants it hal had DO dealings with a reall2tlte broker or agents in connection with 1M negotiation of this LEASE and CB RICHARD ELLIS - FORT MYERS, NAPLES, and with n:8pecl 10 this transaction CB RICHARD EWS - FORT MYERS, NAPlES, is the: repre&CCting agent for LANDI..DRD. LANDLORD shall be mpon"ible for the payment ofllnyfces Or commissions due Cs RICHARD EtUS _ FORT MYERS, NAPLES aad TENANT agrees to iadeumiJY and hold LANDLORD barmlcss from and against any other foe or commi!sioo claim that DUly be mllde by IUWtb.c:r real estate broker (W agenl io refc:rcuce to this LEASE. Sec-iionS4. ~ LANDWRD'S approval of any act by TENAN'T requiring u..NDLORD'S COU8cnt shall not be dcemlld to rcoda llmJec~ the obtuining of U\NDLORD'S .llp~1 8i:am of allY RUOOequcnl lid by TENANT thaI requires LANDLORD'S approval. LANDLORD may, at its option, accept partial plI}1DcnOl of Base Rent 6[' Addittonal Rent withaul waiving lUIY righ~ concerning the cxi&tenee Df MIl' UlQl)etary or notI-lUom:laty Default lmder this LEASE, whkh Default shan ~aIld continue unaffected by tbe reocipl ofanysucb partial JlIIyttlcnl Section 55. LEASE GUAlU.NTEE rIDS SECTION INTENTIONALLY OMITTED Section 56. SUCCF..sSOR,,1\j AND ASSJGNS Exoep( M olherwi.o;e provided in this LEASE, all of the covenantll, conditioos tu:ld provi~ons of Ibis LEASE siulU be binding upcm and &hall inure to the respective repres.enlaliYC:S, SUCCCUOf$, and permitted 8!lslgns of LANDLORD and TENANT SectiOQ 57. HEADINGS OF LANDLORD AND TENANT The llrticlc and parlgrapb captions contaiucd ill thiB LEASE llrC b ccmVClience only IUld do tiel in 4lIY way limit or ampJify any term 01 provision bereof The terms ~LANDLORD" and "TENANT"' as used herein shall include the pluTlllas weU 8$ the singular. anii the neuter shall include the masculine and feminine gCllders. S~ction58. NO ESTATE Hi' TENAJI.'T This LEASE shall only create Il. relationship of I..A1-lDLORD and TENAAT berwocn LANDLORD and lr.NM'T. TENANT has only a right of use fur the Premises, nO/. subject to levy or ~l.e, lUld not .lIssignabh: by TENANT exrept as expressly providr.d hcn::io.. Settioa 59. ENTmE AGREEMENT TENANT aclmowledg~ it bas read thill entire LEASE, evidencing same by the initialing all lEASE pages. and Ul.l\.I TE.'{ANf llJidasUlnds and ./If!:rees LO all of the terms and conditions cantained berein. lANDWRD wlllu:s no rq)resentlltions as tn the pcrind or periods that allY other stores within the Shopping Center will be ~ fur business, and thir; LEASE shall not be effected by the clOJi.ng oi any such businelillCS. LANDLORD ~ ~ ~,. --~ .__.~~".. - .__.,_.~.~w '~~"J." ! l- )\V Agenda Item No.1 bl::1 December 2, 2008 Page 28 of 86 the resulting document shall not, llOIelyas .. matter of judicial CDnst:n.lCtiOD, be construed mon: lleVCrelyagainllt ODe party over the other. Thil '/..EASE. lllld anyattllcbed Schednletl, Exhibits and Ad&ndum. (:on5li~ the: entin agreement between LANDLORD and TENANT, and no prior ~t or uademanding shall be effD:tivc:. No provision of tbi~ LEASE may be amended except by written agreement sigur;d by LANDLORD and TENANT. Secdoo 60. GOV'ERNI'NG LAW This LEASE sball be coolitrucd,lnle.rprtted llne governed by and in accordaoce wilb the laws oithe Stine of Honda. Any legal proceedings with regpect 10 fuia LEASE shall be instinned in the: Circuit Cou:rt of Colli=r County, and TENAN1' 5l1bmits itself to the jurillliictim oftbis court. Sbction 61. RAnON GAS Radon is a naturally occwring radioactive gas that, when it has accuDu,Lat=! in II' bnildillg in mfficie:ct quantities., 1U.IlY presont health risk... to penons wilo art! exposed to it c.\.'ef lime. Levels of radon that ~cecd Federal and State guidelines bave boen ftnmd in buildings in Aorida. Additional infumtaliOlt regarding radon WId mdon tcstin@ may be obtained from the Collier County public health uait Thh notice L'l given pursuant to 404.056(&) of the F10nda Stamtes. Section 62. HAZARDOUS SLlBSTANCES The lerm "Hazardous Substanr.es" as used in tilis LEASE shaU include, without Iirnitatian,: llarnmablCfi, explosives, Ted.iooctive JJl2lterials, tlSbestOli, poly;;:hlorin.lLed biphenyl!! (pCBs), chf:llticaJ. knO'Wll 10 cause CSQcer or reproductive toxicity, polllllants, contamments, huardous wastes, toxic 5ubstances or related materials, petl"oletnn and petroleum products, aDd subt!tarllz,ClI d=1ared to be hazardous or toxic Uhder 811Y law or regulation DOW or hQrc:afic:r enacted or promulgated by flny governmental authority. TENANT &haU not cause nOr permit to occur flny violation of any federal, stale, or local law, ordinance, or regulation now or- hereail=: enacted, rclall'l:/ to envircmnental conditions on, unda or about the Pr=ises arisiog from TENANT'S use or occupancy therein, nor shaU TENANT cause or permit the Uge, generation, release, manufuct\lJe, rcfuleroent, production, proc~i.o&, gtoragc or disposal (If any l-1a..zMdous Sllb8tance without LANDLORD'S prior written coment, wbicll Consent ma}' be witbdra'WO., conditiooed, or modified by LANDLORD in its ~le and absolutl!': discretion. TENANT shall indemnifY. deR:wi aod hold LANUWRD, its r~tive oilictra, dlrec:tOCB, beneficiaries, shareholders, parmcn, agenl&, and employc:efi barmless from IlU fine~, suit$, procedLll"eS, claim.s, and aorioos of every klud, and all COStR associated then:with, including attorneys' md COI1SWt.ntJ' fees, arising out of; or In any wa}' CO::mllCtcd 'WIth, allY t1epOE>il, spill, discharge or othcr release of Hazardnu8 Substances, at or frOlll tile Prcmi~, or whicb arises at an)' time from TENANr'S W1e or occupancy of the p,.elni~s, or from TENANT'S fiUlure to comply with or satisfY government required action on the ttUltter, TENA}.."Y'S obligations and liabilities Wlda this Paragraph shall !i\avive the termination of this LEASE. Seelion 63. EXBmrrs AND ADDENnnM Scbeduleg A, 8, C. D, E and F, togotiu.:;t -with the Pylun Sign Lease Addendum and any other fully executed AddcndUllJ, shall be attached to and made a part fJf the LEASE. Se~tiOI1 64. NO RECORDING Thi:; LEASE /\hall not be recorded in the public ra::orcb however. a Memnnnduro of LEASE, eccl.'Ptabie to LANDLORD, may be e.u:cutcd and delivered fur such purpolle. Sectiou 65. DEFINmONS (,) S-.boooiuv Center is hereby defined tc m/'All (i) the pat\%l(a) of land xhoWft lI{Jd lcgally defined on Stbcdule B, owned in i::e by LANDLORD or made available kc 11M: by My rt'(:iprocal easemcnb; ex- reciprocal opcra'ling .asn:ement> and all huildings and improvcmcnll; IhcrcJn; AJld (ii) lIlIy other parceJ(s} of land, together with the intprOl'!2llClJts tlu::re:oo, and any ClgemC:l1 cr right of My at any time designaWd by LANDLORD to Irpart of the Shopping Cmter; and (iiil anyptant cwothc:r iin:iijty serving anyportirm oftheShc-wmS Ccnll::r, ~eth=- or not such plMtN bcilityshalJ be located in the ShcppiIlg Ceotcr or existin.g on atty other parcel(s) ofl~lId. mduding the filcilities COOl1~ting 8lI)' ~u..-h plant or ffidliryto the Shcpp~ug eeltel'. Schedule A sct5:1Urtb me ~enenti iayaJt oillie SJx:wingCenta bul shall not be deemed a W&rrlU1ty, rqK=.tarion Of agreement by lANDLORD thaI the oonfiguration of the Shopping Caller \\ill remain e.uctiyas indicated UtI Sd:u:aule A, or that an,.. regional CV' naliooi1l chain .store or an)' oth~ mercluwt sha1I ~ or fl:Dlain ~ lU-- bJs.Wess or occupy or continue to OCCUpy any Premi!leS in or adjoinillg the Shopping Center cillring the !c:rm or any part tha'oot c.tcept JIll nt1ly Oe oilie.rwise l:lI:pre.ssiy provided herc:m. !.ANDWRD (ea'::r'\Iet; tbl: right tc add to or to seva tbe OWD~ip ofor otie La any portico(s} of the ShOJ'Pin~ Cmto Jll any time. . ,l) .. ~/f.11 IVDl / 'f ""I'I.e5mOl1)\',!ll ""genda Item No. 16E 1 December 2. 2008 Page 29 of 86 (c) Prorllia Share 'tENANT'S pJUndc: shlll'C (also known as "Proportionate Share") of co:rtmal:I aR:8 maiotlloance or an)' other Additional Rent itc:m ealcuJal:ed. by multiplying the totalllttlOWlr of BIIY sucl1 expense by a fraction, the DWr\eJ'atar of which is the gross leasable area 0{ the PrcmtSC5 aod the denominator of witid:l is the gross leasable area of the portioo of the Shopping Center awned m fee simple: by LANDLORD or leased by LtIndlord punuant to a e:round lease during the LEASE year CCM::red by LANDLORD'S statement thtnfur. SeetiOD 66. OPTION TO RENEW TENANT shall have the right, exercisable on not le!5 1ban one hundred ei:hty (180) days prior \'Vritlcn notice 10 LANDLORD, to exl:md the u:nn of this lease (or twO additional five (S) year periods; provid~ tltnt TENANT is oot in ddilult of any of the tc:nns, c.nvemnts, md ccoditlons of this leBSC, onci that no fuct or circutnstan<:e exists that with the givto,; of cot ice arthc: passagt:: aftime, or-botb, would constitute such default, eithCl" at the time of e:xcrcisc of said O'Xtension right nr 8!l of the effective date of said extension. The extension term sh8.lJ be onder aU of l:he same tenns, t:tweJWltS and conditiotU hereof, except tbat (i) tm: pet' lU1D1lIIl base terlt applicable to the e>.1ension term shall be the then fair mukct reat fur comparab~ retail spate in the shopping center or in a comparable 6bopping center ItS rea!lllIlably dettnninod by LANDWRD in tile ~ise of good faith (but in no e'\leJlt less than the Base Rent in effect iJnml:ldiateJy procc.ding the exl:l:IISiotl term); and (ii) TENANr shall not havc 8lt)' Mther optiOflIO extend Iht teJm. of this lcue. In !he c:voJt tbm TENANT fails to deliver such wrtthttt notice in .. timely tnalWet', TENANT shaD be deemed to have wai\lod this option to extend !be tl!:tm of this lcllSC ancl. thereafter. shall havt tW such optiOll orri&,ht. IN VlITNESS WHEREOF, the ~es herero have s.i~ed and Sl:akd this LEASE as of the day and ~'ear first above writ1aL WflNESS: LANDWRD GulfStreum ,~,Jln'''bn'n" 7 !1(I'/}/ I ll)C D.>n -i~:~t:> 't \\1TNESS: TENAJIoT &p'~ ~fP~ HIS TAX B)':G DATE, <-/..-..- 68' .....1'U',SJnIlJ~'.m "I 'w!l f. $ Agenda Item No~ 16E: 1 December 2, 2008 Page 30 of 86 Scbedule A Site Plan Page 21 """ I T..."nl "''''PLl::~':IUIJ:S.02 initials Agenda Item No. 16E 1 December 2, 2008 Page 31 of 86 I) f l ~ ~ -~ : Dr)~=~r (D 1 Nail SOk>n ~ "" , ~ 1,380" 9 l l " . ~. ~u.!.~?_q~~.. . U,~~~,,_0 ; Sel:lttnp. e l-!':,!!:9.k. ,..~. i !M",roPCS& r--G.....ro,O ! Slf;ore.O i.~c-,. .. Dj..,.. Sih'PimT !'........."S ~.. ""'J. ,"'.. .'..,. " -"'.'1 ...' ":O;.'-SJ BUILDING' A' "','':;'T'ji'':'T'r:;--, ~'-I r---I i"\!....;...I- .. '-1' ~.... 1 % - :r:"':..,;aN,~!gliSC:,Q.7: G\I~I .:>\.!::!!.W:~g)-oig\ ~= 'II\-"" 1",< I 0- '" '0 I o.l.~I"'-fi'::-i :> ~ ~.11 I! ;: !Ol ' ... ,~fi' ... :.c, i i: : !:: a.. t I... ~H~~ -eie9! --if> ~ . i ~ ~ I . - '" " > ^ , . o s .;. o ^ !!. iii p~la 3JO~ ueplo~ Agenda Item No. 16E 1 December 2, 2008 Page 32 of 86 ~ " VIe -z -t.. m" '1:10 ....~ >~ z~ ~ m $ 0; g '" " 0. t -r' h....., 1 . ,A,,/,I, ,"/</ .J..,!..,_. oN/. Schedule B Legal Description GOLDEN GATE EST UNIT 13 THAT PORTION OF TRI7 AND W ;< OF TR 18 AS DESC IN OR 4063 PG 0876 Page 22 N.>.PL!'5-48II.'l'..!!:' !~'= 1,1<.., ~ Agenda Item No. 16E 1 December 2, 2008 Page 33 of 86 Schedule C Landlord Improvements Spaced to be delivered U Il "Vanilla ShelJ" to include: Poured conm:te Floors Walls taped and spac.k.led ready to accept paint or wall covering Fully built out ADA compliant restroom A drop ceiling with adequate lighting for office use Air condi1icmi."l,g adequate fur office use R~uired ek:ctric:al receptacles and li,gbt switches P..ge23 NM1.,ES,lll<l.lllv.1lI l"iI"'/~ r~.::'" ... Agenda Item No 16E1 December 2 2008 Page 34 of 86 Schedule D Tenant Improvements Tenant impmvements skill be consistertt with the! lU'Sthet:iC1i of the slu:wmg CU1ter and shall be subJect to LuldJord's approVll~ such apJroval not to be unreasonably withheld Page:!4 r-l"~U!SOJCIJ:!S._O:O In"iOL'~. J) E~-'-~ - ~ I Agenda Item No. 16E1 December 2. 2008 Page 35 of 86 Page2S "'AI'll'J<'::Ou)."l..C Schedule F As Is Condition of Premises /11Inllionatly OminerJ l ''''''"'' l'i<i~~~) L___. Agenda Item No. 16E1 December 2, 2008 Page 36 of 86 PLYON SIGN LEASE ADDENDUM WUSO.ll Plaza WilsonBtvd. Naples, Florida 34102 This agreement is madt: this ~y of ~l~.t: between tbe LESSOR., GuJf Strellm RcWI lnvamli~:nu, Ltc and the LESSEE, COLUER --,ouN1Y TAX COLLECTOR, Naples. Florida. II is AjUced that the LESSEE lIball bear the total cost to construct and install pylon signage at the main building entrance and appr-cvaJ of !he fina.t sign design Bod placement w;thin said pylon shall be at the LESSOR'$ sale discretion, provided, however. the !l:iu of the lettering shall be at leal:! the same size .u any other lenant. Placem(lll! of Lessee', panel within the directory, whether al the timc of installation or dwing the term arits displlly. mllY change depending on the building's demands. Therefore, it is cle:arly undcn;tood that the visibility of the panel may vary depending upon the side and locatioll of the panel placement. It is further agreed between lile parties that said panel is the sole property of LESSEE and ibM! LESSEE assumes all responsibility for IIOY damage done to &aid panel and the area of the diroctory immediately !UtTUU:Ilding Lessee's panel. indudin& bUl Dot limited to lIetS ofvsndalis:rn, lfLESSEE does DOT repatr the damaged pantll within W dl'l)'S after the damage occurs, LESSOR may remove said damaged pancl, repair any damage 10 the dirr:ct(lty at Lellllee'S cost, aDd thereafter this agr=ctt.t shall be tc:nnwated. The term of this lease is lbr II. periDd of (5) years from the date rem begins under the Office Space Lease LO which this ICIlSe is IIttaclted, with the option t(l renew by TENANT lOr two Ildditiaalll five (5) }'car periods, and upon thirty (30) days' writnm Doci~ form LESSOR to LESSEE, such p&nel ml}' be removed at the end of the term or anytima thereafter. Landlord agrees to waive the 1'1 years tent OD the pyJoo sign. Rc:.nr. fi:Jr the pylon sign shalf commence one (1) year after placemOlI of sign on sign panel.. PllDd copy to read: To be detc:rmined Monthly Rent: $60.00 Plnse add me above aJnount to your monthly reDial payment or lD.Ike acpUlI.te cbed:- pa)'.hle 10 GllIfStreAlIlReUll Investments. LLC. and mlil to: C"'B Rictlllrd Eli! An: Prupt:rty Milnagemc:nt 13350 Metro Parkway Fort Myers FL 33966 4/ iA:ff 11/,41~1l 1,/ a" " I ' B" ~f,1,,, :sf:/J /Jt:; ~~"- Page 26 1"'''".3W..' f ~--- . LT~!!L NA'U'SI.lU6:::!y.C1 Agenda Item No. 16E1 December 2. 2008 Page 37 of 86 Agenda Item No. 16E 1 December 2, 2008 Page 38 of 86 LEASE THIS LEASE (the "Lease") is made by and between Kite Eagle Creek, LLC, an In\liana limited liability company (the "Landlord") and the Collier County Tax Collector (the ":Penant") as of the date of last execution hereof by Landlord or Tenant (the "Effective Date"). WITNESS ETH: ARTICLE I. BASIC LEASE PROVISIONS \. \. Basic Lease Provisions, The following basic provisions of this Lease ("Basic Lease Provisions") constitute an integral part of this Lease and are set forth in this Section I, I for the convenience of the parties, Each reference in this Lease to a Basic Lease Provision shall be constlUed to incorporate all of the terms provided for under such provisions. (a) Leased Premises: Defined in Section 2.1 hereof; consisting of approximately 2,947 square feet of "Floor Area. " (b) Term: Initial Term of five (5) Lease Years, "With one (I) option of five (5) years to extend the Tnitial Term, all as provided for in Sections 3.1 and 3.2 hereof. (c) Tenant's Use: Satellite Office for the Collier County, Florida, Tax Collector and staff persons from the clerk of cireuit court, sheriff s department and any other governmental agencies desired by Tenant to assist in Tenant's functions and for no other purpose whatsoever without written approval from Landlord. , (d) Tenant's Trade Name: Collier County Tax Collector. (e) Landlord's Address: 30 South Meridian, Suite \I 00 Indianapolis, Indiana 46204 Attn: Director of Asset Management Facsimile: (317) 577-5605 .I (f) Tenant's Address: Collier County Tax Collector 3301 E. Tamiami Trail, Bldg. C-l, Room 310 Naples, FL 34112-4997 Attn: Honorable Guy Carlton Facsimile: (239) 774-8852 Agenda Item No. i6E 1 December 2, 2008 Page 39 of 86 (g) Lease Year: A "Lease Year" shall mean each period of twelve (12) consecutive full months, beginning on the Commencement Date as defmed in Section 3 .1 (such that if the Commencement Date is not the first day of a month, then the first Lease Year shall begin on the first day of the first month following the Commencement Date, and any partial month in which the Commencement Date occurs will be included within the first Lcase Year.) (h) (i) Base Sales Amount: N/A Percentage Rent: N/A (j) (k) Security Deposit: $5,771.21. The Shopping Center: The Shops of Eagle Creek, Naples, Florida, as more particularly described in Exhibit A. attached hereto and made a part hereof, and depicted in Exhibit B. attached hereto and made a part hereof. 1.2. Base Rent: Lease Year PSF Annual Monthly Initial Term 1 $ ]9.00 $55,993.00 $4,666.08 2 $ 19.67 $57,967.49 $4,830.62 3 $ 20.36 $60,000.92 $5,000.08 4 $ 21.07 $62,093.29 $5,174.44 5 $ 2L81 $64,274.07 $5,356.17 Lease Year PSF Annual Monthly Extended Term I $ 22.57 $66,513.79 $5,542.82 2 $ 23.36 $68,841.92 $5,736.83 3 $ 24.18 $71,258.46 $5,938.21 4 $ 25.03 $73,763.41 $6,146.95 5 $ 25.91 $76,356.77 $6,663.06 870393 Cl4844-5(578) - 2- ----l I Agenda Item No. 16E 1 December 2. 2008 Page 40 of 86 ARTICLE II. PREMISES. 2.1. Premises. Landlord is the owner of the Shopping Center. Landlord, in consideration of the Rent, as hereinafter defined, to be paid and the covenants to be performed by Tenant, hereby leases to Tenant, and Tenant hereby hires and takes from Landlord, that certain premises located in the Shopping Center and depicted on Exhibit C (the ''Premises''), snbject to the terms and conditions of this Lease. Landlord reserves the right, with respect to the Shopping Center, to modify, increase or decrease: the number, location, dimension, size, and height of buildings and other improvements in the Shopping Center; and the identity and type of other tenants. Tenant's interest in the Premises is and shall be subject to all easements, restrictions, liens, encmnbrances, rights-of-way, or other matters of record affecting the Premises or the Shopping Center. 2.2. Common Areas. Tenant shall have the right, in conunon with all other tenants in the Shopping Center, to use the areas in and around the Shopping Center designated by Landlord from time to time as common areas, including, without limitation, hallways, stairs, elevators, sidewalks, interior drives, parking areas, and green areas (the "Common Areas"), subject to the Rules, as hereinafter defIned. Landlord shall operate, maintain, and insure the Conunon Areas for their intended purposes in such a manner as Landlord shall detennine to be necessary or appropriate, including, without limitation, that Landlord at any time may close or change any part of the Common Areas as it determines to be necessary or appropriate. 2.3. Quiet Eniovment. Landlord warrants that it is the owner in fee simple of the Shopping Center, and that it has full right and authority to cnter into this Lease, subject to all restrictions ofrecord. Landlord agrees that if Tenant observes all of the terms and conditions of, and performs all ofits obligations under, this Lease, then, at all times dwing the Term, subject to the terms ofthis Lease, Tenant shall have the peaceable and quiet enjoyment of possession ofthe Premises, without any manner of hindrance from parties claiming under, by, or through Landlord. ARTICLE m. TERM. 3.1. Initial Term. The "Initial Term," and all of parties obligations herelllJder, with the exception of Tenant's obligation to pay Rent, shall commence on the Effective Date. Tenant's. obligation to pay Rent shall commence on (the "Commencement Date") the earli~ of: (A) that date which is sixty (60) days after the Delivery Date; or (B) the date that Tenant opens for business. The Initial Term shall end on that date wliich is five (5) Lease Years after the Commencement Date, unless earlier terminated in accordance 'with the provisions of this Lease (the "Termination Date"). Tenant covenants that within five (5) days after the Commencement Date, it shall execute the Commencement Certificate attached hereto as Exhibit F and made a part hereof, and deliver it to Landlord. 3.2. Extension Ootions. Provided that no Event of Default, as hereinafter defined, or any facts which with the giving of notice or passage of time, or both, would constitute an Event of Default, exists at the time of the exercise of any option to extend the Term hereof or exists at 870393 <14gA4.S6578} - 3- Agenda Item ~jo. 16E 1 December 2. 2008 Page 41 of 86 the end of the Initial Term or any Extended Term, Tenant may renew this Lease and extend the Initial Term hereof for up to one (1) additional period oftive (5) years (such five (5) year period being referred to as the "Extended Tenn"), on the same terms and provisions as provided in this Lease (except that the Base Rent due in such Extended Tenus shall be as provided in Section 1.2), by delivering written notice of the exercise of such option to extend to Landlord not later than one hundred and twenty (120) days before the expiration of the then current tenn of this Lease. If Tenant fails to exercise any of its options to extend the Term hereof in the time periods set forth in this Section 3.2, all then unexercised options shall immediately tenninate and have no fhrther force or effect, without further notice from Landlord. Any reference in this Lease to the "Term" shall mean the Initial Tenn as it may be extended pursuant to this Section 3.2. 3.3. Holding OVer. If Tenant fails to surrender the Premises upon the expiration of the Tenn or earlier termination of the Lease (it being agreed that Tenant shall not be pennitted to so hold over without Landlord's written consent), Tenant shall pay Landlord for each day of such holding over a sum equal to one hundred and fifty percent (150%) of the Base Rent payable during the preceding Lease Year prorated for the number of days for such holding over, plus Tenant's Pro Rata Share of all other amounts which Tenant would have been required to pay herelU1der had this Lease been in effect (the "Holdover Rent"). If Tenant holds over without Landlord's written consent for a period in excess of thirty (30) days without any action from Landlord to dispossess Tenant, Tenant shall be deemed to occupy the Premises on a tenancy from month to month at the Holdover Rent, and all other terms and provisions of this Lease shall be applicable to such period. At any time, either party may tenninate such tenancy from month to month upon written notice delivered to the other party at least thirty (30) days in advance. Tenant hereby waives any and all notice to which Tenant may otherwise be entitled under the Jaws of the State of Florida (the "State") as a prerequisite to a suit against Tenant for unlawful detention of the Premises. Tenant shall IndemnifY, as hereinafter defined, Landlord from any Loss, as hereinafter defmed, resulting from such hold over, including any liability incurred by Landlord to any succeeding Tenant of the Premises. ARTICLE IV. CONSTRUCTION 4.1. Landlord's Work. Landlord shall perfonn the work described in Exhibit D, attached hereto and made a part hereof (the "Landlord's Work") substantially in accordance with the plans and specifications for Landlord's Work, as such plans and specifications may be modified by Landlord as appropriate to complete Landlord's Wark (the "Plans"). All of Landlord's Work shall fully comply "ith all applicable building and fire codes. Landlord shall transfer all warranties to Tenant for all equipment installed or provided by Landlord, including, but not limited to all HV AC equipment. The "Delivery Date" shall be the date upon which Landlord's Work is substantially complete in accordance with the Plans, subject to delineated "punch-list" items that do not prevent Tenant from using the Premises for the purpose of: (a) conducting its nonnal business operations; or (b) completing Tenant's Work, as hereinafter defined. On the Delivery Date, Tenant shall have full occupancy of the Premises, subject to all of the tenns and conditions of this Lease. Landlord shall correct any "punch-list" items within sixty (60) days after the Delivery Date. 4.2. Tenant's Work. 870393 (14844-5657&) - 4 . Agenda Item No. 16E1 December 2, 2008 Page 42 of 86 (a) Plans. Within thirty (30) days after the Effective Dale, Tenant shall submit to Landlord two (2) copies of the complete plans and specifications (the "Tenant's Plans") for the work Tenant deems necessary to prepare the Premises for occupancy by the Tenant (the "Tenant's Work"). Within ten (10) days after Landlord's receipt of Tenant's Plans, Landlord shall notify Tenant of any failures of the Tenant's Plans to meet with Landlord's approval. Tenant shall, within ten (10) days after receipt of any such notice, cause the Tenant's Plans to be revised to the extent necessary to obtain Landlord's approval and to be resubmitted for Landlord's approval. When Landlord has approved the original or revised Tenant's Plans, Landlord shall initial and return one (I) set of approved Tenant's Plans (the "Aooroved Plans") to Tenant. Tenant shall not commence Tenant's Work until Landlord has approved Tenant's Plans, which approval shall not be unreasonably withheld. Landlord's review and approval of Tenant's Plans shall not be deemed to be an assumption of responsibility by Landlord for the accuracy, sufficiency, or propriety of Tenant's Plans, pursuant to applicable laws, rules, ordinances, or regulations. If the Approved Plans are changed as a result of conditions placed on Tenant as a prerequisite to obtaining a permit, Tenant shall submit such changes to Landlord for approval, and Tenant shall not proceed further with the affected portions of Tenant's Work until Landlord has approved the changes. Such changes as are approved by Landlord shall become part of the Approved Plans, (b) Performance. Tenant shall, in a manner consistent with the Approved Plans: (i) install its leasehold improvements, trade fixtures, and equipment; and (ii) complete all other Tenant's Work. Prior to performing Tenant's Work, Tenant shall: (i) obtain all permits, licenses, and approvals required for Tenant to perform Tenant's Work; and (ii) deliver to Landlord: (A) copies of such pennits, licenses, and approvals; and (B) evidence reasonably satisfactory to Landlord that Tenant has procured workers' compensation, generalliabihty, and personal and property damage insurance as Landlord reasonably may require. Tenant shall: (i) perform Tenant's Work: (A) in accordance with the Approved Plans; and (B) in a good and workmanlike manner and in compliance with all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees (the "Laws"); (ii) ensure that all contractors, subcontractors, laborers, and suppliers performing work or supplying materials are paid in full; and (iii) observe and perform all of its obligations under this Lease (except its obligation to pay Rent) at all times after the Delivery Date through the Commencement Date. Upon completion of Tenant's Work, Tenant shall pay in full all contractors, subcontractors, laborers. and suppliers and shall submit paid invoices and lien waivers to Landlord. Upon review and approval of all such paid invoices and lien waivers, Landlord shall pay Tenant an allowance in an amount not to exceed Twenty Eight Thousand Dollars ($28,000) to cover the costs of Tenant's Work. (c) Signage. Tenant may, at its expense, place adequate signage in front of the Premises so that its customers can easily identify and locate Tenant, upon prior written approval of such signage by Landlord, which approval may be \\~thheld in Landlord's sole discretion. 870393 (14844-56578) - 5 - Agenda Item No. 16E 1 December 2, 2008 Page 43 of 86 ARTICLE V. RENT. 5.1. Rent. Commencing on the Commencement Date, Tenant shall pay to Landlord, in lawful United States currency without notice, demand, deduction, set-off, counterclaim or recoupment, and without relief from valuation or appraisement laws, the Base Rent, as set forth in Section 1.2 and the Additional Rent (collectively, the "Rent"), together with any sales, use, or other taxes assessed thereon for the use and occupancy of the Premises. Base Rent and Additional Rent shall he paid in equal monthly installments commencing on the Commencement Date and thereafter during the entire Term on or before the first day of each month, in advance. 5.2. Additional Rent. Commencing on the Commencement Date, Tenant shall pay to Landlord, as additional rent (the "Additional Rent"), all other sums, charges, and payments required to be paid by Tenant to Landlord under this Lease, whether or not the same are designated as Additional Rent including, but not limited to, Tenant's Pro Rata Share of the Center Expenses, as defined in Section 5.l0(a). If any sum or charge is not paid at the time provided in this Lease, then it shall be collectible as Additional Rent with the next monthly installment of Base Rent; provided that nothing contained herein shall he deemed to suspend or delay the payment of such sum or charge, or to limit any right or remedy of Landlord \vith respect to its nonpayment. 5.3. Late Char!!e. Any amoWlt of Rent that is not paid within five (5) days of the date due shall bear interest at the lesser of: (i) the maximum rate payable hy Tenant lUIder State law; or (ii) the rate of eighteen percent (18%) per annwn from the date when such amolUlt is due and payable under this Lease until tbe date paid. If any amount of Rent is paid more than five (5) days after its due date, then Landlord shall be entitled to a late payment fee of One Hundred Dollars ($ I 00.00) in addition to the interest charge set forth in this Seotion 5.4. 5.4. Conunon Expenses. (a) Pro Rata Share. Tenant's "Pro Rata Share" shall he a fraction: (a) the numerator of which is the Floor Area, as defined in Section 1.1; and (b) the denominator of which is the square footage all areas leasable to tenants in the Shopping Center. Tenant's Pro Rata Share shall be recalculated from time to time if either the nwnerator or the denominator change. (b) Pavment. Tenant shall pay to Landlord as Additional Rent its Pro Rata Share of the Common Expenses, as hereinafter defined, (the "CAM Contribution"), which share shall equal the amount of all Common Expenses, multiplied by Tenant's Pro Rata Share. The obligations of Tenant under this Section 5.7 shall survive the Termination Date. (c) Common Expenses. "Common Expenses" shall mean all costs and expenses of every kind or nature paid or incurred by Landlord during the Term in operating, managing, and servicing the Shopping Center, including, without limitation: (i) management fees; (ii) wages, salaries, and benefits of maintenance personnel (not to cxceed the amount fairly and equitably allocated to the Shopping Center); (iii) charges under maintenance contracts; (iv) costs and expenses to perform or provide maintenance or repairs and to satisfy Landlord's obligation to operate, maintain, and insure the Common Areas under this Lease; (v) sewer, water, and storm 87039J. (14844-56578} - 6- Agenda Item No. 16E1 December 2, 2008 Page 44 of 86 water drainage charges attributable to the Common Areas, and the costs to maintain any retention and detention ponds and other stann water drainage facilities; (vi) premiums for customary insurance and to satisfy Landlord's obligations under Article VIII; provided that Tenant shall reimburse Landlord for premiums for casualty insurance maintained by Landlord in accordance with Section 8.1, and the amount of such premiums shall not be included in Common Expenses, (vii) costs for signage located in the Common Areas, including, without limitation, costs for light bulbs and electricity, and costs incurred with respect to the pylon sign for the Shopping Center; and (viii) costs and expenses to provide light, heat, air conditioning, and ventilation for the Common Areas. Common Expenses shall not include: (i) any amount for depreciation of, or capital improvements to, the Shopping Center, except as set forth above; eii) any leasing or rental commissions; (iii) any legal fees in connection with financings or refinancings, preparation or negotiation of leases, or exercising or enforcing Landlord's rights and remedies under leases; (iv) any costs of tenant finishes or buildouts; (v) any penalties or interest assessed against Landlord for late payment; or (vi) payments of principal or interest required by any financing or refinancing. Notwithstanding anything to the contrary set forth herein, amounts separately billed to, and paid directly by, a tenant of the Shopping Center shall be deducted in calculating Common Expenses from the costs and expenses that Landlord incurs to operate the Shopping Center. 5.5. Real Estate Tax Expenses. Tenant shall pay to Landlord as Additional Rent Tenant's Pro Rata Share of (collectively, the "Tax Expenses''): (a) all real estate taxes and assessments of any nature levied during the Term on, against, or with respect to the Shopping Center (the "Real Estate Taxes"); (b) any and all costs incurred by Landlord in connection with an appeal of the Real Estate Taxes; and (c) all Real Estate Taxes levied during the Term on, against, or with respect to Tenant's leasehold interest in the Premises. The obligations of Ten ant hereunder with respect to the payment of Real Estate Taxes levied during the final year of the Term shaH survive the Termination Date. 5.6. Insurance Expenses. Tenant shall pay to Landlord as Additional Rent its Pro Rata Share of any and all costs incurred by Landlord in connection with the Casualty Insurance, as defined in Section 8.1, and the Liability Insurance, as defined in Sectiou 8.1, including, but not limited to, all premiums and deduetibles paid by Landlord (eoHeetively, the "Insurance EXDenscs"). 5.7. Estimation. (a) Estimation. From time to time, Landlord may estimate (or re-estimate) the amount of the Tax Expenses, Insurance Expenses, and/or CAM Contnoutions (collectively, the "Center Exoenses") payable by Tenant for any whole or partial calendar year during the Term. Tenant shall pay, as Additional Rent, equal monthly installments of its Pro Rata Share of the estimated Center Expenses during such whole or partial calendar year. (b) Statemeut. Within ninety (90) days after the end of eaeh whole or partial caleudar year during the Tenn, Landlord shall deliver to Tenant a written statement that shows thc computation of the actual Center Expenses payable by Tenant with respect to such whole or partial caleudar year. If the total ofthe Center Expenses paid by Tenant for such whole or partial calendar year is more than the actual Center Expenses payable by Tenant with respect to such R70393 (14&44-5657R) - 7- Agenda Item No. 16E1 December 2, 2008 Page 45 of 86 whole or partial calendar year, then Landlord shall credit the excess: fIrst, against any outstanding Rent due from Tenant; and second, against future Center Expenses, to be paid by Tenant; provided that, if there are no future Center Expenses to be paid by Tenant, then Landlord shall refund the excess to Tenant within thirty (30) days. If the total of the Center Expenses paid by Tenant for such whole or partial calendar year is less than the actual amount of the Center Expenses payable by Tenant with respect to such whole or partial calendar year, then Tenant shall pay the amount of such deficiency with the next regular installment of Base Rent unless the Termination Date has occurred, in which case Terumt shall pay any defIciency within thirty (30) days. 5.8. Utilities. Tenant shall: (a) promptly pay all charges for sewer, water, gas, electricity, telephone, and other utility sCIVices used in, on, at, or from, and separately metered to, the Premises (the "Utility Charges"); and (b) deliver to Landlord upon demand receipts or other satisfactory evidence of payment of the Utility Charges. ARTICLE VI. ALTERATIONS AND MAINTENANCE OF AND REPAIRS TO THE PRErvUSES 6.1. Landlord Reoairs. Landlord shall, at its expense: (i) keep the foundations and roof of the Premises in good order, repair and condition; and (ii) maintain the exterior walls of the Premises in a structurally sound condition. except to the extent that there is damage caused by any act or omission of Tenant or its employees, agents, contractors, invitees, or licensees. Except as provided in this Section 6.1, Landlord shall not be obligated to make repairs, replacements or improvements of any kind to or for the Premises, or any trade fIxtures or equipment contained therein, all of which such repairs, replacements, or improvements shall be the responsibility of Tenant. 6.2. Tenant Repairs. Except for repairs to be performed by Landlord pursuant to Section 6.1 and Landlord's Work required by Section 4.1, Tenant shall: (i) keep the Premises clean, neat, and safe, and in good order, repair and condition. including, without limitation, that Tenant shall make all repairs, alterations, additions, or replacements to the Premises as may be required by any Law, or by fire underwriters or underwriters' fITe prevention engineers; (ii) keep all glass in windows, doors, fIxtures, skylights, and other locations clean and in good order, repair, and condition, and replace glass that may be damaged or broken with glass of the same quality; and (iii) paint and decorate the Premises as necessary or appropriate to comply with the terms and conditions of this Section 6.2. Tenant shall: (i) be responsible for the installation, maintenance, and replacement of all heating, ventilating, and cooling equipment and systems serving the Premises (the "HV AC Svstems"); and (ii) enter into a maintenance contract with a reputable company (the "Maintenance Contract"), pursuant to which Maintenance Contract such company shall institute a regularly scheduled program of preventive maintenance and repair of the HV AC Systems that: (A) complies with the requirements of the applicable manufacturers', suppliers', and contractors' warranties; and (B) keeps and maintains such items in good order, condition. and repair at all times; prov;ded that: (a) the Maintenance Contract shall require regular reports to be given to Tenant detailing the preventive and other maintenance and repair performed with respect to the HV AC Systems (the "Maintenance Reports"); and (b) Tenant promptly shall forward copies of all Maintenance Reports to Landlord. B70393 (1.4844-56578) - 8- Agenda Item No. 16E1 December 2, 2008 Page 46 of 86 6.3. Terumt Alterations. (a) Alterations, Tenant, at its sole cost and expense, may install in the Premises such trade fixtures and equipment as Tenant determines to be necessary or appropriate to conduct its business, Tenant, at its cost and expense, also may make non-structural alterations or improvements to the interior of the Premises if: (i) the cumulative cost of making such alterations or improvements is Jess than Ten Thousand Dollars ($10,000.00); (Ii) Tenant delivers to Landlord written notice describing the proposed alteration or improvement with particularity, and provides to Landlord copies of any plans and specifications for the alteration or improvement; and (iii) on the Termination Date, Tenant surrenders the part of the Premises altered or improved in as good a condition as on the date that Tenant accepts the Premises. Tenant shall not make any: (i) alterations, improvements, or additions of or to the exterior of the Premises; or (ii) structural alterations, improvements, or additions of or to any part of the Premises; without the prior written consent of Landlord. All alterations, improvements, or additions to the Premises, exclusive of trade fixtures and equipment, shall become the sole property of Landlord on the Termination Date. (b) Permits. Before making any alterations, improvements, or additions, Tenant shall: (i) obtain all permits, licenses, and approvals necessary for the completion of the improvements, alterations, or additions; and (ii) deliver to Landlord: (A) copies of such permits, licenses, and approvals; and (B) evidence reasonably satisfactory to Landlord that Tenant has procured workers' compensation, general liability, and personal and property damage insurance as Landlord reasonably may require. Tenant shall; (i) complete the construction of any alterations, improvements, or additions in a good and workmanlike manner, and in compliance with all Laws; and (ii) assure that all contractors, subcontractors, laborers, and suppliers performing work or supplying materials arc paid in full. (c) Liens. Tenant shall not suffer or cause the filing of any mechanic's or other lien against the Premises or the Shopping Center. If any mechanic's or other lien is filed against the Premises, the Shopping Center, or any part thereof for work claimed to have been done for, or materials claimed to have been furnished to, Tenant, other than for the performance of LandJord's Work, then Tenant shall: (i) cause such lien to be discharged of record within twenty (20) days after notice of the filing by bonding or as provided or required by law; or (ii) provide evidence that the lien is being contested by proeeedings adequate to prevent foreclosure of the lien, together with satisfactory indemnity (in an amount equal to at least 150% of the claimed lien) to Landlord within thirty (30) days after notice of the filing thereof. All liens suffered or caused by Tenant shall attach to Tenant's interest only. Nothing in this Lease shall be deemed Or construed to: (i) constitute consent to, or request of, any party for the performance of any work for, or the furnishing of any materials to, Tenant; or (ii) give Tenant the right or authority to contract for, authorize, or permit the performanee of any work or the furnishing of any materials that would pennit the attaching of a mechanic's lien to Landlord's interest. 6.4. ~. Tenant shall not affix or maintain upon the exterior of the Premises, any sign, advertising placard, name, insignia, trademark, or descriptive material, without the prior written approval of Landlord, which approval shall not be withheld unreasonably. &70393 (\4844.56578) - 9- Agenda Item No. 16E1 December 2, 2008 Page 47 of 86 ARTICLE VIT. USE. 7.1. Use of the Premises. At all time during the Term, Tenant shall: (a) Use tbe Premises for Tenant's Use, as defined in Section 1. 1 (c), doing business under Tenant's Trade Name, as defined in Section 1.1(d), and for no other use or purpose; (b) Operate the business located on the Premises, without interruption, during at least the hours of9:00 a.m. through 6:00 p.m., Monday through Friday, or such other minimum hours as Landlord may agree to from time to time, provided that such operation may be intermpted for such reasonable periods approved by Landlord, which approval shall not be unreasonably withheld, as may be necessary to repair, restore, or remodel the Premises, or for purposes of taking inventory; (c) Remain fully fixtured, fully stocked, and fully staffed at all times. (d) Conduct the business located on the Premises at all times in a high grade and reputable manner so as to produce the maximum volume of transactions and to help establisb and maintain a high reputation for the Sbopping Center. During the Term, Tenant will be considered to "Operate" or be "Overatinl!" in the Premises so long as Tenant is open for business in compliance with this Section 7.1. Tenant aclmowledges that Landlord has entered into, or may enter into, agreements with various tenants, Owners or occupants of the Center whicb provide assurances to such parties that such parties shall have the exclusive right to make various uses and to conduct various businesses within the Center or which provide that the Center shall not be used for various prohibited uses. Tenant aclmowledges and agrees that in the event of a use of the Premises for a pUl]Jose other than the Tenant's Use which is in violation of any such agreement to which Landlord may be or become a party, Landlord will be subjected to the possibility of irreparable loss and/or damage including the loss of tenants and other damages. Tenant further agrees that any use of the Premises for a purpose other than tbe Tenant's Use witbout the prior written consent of Landlord shall be an "Event of Default" hereof and that in addition to any remedies provided for by reason of such default Landlord sball be entitled to injunctive relief by summary proceedings without any necessity of notice to Tenant and Landlord shall further be entitled to any and all other relief, equitable or legal, which may be appropriate under the circumstances. Tenant further agrees to indemnify and hold Landlord harmless from any inJUry, loss or damages arising out of any use of the Premises by Tenant for a use or purpose other than the Tenant's Use, including all cost and attorneys' fees incurred by Landlord in the enforcement of Tenant's obligation to use the Premises only for the Tenant's Use. 7.2. Covenant to Open. Tenant covenants that it will open and begin Operating in the Premises by that date which is sixty (60) days after the Delivery Da!e. 7.3. Compliance with Law. Tenant shall promptly comply with all federal, state and local laws and ordinances and lawful orders and regulations affecting the Premises, and the health, cleanliness, safety, construction, occupancy and use of same in effect from time to time. 810393 (!4p.aA.-56578) - 10- Agenda Item No. 16E1 December 2, 2008 Page 48 of 86 Tenant shall promptly and fully comply with all federal, state and local laws and ordinances in effect from time to time prohibiting discrimination or segregation by reason of race, color, religion, disability, sex or national origin or otherwise. 7.4. ODeration by Tenant. Tenant covenants and agrees that it: will not place or maintain any merchandise or vending machines outside the building on the Premises; will store garbage, trash, rubbish and other refuse in rat proof and insect proof containers with adequate screening to hide such garbage, trash, rubbish and refuse from view on the Premises, and will remove the same frequently and regularly, all at Tenant's cost; will not p=it any sound system to be audible or objectionable advertising medium to be visible outside the building on the Premises; will not commit or permit waste or a nuisance upon the Premises; will not permit or cause objectionable odors to emanate or be dispelled from the Premises; will not distribute advertising matter to, in or upon any portion of the Shopping Center; will not permit the loading or unloading or the parking or standing of delivery vehicles outside any area designated therefore, nor permit any use of vehicles which will interfere with the use of any portion of the Shopping Center; will not use the any portion of the Shopping Center for promotional activities, to include rides, carnival type shows, entertainment, outdoor shows, automobile or other product shows; will comply with all laws, recommendations, ordinances, rules and regulations of governmental, public, private and other authorities and agencies, including those with authority over insurance rates, with respect to the use or occupancy of the Premises, and including, but not limited to, the Occupational Safety and Health Act ("OSHA") and the Americans With Disabilities Act ("ADA"). Tenant further agrees to comply with the Rules and Regulations of the Shopping Center attached hereto and made a part hereof as Exhibit E (the "Rules") and such reasonable, non-discriminatory amendments thereto as may be adopted by Landlord from time to time. 7.5. Storage. Tenant shall store in the building on the Premises only merchandise and products which Tenant intends to sell at, in, or from the Premises within a reasonable time after receipt thereof 7,6. Sales and Use. Tenant shall not permit, allow, or cause to be conducted in ilie Premises: (i) a public or private auction; or (ii) a sale that would indicate to ilie public that Tenant (x) is bankrupt, (y) is going out of business, or (z) has lost or is preparing to terminate its possession of the Premises. The Premises shall not be used except in a manner con.~istent with the general high standards of merchandising in the Shopping Center and not in a disreputable or immoral manner or in violation of federal, state or local laws or ordinances. Tenant shall not operate the Premises either in whole or in part as a clearance, outlet, off-price, or discount store, provided that nothing in this Section 7.6 is intended to affect Tenant's pricing policies. 7.7. Emissions and Hazardous Materials. (a) Emissions. Tenant shall not, without the prior written consent of Landlord: i. make, or permit to be made, any use of the Premises or any portion thereof which emits, or permits the emission of, an unreasonable amount of dust, sweepings, dirt, cinders. fumes or odors into the atmosphere, the ground or any body of water, whether natural or artificial 870393 (14344-56573) - 11- Aqenda Item No. 16E1 " December 2, 2008 Page 49 of 86 (including rivers, streams, lakes, ponds, dams, canals, sanitary or storm sewers, or flood control channels), which is in violation of any Laws; ii. create, or permit to be created, any sound level which will interfere ,vith the quiet enjoyment of any real property by any tenant or occupant of the Shopping Center, or which will create a nuisance or violate any Laws; Ill. transmit. receive, or pennit to be traru;mitted Or received, any electromagnetic, microwave or other radiation which is bannful or hazardous to any person or property in, on or about the Premises or the Shopping Center, Or which interferes with the operation of any electrical, electronic, telephonic or other equipment wherever located, whether on the Premises or the Shopping Center; iv. create, or permit to be created, any ground vibration that is discernible outside the Premises; or v. produce, or permit to be produced, any intense glare, light or heat except within an enclosed or screened area and then only in such manner that the glare, light or heat shall not be discernible outside the Premises. (b) Hazardous Materials. Tenant shall be permitted to use and store those Hazardous Materials, as defined below, that are used in the nonnal course of Tenant's business in the Premises so long as such Hazardous Materials are used and stored in compliance with applicable law. Subject to the exception contained in the preceding sentence, Tenant shall not, without the prior written consent of Landlord, cause or pennit, knowingly or unknowingly, any Hazardous Material to be brought or remain upon, kept, used, discharged, leaked, or emitted in or about, or treated at the Premises or the Shopping Center. As used in this Lease, "Hazardous Material( s )" shall mean any hazardous, toxic or radioactive substancc, material, matter or waste which is or becomes regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement, and shall include, but not be limited to, asbestos, petroleum products and the terms "Hazardous Substance" and "Hazardous Waste" as defined in the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.s.C. Sec. 9601 et g;g,. ("CERCLA"), and the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sec. 6901 et seq. ("RCRA")and the term ''Hazardous Chemical" as defined in OSHA (hereinafter "Environmental Laws"). In addition to, and in no way limiting, Tenant's duties and obligations under this Lease, should Tenant breach any of its duties and obligations as set forth in this Section 7.7(b), or if the presence of any Hazardous Material(s) on the Premises results in contamination of the Premises, the Shopping Center, any land other than the Shopping Center, the atmosphere, or any water or waterway (including groundwater), or if contamination of the Premises or of the Shopping Center by any Hazardous Material(s) otherwise occurs for which Tenant is othern-ise legally liable to Landlord for damages resulting therefrom, Tenant shall Indemnify, as hereinaftcr defined, Landlord from a.'ld against any Loss, as hereinafter dcfincd, arising during or after the Tenn as a result of such contamination. The term "Loss," in this Section 7. 7(b) includes, without limitation, costs and expenses incurred in connection with any investigation of site conditions or any cleanup, remediation, removal, fines, monitoring, or restoration work required or imposed by 870393 (14844-56578) - ]2- Agenda Item No. 16E 1 December 2, 2008 Page 50 of 86 any federal, state or local goverrunental agency or political subdivision because of the presence of Hazardous Material(s) on or about the Premises or the Shopping Center, or because of the presence of Hazardous Material(s) anywhere else which came or otherwise emanated from Tenant or the Premises, The indemnification contained in this Section 1.1(b) shall survive the Termination Date. 7.8. Inspections. Tenant shall permit Landlord and its agents to enter the Premises at reasonable times for the purpose of: (a) inspecting the Premises; (b) making repairs, additions, or alterations to the Premises, or to the building in which the Premises is located; and (c) showing the Premises to prospective purchasers, lenders, and tenants. During the last one hundred and twenty (120) days of the Tenn, Landlord may put a "For Lease" sign in the storefront window of the Premises. ARTICLE VIII. INSURANCE. 8. I. Landlord's Casualty Insurance. Landlord, at its cost and expense, shall maintain during lhe Term fire and extended coverage insurance, insuring the building in which the Premises is located, for such amount as Landlord determines to be necessary or appropriate (the "Casualty Insurance"). 8.2. Landlord's Liability Insurance. During the Term, Landlord shall maintain public liability and property damage insurance covering any and all claims for injuries to, or death of persons and damage to, or loss of, property, occurring in, on, or about the Common Areas, in amounts that Landlord determines to be necessary or appropriate (the "Liability Insurance"). 8.3. Tenant's Casualty Insurance. Tenant, at its cost and expense, shall maintain during the Term fire and extended coverage insurance with coverage at least as broad as the Insurance Offices Causes of Loss, "Special Fonn" for 100% of the replacement cost on: (i) the improvements to the Premises made by Tenant; and (ii) any trade fixtures, equipment, inventory, and other personal property located on, in, or about the Premises in whieh Tenant has an insurable interest; in all cases for the full replacement value of such improvements, fixtures, equipment, inventory, and other personal property. All of Tenant's trade fixtures, equipment, inventory, and other personal property (including, without limitation, property that Tenant stores for third parties), shall he kept in or upon the Premises at Tenant's sole risk and expense. 8.4. Tenant's Liabilitv Insurance. Recognizing that Tenant is a governmental entity subject to sovereign immunity under the laws of the State of Florida, so long as Tenant or its permitted assigns and subtenants are governmental entities, no liability insurance is required. If this Lease is transferred or assigned by Tenant to a non-governmental entity, whether such transfer or assignment is approved by Landlord or by operation of law, then Tenant, at its expense, shall maintain during the Tenn, commercial general liability insurance on the Premises covering Tenant as the named insured and identifying Landlord as an "additional insured" 'With terms satisfactory to Landlord and with companies qualified to do business in the State, for limits of not less than $3,000,000.00 for bodily injury, including death resulting therefrom, and personal injury for anyone (I) occurrence, $1,000,000.00 property damage insurance, or a combined single limit in the amount of $3,000,000.00. 870393 (I4844~56578) - i3- Agenda Item No. 16E 1 December 2, 2008 Page 51 of 86 8,5. Hazardous Materials Coverage. Notwithstanding the above mentioned commercial general liability insurance policy limit for Tenant, if Tenant does or intends to bring, possess, use, store, treat or dispose any Hazardous Material in or upon the Premises or the Shopping Center, Tenant shall purchase additional public liability insurance and supply Landlord with certificates of insurance reflecting the additional insurance, with coverage of no less than $5,000,000.00 and purchase enviromnental impairment liability insurance with coverage of not less than $5,000,000.00 with a deductible of not greater than $50,000.00 to insure that anything contaminated with or by the Hazardous Material be removed from the Premises and/or the Shopping Center, and that the Premises and/or the Shopping Center be restored to a clean, neat, attractive, healthy, sanitary and non contaminated condition. 8.6. Dram Shop Coverage. In addition to the insurance required under this Article VIII, for any such period of time as Tenant shall serve liquor or other alcoholic beverages in or from the Premises, Tenant agrees to maintain minimwn limits of coverage of at least $2,000,000 covering "liquor law" liability (sometimes also known as "dram shop" insurance) which shall insure Tenant, as the ruuned insured, and Landlord, as the additional insured, and all those claiming by, through or under Landlord, against any and all claims, demands or actions for personal and bodily injwy to, or death of, one person or multiple persons in one or more accidents, and for damage to property, as weH as for damages due to loss of means of support, loss of consortium, and the like so that at all times Landlord will be fully protected against claims that may arise by reason of or in connection with the sale and dispensing of liquor and alcoholic beverages in and from the Premises. 8.7. Tenant's Additional Insurance. Tenant shall comply with the provisions of the applicable worker's compensation laws, and shall insure its liability thereunder. Tenant, at its expense, shall maintain plate glass insurance covering all exterior plale glass in the Premises 8.8. Policies. All policies of insurance required by this Article to be maintained by Tenant shall: (i) be in a form, and maintained with an insurer, reasonably satisfactory to Landlord: and (ii) provide that such policies shall not be subject to cancellation, tennination, or change without written notice to Landlord at least thirty (30) days in advance. Tenant shall deposit with Landlord the policy or policies of insurance required to be maintained by Tenant pursuant to this Article VITI, or proper certificates of such insurance, duly executed by the insurance company or the general agency writing such policies and effective not later than the Commencement Date. Tenant shall deposit appropriate renewal or replacement policies or certificates with Landlord not less tlulIl ten (to) days prior to the expiration of any such policy or policies. If Tenant shall fail to timely procure or renew any of the insurance required under this Article VIII, Landlord may obtain replacement coverage and the cost of same shall be deemed Additional Rent payable by Tenant with the next installment of Rent thereafter becoming dne and payable. 8.9. Indemnity. (3.) Definition of "Loss." The term "Loss." as used throughout this Lease, shall mean any and all claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedinj,'S, actions, causes of action, and losses of any and every kind and nature (mcluding, without limitaLion, sums paid in settlement of claims and for attorneis fees and court costs). R703lJJ ;:4S{4-5657S) 1A - 1'"1'- Agenda Item No. 16E1 December 2, 2008 Page 52 of 86 (b) Definition of "Indemnify." The tenn "Indemnify." as used throughout this Lease, shall mean iliat Tenant shall indemnify Landlord, save it harmless and, at Landlord's option and wiili attorneys approved in writing by Landlord, defend Landlord, and its contractors, agents, employees, partners, officers, directors, and mortgagees, if any, from any Loss arising out of the condition specified in the particular indemnity provision. (c) General Indemnitv. Except for loss, injury or damage caused solely by the willful misconduct of Landlord, its employees, contractors, or agents, Tenant covenants to Indemnify Landlord in cormection with or arising from, any use or condition of the Premises, or occasioned wholly or in part by, any act or omission of Tenant, its agents, contractors, employees, licensees, invitees or visitors, occurring on or about the Premises and in the case of Tenant, its agents, contractors or employees occurring on or about the Shopping Center. Except for loss, injury or damage caused by the negligent acts or willful misconduct of Tenant, its employees, contractors, invitees or agents, Landlord covenants to indemnify Tenant, and save it hannless, from and against any and all claims, actions, damages, injuries, accidents, liability and expense, including reasonable attorneys' fees, in connection wiili or arising from, or occasioned wholly or in part by, any act or omission of Landlord, its agents, contractors or employees occurring on or about the Shopping Center, excluding ilie Premises. 8.10. Waiver of Subrogation. Each party hereto does hereby release and discharge ilie oilier party hereto and any officer, agent, employee or representative of such party, of and from any liability whatsoever, except for liability arising out of the willful misconduct of the oilier party or any officer, agent, employee or representative of such party, hereafter arising from loss, damage or injury caused by fire or other casualty for which insurance is carried or reqnired to be carried by the injured party at the time of such loss, damage or injury to the extent of any recovery by the injured party under such insurance. Each of Landlord and Tenant shall request its insurance carriers to include in its policies such a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of its insured thereunder. ARTICLE IX. CASUALTY AND CONDEMNATION. 9.1. Casualtv. (a) Insubstantial Damage. If the Premises is damaged by fire or any other casualty (the "Casualtv Damage"), and the estimated cost to repair such Casualty Damage is less than 50% nf the estimated cost to replace the Premises, then Landlord shall repair such Casualty Damage so long as sufficient insurance proceeds recovered as a result of such Casualty Damage remain after: (a) Landlord's mortgagee has withheld any amount of the proceeds to which it is entitled, if any; and (b) deduction for any expenses incurred in collecting the insurance proceeds. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord be required to repair or replace: (a) the improvements to the Premises made by Tenant; or (b) any trade fixtures, equipment, or inventory of Tenant located on, in, or about the Premises, All repairs shall be completed within ninety (90) days of the Casualty Damage and if not timely completed, Tenant may telminate this Lease upon written notice to Landlord. 870]<)3 (14&4.4.56578) - 15- Agenda Item No. 16E1 December 2, 2008 Page 53 of 86 (b) Substantial Damage. If: (a) Ihere is Casualty Damage to the Premises, and the cost to repair such Casualty Damage is equal to or greater Ihan 50% of Ihe estimated cost to replace the Premises; (b) there is Casualty Damage to the building of which the Premises is a part, and the cost to repair such Casualty Damage is equal to or greater Ihan 25% of the cost to replace such building; or (c) there is Casualty Damage to the buildings (taken in the aggregate) in the Shopping Center, and the cost to repair such Casualty Damage is equal to or greater than 25% of the cost to replace such buildings; then Landlord may elect either to: (a) repair or rebuild the Premises, the building of which the Premises is a part, . or the aggregate buildings in the Shopping Center, as applicable; or (b) terminate this Lease upon delivery of written notice to Tenant within sixty (60) days after the occurrence of the Casualty Damage. If the Casualty Damage is to the Premises, Tenant may, within thirty (30) days after receipt of notice of the Casualty Damage, terminate this Lease by written notice to Landlord; provided however, that Tenant may not terminate this Lea.e if such Casualty Damage was caused by Tenant. (c) Partial Abatement of Rent. Base Rent shall be abated proportionately (based upon the proportion that the unusable space in the Premises due to ihe Casualty Damage bears to the total space in the Premises) for each day that the Premises or any part thereof is unusable by reason of any Casualty Damage. (d) Repair of Tenant Improvements. If Landlord is required or elects to repair the Premises and Tenant does not tenninate this Lease as allowed herein, then Tenant shall repair or replace: (a) the alterations, improvements, and adrlitions to the Premises made by Tenant; andlor (b) any trade fixtures and equipment of Tenant located on, in., or about the Premises. (e) Notice. Tepant shall give Landlord prompt written notice of any Casualty Damage in or [0 the Premises or the Common Areas of which Tenant has knowledge. 9.2. Condemnation. If: (a) all or a substantial part of the Premises is taken or condemned for public or quasi-public use under any statute or by the right of eminent domain; or (b) all or a substantial part of the Prcmises is conveyed to a public or quasi-puhlic body under threat of condemnation (collectively, the "Condemnation"); and the Condemnation renders the Premises unsuitable for use for Tenant's Use, then, at the option of either Landlord or Tenant exercised within thirty (30) days after the Condemnation occurs: (a) this Lease shall terminate as of the date possession of all or such part of the Premises is taken by, or conveyed to, the condemning authority; (b) all Base Rent shall be apportioned as of the dale that possession of all or such part of the Premises is taken by, or conveyed to, the condemning authority; and (c) all obligations hereunder, except those due or mature, shall cease and tenninate. If there is a Condemnation with respect to: (a) more than 25% of the square footage of the building of which the Premises is a part; or (b) more than 25% of the aggregate square footage of the Shopping Center; ihen Landlord, at its option, exercised within thirty (30) days after the Condemnation occurs, may elect to temlinate this Lease as of the date possession of such squarc footage is taken by, or convcyed 10, the eondemning authority, and: (a) all Base Rent shall be apportioned as of the date that possession of such square footage is taken by, or conveyed to, t.f:le conderrming authority; and (b) all obligations hereunder, except those due or mature, shall cease and tenllinate. All compensation awarded or paid for the Condemnation (the "Condemnation Proceeds") shall belong to and be the sole property of Landlord; provided that Landlord shall not be entitled to the amonnt of any Condemnation Proceeds awarded or paid solely to Tenant for 8703YJ (l4i:i44~56578) - 16- Agenda Item No. 16E1 December 2. 2008 Page 54 of 86 loss of business or costs and expenses of relocation and removing trade fixtures and equipment. If neither Landlord nor Tenant elects to terminate this Lease pursuant to this Section 9.2, then Landlord shall be responsible for the perfonnance of all work necessary to make the Premises usable by Tenant; provided that Landlord shall not be obligated to incur costs for such work in excess of the Condemnation Proceeds awarded or paid to Landlord and remaining after: (a) Landlord's mortgagee has withheld any amount of the proceeds to which it is entitled, if any; and (b) deduction for any expenses incurred in collecting the Condemnation Proceeds. If neither Landlord nor Tenant elects to terminate this Lease pursuant to this Section 9.2, or if any Condemnation is temporary in nature, then Base Rent shall be abated proportionately (based upon the proportion that the that area Premises taken by, or conveyed to, the condemning authority bears to the total space in the Premises) for each day that the Premises or any part thereof is unusable by reason of the Condemnation. ARTICLE X. SURRENDER. 10.1. Surrender of Leased Premises. Except as herein otherwise expressly provided in this Article X, Tenant shall surrender and deliver up the Premises, together with all property affixed to the Premises, to Landlord at the expiration or other termination of this Lease or of Tenant's right to possession hereunder, without fraud or delay, in good order, condition and repal! except for reasonable wear and tear after the last necessary repair, replacement, or restoration is made by Tenant, free and clear of all liens and encwnbrances, and without any payment or allowance whatsoever by Landlord on account of any improvements made by Tenant. 10.2. Removal of Certain PrODcrtV. All furniture, trade fixtures, and business equipment furnished by or at the expense of Tenant or any subtenant shall be removed by or on behalf of Tenant at or prior to the expiration or other termination of this Lease or of Tenant's right of possession hereunder, but only if, and to the extent, that the removal thereof will not cause physical injury or damage to the Premises or necessitate changes or repairs to the same. Tenant shall payor cause to be paid to Landlord the cost ofrepairing or restoring any injury or damage to the Premises arising from such removal so as to return the Premises to its condition immediately prior to such removal. Such costs shall be Additional Rent and shall be deemed due and payable as of the date on which surrender by Tenant is required under this Lease, 10.3. Property Not Removed, Any personal property of Tenant or any subtenant which shall remain in or upon the Premises after Tenant or any subtenant has surrendered possession of the Premises shall be deemed to have been abandoned by Tenant or such subtenant, and at the option of Landlord, such property: (a) shall be retained by Landlord as its property; (b) shall be disposed of by Landlord in such manner as Landlord shall determine, without accoWltability to any person; or (c) shall be promptly removed by Tenant at Tenant's expense upon written request from Landlord. Landlord shall not be responsible for any loss or damage occurring to any property owned by Tenant or any subterumt remaining in the Premises after Tenant surrenders possession thereof, 10.4. Survival of Terms. The terms of this Article X and other terms of this Lease referred to herein shall survive any termination of this Lease. 870393 (14844-56578) - i7- - -------_.~-_.._-- ---- -~------- --- Agenda Item No. 16E1 December 2, 2008 Page 55 of 86 ARTICLE XI. DEFAULT. 1 1.1. Events of Default. Each and all of the following events shall be deemed an "Event of Default" by Tenant under this Lease: (a) Nonpavrnent. Tenant's failure to pay Base Rent, Additional Rent, or other sums or charges that Tenant is obligated to pay by any provision of this Lease within five (5) days after notice to the Tenant that the same is due, provided that Landlord shall not be obligated to give Tenant notice oflate payments more than one (1) time in any twelve (12) month period, and on the second time a payment is late it shall be an immediate Event of Default without notice or grace period. (b) All Other Lease Violations. Tenant's failme to perlorm or observe any other covenant, condition, or agreement of this Lease, which failure is not cured within thirty (30) days after the giving of notice thereof by Landlord specifYing the items in default unless such default is of such natme that it cannot be cured within such thirty (30) day period, in which case no Event of Default shall occur so long as the Tenant shall Commence the cwing of the default within such thirty (30) day period and shall thereafter diligently prosecnte the cwing of same; provided, however, if the Tenant shaH default in the perfonnance of any such covenant or agreement of this Lease mOre than one time in any twelve (12) month period notwithstanding that such dcfault shall have been cured by Tenant, the second and further defaults in said twelve (12) month period may be deemed by Landlord, in its sole discretion, an Event of Default without the ability for cure. (c) Falsification of Information. If Tenant, any guarantor of Tenant's obligations under this Lease, or any agent of Tenant falsifies any report in any materia! respect or misrepresents other information in any material respect required to be furnished to Landlord pmsuant to this Lease. (d) Merger or Consolidation. If Tenant is merged or consolidated with any other entity, or there is a transfer of a controlling interest in Tenant, other than as pennitted in Section 13.1 (b) of this Lease. (e) Tenant's or Guarantor's Death. Dissolution or Liauidation. The death of Tenant or any guarantor of Tenant's obligations under this Lease; or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of Tenant or of any guarantor of Tenant's obligations, or toward the liquidation of either of their respective assets. (f) BankruDlcv. The commencement of a case under any chapter of the United States Bankruptcy Code by or against Tenant or any guarantor of Tenant's obligations hereunder, or the filing of a voluntary or involuntary petition proposing the adjudication of Tenant or any such guarantor as bankrupt or insolvent, or the reorganization of Tenant or any such guarantor, or an arrangement by Tenant or any such guarantor with its creditors, unless the petition is filed or case commenced by a party other than Tenant or any such guarantor and is withdrawn or dismissed within thirty (30) days after the date of its filing. 870393 (;4S44-:i6578) - i 8 . Agenda Item No. 16E1 December 2. 2008 Page 56 of 86 (g) Assignment or Attachment. The making of an assignment by Tenant for the benefit of its creditors, Or if in any other manner Tenant's interest in this Lease passes to another by operation of law, including, without limitation, by attachment, execution, or similar legal process, which is not discharged or vacated within thirty (30) days, except as permitted under this Lease. (h) Appointment of Receiver or Trustee. The appointment ofa receiver or trustee for the business or property of Tenant, unless such appointment shall be vacated within ten (10) days after its entry. (i) Inability to Pay. The admission in writing by Tenant or any guarantor of Tenant's obligations under this Lcase of its inability to pay its debts when due. (j) As OthelWise Provided. The occurrence of any other event described as a default elsewhere in the Lease or any amendment thereto, regardless of whether such event is defined as an "Event of Default." 11.2. Remedies. Upon the occurrence of an Event of Default, Landlord, without notice to Tenant in any instance (except where expressly provided for below or by applicable law) may do anyone or more of the following: (a) Satisfy Tenant Obligations. Landlord may perform, on behalf of and at the expense of Tenant, any obligation of Tenant under this Lease which Tenant has failed to perform and of which Landlord has given Tenant notice (entering upon the Premises for such pUlpose, if necessary), the cost of which performance by Landlord, plus interest thereon at the lesser of (i) the highest rate permitted by law, or (ii) eighteen percent (18%) per annum from the date of such expenditure, and reaBonable expense incurred by Landlord, shall be deenled Additional Rent and shall be payable by Tenant to Landlord with the firnt Rent installment thereafter becoming due and payable. The performance by Landlord of any Tenant obligation under this Section I I .2(a) shall not be construed either as a waiver of the Event of Default or of any other right or remedy of Landlord with respect to such Event of DefauIt or as a waiver of any term or condition of this Lease. Notwithstanding the provisions of this Section 11.2(a) and regardless of whether an Event of Default shall have occurred, Landlord may exercise the remedy described in this Section 11.2(a) without any notice to Tenant if Landlord, in its good faith judgment, believes that it or the Premises would be materially injured by failure to take rapid action or if the unperfoffi1ed obligation of Tenant constitutes an emergency. (b) Ternilnation of Lease. Landlord may tenninate this Lease, by written notice to Tenant, without any right by Tenant to reinstate its right by payment of Rent due or other performance of the terms and conditions hereof. Upon such termination, Tenant shall inunediately SlllTender possession of the Premises to Landlord, and Landlord shall, in addition to all other rights and remedies that Landlord may have, immediately become entitled to receive from Tenant: (1) an amount equal to the aggregate of all BaBe Rent and Additional Rent which then remains due to Landlord but unpaid by Tenallt; (ii) reasonable costs and expenses incurred by Landlord in connection with a re-entry or taking of possession of the Premises; (iii) reasonable costs and expenses incurred by Landlord in connection with making alterations and repairs for the purpose of reletting the Premises; and (iv) reasonable attorneys' fees. r- 670393 (j484Lk56YiR) ,n - 1)1 - Agenda Item No. 16E1 December 2, 2008 Page 57 of 86 (c) Termination of PossessorY Rights. Landlord may terminate Tenant's rights to possession of the Premises without terminating this Lease or Tenant's obligations hereunder and Tenant shall continue to be obligated to pay all Base Rent and Additional Rent which then remains due to Landlord but unpaid by Tenant and Tenant shall continue to be obligated for future Base Rent and Additional Rent as the same comes due under this Lease. (d) Reletting. With or without terminating this Lease, as Landlord may elect, Landlord may re-enter and repossess the Premises, or any part thereof, and lease them to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Tenn; provided, that any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (i) all Base Rent, Additional Rent, and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination, or repossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant after deducting from such proceeds all of Landlord's expenses, reasonable attorneys' fees and expenses, employees' expenses, alteration costs, expenses of preparation for such reletting and aU costs and expenses, direct or indirect, incurred as a result of Tenant's breach of this Lease. Tenant's liability shall be calculated and paid monthly. If the Premises are, at the time of the Event of Default, sublet or leased by Tenant to others, Landlord may, as Tenant's agent, collect rents due from any subtenant or other tcnant and apply such rents to the Rent and other amounts due hereunder wlthout in any way affecting Tenant's obligations to Landlord hereunder. Such agcncy, being given for security, is hereby agreed to be irrevocable. No re-entry and/or taking of pOssession by Landlord of the Premises shall be construed as an election to terminate this Lease, or as an acceptance of a surrender of the Premises, unless a written notice of termination or acc"Ptance of surrender is delivered by Landlord to Tenant Notwithstanding any re-Ietting without tenninatioll, Landlord, at any time thereafter, may elect to terminate this Lease for the previous Event of Default (e) Acceleration of Rent. Landlord may, whether it terminates the Lease or Tenant's possessory rights to the Premises, accelerate and declare immediately due all of the Base Rent and Additional Rent (as reasonably estimated by Landlord) that otherwise would have been due from the date oftbe Event of Default through the stated expiration date of the Initial Tenn or any Extended T eml, the option for which has been exercised. (f) Rent Minus Fair Market Value. Landlord may declare immediately due and payable from Tenant, in addition to any damages or other amounts becoming due from Tenant under 'my other provision of this Lease, an amount equal to the difference between the Base Rent and Additional Rent reserved in this Lease from the date of the Event of Default through the slated expiration date of the Initial Term or any Extended Term, the option for whicb has been exercised, and the then fair market value of the Premises for the same period. (g) Other Remedies. Pursue any legal or equitable remedy allowed by applicable laws of the State. 11 1 Failure to Surrender. If Tenant fails io surrender the Premises upon expiration of the Tenn or earlier tennination of the Lease pursuant to Section 11.2(b), the provisions of Section 3.3 shall apply, and Landlord may, without further notice, enter upon and re-enter the Premises and pOssess and repossess itself thereof, by force, smnmary proceedings, ejectment or 870393 {l4844-.56578} - 20- Agenda Item No. 16E1 December 2, 2008 Page 58 of 86 otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Premises and may have, hold and enjoy the Premises and the right to receive all rental and other income of and from the same. llA. Reimbursement of Landlord's Costs in Exercisine Remedies. Landlord may recover from Tenant, and Tenant shall pay to Landlord upon demand, such reasonable and actual expCl1ses as Landlord may incur in recovering possession of the Premises, placing the same in good order and condition and repairing and altering the same for reletting, and all other reasonable and actual expenses, commissions and charges incurred by Landlord in reletting and otherwise exercising any remedy provided herein or as a result of any Event of Default by Tenant hereunder (including, without limitation, reasonable attorneys' fees). 11.5. Remedies Are Cwnulative. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute. 11.6. Counterclaim. If Landlord commences any proceedings for non payment of Rent, Tenant will not interpose any counterclaim of any nature or description in such proceedings. This shall not, however, be construcd as a waiver of Tenant's right to assert such claims in a separate action brought by Tenant. The covenants to pay Rent and other amounts due hereunder are independent covenants and Tenant shall have no right to hold back, offset or fail to pay any such amounts for any reason whatsoever, except as may be specifically provided for herein to the contrary, it being understood and acknowledged by Tenant that Tenant's only recourse is to seek an independent aclion against Landlord. 11.7. Bankruptcy. (a) Assumption of Lease. In the event that Tenant shall become a Debtor under Chapter 7 of the United States Bankruptcy Code (the "Code") or a petition for reorganization or adjustment of debts is filed concerning Tenant under Chapters 11 or 13 of the Code, or a proceeding is filed under Chapter 7 and is transferred to Chapters 11 or 13, the Trustee or Tenant, as Debtor and as Debtor In-Possession, may not elect to asswne this Lease unless, at the time of such assumption, the Trustee or Tenant has: i. Cured or provided Landlord "Adequate Assurance," as defined below, that A. Within ten (10) days from the date of sueh asswnption the Trustee or T en3nt will cure al1 monetary defaults under this Lease and compensate Landlord for any actual pecuniary loss resulting from any existing default including, without limitation, Landlord's reasonable costs, expenses, accrued interest as set forth in Section 11.2 of the Lease, and attorneys' fees incurred as a result of the default and/or to enforce the terms hereof; B. Within thirty (30) days from the date of such asswnption the Trustee or Tenant will cure all non-monetary defaults under this Lease; and c. Tbe assumption will be subject to all of the provisions of this Lease. glOW3 (14844-5651&) - 21- Agenda Item No. 16E1 December 2, 2008 Page 59 of 86 ii. For purposes of this Section 11.7, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant that this Lease is a lease of real property within a Shopping Center and, at a minimum "AdeQuate Assurance" shall mean: A. The Trustee or Tenant has and will continue to have sufficient unencumbered assets after the payment of all secured and priority obligations and administrative expenses to assure Landlord that the Trustee or Tenant will have sufficient funds to fulfill the obligations of Tenant under this Lease, and to keep the Leased Premises properly staffed with sufficient employees to conduct a fully operational, actively promoted business in the Leased Premises; B. The bankruptcy court shall have entered an order segregating sufficient cash payable to Landlord and/or the Trustee or Tenant shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Trustee or Tenant acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Tenant to cure the monetary and/or non monetary defaults under this Lease within the time periods set forth above; and C. The Trustee or Tenant at the very least shall deposit a sum equal to one (I) month's Rent to be held by Landlord (without any allowance for interest thereon) to secure Tenant's future performance under the Lease. (b) Assignment of Lease. If the Trustee or Tenant has assumed the Lease pursuant to the provisions of Ulis Section 11.7 for the purpose of assigning Tenant's interest hereunder to any other person or entity, such interest may be assigned only after the Trustee, Tenant or the proposed assignee have complied \Nith all of the terms, covenants and conditions of Section 13.1 herein, including, without limitation, those with respect to Additional Rent and the use of the Premises only as permitted in Article VII herein; Landlord and Tenant acknowledging that such terrns, covenants and conditions are commercially reasonable in the context of a bankruptcy proceeding of Tenant. Any person or entity to which this Lease is assigned pursuant to the provisions of the Code shall be deemed without further act or deed to have asswned all of the obligations arising under this Lease on and after the date of such assignment. Any such assignee shall upon request execute and deliver to Landlord an instrument continuing such assignment and assumption. (c) Adequate Protection. Upon the filing ofa petition by or against Tenant under the Code, Tenant, as Debtor and as Debtor in Possession, and any Trustee who may be appointed agree to adequately protect Landlord as follows: i. To immediately perform each and every obligation of Tenant under this Lease until such time as this Lease is either rejected or asswned by order of the bankruptcy court; ii. To pay all monetary obligations required under this Lease, including, without limitation, the payment of Base Rent and such Additional Rent charges payable hereunder which is considered reasonable compensation for the use and occupancy of the Premises; iiI. Provide Landlord a minimum thirty (30) days' prior written notice, unless a shorter period is agreed to in writing by the parties, of any proceeding relating to any asswnption 870J93 (I4a44-56578) - 22. Agenda Item No. 16E1 December 2. 2008 Page 60 of 86 of this Lease or any intent to abandon the Premises, which abandonment shall be deemed a rejection of this Lease; and iv. To perform to the benefit of Landlord as otherwise required under the Code. The failure of Tenant to comply with the above shall result in an automatic rejection of this Lease and the automatic stay under Section 362 of the Code shall automatically be terminated as to Landlord and the Premises. (d) Accumulative Rights. The rights, remedies and liabilities of Landlord and Tenant set forth in this Section 11.7 shall be in addition to those which may now or hereafter be accorded, or imposed upon, Landlord and Tenant by the Code. ( e) Changes in Code. If the Code is changed or amended such that any references in this Section 11.7 to particular provisions or telms of art lose the meaning that they have as of the Effective Date, such provisions or terms of art of this Lease shall be deemed to be amended to reflect such changes in the Code. ARTICLE XII. ESTOPPEL CERTIFICATES. AITORNMENT. AND SUBORDINATION. 12.1. Estoppel Certificates. Tenant and Landlord agree to execute and deliver. within ten (10) days after request therefor by the other party, a statement, in writing, certifYing to Landlord and/or any party designated by Landlord, or Tenant and/or any party designated by Tenant, as the case may be, that: (a) this Lease is in full force and effect; (b) the Commencement Date; (c) that Rent is paid currently without any off-set or defense thereto, (d) the amount of Rent, if any, paid in advance; (e) that there are no known uncured defaults by Landlord or Tenant, or stating those known and claimed, provided that, in fact, such facts are accurate and ascertainable, and (f) any other information reasonably requested. 12.2. Attornment. In the event any proceedings are brought for the foreclosure of, or in the event of conveyance by deed-in-lieu of foreclosure of, or in the event of exercise of the power of sale under any mortgage made by Landlord covering the Premises, Tenant hereby attoms to the successor in interest of Landlord and covenants and agrees to execute an instrument in wnting reasonably satisfactory to same whereby Tenant attorns to such successor in interest and recognizes such snccessor in interest as Landlord hereunder. 12.3. Subordination. (a) Landlord shall have the right at any time and from time-to-time to create security interests in the fom) of a mortgage, deed of trust or other similar lien or encumbrance (a "Mortgage") upon or affecting Landlord's fee estate in the Premises, or any part thereof, and the rights of Tenant under this Lease shall be subject and subordinate to any such Mortgage; provided, however, that in the event of any foreclosure or sale under any such Mortgage or the delivery by Landlord of any deed in lieu of foreclosure to the holder of any such Mortgage, then the bolder of any such Mortgage agrees not to disturb Tenant's possession so long as Tenant is 870393 (1<1844.56578) - 23- Agenda Item No. 16E1 December 2, 2008 Page 61 of 86 not in default under the terms of this Lease beyond any notice and/or cure periods provided for herein and attorns to such holder or the foreclosure purchaser as Landlord under this Lease. Said subordination shall be self-operative and no further instrument of subordination shall be necessary Wlless required by any such Mortgage holder, in which event Tenant agrees to, within ten (10) days after request by Landlord or the Mortgage holder, execute any agreement reasonably required by such Mortgage holder to memorialize said subordination and to memorialize the tenus of any related agreements between Tenant and such Mortgage holder. Any holder of any of any such Mortgage is herein referred to as "Landlord's Mortl!a~ee(s)." Notwithstanding the foregoing, a Landlord's Mortgagee may at any time subordinate its MOligage to this Lease without Tenant's consent hy notice in writing to Tenant, and thereupon tbis Lease shall be deemed prior to such Mortgage without regard to their respective dates of cxecution and dehvcry and, in that event, such Landlord's Mortgagee shall have the same rights with respect to this Lease as though it had been executed prior to the execution and delivery of any such Mortgage and had been assigned to such Landlord's Mortgagee. (b) This Lease shall be subject to and subordinate to all easements, restrietions, liens, encumbrances, rights-of-way, or other matters affecting the Premises of record. ARTICLE XIII. ASSIGNMENT AND SUBLETTING 13.1. Assignment and Sublettinl!. (a) Except as expressly pcnnitted herein, Tenant shall not assign, mortgage, encumber or in any manner transfer, in whole or in part, this Lease or any estate or interest therein, nor sublet the Premises or any part thereof, without Landlord's prior written consent. Consent by Landlord to One or more assignments of this Lease or to one or more subletting of the Premises shall not operate to exhaust Landlord's rigbts under this Article XliI. In the event that Tenant, with or without the previous consent of Landlord, does assign or in any manner transfer this Lease or 3llY eSlate or interest therein or sublet the Premises or any part thereof, Tenant shall not be released from any of its obligations under this Lease unless a release is given, in writing, by Landlord. (b) Notwithstanding anything contained in this Lease to the contrary, none of the following (including the right to assign or sublet) shall require Landlord's consent (written or otherwise) or the payment by Tenant of any fees or cbarges of any kind: i. A transfer of any ownership interest pursuant to a public offering by Tenant. ii. The merger or consolidation of Tenant with a third party who shall assume Tenant's obligations Wlder this Lease, provided that the survivor thereof shall have a net worth equal to or greater than the net worth of Tenant immediately prior to such merger or consolidation. iii. A transfer or assignment to a parent, subsidiary or Affiliate of Tenant. "Mfiliate" shall mean any corporation, partnership, or other entity: (A) which owns or controls the majority of ownership interests of Tenant, either directly or indirectly through other entities; (B) the majority of ownership interests of whieh is owned or controlled by Tenant; (C) the majority of ~P0393 l1484-\-5657S} ". -..;."t- Agenda Item No. 15E 1 December 2, 2008 Page 52 of 86 whose ownership interests is owned or controlled by an entity described in (A); or (B) which owns or "controls" a majority of the ownership interests of Tenant. As used herein, the phrase. "ownership interest" shall mean capital stock if Tenant is a corporation, and the words "controlled" or "controls" shall mean the right or power to direct or cause the direction ofthe management and policies of the entity in question, (c) If this Lease is assigned or the Premises or any part thereof sublet or occupied by any entity other than Tenant, Landlord may collect rent from the assignee, subtenant or occupant and apply the same to the Rent herein reserved, but no such assignment, subletting, occupancy or collection of Rent shall be deemed a waiver of any restrictive covenant contained in this Section 13,1 or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the perfonnance by Tenant of any covenants on the part of Tenant herein contained. Any assignment or sublease: (x) as to which Landlord has consented or is deemed to have consented; or (y) which is required by reason of a final nonappealable order of a court of competent jurisdiction; or (z) which is made by reason of and in accordance with the provisions of any law or statute, including, without limitation, the laws governing bankruptcy, insolvency or receivership, shall bc subject to all terms and conditions of this Lease, and shall not be effective or deemed valid unless, at the time of such assignment or sublease: ~ Each assignee shall assume the obligations of this Lease by executing, acknowledging and delivering to Landlord, before the effective date of such assignment, a written assumption agreement in form and substance reasonably satisfactory to Landlord; ii. Landlord shall receive affidavits, made by both Tenant and its assignee or sublessee through an officer or principal of each such entity, stating the full consideration to be received by Tenant as assignor or sublessor as a result of said assignment or sublease, including, if any, payments for Tenant's trade fixtures or other leasehold improvements, proposed rent (which includes, Without limitation, all monthly charges allocated to common area maintenance, insurance, real property taxes, and utility charges) and any other payments; Ill. Each assignee or sublessee shall have submitted to Landlord a current financial statement, audited by a certified public accountant, showing a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by such assignee or sublessee of Tenant's obligations hereunder; iv. Each assignee or sublessee shall have submitted to Landlord, in writing, evidence satisfactory to Landlord of substmltial experience in Tenant's Use of the Shopping Center and in the provision of services pennitted under Section 1.1(c) of this Lease; v. The business reputation of each assignee or sublessee shall meet or exceed generally acceptable commercial standards; vi. The use of the Premises by each assignee or sublessee shall not violate, or create any potential violation of, applicable laws, codes or ordinances, nor violate any other agreemenrs affecting the Leased Premises, Landlord or other occupants in the Shopping Center; and &7039J (i4844"5657B) - 25- "________n_ _____... __'____..~_,_~_'''_"__~ Agenda Item No. 16E 1 December 2, 2008 Page 63 of 86 vii. Tenant shall pay Landlord the sum of$I,500.00 as reimbursement to Landlord for administrative and legal expenses incurred by Landlord in connection with any such assignment or subletting. (d) Except as provided in Section Bol(b) above, in the event that Tenant desires to sublet all or a portion of the Premises or assign this Lease, Tenant shall give notice to Landlord setting forth the tern1S ofthe proposed subletting or assignment. Tenant shall advise Landlord of the name of the proposed sublessee or assignee, shall furnish Landlord with the information required in Section B.I(b) above with respect to the proposed sublessee or assignee, and Landlord shall advise Tenant, within thirty (30) business days after receipt of such notice and all required infonnation from Tenant, that Landlord either consents or refuses to consent to a sublease or to an assignment to the proposed assignee or sublessee. (e) If Landlord consents to any assignment or sublease, Tenant shall pay Landlord, as Additional Rent, fifty percent (50%) of the Premium derived from that assignment or sublease. "Premium" shall mean all rent, additional rent, and/or other monies, property, and other consideration of every kind whatsoever received by Tenant from the assignee or subtenant for, or by reason of, the assignment or sublease (including all amOlUlts received by Tenant for, or attributable to, any "Included Property," as hereinafter defmed) LESS: i. commissions actually paid by Tenant to procure the assignment or sublease, amortized over the term of the assignment or sublease, to a licensed real eslate broker, commencing with the date on which the assignment or sublease term commences; ii. the lmamortized cost of Included Property, if any, determined on a straight line basis over the term of the assignment or sublease, as certified to Landlord by Tenant's independent certified public accountant (aJ Tenant's expenses); and iii. Base Rent and Additional Rent payable under this Lease (in the case of a sublease allocable to the space covered by such sublease as reasonably determined by Landlord, taking into account the useable area of the Premises demised under the sublease). "Included Property" means all property of Tenant transferred to the subtenant as part of the transaction (including, but not limited to, fixtures, other leasehold improvements, furniture, equipment, and furnishings). Tenant shall pay the PremiuDlto Landlord when Tenant receives payment from such subtenant. 13.2. A..i=ent bv Landlord. Landlord, at any time and from time to time, may asSIgn its interest in this Lease, and, if: (a) Landlord assigns its interest in this Lease; and (b) the assignee assumes all of the obligations of Landlord under the terms and conditions of this Lease; then Landlord and its successors and assigns (other than the assignee of this Lease) shall be released from any and all liability hereunder. ARTICLE XIV. MISCELLANEOUS &70}l)3 (14S44~5657&) ~L - LoU- i\genda Item No. 16E1 December 2, 2008 Page 64 of 86 14. I, Security DeDosit. Contemporaneously with the execution of this Lease, Tenant shall deposit the Security Deposit, as defined in Section l.lG), with Landlord. Landlord: (a) shall hold the Security Deposit without liability to Tenant for interest; and (b) may commingle the Security Deposit with its other funds. The Security Deposit, or any portion thereof, may be applied by Landlord to cme any default by Tenant under this Lease, without prejudice to any other remedy or remedies that Landlord may have on account of such application. Upon any such application by Landlord, Tenant shall pay to Landlord on demand the amount applied by Landlord to cure such default so that the Security Deposit is restored to its original amount. If Landlord conveys the Premises during the Term: (a) Landlord may turn the Security Deposit over to Landlord's grantee or successor; and (b) Tenant shall release Landlord from any and all liability with respect to the Security Deposit. If Tenant faithfully performs its obligations under the tern1S and conditions of this Lease, then Landlord shall return to Tenant the amount of the Secmity Deposit not applied by Landlord to cure defaults by Tenant, without interest, within thirty (30) days after the latter of: (a) the Termination Date; or (b) the date that Tenant has surrendered possession to Landlord in accordance with the terms and conditions oftrus Lease. 14.2. Commissions. Landlord shall pay: (a) to Grubb & Ellis and Kite Development Corp. (collectively, the "Leasing Broker") the commission set forth in the agreement between Landlord and the Leasing Broker (the "Leasing Broker Commission"); and (b) any and all other broker's commissions or fmder's fees that may be payable to brokers or fmders engaged by Landlord in connection with this transaction. Tenant represents that it has not: (a) engaged any broker or finder in connection with this transaction, except for the Leasing Broker; or (b) agreed or committed that the commissions or fees payable to the Leasing Broker shan exceed the Leasing Broker Commission. 14.3. Intentionally Omitted. 14.4. Notices. Any notice, demand, request or other instrument (any "Notice") which may be or is required to be given under this Lease shall be in writing and shall be deemed given and received: (a) on the date of delivery when delivered in person (with receipt for delivery); (b) upon receipt or refusal, when sent by United States certified or registered mail, return receipt requested, postage prepaid; (c) on the next day following deposit of any such Notice with a national overnight delivery carrier (with receipt evidencing such delivery) such as, but not limited to, Federal Express or UPS; or (d) upon being faxed with confirmation of transmission if scnt by facsimile (followed by certified or registered mail notices provided for in (b) above) to the following facsimile transmission numbers: if for Landlord (317) 577-5605, and if for Tenant (239) 774-8852 or to such other numbers, notice of which is given to the other party as provided herein. Any Notice to be delivered in person or by mail shall be addressed: (a) if to Landlord, at the address set forth in Section 1. l(t) hereof, or at such other address as Landlord may designate by written notice; and (b) if to Tenant, at the address set forth in Section l.l(g) hereof, or at such other address as Tenant may designate by written notice. 14.5. Waiver. One or more waivers of any covenant or condition by Landlord shall not be constmed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to render unnecessary Landlord's consent or approval to or of any subsequent similar act by Tenant, except as otherwise provided herein. 57Q.l93 (i4844.j6:5hi) - 27 - Agenda Item No. 16E 1 December 2. 2008 Page 65 of 86 14.6. Entire Agreement. This Lease and the exhibits attached hereto set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between Landlord and Tenant other than as are herein set fot1l1. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by each party. 14.7. Remedies Cumulative. The rights and remedies of Landlord and Tenant hereunder shall be cumulative, and no one of them shall be deemed or construed as exclusive of any other right or remedy herewlder, at law, or in equity. The exercise of anyone such right or remedy by Landlord or Tenant shall not impair its standing to exercise any other such right or remedy. 14.8 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesscr amowlt than the Rent due hereunder shall be deemed to be other than on account of the Rent first due hereunder. No endorsement or statement on any check or letter accompanying any check or payment of Rent shall be deemed to be an accord and satisfaction, and Landlord may accept any such check or payment without prejudice to the right of Landlord to recover the balance of such Rcnt or to pursue any other right or remedy. 14.9. Relationship. Nothing contained herein shall be deemed or construed to create betwecn the parties any relationship other than that of landlord and tenant. 14.10. Information. Tenant shall provide to Landlord, upon request, accurate financial statements of Tenant and/or any guarantors of this Lease. 14.11. Constmction. The laws.of the State in which the Premises is located shall govern the validity, performance, and enforcement of this Lease. The invalidity or unenforceability of any term or condition of this Lease shall not affect the other tenns and conditions, and this Lease shall be construed in all respects as if such invalid or unenforceable term or condition had not been contained herein. The captions of this Lease are for convenience only and do not in any way limit or alter the tenus and conditions of this Lease. 'Whenever in this Lease a singular word is used, it also shall iuclude the plural wherever required by the context and vice versa. All references in this Lea~c to periods of days shall be construed to refer to calendar, not business, days, unless business days are specified. This Lease shall not be recorded. All Exhibits referenced in this Lease are attached hereto and incorporated herein by reference. 14.12 Force Majeure. Notwithstanding anything to the contrary set forth herein, if Landlord or Tenant is delayed in, or prevented from observing or performing any of its obligations hereunder (other than the payment of any amount of money due hereunder) as the result of: (i) an act or omission of the other party; or (ii) any other cause that is not within the control of the delayed or prevented party (including, without limitation, inclement weather, the unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omiSSiOns of public utility providers); then: (i) such observation or performance shaII be excused for the period of the delay; and (ii) any deadlines for observation or performance shall be extended for the same period. 8703<;3 (l48,U-56578) - 2~- Agenda Item No. 16E1 December 2. 2008 Page 66 of 86 14.13. Counterparts. This Lease may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same instrument. All prior representations, wulertakings, and agreements by or between the parties hereto with respect to the subject matter of this Lease are merged into, and expressed in, this Lease, and any and all prior representations, undertakings, and agreements by and betweeu such parties with respect thereto hereby are canceled. This Lease shall not be amended, modified, or supplemented, except by a written agreement duly executed by both Landlord and Tenant 14.14. Successors and Assil!JlS. Except as othelWise expressly provided herein, this Lease, and all of the tenns and conditions hereof, shall inure to the benefit of, and be binding upon, the respective heirs, executors, administrators, successors, and assigns of Landlord and Tenant All indemnities set forth herein shall survive the Termination Date. 14.15. Authoritv. Each person executing this Lease represents lIlld warrants that: (i) he or she has been authorized to execute and deliver this Lease by the entity for which he or she is signing; and (ii) this Lease is the valid and binding agreement of such entity, enforceable in accordance with its terms. 14.16. Exculoation. If there is a breach or default by Landlord under this Lease, Tenant shall look solely to the equity interest of Landlord in the Shopping Center lIlld any rentals derived therefrom; provided that in no event shall any judgment be sought or obtained against any individual person or entity comprising Landlord. If there is a breach or default by Tenant under this Lease, Landlord shall look solely to the Office of the Tax Collector, provided that iu no event shall any judgment be sought or obtained against any individual person who serves as the Tax Collector Or any of its deputies, assistants or employees. [SIGNATIJRE PAGE TO FOLLOW] 870393 (1.t844-5(5)8) ~n ~ ..:;I - "n .._____'__.______n___________ _._____. ___________._____.,_~ ,1\genda Item No. 16E 1 December 2. 2008 Page 67 of 86 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date set forth above. WITNESSES: "LANDLORD" Jne1J~~o.~ Signature Jr) ell' SS0- Pr. h-;+-z.. Printed Name KITE EAGLE CREEK, LLC, an Indiana limited liability company @BY: ,0 /j zit (L lVhl17 . ,: ':1J1fl7IL I S' , ( Ignature t 1.1 vlj If 5 e I r7 D 1<-- ,/ . Printed Name TlA~'( (P, aODLf WITNESSES: "TENANT" (tuh~~ Signature CLA-uDp 4. ~~GS Printed Name By: c;{L~thA~~~ . ..' j Signat / . ~ ~. ,J \II \'1 t)) J ooy S _/ ..'/ AIl/(J.U ..J. ICV/CA"':.."'..---~JI/J Printed Name ;:fIOYiJ (14844-_'50578) - 30- Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F 870393 (l<'!S44 5(578) Agenda Item No. 16E1 December 2, 2008 Page 68 of 86 INDEX TO EXlDBITS Legal Description of Shopping Center Site Plan of Shopping Center Depiction of Premises Landlord's Work Rules and Regulations of the Shopping Center Foml of Commencement Certificate Agenda Item No. 16E1 December 2, 2008 Page 69 of 86 EXHIBIT A Leenl Description of Shoppinl! Center S7(J393 (14(;44- 56573} Agenda Item No. 16E1 December 2. 2008 Page 70 of 86 Exhibit "All Legal Description of Phase I Description of a part of the northwest ';' of Section 3, Township 51 South, Range 26 East and a part of Tract M-2 according to the plat of "Crystal Lake Terraces at Eagle Creek" as recorded in Plat BDDk 16, pages 30 and 31, Collier County, Florida. . Beginning at he northerlymost comer of the plat of "Crystal Lake Terraces at Eagle Creek" as recorded in Plat Book 16, pages 30 and 31, CDlIier CDunty, Fl<;lrida; Thence along the boundary of Tract "G" according to Tract Map of Eagle Creek Country Club, as recorded in Plat BOOk 14, pages 1-5, North 01001'55" East 497.95 feet to a point on the South right-of-way line of Price Street as dedicated in O.R. Book 715, pages 1845 and 1846; Thence alDng said SDuth right-Df-way line North 89043'55" East 6.97 feet; Thence continue along said right-of-way North 35039'28" East 413.85 feet [0 the sDuthwesterly right-of-way line DfU.S. 41 (Tamiami Trail); Thence along said right-of-way line South 54020'32" East 40.00 feet tD the plat boundary of The Shops at Eagle Creek Unit One, Plat Book 25. pages 44 and 45 of the Public Records of Collier County, Florida; Thence along said plat boundary in the following nine (9) described courses; 1. South 35'039'28" West 100.00 feet; ~. South 42055'15" West 139.12 feet; 3. South 54020'32" East 181.09 feet; 4. North 35039'28" East 13.76 feet; 5. North 80039'28" East 51.39 feet; 6. North 35039'28" East 134.90 feet; 7. easterly 15.71 feet along the arC of a CIrcular curve concave southerly having a radius of 10.00 feet through a central angle of'90000'00" and being subtended by a chord which bears North 80039'28" East 14.14 feet; 8. South 54020'32" East 9.16 feet; 9. North 35039'28" East 43.00 feet tD said southwesterly right-of-way line of U.S. 41, Tamiami Trail; Thence along said right-of-way line South 54020'32" East 185.50 feet; Thence leaving said right-of-way South 35039'28" West 123.00 feet; Thence South 54020'32" East 193.09 feet; Thence North 35039'28: East 123.00 feet to a point on the southwesterly right-of-way line Df D.S. 41, Tami ami Trail; . ...,; Thence along said right-of-way line South 54020.'32" East 224.02 feet; .1 ~.,.i ' ... , '-" '-'"' .--.--.--..---- Agenda Item No. 16E1 December 2. 2008 Page 71 of 86 Thence leaving said right-of-way line South 35'39'28" West 147.00 feet; Thence North 54'20'32" West 176.02 feet; Thence South 35'39'28" West 305.00 feet; Thence North 54'20'32" West 9.48 feet; Thence westerly 17.73 feet along the arc of a circular curve concave southerly having a radius of 29.33 feet though a centra! angle of 34037'33" and being subtended by a chord which bears North 71 '39'19" West 17.46 feet; Thence North 88'58'05" West 33,65 feet; Thence South 35039'28" West 324.20 feet to a point on the Northeasterly boundary of the plat of Crystal Lake Terraces at Eagle Creek Replat as recorded in Plat Book 28, pages 72 through 74. public records of Collier County, Florida; Thence along said line North 54'20'32" West 55.62 feet; Thence continue along said norlheasterly line North 89'20'32" West 47.39; Thence continue along said northeasterly line North 54'20'32" West 260.00 feet to the Point of . Beginning; Containing 10.19 acres more or less being 443,648 square feet more or less; Subject to easement and restrictions of record; Bearings are based on the East line of Tract "G" according to the said Tract Map of Eagle Creek Country Club, as recorded in Plat Book 14, page 1 through 5, being North 01001"55" East. Agenda Item No. 16E1 December 2, 2008 Page 72 of 86 EXHIBIT B Site Plan of Shoppinl! Center 87039} (14844-56571':) Aaenda Item No. 16E1 ~ December 2. 2008 Page 73 of 86 Pl'~' ()'C C';;Ll\C\.l\..t- 0 "i- F ----J)lUIL________________. j ai -,-" !, ~- - --~~ -~--- I ~I r , il/ljl ii' 'e"' .- ,!f-~,."",7'l_. J3; 1~ E 't ~ ~ I V. . ;::::::;' "'D <::." A ~ ~ ~ ~ i'l I ~ . , ,. ~, ::: \\~' '<'iA"~ 2 :. ' ~= f~':;~_- II _'::"-,:,8i:.\~ '''''''':~ \S~~~:~,-B"<'~.'~>9 =~. 31. 15.=i. :E~ //.~ \ "." ...s;, _,.'V - d c5 . /--,:y . ,- -t -,_~:?:'" OJ' ,."., ;./ "y ((". . -.r\ .."'.~/ ." E><IS""" 'co Q;/'~::)':/ 'NItiHDllCE _.:;?:/~.._/_ -~_.~ ---~-- -11l'T'TITUmmr -"""-'--- p3 { .. 11 ~ Eagle C I Agenda Item No. 16E1 December 2, 2008 PaDe 74 of 86 I II 'J : I I, i !I ! I ' I II ill Itt~Ht I}H! 'I II : . [ +-+- _ i - .:tt~l . ~. k....... ' I (InMt) jinct>.. eo It. Site Data Sl,ll1eMI!t8: CI.c2;......'.~1.2.400SF 0: QulCl ",....ShIp. 1.200 SF lA. Or,...IOh'IV_h-l.200SF C5. Re.e"""""'olIQlInq'-t,200 SF C8~ ~'."',"IPIuII.~..2.0l0SF G7; AwIll1bl1i_2,9ll26F C8; "",.18t*_2.&WSf f11'......PllUleeal~-1,200Sf B3:......,lli.....1,200 SlO B2,A..~.I.2lJ:iSF ",:~y".2005'" t<:l: A......'.200SF A3:E.C/eeI(~.t,200SF Parking :rns~ JJliW r :-:- _:,~_n ~ -- -- I --- -- - - ~ - ~ U.S. HWY. 41 11.600 VPD --. '\. -..-, ~ ~"r='---~~~.~~~=2~~~\\I~ ,\r------- ~I [fT1F'r- ~..],~ . '\~\~~ '\ ~O'.- i S,.L -. ,,-.-c.1; ':':.1 L. ,~~ . \\ \\~\\~ , jEX";-'! :' WAC."'.S ';;0 . 1 '\'\ 'J;t:-~,\'\ \~'- . C!~I~~.k JI[L'r-J,.~,~)l)~~. ,\ L-_~'~a.5l -: ~\ ,\ ~ 3?"~ ~-I_' ~ -~ ;~=--~I,: t,\ \ y;, II j ieE- . .i ~~";!/<\;,, ~. ~ ~--~~ ' ~.:::P:;/; \ .'~~~, '- I. ~/ - -\~\\ =:+-= ,,); =~ -,' , , : , \ b --.,~z=y _ c,:> ~ ' '- ( --~r~~-=---~\ \~,\ \, ___----:-_--=_,,~- ._ _~ -- . ~~,;,oca \ \ \ \' \ -------~----------=----~-~----- ~ ,;\\ \;\ \, \ / / ,\ '\ \\\ //// '\ \,. Subdivision , \ 'sed m -- 10 SF .. \ , , <() o '" '" ,.:, .... ;g::n W N' ~ tO~ .... -<t", ~ ~~ <( ",L>. - :'jO Qooo o:oQ.<\! w~<;Y :::!:wzt-- .~<I.() cn-o~ o=>z- C')UJ_C'? III~ ,,~~ i~ 1-- c I 01 .!l! :g 0.. ~ ~ Ol ....1 .Q c:: - Ii. -- (/) - '" - <IJ 01 ::ll <Il Q) I i5. ....J 01 Z I i ! -~~y--:--- ___\YTP __~ Ct>edoeod8y: ~-~---- .... 1'~80' ~--_._---- ...- .~1-__~ o;;t6'- 5-17-04 p~~:----- K-03026 Agenda Item No. 16E 1 December 2, 2008 Page 75 of 86 EXHIBIT C Depiction of Premises 870393 (14844<,6578) - 34- EXlliBIT D Landlord's Work HVAC HV AC will be delivered in good working order REAR WALL Repair water damage and seal to prevent water intrusion 870}9j (14344-Sb578) Agenda Item No. 16E1 December 2, 2008 Page 76 of 86 l\genda Item No. 16E1 December 2. 2008 Page 77 of 86 EXHIBIT E Rules and Rel!Ulations of the Shoppine: Center I. Tenant shall advise and cause its vendors to deliver all merchandise before noon on Mondays through Fridays, not at other times. 2. Tractor trailers which must be unhooked or parked must use steel plates under dolly wheels to prevent damage to the asphalt paving surface. In addition, wheel blocking must be available for use. Tractor trailers are to be removed from the loading areas after unloading. No parking or storing of such trailers will be permitted in the Shopping Center. 3. Merchandise being received shall immediately be moved into Tenant's Premises and not be left in the sen~ce or receiving areas. 4. Tenant is responsible for storage and removal of its trash, refuse and garbage. Tenant shall not dispose of the following items in sinks or commodes: plastic products (plastic bags, straws, boxes); sanitary napkins; tea bags; cooking fats; cooking oils; any meat scraps or cutting residue; petroleum products (gasoline, naphtha, kerosene, lubricating oils); paint products (thinller, brushes); or any other item which the same are not designed to receive. All areas in the Premises, including vestibules, entrances and returns, doors, fIxtures, windows and plate glass, shall be maintained in a safe, neat and clean condition. 5. Other than as permitted under the provisions of the Lease, Tenant shall not permit or suffer any advertising medium to be placed on exterior windows, on the sidewa1ks or on the parking lot areas or light poles. No permission, expressed or implied, is granted to exhibit or display any banner, pennant, sign, and trade or seasonal decoration of any size, style or material outside the Premises. 6. Tenant shall not permit or suffer the use of any advertising medium which can be heard or expericnced outside of the Premises, including, without limiting the generality of the foregoing, flashing lights, searchlights, loud speakers, phonographs, radios or television. No radio, tdevision, or other communication antenna equipment or device is to be mounted, attached, or secured to any part of the roof, exterior surface, or anywhere outside the Premises, unless Landlord has previously given its written consent. 7. Tenant shall not permit or suffer merchandise of any kind at any time to be placed, exhibited or displayed outside its Premises, nor shall Tenant use the exterior sidewalks or exterior walkways of its Premises to display, store or place any merchandise. No sale of merchandise by tent sale, truck load sale or the like, shall be permitted on the parking lot or other common areas. 8. Temnt shall no! permit or suffer any portion of the Premises to be used for lOdging purposes. 9. Tenant shall not, in or on any part of the Common Area: 87039':: (! <lSJ-.:l.S651E) Agenda Item No. 16E 1 December 2. 2008 Page 78 of 86 (a) Vend, peddle or solicit orders for sale or distribution of any merchandise, device, service, periodical, book, pampWet or other matter whatsoever. (b) Exhibit any sign, placard, banner, notice or other written material, except for activities as approved by Landlord. (c) Distribute any circular, booklet, handbill, placard or other material, except for activities as approved by Landlord. (d) Solicit membership in any organization, group or association or contribution for any purpose. (e) Create a nuisance. (() Use any Common Area for any purpose when none of the other retail establishments within the Shopping Center is open for business or employment, except for activities as approved by Landlord. (g) 'Throw, discard or deposit any paper, glass or extraneous matter of any kind except in designated receptacles, or create litter or hazards of any kind. (h) Deface, damage or demolish any sign, light standard or fixture, landscaping materials or other improvement within the Shopping Center, or the property of customers, business invitees or employees situated within the Shopping Center, <>.,,..~n~ " ."." =, .,.'"'''' .,"v..O-'\,.."....,-..\lJIU! " -"'- ------..-..----....---- .__...,..._~_._-_..._.-.. Agenda Item No. 16E 1 December 2. 2008 Page 79 of 86 EXHIBIT F Form of Commencement Certificate COMMENCEMENT CERTIFICATE This Commencement Certificate is made this _ day of , 2004, by and between Kite Eagle Creek, LLC, an Indiana limited liability company ("Landlord") and The Collier County Tax Collectot ("Tenant"): WITNESSETH Landlord and Tenant are parties to that certain Lease, dated , 2004, for certain rea! estate in Naples, Collier County, Florida (the "Lease"). Pursuant to Section 3.1 of the Lease, Landlord and Tenant, intending to be legally bound, hereby agree as follows: 1. The Commencement Date was the _ day of. ,20_. 20_. 2. The date upon which the Term shall expire shall be the _ day of 3. Tenant is in possession of the Premises and is obligated to pay the Rent. IN WITNESS WHEREOF, the parties hereto bave duly executed this Commencement Certificate as of the dates set forth below. LANDLORD: KITE EAGLE CREEK, LLC, an Indiana limited liability company Executed by Landlord the __ day of . 2004. By: John A. Kite, Chief Operating Officer TENANT: COLLIER COUNTY TAX COLLECTOR Executed by Tenant the day of , 2004. By: Guy L. Carlton, Collier County Tax Collector 870393 (14844.56578) - 3- Au, 31 05 02:3Sp Flinn Movin~~Stara~e (239 ] 643-72~enda Item Nopt6El December 2, 2008 Page 80 of 86 Robert Flinn Moving & Storage 3427 Progress Avenue Naple.. Florida 34104 Tel. (239) 643-4440 (800) 593-7372 Fax: (239) 643.7214 5-mall: info@robertflinn.oom FllfT7iIy OW11ed and op6rsl8d s/nc# 1tJ?'6 FAX Cover Sheet August 31, 2005 To: Charlie Carr From: Jeremy Flinn Pages attached; I I have attached 3Il estimate for transportation and storage of II storage rack units, including contents. Please contact me if you have any questions about this matter. Regarding renewal of the contract for regular transportation of elections equipment, the rates may remain the same for the next 1enn. (, ,\.::::;-i') ,/ ~d j,)~ \''vn, U .4III1fLLIED Agent for Ailied Van Lines. .~--_._---~,..-._-~_._.- f\ug 31 05 02:361' Flinn Movin~&Stora:e Agenda Item No. 16E1 (239] 643-7214 December p..31l08 Page 81 of 86 Robert Flinn Moving & Storage is registered with the State of Florida as a Mover Registration No.IM215 . Roberl Flinn Moving & Storage 3427 PROGRESS AVENUE NAPLES. FLORIDA 34104 TEL (239) 64:3-4440 SHIPPER I ESTIMATE _Sul'ervisoro!n,=I~~ti~~s __ ___.____ :>301 Tamiami Trail E. '--~'__.,----..__. .__...._~._-------------- Naples. FL CONSIGNEE Supervisor of Elections 8/31/05 OATtha rile Carr ~. IMPORTANT The Shipper agrees to pay all ch~rges in full at delivery unless prior agreement for billing is noted below by lhe Company. The Company agrees to provide the services outlined hereon. It is mutually agreed that each service performed will be subject to all conditions and rates herein con- tained, including the conditions on the back hereof. It is mutually agreed that the Company IS iiable tor loss or damage caused by its employees to the Shippe(s goods subject to the I imitations described on the back hereof. This liability is further limited to GOe per pound per article. The Company will accept, for a fee. a greater liability equal to the lump sum value of the shipment as declared by the Shipper below: I. ~ SHIPPER'S SIGNAT~----- This value is understood to be the actual cash value unless otherwise stated hereon. The Compeny is not liable for damage to items paCked by others, or for items which require packing for safe handling but are not packed. The Shipper must notify the Company within 60 days of deli v- ecr of a desire to rile a claim for cargo loss or damaoe. ,he Shipper or his agent signifies they have read the above and agree to the terms ~' ","'" I ITHIS ESTIMATE 1$ NOT A WARRANTY OF ACTUAL CHARGES. ACTUAL CHARGES WILL BE BASED ON RATES SI ~OWf'o AND PUBLISHED AND SERVICES CoERFORMED. THIS ESTIMATE SUBJECT ra CkANGE AFTER 3J DAYS. FLOO~, -. PHONE i 3427 Progress lIlaples. FL A venue .~--~~._-- ~ I f~TntAT~O CO::;l o~ SEH\',l[~ RATE CHARGES TRAVEL m E _ ____._. HOL'RS ReG. TIME (Trafl~!:!l 1 V"NlM~t.;.f....__. .. HOURS@ ---~--~~" ---- VAN&Mf"~ __ -.~_~HOURi!!i@ EXTI'lA MEN .___~ __~ _ __ MEN 105.00 420.00 HDUAS@ OECLAREO VALUE $ ~_. ._ '_.'~~ __". WEIGHT __---1iLb.~~. ._MILES ____. -~-~--- -~._- WAREHOUSE HANDLING indu~_. _~_. _____ STOR'G' per month (275 -!;.9..,...ft.L__ 320.0 STORAGET~N5POATAT10N _._ __ ... -'~'-----'--_. ---- ~-- rA.CKING M4.TERIAL FURNISH~D PACK.ING '~o "'N OUANTlTY RATE PA.CKINu AMOUNT O:':ANTITY RATE AMOUNT MI'II'II!:L,DlSH."'...Ctl: CARTONS: ~(SS T"'''N 3 3 CUBIC FEET ---.-- -I ----I. --.- -- 't --'-- ..._-~--~ -=~~i ~:~-~~~=~- 1---1 . l~~l ----J ---=: -=- -- i -----i ___i.. ------1- - -.-1-- - ==t= -=:--f =- - -~- 'I--~--~ B CUBlC FEET WARDROBE C,lRTONS' MA rrr~ES.s CARTONS SINOLE DOUBLE. KlNG ANO Q'JIiEN. K1N3SINGLE: --- MIRROR CAlHOi'lS (:;U,TES TOTAl. PACKltlG & CONTAINERS I , I II"" 11'0"'--- L Dl=j'.EH - 'NrilFS' ~ I I $7.0.00 , -II""';:;;;" -.);0---- "NGTITLE /~ ): OrESTtMATClR' r. Progeny Corp. d/b/a Jims Stowaway 3527 Radio Road Naples, FL 34104 239-643-3530 Tenant COMpaDY Addrtll CIty, S..... z;p Supervisor of Elections Attn: J. Edwards 3301 Tamiami Trail. East Naples FL 34112-4902 Refunds Due Date Description None Total $0.00 Refunds Paid Date Description None Appl.ied To Refund Balance: $0.00 Agencta Item No. 16E1 C h.,...,Ib f... r--.d.,im U p.'1"ertj:lqr l, 2008 Page 112 of 86 TO U"Jif l5/C Moved-Out Tenant Refund Status Date Printed Unit Move-Out Date Charge Balance Refund Balauce January 12, 2006 416 December 31, 2005 SIO.OO $0.00 Paid By Total. $0.00 Agenda Item No. 16E 1 December 2. 2008 Page 83 of 86 Progeny Corp. d/b/a Jims Stowaway 3527 Radio Road Naples, FL 34104 239-643-3530 STATEMENT Tenant Company Ad_ Oty, Statt, Zip Supervisor of Elections Attn: J. Edwards 3301 Tamiami Trail, East Naples FL 34112-4902 Date January 12, 2006 Total Due 52.1611.00 Unit: 151 Rental Rate: 5180.00 Cba,...e Date DesCriDtioD 01112/06 Rent 02/01106 Rent 03/01106 Rent 04/01106 Rent 05/01106 Rent 06/01/06 Rent 07/01/06 Rent 08/01/06 Rent 09/01/06 Rent 1 % I /06 Rent 11/01/06 Rent 12/01/06 Rent Paid Thru: JaD II, 2006 Amount Tax Total 5180.00 50.00 5180.00 $180.00 50.00 $180.00 5180.00 $0.00 5180.00 $180.00 $0.00 5180.00 $180.00 50.00 $180.00 $180.00 50.00 $180.00 $180.00 $0.00 $180.00 $180.00 $0.00 $180.00 $180.00 $0.00 $180.00 $180.00 SO.OO $180.00 $180.00 $0.00 S180.00 $180.00 $0.00 $180.00 Snbtotal: $2,160.00 A vail. Cndit: 50.00 Total Due 52.160.00 Aaenda It~m No 1~r::1 udv~' luel ~,L Vc; Page 84 af 86 , , Progeny Corp. d/b/a Jims Stowaway 3527 Radio Road Naples, FL 34104 239-643-3530 Uoit # lSle Gllte Access # 23777407 W.lcom.l Th. following information Is for yonr ref.rence. It conlams some Impo.....nt suggestions and pertin.nt information about tb. polici.s of this self storage facility. I. Yonr fe. is 51110.00 aod Is due on the tint (1") oleach IDOnth. Please add Sales lax to f.e. 2. W. will not send yon a bill. Pi.... mail your payment or bring it into the office. A payment slot has been provided for your convenience. 3. We acc.pt cash, cbeck or money order ror monthly payments. 4. If we bav. not received your payment by day 2 or the month, your account is CONSIDERED LATE. However, we will not charge a late fee and overlock your unit wttil day II of the month. 5. If your payment is not received by the IS" of the month, we will process your unit for public auction. 6. A partial payment will nnt stop fees or official procedures. Any agreement betWeen mnant and management to extend payment dates or defer sale of goods must be in writing and sigoed by both management and tenant to be binding. 7. A 525.00 ree is automatically charged for all returned cbeeks as well as a 510.00 late fee. All future payments must be made by money order, casb or casbier cbeck.. 8. We do not assume liability for the goods you store. Adding stored goods to an existing policy is generally quim inexpensive; we recommend contacting your insurance agency. 9. Do not use the rental unit for anything but DEAD SfORAGE. Do not store any flammable, explosive or illicit materials. The unit is to be used for storage only. 10. The storage unit must be vacated on or before the last day of the month for which rent has been paid and all tenns and conditions of this agreement are met by the tenant. 11. The storage unit must broom clean, emptied, in good condition - subject only to wear and tear - and ready to re- rent.F or a deposit refund: 12. Tenant's lock must be removed upon termination of occupancy. Failure to remove lock will result in your being charged tbe next month's rental and late fees. 13. Gate hours are from _7:30 (A.M.) to 9:00 (P.M.), seven days a week. Tbe gate...i11 be locked at _9:00 (p.M.), so please be out on time. 14. Office hours are from _9:00 (A.M.) to _S:OO_(P.M.), _Monday through _Saturday 15. We do not prorate ......D YOD vocate a Dnit. If your unit is not vacant on the first (I") day of the month, a full month's rent is due. There are no exceptionsl 16. Only one lock is allowed per door latch. Ifmore than one lock is found, you may be subject to a $0.00 administration fee for the removal of that lock. 17. Speed limit is 5 miles per bonr. 18. Please keep us updated of aDY address cbaDges and/or phone number changes. Until we are notified in writing with your signature, the only valid address and telepbone number present is on the lease. 19. Please leave aisles clear and do not block another tenanfs door. 20. Delivery drivers are to be met promptly and are not to block the front driveway or gate under any circumstances. 21. We will strictly enforce all policies and conditions in our contract. We do not make exceptions! 22. Thank you! We appreciate yonr bnsin.., BOd look forward to yonr having a pleasant stay with us. If we can be offurther belp, please let DS know. 23 er' fI S w Away use oniy NOT .or ants use '( 0/1 Te ntSi a re ate fGf1--lllhr;W.n/~ ~f- t:q~'1 4Mvdtt91'll . er",r,r V#JvN ?",!4vIlOtL- / Agenda Item No. 16E1 December 2, 2008 Page 85 of 86 Page I on RENTAL AGREEMENT This agreement dated January 12.2006 between Supervisor of Elections (hereinafter referred to as "TENANT") and Progeny Corp. d/b/a J ims Stowaway (hereinafter referred to as "MANAGEMENT"). MANAGEMENT does hereby rent to TENANT stDrage lIDit number 151 (lOx 30) in a huilding located at 3527 Radio Road, Naples. FL 34104 to be used as storage for personal or business property for the monthly rate of $180.00 payable on the first (I") day of each month hereinafter. Rental payment is payable in advance. MANAGEMENT acknowledges receipt of$2.160.00. including the first (I") month's rent (which has heen prorated to the first (I") day of next month where applicable). All payments made to MANAGEMENT pursuant to the agreement shall be applied first to administrative and late charges, then the balance to accrued and unpaid rent, this agreement shall expire on the last day of each month and automatically renew for one (I) additional month, SUBJECT TO THE CONDITIONS ON THE NEXT PAGE. Rental payments made after day 10 of the month are subject to a $10.00 Late Charge. Mailed payments must be postmarked by day 10 ofthe month to avoid Late Charge. A returned Check is subject to a charge of$25.00. There is a one-time $0.00 non-refundable administrative fee charged when Tenant signs this lease. TENANT shall give MANAGEMENT ten (10) days written notice to vacate in order to avoid responsibility for the payment of the next month's rent. TENANT is an active member of the United States Anned Forces: Yes No TENANT acknowledges thnI MANAGEMENT does not carry any insurance which in any way covers any loss whatsoever that TENANT may have or claim by renting the Storage Unit. All property stored in the Storage Unit shall be at TENANT'S sole risk. TENANT ACKNOWLEDGES THAT HE HAS READ THE CONDITIONS ON THE NEXT PAGE AND AGREES TO BE BOUND BY THEM. Executed on January 12,2006 Te~.nme: snervisor of Eledions .J W (h!()~ - (Teoant Signature) pft'V /,j4r"MJr..,vOj') r (Managemeot Signature) 61'1tl!{ i2,~4vU, '!141(J . Attn: J. Edwards (!, ~IJf DoI;/.;ry7"1~ 1~t4- (Teoant Company Name) By (Maoagement Ageot): Nancv A. Ried Lease Number: 2030 J30 I Tamiami Trail. East (Tenant Street Address) Please Remit To: Progeny Corp. d/b/a Jims Stowaway 3527 Radio Road Naples, FL 34104 Nanles. FL 34112-4902 (Tennt City, Slate, Zip) 239-774-8805 (Tenant HomoPhone) (Tenant Work Phone) n1a (Tenaot Drivers Li(':ense No.) (State) Agenda Item No. 16E1 December 2, 2008 Page 86 of 86 Page 2 on Conditions 1. Te..ot uriber eovuuta witll M...gemfDt lltat at the expirati01l of tenDI of .lIi, Leue, peate.blt POIII(8sioll of tile premises ,iuD be civea to the ManageJDcllt. i. as 1004 condition.. they art DOW, aonnalwear, iaevltable accidents..d loss by fin execptr:d; .ad tile TltJlla.t alTtes Dot to let. ...bld. or UI._ the whole or any part of tlte premi8efl ....IO'o.t writnp cODseat of tbe M..aecmt:al. Ten... agrees aot.... afflI sbdviag or other .rtieles to Oat wall., cetung or doors. Ten... Dlalt provide Ids ow. lock aod keep .ait locked at aU times, uliDg oAly oae lock per ualt door hasp. 1. Tunt slaaU aot platt or keep i. tile pn:lIlisea uplolivea, nammable liquids, coDtr.b..d or otller eoods prohibitt.d by tbe law ..d -:rea to abide by any rain pro.atpled by Ma..pment lonnillC tbe Ole oftbese premises. Teuat 111.11 Dot pel'Jllit d.....ge to the premilc. aDd shall "de.Dlly aDd lIold Ma..c:tmeat barmen from .aD)' claim or t:usr of actio. ariliDg out of TelUlJlt"s DR of dte premiJeL TenDt ISlumes respouslbillty for a.y lusl or damage to property Itored by Terant I. the pRDli5e1 aDd mayor ml)' Dot elect to provide l.surnee coverage for tbe same. MANANGEMI:NT DOES NOT MAINTAIN INSURANCE FOR THE BENEFIT OF TENANT, WHICH IN ANYWAY COVERS ANY WSSWHATSOEVER THAT TENANT MAY HAVE OR CLAIM BY RENTING THE STORAGE SPACE OR PIlEM1SES AND EXPIlESSLY RELEASES MANAGEMENT FROM ANY LOSSES AND/OJ< DAMAGES TO SAID PROPERTY CAUSED BY FIRE, THEFT, WATER, RAINSTOllMS, TOIlNADO, EXPLOSION, RIOT, RODENTS, CIVIL DIS11JRBANCES, INSECTS, SO"lJC BOOM, LAND VEHICLES, UNLAWFUL ENTRY, OR M'Y OTHER CAUSE WHATSOEVER, NOR SHALL MANAGEMENT BE LIABLE TO TENANT AND/OR TENANT'S GUEST OR INVITES OR AGENTS WHILE ON OR ABOUT MANAGEMENT PREMISES. J. Allleues expire o. ....e la,t dlY of eac. mouth. The muagement may tenniute uid lease at bis option if Teu..t is aot iD full cOlDpliuce....m the krms of filII l.use, 5Ibjret to Maaag:emeBt's approval. TENA1\'T'S FAn..URE TO V ACA TE THE PREMISES OR REMOVE THEIIl LOCK ON THE LAST DAY OF THE MONTH AUTOMATICALLY RENEWS THE LEASE FOR ONE (l) MONTH. 4. Te...t a..reel to give Manqe"IIl~lt tea (I') days wrttteD Dotice orb" intentio. tD 'Vault Ilia dorage uDit. THERE ARE NO PROM TED KENT REFUNDS IN THE EVENT THE UNIT IS VACATED BEFORE THE LAST DA V OF THE MONTH. H the .sit is vacated oa or after tile fint of tile IIlOltb, al.n mouth's rut is due. 5. ReataJ payments an due os the fint (1_I') oreacll month withOBt dell1ud, Paymnfs made after day 10 Dfthe mouth are Illbjectto a $10..00 Late CUrge. Mailed paymen.1J lUst be poatmarked by day 10 oftlr.e montb to avoid tile LateC.iLarr;e. HrLntal paymeots are Dot paid i. f.n within (we (5) day. of; tile dae date, iDCI.dine Late Chlrge. andlor RetarDed Oarge, 0' MW!eUaDllon Chl"le. tat M..aBement lDay~ at :ll.is option, declare tile Tnuiat in default. No Dotice Ited be give. of dc:faalt. MANAGEMENT DOES NOT SEND OUT BILLINGS FOR MONTHLY RENTAL CHAllGES. 6. The Maoagemst may. at .is option. take pol!leBllioa of the IOods in the Stonge v.it 00 or after day 11 of the mouth if fall paymeat is not received by tile date. Tam&: poneauoo oftbe gooo, uan consist: orover~lockiDg dte Stonge Unit door to pnvent Tuutlsa<<ess to the Storace Vait until aU reatal, bte ftel ..d mileenaaeous cbll'Jea are paid ill fuo.. 7. Tbe pcnoaa) property in Storage Unit may be sold to utilfy tIIc Iieo if TenDtis io default. Maoagement shall hive alien nB aU penonal property nored withi. eacb Storage Uoit for rent. labor. or apeDStl reasDaably iac1uTed is tbe sale. pU("Juant of Chapter 83.806 Florida Gueral Stataes. AU moving, stonge and/or sales COlts usuciated with sale of goodllhall be borne by Tenant. After a lieD .plnlt the peno..l property iD tile DDlt aristl, ONLY A PAYMENT IN THE FULL AMOUNT OF mE: LIEN WILL BE ACCEPTED TO SATISFY LIEN, PARTlAL PA VMENTS WILL NOT STOP ANY AUCTION PROCEDURES OR. LEGAL ACTIONS. 8. The MaDae:ement may, at .is op60&., REMOVE THE TENANTS LOCK AT TENANT'S EXPENSE TO APPRAISE STORED GOODS FOR SALE. Tile admiaiatrative tharge lor lock tDttiq bI 50.00. Ma.agemeut mal' at tlli. time move property to lOother loeation to be stored. and Teaut a~ to be IOlely n.ble ror aay dam.e:e, 100s or exptasc.lncurred by his actios. ADd tlle partie. Beree that Maoagemeat nail bve.. lies lIpoD .n penonl property ItOred i. tile nit to secure paymnt of (hi. rharrc. u well a5 aU other charges owed to Managemeat. If tile rental accouat i. breD!:bt currnt, the Maalgtmeut lIhan nmm>e its loek. IT IS THE TENANT'S RESPONSmILITY TO REPLACE HIS WCKAT THE TIME OF PA\'MENT TO ~ THE SECURITY OF HIS StOllAGE UNIT AND TO SECURE HIS STORAGE UNIT BY A LOCK (only oae lock per uoit door lIa.p). AT ALL TIMES, MANAGEMENT WILL NOT SUPERVISE USE OF'L'NIT IN ANYWAY. THE SAFETY OF ITEMS STORED BY TIlE TENANT IS mE RESPONSIBILITY OF mE TENANT. 9. la tbe cveot Managemeat i8 required to obtalB the servl<<s or aa attoruy to euforce ny of tbe provisions of tki, Lease, TeBanl agrees to. ply in addition to fiae IIlUD8 due bereuDder~ aD addino.aIRmoIlBt., and for attoroey's fees .ad cost iaurred. 10. Managemnt will bave tile riebt iD tile event ola. elDt'leDcy to cater tbe storage DDit with wbat ever reasoR.ble forte i. btceMny. Tbey may at their discretioB, deny aeeelS to premises hi case of iudeJlleat weather or emergencies. 11. A retunled c.beck is ,ubject bl a cbarge 0(S25.00, which sbaD bc considered part of the reauL UoitshaU be in defnlt and overlocud by M...gemeat, aam amou.nt of tile ~tuned clleck, rdarned cited cbargc, and any additional charees due are paid lD. fall. Payment mUlIt be made by mosey order or terti6ed cbeck. 12. The MODtlal,. Rental rak, deposit amoDnt, late ebal'Rt, cat-lock, ud retuned rbeek charge aft: eacb s.bjed to increase oa day 1 of each moath. Teaaot IIb.1I be givea thirty (30) dI}'s written Dorice of such jOCRuel and tllis Lease sball bit deemed to be so altered if tbe Tu..t toatinaes bis ocrupaacy beyoad tbe effective date of tbe increlSe.. Notice sball be dtemed given wbea M..agemeDt depositJ fint-da. mail, postage prepaid to Tenant at addJU' given on filii Lease or off'Kial chnge of addTeSll. TeDaot IIhan apprise M..ageDtent of In)' cllugc i. hWber mailiog address iu writiag widJin twenty (20) dIIys of such cbange. A new IJUK doc. DOt kave to be ntta:led for aoy ncw reotal rate- ioereasell. 13. AU teasots in default or tnaoU bavine prior returned cbecks, mUlt pay by mooey order. All teoants mllst pay by tbeckfmoaey order. 14. Any right granted bereia to MaugemeDt may be exercised by MaoageDeDt's Rental Ageat or other reprellotBtadve or ageat. 15. Tbe coveDaab hereiD co.waed 5ballexkad to ud he hi.dinK npDa tbe parties hcreto, their heirs, executors, admiaistrato.n aod SI5.05.