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Agenda 06/24/2008 Item #16G 1 Agenda Item No. 16G1 June 24, 2008 Page 1 of 25 EXECUTIVE SUMMARY Recommendation for the Community Redevelopment Agency to approve the relocation of the Bayshore Gateway Triangle CRA office, approve new office lease with Palmyra Club Investors, LLC (landlord) and authorize the Chairman to sign the lease agreement. (4069 Bayshore Drive) (FY08 Fiscal Impact $3,696) OBJECTIVE: To receive CRA approval for the relocation of the Bayshore Gateway Triangle CRA office to 4069 Bayshore Drive, approve new office lease with Palmyra Club Investors, LLC (landlord) and authorize the Chairman to sign the lease agreement. CONSIDERATIONS: The CRA staff has identified new office space to meet the CRA's future space needs. The current office lease for the Bayshore Gateway Triangle CRA will expire August 2008. The new lease would commence July 1,2008 to provide adequate time to relocate furniture and IT operating systems prior to the end of the existing lease. Currently the office works out of two 900 square foot spaces that are not co-joined (separated by 250 feet). The new office consists of 2300 contiguous square feet of space at a lease rate of $18/sqft or $3450/month. Collier County Budget Guidelines stipulates "t)pical lease rates per square foot per year" as $20 - $26 for East Naples Storefront. On May 6, 2008, the Local Advisory Board unanimously approved a recommendation to relocate to ~ a location that has more floor space, more professional stetting, and is in a very visible location for the public to conduct CRA business. LEGAL CONSIDERATIONS: The lease has been reviewed by the Office of the County Attorney, Facilities Management Department, and Risk Management. (MMSS) FISCAL IMPACT: Sufficient operating funds are available in the FY08 budget to cover associated costs with the new lease for July - September: $13,800 ($10,350 rent plus $3,450 security deposit). Actual FY08 difference between renewal of current lease ($6,654) and new lease ($10,350) for the same period is $3,696. Relocation expenses for Collier County IT, phone service and signage will be covered by the existing FY08 Operating Budget. The proposed FY09 Bayshore Gateway Triangle CRA Fund (187) budget contains sufficient funds to cover FY09 annual lease. GROWTH MANAGEMENT IMPACT: Policy 4.7 of the Future Land Use Element of the Growth Management Plan states that redevelopment plans may be developed for specific areas within the County, including the Bayshore Gateway Triangle CRA, that may consider alternative land use plans, modifications to development standards, improvements to infrastructure and incentives to encourage redevelopment. RECOMMENDATION: For the CRA to approve the relocation of the Bayshore Gateway Triangle CRA office to 4069 Bayshore Drive, execute a 2-year office lease with Palmyra Club Investors, LLC (Exhibit A) to commence July ], 2008 and authorize the CRA Chairman to sign the lease agreement. ,- Prepared by: David L. Jackson, Executive Director, Bayshore/Gateway Triangle CRA Page 1 of 1 Agenda Item No. 1681 June 24, 2008 Page 2 of 25 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16G1 Meeting Date: Recommendation for the Community Redevelopment Agency to approve the relocation of the Bayshore Gateway Triangle eRA office, approve new office lease with Palmyra Club Investors, LLC (landlord) and authorize the Chairman to sign the lease agreement. (4069 Bayshore Drive) (FY08 Fiscal Impact $3,696) 6/24/2008 9:0000 AM Prepared By David Jackson Executive Director Date Community Redevelopment Agency Bayshore~Gateway Redevelopment Approved By David Jackson Executive Director Date Community Redevelopment Agency Bayshore-Gateway Redevelopment 6/12/200811:36 AM Approved By OMS Coordinator OMS Coordinator Date County Manager's Office Office of Management & Budget 6/12/20082;51 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 6/13/2008 9;31 AM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 6/17/20088;50 PM file://C:\AgendaTest\Export\ 11 0-June%2024,%202008\ 16.%20CONSENT%20AGENDA \ 1... 6/18/2008 I EXHIBIT -A: I Agenda Item No. 16G1 June 24, 2008 Page 3 of 25 COMMERCIAL LEASE THIS COMMERCl.\L LEj\SE (hercinafter the "J ,case") is made on this 1" day of July, 2008, by and bctween PALMl.'R.A CLCB J"JVESTORS, LLC, a Florida limited liability company, (hereinafter referred to as "Landlord") and the CULLlER COT l'\jTI' CUtvlMlNJTY REDFVELOP~IENT AC;ENCY - BA YSJ-IORE GATEWA Y TRIANGLE (hereinafter rcferred to "T ") as cnant. Tn consideration of the rents, covenants and agreenlcnts set forth below. the parties hereby agree as foDows: ARTJCLE I JNI-OR.c'vL\TlO'\J PROVISIONS The following terms shall ha\-e meanings assigned hereby: 1.1 Premises::\ portion of the real propcrty located at 4069 Bayshore Dr. Kaples, PI. 34112 containing approximately 2300 square feet, as mdicated on the sketch of the premises attached hereto as Exhibit "/\" (the "Premises"), and incorporated herein. 1.2 Landlord; Palmyra Club Invcstors, a Florida limited liability company 1.3 Address of Landlord for notice purposes under this I ,case; Palmvra Club Im'estors LLC P.O. 'Box 112545 Naples, FL 34101\ 1.4 Tenant; Bayshore Galeway Triangle Community Rcdevelopment Agency, a componcnt of the C:ollier County C:ommunir}' Redevelopment Agency, and non-exclusnce ~sc by Bavshore Cultural Arts, Ine. as noted in artached Memorandum of Understanding (Lxhibit "B"). 1.5 j\ddress of Tenant for notice purposes undcr this Lease; 40(,9 Bavshore Oriye Kaplcs, FL 34112 1.(, Tenant's Trade )Jame: N/A I. 7 Commencement Date; July 1, 20118 1.8 Lease Term; follo\Vtng the Commencement Dare. expiring on June 30, 2010 (tbe "Expiration Date"), unless sooner terminated as hcrell1 provided. '1'he Lcase Term shall include an\' renC\val or extension wnich may he exercised bv Tenant. This Lease shall he effective ilfter both Landlord and Tenant c;ccute it. .I 1.9 Pcnnitted L'se of the Prclluscs. CR....\ office uses to include public and governmental m_ccungs, conferences, \vorkshops, e\Tcnts and public informational meetings. CR.:-\ is allowed to sublease any space under eRA use provided by this lease and any future addendums, as approved by the Landlord. Another use is prohibited without prior written consent of Landlord. 1.10 Initial Base Rent for Month. $3450.00 Three Thousand Four Hundred Fift:\' and no 1()O Agenda Item No. 16G1 June 24, 2008 Page 4 of 25 1.11 Operating Costs (pro-rated based on percentage of square footaRe under eRA control). Electricity, water, refuse pickup and basic maintenance are the responsibility of the Tenant 1.12 Guarantors. Bayshore Gateway Triangle component of the Collier County Community Redevelopment Agency 1.13 Address of Guarantor(s). 3301 T amiami Trail East Naples, FL 34112 1.14 Security Deposit. $3450.00 1.15 Property. The real property owned by Landlord which includes the Premises and located at 4069 Bayshore Drive ~aples, Florida 34112 ARTICLE 2 PREl\HSES AND TERM 2.1 Premises. In consideration of the rcnts~ covenants and agreements to be performed by Tenant, Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the Premises, subject to easements, restrictions and other lnatters of record, as of the date hereof. 2.2 Lease Months. The term "Lease Months" as used herein shall mean consecutive n'V'ENTl' ,.OUR (24) months periods commencing on the Commencement Date. 2.3 Tenant's Du~' to Open for Business. [Intentionally Delered] 2.4 Surrender of Premises. Ar the expiration of the Lease Term, Tenant shall (i) surrender the Premises in the same condition as existed upon the CommencctTIcnt Date, ordinary wear and tear excepted, unless Tcnant elects not to remove trade fixtures, sib'115 and other personal property at the end of the r ,casc Term, in which case such improvements shall become the property of the Landlord, and (ii) deliver all keys for and all combinations on locks, safes and vaults in the Premises, if any, to Landlord. 2.5 Holding Over. If Tenant holds over or occupies the Premises after expiration of the Lcase Term, or the earlier tennination of this Lease, without Landlord's prior written consent, the lease shall automaticallv become a month-tn-tnonth lease with the n10nthlv rent in an anlount which reflects the annu;l cost of living increase noted in Article 3.2. No extOension of the Lease Term will be valid unless and until the same will bc reduced to writing and signed by both Landlord and Tenant. 2.6 Option to Renew. Tenant shall have the option to rene'i.V this Lease for one additional year (rhc "Rencwal Term"), provided (i) that at the time of excreising the option, Tenant is not then, or thereafter during the balance of the Lease tcrm, in default hereunder; (ii) Tenant has not been late in the payment of rent including the grace period more than thrcc (3) times within the twelve (12) month period preceding the exercise of the option; CUi) that written notice of tne exercise of this 2 Agenda Item No. 16G1 June 24, 2008 Page 5 of 25 option is given by the Tenant to the Landlord at least one (1) month prior to the Expiration Date, and (iv) Landlord provides written notice to Tenant's reguest to renew this lease. ART1CLF .'\ REKl 3.1 Rent. During the] .ease Term, Tenant covenants to pay to J ,andlord all of the Rent prm'ided for herein. Rent shall bc due on or before the fIrst (1st) day of each month in advance, without demand, notice, deduction or setoff of any kind. 3.2 Rent Amount and Schedule. The Parrics ackno\vledge that the base rental an10tmt under section 1.10 is due and payable along with and any escalations as specified below. :\n additional SO/o annu.d cost of living 1f1CreaSc shall be added to the base rent at the beginning of the second year of the lease. In the event Tenant elects to rene'\\-" this Lease as provided for in Section 2.6, ab()\'c, Tenant shall pay to Landlord thc base monthly rent, plus an additional fIve percent (5010) for each Renewal Term. 3.3 Additional Rent. Any and all other sums of money or charges required to be paid by Tenant pursuant to the provisions of this Lease, \vhcther or not the saIne be so designated, shall be considered as "Additional Rent", and shall be payable and recoverable in the same Inanner as Rent. 3.4 Past Due Rent and Additional R.ent. If Tenant shall fail to pay, within ten (10) days from the date due, Rent, Tenant shall pay ro Landlord, on demand, a late charge of five percent (5':-,,) of the latc amount. 1f'l'enant shall fail to pay, wirhin ten (10) da"s from the date due and Tenant's receipt of Landlord's proper written notice of the same, all other changes designated as :\dditlonaJ Rent, Tenant shall pay to Landlord, on demand, a Jate charge of five percent (5%) of rhe late amount. In the event Tenant fails to pay such late charge, such unpaid amounts shall thereafter bear interest from the due date thereof to the date of payment at the highest rate chargeable by applicable law ("Applicable Rate"). 3.5 Fxpenditures bY" Landlord. If afrer the expiration of any applicable notice and cure peliods, Landlord shall make an" cxpenditure for which T enam is liable undcr this Lease and Landlord provides Tenant '.vith adyance written noricc of the same togcther \vith receipts and evidence of payment, the amount thereof shall be deemed Additional Rem due and payable by Tenant with the succeeding installment of Rent (unless S0111C other date is expressly proyided herein for paytnent of such amount) together wlth interest at the :\pplicable Rate. 3.6 Sales. Use and Excise Taxes (lhis Article Not Applicable to eRA as Tenant). "\ny sub-lessees submitted by the CRA and approved bv the l,andIord shall pay all sales, use and other taxes imposed by any government authority upon the manufacture, sale, use, transmission, distribution or any other process necessary or incidental to the furnishing of se\ver, \vater, and electricity, or any other utility services to the premises. Tenant shall pay, before delinquency, all personal property taxes and assessn1cnts on the furniture, fixnlres, equipment, and other property of Tenant Jocatcu in the Premises and on any additions and ilnprovements on thc Premises belonging to Tenant. Tenant shall also pay, as Additional Refit, all ~ales tax assessed against the Rent by goverolTlental authority, C"\'t'O though taxing statute or ordinance ll1ay purport TO impose sLlch sales tax ag;:l,inst Landlord. Tenant shall n1akc the payment of sales tax on a monthly basis, concurrently with the payment of the Rent. 3.7 Utility Service. Tenant shall be responsible for and promptly and timely pay all charges for use or consmnption of all utility services used or consumed within the Premises, fnr the lease space noted 3 Agenda Item No. 16G1 June 24, 2008 Page 6 of 25 in Exhibit A. If any such charges are not paid when due, Landlord may, at its option, pay the same, and any amount so paid by LandlorJ shall thereupon become due to Landlord from Tenant as Additional Rent. LanJlord reserves the right to install flow meters on the water lines and charge Tenant aeeordinglv for its use of water. In no event shall Landlord be liable for an interruption or failure in the suppiy of any such utilities to the Premises, except in the event of l,andlord's gross ne.gligence or intentional acts or omissions. ARTICLES 4 CST'. OF PREMISES 4.1 Use. Tenant shall use the Premises solely for the purpose of conducting business in accordance wirh Paragraph 1.9 hereof. Tenant shall not use, permit or suffer the use of the Premises for any other business or purpose. In the event Tenant desires to use the dcnllsed premises for any other use not specifically permitted herein, Tenant must first obtain Landlord's written approval. Landlord may arbitrarily and in its sole discretion, withhold consent to the same. 4.2 Intentionally Omitted. 4.3 Compliance With Laws and Regulations. Tenant shall, at Tenant's sole cost and expense, comply with all laws, statutes, ordinances, rules, and regulations (including orders concerning environmental protection) of all federal, state, county, municipal, and other applicable governmental authorities, no\v in force, or which may hereafter be in force, pertaining to Tenant or its use of the Prclnises (collectivelv the "Regulations"). 4.4 Rules and Regulations. (a)'l'enant covenants to comply with the following: (1) No auction, ftre, bankruptcy, going-out-of-business, relocation, or other distress sales may be conducted In the Premises. (2) Tenant will keep all mechanical apparatus free of vibration and noise that may be transmitted beyond the confines of the Premises that may unreasonably annoy or disturb an)' persons occupying adjacent prclnises. This covenant shall restrict Tenant from utilization of any advertising medium which can be heard or experienced outside of the Pretnises, including, without limiting the generality of the foregoing, flashing lights, search lights, loudspeakers, phonographs, radios, or televisions. No radio, television, or other cOlmnUllicat1ons antenna equipment or device is to be mounted, att.ached or secured to any part of the roof, exterior surface or anywhere outside the Premises. (3) Tenant will keep the Premises and the outside areas adjoining the Premises, free from all insects, rodents, vermin, and other pests, litter, dirt, and obstruction and shall not sell merchandise on sidewalks. (4) ,\ll store floor area of Tenant, in eluding vestibules, outside docks, entrances and exits; doors, fixtures, storefront windows, storefront "vind.ow areas and plate glass shall be m.aintained in a safe, neat, and clean condition and in accordance with all applicable flIe and safety cooes. ~. (5) Tenant will not permit or suffer the Premises, or the walls or floors thereof) to be endangered by overloading. 4 Agenda Item No. 1681 June 24. 2008 Page 7 of 25 (6) Tractor-trailers are to be removed from the loading areas immcdiately after unloading. (7) All garbage and refuse shall be kept in the kind of containers designated by Landlord and shall be placed outside the Premises within said containers prepared for collection in sueh manner and at such t.imes and places specified by Landlord. (b) Landlord resen'es the right from time 10 time to suspend, amend or supplement the foregoing rules and regulations, anJ to adopt and prOlTIulgatc additional reasonable rules anu regulations applicable to the Premises, but only to the extent that such rules and regulations do not nlatcrially litnit or interfere with Tenant's rights hereunJcr, Notice of such rules and regulations and amendments and supplements thereto, if any, shall be given to Tenant. (c) Tenant agrees to comply with all additional, amended and supplemental rules and regulations upon reasonable notice of the same from Landlord. ARTICLE 5 OPb:JC\TI'\IG COSTS 5.1- 5.3. Intentionally Omitted. ARTIC!.!'. G I'\ISllR..\NCE G.1 Insurance Coverage bv Landlord. Landlord shall maintain during the !.ease Term (and the cost thereof shall be included in the Operating Costs), insurance for fire, flood, windstorm, vandalism and malicious mischief, insuring the inlprnvements located on the Premises and all appurtenances thereto (excluding wall covering, floor co\~ering and drape:,;). Landlord may also maintain at its sole cost and expense (i) rent or rent value insurance including an extended cO\Terage endorsement with respect to the Premises in an alTIOunt equal to the annual Rent for the Premises; and (ii) such other insurances as Landlord deems rea!.'onably necessary or desirable to protect the Premises against 10ss_ Payments for losses under any such insurance policies shall be made solely to Landlord. Notwithstanding thc foregoing, if any loss sustained by Landlord is causcd bv the negligence of Tenant, its agents, servants, employees, licenses, invitecs, or guests, then Tenant shall b~ liable to Landlord for the amount of the deductible under l.andlord's insurance. Further, Landlord shall not be responsible for loss or uan1agc to items for ,vhich Tenant is responsible, as is more fully set forrh below. 6.2 Insurance C:overare bv Tenant. Tenant agrees to carry and keep in full force and effect; (,\) bodily injury, public liability insurance on the Premises against the liability of Tenant and its authorized rcprescntatlvcs arising out of or in connection with T enant's u~e or occupancy of the premises, with limits of coyerage on of not less than One Million Dollilrs ($1,000,000.00) per accident and injury or death; (~) property damage l11SlnanCe in an amount nor less than ()nc 1\1illion Dollars ($1,000,000.00) for Tenant's pcrsonal propcrty and fixtures; (C) workers compensatIOn insurance ill the lnaxll11LUTI amount pernutted under Florida la,\'; (D) insurance against fire, flood and such other risks as are, from time to time, included in standard extended co\~erage Insurance, including insurance against sprinkler damage, vandalism and malicious mischief for Tenant's personal property and fixtures; (E) plate glass inSUr<111Ce covering all the plate glass of the Prcrnises, in amounts satisfactory to T ,andlord. The proceeds of such insurance, so long as this T ,case remains in effect, shall be used to repair or replace the fixtures and equipnlent so insured, for the full replacement value (without provision for coinsurance) uf all of Tcnant1s n1erchandise, trade fixtures, furnisnings, wall coverings, carpeting, drapes, equipnlent and all other items of personal property of Tenant located on or within the Pn::mi,es. TIle replacement of any plate glass damaged or hroken from any cause whatsoever in and about the Premises shall be Tenant's responsibility. The public 5 Agenda Item No. 1681 June 24, 2008 Page 8 of 25 liability insurance policy under (1\) above, sha]] name l,andlord, any person, fIrms, or corporations designated by Landlord, as additional insured(s), and shall contain a clause that the insurer will not cancel or change the insurance without fIrst giving Landlord ten (10) days prior written notice. Tenant shall provide T .andlord, upon request, with copies of the policies or certificate evidencing that such insurances are in full force and effect and stating the terms thereof. The limits of such insurance sha]] not, under any circumstances, limit the liability of Tenant hereunder. In the event Tenant fails to procure, maintain and/or pay for the insurance required by this Lease, at the times and for the durations specified in this Lease, Landlord shall have the right, bur not the obligation, at any time and from time to time, after fifteen (15) fifteen days written notice to Tenant, to procure such insurance and/or pay for the premiums for such insurance, in which event Tenant shall repay T .anJJord immediately upon demand by f ,andlord as Additional Rent hereunder, all sums so paid by Landlord together with the interest at the Applicable Rate, together with any costs or expenses incurred by Landlord in connection therewith, without prejudice to any other rights and remedies of the Landloro under this Lease. Each policy evidencing the insurance to be carried by Tenant pursuant to this Lease shall contain a clause that such policy and the coverage evidenced thereby shall be prin1ary with respect to any policies by Landlord and that any coverage carried by Landlord shaU be excess insurance. 6.3 Waiver of Subrogation. Landlord and Tenant waive, unless said waiver should im'alidate any such insurance, their right to recover damages against each other for any reason whatsoever to the extent the dalnaged property owner recovers indemnity from its insurance carrier. 6.4 Tenant's Contractor's Tnsurance. Tenant shall require any contractor of Tenant performing work on the Prenllses to carry and maintain, at no expense to Landlord: (a) Comprehensive general liability insurance, including contractor's liability coverage, contractual liability coverage, completed operations coverage, broad form property damage endorsement, and contractor's protective liability coverage to afford ptotection, with limits for each occurrence, of not less than One Million Dollars ($1,000,000.00) with respect to property damage, unless higher amounts are re'luired by any applicable law; and (b) \'\Iorkers' compensation or similar insurance form and amount~ required by rlorida and/or Federal law. 0.5 Increase in Fire Insurance Prenuun1. Tenant agrees it will not keep, use, sell, or offer for sale in or upon the Premises, an article that may be prohibited by the standard form of fire and extended risk insurance policy. Tenant agrees to pay any increase in premiums for fIte and exlendcd coverage insurance that may be charged during the J .case Term on the amount of such insurance which may be carried by Landlord on the Premises or the building of which they arc a part, resulting from the type of merchandise sold by Tenant in the Premises, or resulting from Tenant's use of the Premises, whether or not Landlord has consented to the sallle. In detennining whether increased premiun1s arc the result of Tenanes use of the Premises, a schedule issued by the organization making the insutance rate on the Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make up the fIre insurance rate on the Premises. Tenant agrees to prolnptly make, at Tenant's sole cost, any repairs) alterations, changes and/or improvctnents to eqwpn1cnt in the Prenuses as to any condition created by the Tenant or existing after the date of this Lease requi.red by the cOlnpany issuing Landlord's fue insurance so as to avoid the cancellation of, or the increase in premiums on said insurance. 6 Agenda Item No. 16G1 June 24, 2008 Page 9 of 25 ARTICLE 7 ~L\INTI 'NANCE, RI,:PA JR Al'<D AJ TFRA TIOl"S 7.1 "hintenance Obligations. (a) Tenant agrees that, from and after the Commencement Date, and until the expiration of the Lease Term, Tenant will be responsible for all repairs, nlaintcnance and replacement::; to all interior portions of the Premises under this lease and control of the CRi\ as shown in r:xhibit ,\ (or as amended), anJ those certain exterior porrjons of the Premises specifically identified herein as being the Tenant responsibility, including bllt not limited to, the intelior and exterior portions of all doors, windo\vs, and plate glass on the Premises; the n1ecnanical, plumbing. hearing and electrical equiplnent and systems servicing the Premises that are located in, or on the Premises: partitions and aU other fIxtures, appliances, grease traps and facilities furnished hy Tenant or Landlord. Notwithstaniling anything to the contrary contained herein, Tenant shall not be responsible for repair, maintenance, or rcplacelnent of the strucrural components of the Premises, including exterior foundations. the roof and stmctural portions of the Premises, tbe mechanical and plumbing equipment and other systen1S servicing the Premises that arc located adjacent to the Pren1ist's) or any other exterior portion of the Premises not specifically identified herein, except to the extent that Tenantts proportionate share of costs incuned by Landlord to repair, maintain or replace any structural component or other such con1ponent of the Prelniscs shall be chargeable to Tenant. T cnant shall not be responsible for repair of any damage caused by any act or gross negligence of I ,andlord, its employees or agents. Tenant shall be required to make stmcrural repairs or alterations to the Premises that may be required by any Regulations. Landlord, \vithout notice, Inay. but shall not be obligated to, perform 'lenant's obligations and odd the cost of such work to the next instalhncnt of Rent due hereunder. 0)) Tenant will not ltlstall anv equipment that exceeds the capacity of the utility line> leading into the Premises or the building of which the Premises constitute a portion. (c) Tenant, its employees, or agents, shall not undertake any alterations \vhich \\'ould require permitting or authorIzation frol11 any governmental body or entity \vithout I .andlord's \vrinen consent. (d) Tenant shaU give 1 ,andlord prompt written notice of any accident, fIre or damage occurring on or to the Premises or to any defects therein or in any fixtures or eqUIpment. (e) Neither Landlord nor Landlord's agents or servants shall be liahle for any damages caused by, or growing out of an~' breakage, leakage, or defective condition of the electric wiring, air conditioning or heating pipes and equipment, closets, plumbing, appliances, sprinklers, other equipment, or other facilities, SelYIDg the Premises, except for the gross negligence or intentional acts or omissions of J ,andlord. Neither Landlord nor J .andlord's agents shaU be liable for any damages caused by or growing out of any defect in the Premises or any part thereof for fire, rain, \vinu, or other cause, except for the gross negligence or intentional acts or omissions of I,andlord. (f) AU property belonging to Tenant shall be there at the risk of Tenant or such other person only, and Landlord shaU not he liable for dama~e thereto or theft or misappropriation thereof, except for the gross negligence or intentional acts or onussions of T .:andlord. (g) fntentionally Omitted. 7.2 Alterations bv Tenant. Tenant will not l1nke any alterations, renovations, ilnprovements or other installations in or to any part of the Premises (including, without limitation, any alterations of 7 Agenda Item No. 16G1 June 24, 2008 Page 10 of 25 the storefront, signs, structural alterations, or any cutting or drilling into any parr of the Premises or any secming of any fixture, apparatus or equipment of any kind to any part of thc Premises), unless and until Tenant shall have caused plans and specifications therefore to haye been prepared, at Tenant's expense, by an architect or other duly qualified person and shall have obtained Landlord's written approval thereof. If such approval is granted, Tenant shall cause the work described in such plans and specifications to be performed, at its expense, promptly, efficiently, competently and in a good and workmanlike manner by duly qualified or licensed persons or entities. A 11 such work shall comply with an applicable local and state building, health and safety codes. 7.3 Preparation of Premises bv Landlord. Intentionally Omitted. 7.4 Renoyation and Chan?e. If at any time the building of which the premises are part undergoes renoyation and change, Tenant shall use its bcst efforts to facilitate the I.andlord's and other Tenant\ activities and work provided that it does not unreasonably interfere with T enanes use of the Premises. If any lawful authority, law or code l'equires I ,andlord to install any fixture or service for the benefit of rhe premises occupied by Tenant, ] ,andlord shall pay the cost for same. ARTICLE 8 FIXTURES, PFRSONAL PROPEKIY AND SIGNS 8.1 Fixtures and Personal Proper\y. J\ny trade fL"tures, signs and other personal properry of Tenant removed from the Premises by the Tenant at the end of the Lease Teml shall remain the property ofTenanr. AlI improvements to the Premises by Tenant not remowd by Tenant at the end of the 1 .case Term, including, but not limited to, light /i"tures, floor coverings and partitions, but excluding trade fL"tures and signs, shall become dIe property of I .andlord upon the expiration or earlier termination of this Lease. After removing any trade fixtures, signs and othet improvements or personal property of Tenant from the Premises, Tenant shall restore the Premises to the same condition as existed at the COll1mCnCement Date, ordinary wear and te~lr excepted. 8.2 Sig:ns. Tenant may erect a sign within rhe area designated by Landlord, which sign shall be subject to the prior wtitten approval of all applicable local gcwernment agencies, as required. Tenant will not place, without Landlord's prior written approval, or permit to be placed or maintained on any exterior door, wall or window of the Premises any sign, awning or canopy, or advertising matter or other thing of any kind, and will not place or maintain any decoration, letter or advertising matter 00 the glass of any windo\v or door. ~A.ny such signs, awning, canopy, decoration, lettering. advertising matter or other thing as may be appro\'ed by Landlord, shall be maintained in good condition and repair at all times and shall conform to the criteria established from rime to time bv I.andIord. As long as Tenant does not advertise any clothing or memorabilia on the frontage of the Premises, and is in accord ,xllth applicable regulations regarding same, Tenant is permitted to decorate a~ it Jccms fit. Notwithstanding anything herein to the contrary, Tenant agrees to indemnify and hold Landlord harmle" from and against any and all fines, clainls, losses, and expenses (including reasonable attorney fees and costs) that may arise as a result of Tcnanfs failure to comply with any and all governmental regulations pertaining to Tenant's signage. ARTlCLE 9 ASSIGN1NG, J\IORTGAGING, SUR] .FTT1NG, CH1\NGE IN OWNERSHIP 9.1 Consent Required. Tenant shall not sell. transfer, assign, sublet, enter into any license, Inanagement or concession agreements, change o\\mership, pledge, mortgage or hypothecate this Lease, or Tenant1s interest in and to the Prclmses (hereafter referred to as a IIDisposition") without the prior written consent of Landlord which may be arbitrarily and unreasonably \vithheld. Any disposition without the Landlord's written consent shall be void and confe.r no rights upon any third person. Notv.Tithstanding any provision of this Agreement, should Tenant \vish to make a 8 Agenda Item No. 16G1 June 24, 2008 Page 11 of 25 Disposition hereunder, it shall prodde fmancial documenration suitable to Landlord illustrating the creditworthiness and srability of the prospective new Tenant (or owner of'l'enant in the evenr the ownership of Tenant changes). Tenanr shall provide I ,andlord with written notice of any intended Disposition. Nothing in this paragraph shall relieve or release Tenant anti any Guarantor from its covenants and obligations for the Lease Term, inclnding any option period. No interest in this Lease shall pass to any trustee or receiver in bankruptcy, to any estate of Tenant, tn any assignee to Tenant for the benefit of creditor::;, or to any other party by operation of law or othef\vise \vithout Landlord's written consent. If this Lease is assigned, or if the Premises or any part thereof is sublet or occupied by any parry other than Tenant, LanJlord may collect rent from the assignee, tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy, or collection shall be dectned a waiycr of this covenant, O! the acceptance of the assib'1.1ee, tenant of occupant as tenant, or a release of Ten ant from the further perfortnance by Tenant of the covenants herein contained. Tlus prohibition against a Disposition shall be construed to include a prolubition agaInst any assignment or subleasing by operation of law, legal process, receivership, bankruptcy or otherv,71se. '\vnLthcr voluntary or involuntary and a prohibition against any encumbrance of all and any part ufTcnant's leasehold interest in the Premises. 9.2 Chang-e in Ownership (1'Ius Article '\Jot Applicable to CRe\ 'IS Tenant). Any sub-leases submitted by the CIC\ and approved by the Landlord, witbout hmJting the foregOing, if sub-tenant is a corporation. an incorporated association ot partnership, the transfer, asslgnment or hypothecation of any stock or interest in the corporation, association, or partnership in the ags:rregate of fort)~-ninc percent (490.'0) or less shall not be deemed a Disposition for purposes of rIlls Lease. ,\RT1CU: HI QUET EN]UY!\IENT 10.1 ] .andlord's Covenant. Provided Tenant timely pays Rent, .\dditional Rent and all other amounts required by this] .case, and observes and performs all the covenants, terms and conditions of this Lease, Tenant shall peaceahly and quietly hold and enjoy the Premises for the Lease Term without interruption by I .andlord or an)' person or persons claiming by, through or under l.andlord, subject to the tenus and conditions of this Lease. "\RTICI.F 11 DAMAGE ,\)\;D DESTRl'CTTON 11.1 Dama~e to Premises. (a) If the demised Premises are, or any parr thereof shall be damaged by fIre or other casualty, Tenant shall give immediate notiee thereof to Landlord and this Lease shall continue in full force and effect except as hereinafter set forth; ~)) lf the demised Prelnises arc partially damaged or rendered partially unusable by fire or other casualty insured under tbe cO\'erage obtained by the l.andlord, the damages thereto shall be repaired by and at the expense of the Landlord and the Tenant shall receive a pro-rata Rent abatement based on the portion of the Premises rendered parti:111y unusable until ~uch time as the Premises are restored; (c) I f the demised Premises are totally uarnaged or rendered \vholl)' unusable: by tire or other casualty, then the Rent shall be proportionally paid up to the titTle of the casualty and thenceforth shall cease until t.he date when the Premises shaH have been repalIed and restoreu. I.andlord shall restore the Premjses, provided that in:,;urance proceeds are sufficient to rebuild the Premises. and Landlord is p~id Rent from its business interruption insurance; or Cd) If the dt:1nised Premises are rendered wholly unusable or, if the building be so damaged that the Landlord shall decide to demolish it or rebuild it, then, in such events, J ,andlord or Tenant tuav elect to tcr1l1inatc this Lease by written notice to the other given \vithin 30 days of such fIre or Gl.;ualty :;pccifying a date for the e~pirati()n of the Lease. which \vi11 not be more than 30 days after gi\~ing such notice, and upon the d::l[e specified in such notice the term of the Lease will expire fully and completely as if such date were the date set forth 9 Agenda Item No. 16G1 June 24, 2008 Page 12 of 25 above for the termination of this Lcase. In such event, Tenant will forthwith quit, surrender and vacate the Premises withom prejudice however to Landlord's rights and remedies against Tenant under the Lease provisions in effect prior to such termination, and any Rent owing will be paid up to such date, and any paYlnent of Rent made by Tenant '.vhich 'were on account of any period subsequent to such date \vill be returned to Tenant Unless Landlord will serve a termination notice as provided for herein, Landlord will make the repairs and restorations under the conditions of (b) and (c) hereof. with all reasonable expedition, subject to delays due to adjustment of insurance claims, labor troubles, and causes beyond Landlord's control. After any such casualty, Tenant will cooperate with Landlord's restoration by removing from the Premises as promptly as possible, all of Tenant's salvageable inventory and 1110veable eguiplTICnt, fLlrruture and other property. Nothing contained hereinabove will relie\~e Tenant from any liability that may! exist as a result of damage from fIre or other casualty. Tenant ackno\vledges that Landlord will not carry insurance on Tenant's inventory and/ or furnishings or any fixtures or equipment, improvements, or appurtenances removable by the Tenant, and agrees the Landlord will not be obliged to repair any danlage thereto or replace the sanle, except in the event of gross negligence or intentional acts or omissions of I.andlon.l. Except as expressly provided herein to the contrary, this Lease shall not terminate nor shall there be any ahatement of Rent or other charges or items of Additional Rent as a result of a firc or other casualty which is the fault of, or caused by the Tenant. Except as provided for in this Lease, the T cnant docs not have the right to cancel or terminate this J ..case. ~ ARTICLE 12 EMINENT DOl\Lo\IN 12.1 Condemnation. In the event that any portion of the Premises shall be appropriated o! taken under the power of eminent domain hy any public or guasi-public authority, this Lease shall terminate and expire as of the datc of such taking, and both Landlord and Tenant shall thereupon be released from any further liability, and Tenant shall have no claim against Landlord for the value of any unexpired Lease Term. In the event more than ten percent (IO%) of the gross sguare footage of floor area of the Premises is taken under the power of cnunent domain by any public or quasi-public authority, or if by reason uf any appropriation or taking, regardless of the amount so taken, the remainder of dle Premises is not usable for the purposes for which the Premises were leased, then the Landlord shall have the right to terminate this I.e",e as of the date Tenant is reguired to vacate, upon giving notice in writlng of such election within sixty (60) days after the date of such taking. In the e"ent of StIch termination, both Landlord and Tenant shall thereupon be released from any further liability to each other. Landlord afftnnatively represents that, as of tbe Commencement Date, it has received no notification that the Premises is to be appropriated or taken under the pov,.:cr of eminent domain. 12.2 Damages. \'Vhether or not thi, 1 ,ease is terminated, I ,andlord shall be entided to the entire award or compensation ("Award") in any condemnation proceedings, but nothing herein shall be deen1ed to affect Tenant's right to pursue from the condemning authority, but not from J .andlord, above, compensation for the value of Tenant's interest in the I....ease and the improvctuents constructed by Tenant on the Premises, including all itelns of Rent, Additional Rent, Security Deposit, and other charges for the last month of Tcnant's occupancy, and Landlord agrees to refund to Tenant any Rent, Additional Rent or other charges paid in advance. 12.3 Restoration. If this Lease is not terminated, Tenant shall remain in that portion of the Prclnises which shall not have been appropriated or taken, and Landlord agrees, to the extent of the proceeds of the A ward, as soon as reasonably possible, to restore the ren1aining portion of the Premises to a similar qualiry ano character as existed prior to such apprOpL;at10n or taking. 10 Agenda Item No. 16G1 June 24,2008 Page 13 of 25 Thereafter, Rent shall be adjusted on an e'luitable basis, taking into account the relative value of the portion taken as compared to the portion remaining. For the purpose of this Article, a voluntary sale or convevance in lieu of condemnation, but under threat of condemnation, shall be deemed an appropri;cion or raking under d1e power of eminent dOlTIuin. ARTICU-: 13 LIENS 13.1 Liens. Tenant hereby acknowb.lges that the interest of Landlord in the Premises shall not be subject to liens for improvements made by Tenant. In confirmation of the foregoing, nothing contained in this Lea~e shall be construed a~ consent on the part of Landlord to subject the estate of ] ,andlord to such liability. Tenant shall strictly conlpIy with the construction lien laws of the State of };lorida. In the event that a claim of lien is filed against the property in connection with any work performed by or on behalf of Ten ant, Tenant shall satisfy slIch claim, or shall transfer the same to security, within fifteen (15) days from the date of written notification from Landlord of the filing of a claim of lien. In the event that Tenant fails to satisfy or transfer slIch claim \\'ithin said ten (10) day period, Landlord may do so and thereafler charge Tenant, as ,\dditional Rent, all costs incurred b)' I.andlord in connection \vith satisfaction or transfer of such claim, including all its attorneys' fees. Further, Tenant agrees to inden11ufy, defend and hold Landlord harmles~ from and against any danlage or loss incurred by Landlord as a result of any such claims of lien. If so requested by ] .andlord, Tenant shall execute a shan [orn1 or ITlelTlOranclum of this Lease, which nlar, in Landlord's discretion be recorded in the Public Records for the purpo~l' of protecting T .andlord's estate fronl clain1s of hen, as provided In Flotlda Statutes. This paragraph shall survive the expiration of the Lease Term or the earlier termination of thIS Lease. ARTICLE 14 DEFAULT 14.1 Events of Default. 'lbe occurrence of anyone or Inore of the folknving events shall constitute an "Event of Default" and breach of this Lease by Tenant: (a) If Tenant fails to pay, on or before ten (10) days after the date due, Rent, Additional Rent or any other charge required to be paid by Tenant under this Lease; or, (b) If Tenant fails to prompdy and fully perform an)' other covenant, condition, rule, regulation or agreement contained in this Lease, or perform 'within the time periods set forth in this Lease, and such failure continues for fifteen (15) days; or (c) I fa \vrit of attachlncllt or execution is le"ied on this Lease or on any of T enant's property located within the T>remises; Of (d) If Tenant makes a general assignment for the benefit of creditors, or provides for an arrangement, composition, extension or adjustment \vith its creditors, or is generally insolvent or unable to pay its obligations as they come due; or (e) ([his Article Not Applicable to eRA as Tenant). An)' sub-leases submitted by the ClL\ and approved by the Landlord, if Tenant flies a voluntary petition for relief, or if a petition against Tenant under the federal bankruptcy laws or other insolvency laws is filed and not \\lithdrawn or dismissed 'within ninety (90) days thereafter, Of if Tenant is aojudgcd a bankrupt; or (1) If, in any proceeding or action in which Tenant is a party, a trustee, receiver, agent or custoilian is appointed to take charge of the Premises, or Tenant's property (or has the authority to do so) for the purpose of enforcing a lien against the Premises or against Tenant's property; or I] Agenda Item No. 16G1 June 24, 2008 Page 14 of 25 (g) If I ,andlord discovcrs that any financial statement delivered to Landlord by Tenant is nlaterially false; or (h) ln the event Tenant, before d,e expiration of said Lease Term, and without the written consent of Landlord, vacates said premises or abandons the possesSIon thereof, or uses the same for purposes other than the purposes for which the satnc are hereby leased, or ceases to use the Premises for the purposes herein expressed. 14.2 Landlord's Remedies. If any Event of Default oecurs, then, r ,andlord shall have the following options, without further notice or demand of any kind: (a) Option 1. Sue for Rents as they become due; or (0) Oprion 2. (I) Terminate this Lease; (2) Resume possession of the Premises for its own account; aod (3) Recover immediately from Tenant damages for Tenant's default in an anlount cgual to the difference between tbe Rent and fair rental value of the Premises for the remainder of the Lease Term, together with all other charges, rental payments, costs and expenses herein agreed to be paid by Tenant. Notwithstanding the foregoing, Landlord shall have a duty to take all reasonable steps to mitigate its damage~ or (c) Option 3, (1) Resume possession; (2) re-lease or re-rent the Premises for the remainder of the Lease Term for the account of Tenant; (3) Recover from Tenant at the time eaeh payment of Rent becomes due under this Lease, the difference between the rent for which provision is made in this Lease, and the rent received on the re-Ieasing or re-rental, and the cost of all repairs or renovations reasonably necessary in connection with the re-Ieasing Of fe-rental. Landlord is authorized to Inake any repairs Lo the Premises and/or to subdivide or restlucture the Premises as Landlord sees fit "Tenancy Repairs and Modifications". rurther, Landlord is authorized to enter into new leases in which the lease tCMn Of other terms and conditions are different from this Lease ("r ,ease Modification"). Concermng any Tenancy Repairs and Modifications and any Lease Modifications, Tenant agrees that such Tenancy Repairs and Modifications and Lease Modifications are being performed for the purpose of re-Ietting and mitigating Tenant's damages, and, as such are done for the benefit of the Tenant and are ,'alid costs of re-letting; and (4) Recover from Tenant immediately any other damages occasioned by or resulting from the abandonment or a breach or default, other than a default in the payment of Rent; or (d) Option 4. Pursue all remedies provided under Florida Law, including, but not limited to remedies provided in Chaptet H3, Florida Statutes. ~ON!ithstanding the foregoing. with respect to re-leasing or re-renting the Premises, r ,andlord and Tenant agree that r ,andlord shall only be required to me the same efforts Landlord then uses to lease other properties Landlord owns or tnanag-cs; provided, ho,vever, that Landlord shall not: be required to give any preference or ptiority to the showing or leasing of the Premises over any other space that Landlord may be leasing and may place a suitable prospective Tenant in an}' such available space, regardless of when such alternative space becomes available; provided, further, that Landlord shall not be required to observe any instruction given by Tenant about such re-letting or accept any Tenant unless such offered Tenant has a credit '\7orthincss acceptable to Landlord, leases the entire Premises, agrees to use the Premises in a 111.anner consistent with the Lease, and leases the Premises at the sall1e or greater rent, fot no more than the current Lease Term, on the same terms and conditions of this Lease, and docs not require an expenditure by Landlord for Tenant ilnprovcments or broker's cOlnmissions. 12 Agenda Item No. 1681 June 24, 2008 Page 15 of 25 14.3 Remedies N on-Cumulative. The remedies given to Landlord in this Article shall be in addition and supplemental TO all other rights of remedies whicb I .andlord may bave under law or in equirv, or as specified elsewhere in this lease agreement. 14.4 Non-\Vaiver. The failure bv l.andlord to strictlv cnforce or declare a breacb of am term, covenant or condillon of this J .~ase shall not be de~med TO be a waiver of that or any ~ubsequent breach of the same or any orner tenn, covenant or condition. The subsequent acceptance of Rent bv Landlord shall not be deemed ro be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the rent so accepted, regardless of Landlord\ knowledge of such preceding breach at the time of acceptance of such renr. Acceptance of a portion of the Rent shall nor be deemed a waiver of the LandJord's rigbt ro unmeJiatcly enforce this Lease to the extent of any outstanding Rents or other breaches. :\Jo covenants, term or condition of this Lease shall be deen1cd to have been \vaived bv Landlord unless such \vaivcr is in \vriting signed by Landlord. ' 14,5 Rent Payments Under Default,-Jn the event of a default of any papnent due under this Lease, Landlord may in Landlord's notice to Tenant of sucb default, require that Tenant's payment to cure tbe default be in casb, casbier's cbeck, and/or certified check. Landlord and Tenant agree that should Landlord so elect to require paynlcnt by cash. cashier's check or certified check, a tender of money to cure tbe default, \Vhicb is not in tbe form requested by I.andlord, shall be deemed a failure to cure the default. Nothing contained in this paragraph shall in any way uiminish or be con::;trued as waiving any of Landlord's other remedies as provided eise\vhere in this T ,case, or by la\\/ or in equity. 14.6 P.xpenses of Enforcement. In the event any payment due l.andlord under this Lease shall not be paid on the due date, said payment ,ban bear interest at tl1e Applicable Rate from tbe due date until paid, but the payment of such interest shall not excuse or cure any default by Tenant under this Lease. In the event that it sball be necessary for Landlord TO give more tban one (1) written notice to Tenant of any violation of this Lease, Landlord sball be entitled to make an administrative cbarge to Tenant of$150.00 for each sueb nollee. ARTICLE 15 SECL:Rny DEPOSIT 15.1 Seclint'" Deposit. Tenant, concurrently with the execution of this J .ease, has dcpusitctl with Landlord tbe sum of $3,450 Three Tbousand Four Hundred Dollars (the "Security Deposit"), the receipt of whicb is hcrcby acknowledged by Landlord, wbich sum shall be retained by Landlord as security for the payment by Tenant of the rents and all other payments herein agreed to be paid by Tenant and for the faithful pcr[onnance by Tenant of the terms, provisions, covenants and conditions for this Lease. It is agrccd (i) tbat I .andlord may, at any time during tbe continuance of any Event of Default by Tenant under any of the terms, provisions, covenants or conditions of this Lease, apply said Security DepDSit or any part tbereof towards the payment of the rents and all otber sums payable by Tenant under this Lease, and toward tbe performance of each and every one of Tenant's covenants under this Lease, but such covenants and Tenant's liability under this Lease shall thereby be discbarged only pro tanto: (ii) that Tenant sball remain liable for any amounto that tl1e Security Dcposit shall be insufficient to pay: (iii) tl1at Landlord may exbaust any or all rigbts and remedics against T cnant before resorting to said Security Deposit, but nothing herein contained shall require or be decn1ed to require Landlord to do ~o: and (iv) that, upon application of all or part of said Security Deposit by Landlord, Tenant sball be obligated to promptly deposit with Landlord the amount necessary to restore the Security Deposit to the an10lltlt held by Landlord imn1ediately prior to such advance by Landlord. In the event the Securiry Deposit shall not be utilized for such purposes. then said Security Deposit shall, afrer tbe payment in full of all sums due Landlord hereunder, be returned by T .andlunl to T cnant within sixty (OJ) days next after the expiration of the Term of tlus Lease. Not>.vithstanding the foregoing, in the event of the sale or transfer of Landlord's 13 Agenda Item No. 16G1 June 24, 2008 Page 16 of 25 interest in the Premises, Landlord shall have the right to transfer the Security Deposit to the purchaser or transferee, in which event Tenant shall look onl~ to the new landlord for the return of the Security Deposit and Landlord shall be released from all !labtlity to Tenant for the return of such Security Deposit. ARTICLE 16 SUBORDINATION, NON-DISTURBANCE AND XnORNMENT lo.t Subordination by Tenant. Tenant hereby subordinates its rights hereunder to the lien of any mottg,lgc or mortgages, or the lien resulting from any other tncthod of financing or n:fmancing, now or hereafter in force against the Premises, and to all advances Inadc or hereafter to be made upon the security thereof. This shall be self-operative and no further instrument of subordination shall be required by any mortgagee. However, Tenant, upon reyuest of any party in interest, shall execute promptly such instrument or certificates. 16.2 Estoppel Certificate. Within ten (10) days after request by Landlord, or in the event that, in connection with any sale, assignment or hypothecation of the PrclTu:'lcs and/ or the land thereunder by Landlord, an estoppel certificate shall be required froln Tenant, Tenant agrees to deliver, in recordable fann, an estoppel certificate to any proposed lTIOrtgagl:c or purchaser or to Landlord certifying (if such be the case) that tbis T ,ease is in full force and effect and that there arc no dcfct1:'icS or offsets thereon, or stating those claimed by Tenant. 16.3 Attornment. In the event of a sale or assignment of Landlord's interest in the Premises, or if the Prclluses comes into the hanos of a mortgagee, or any other person. whether because of a mortgage foreclosure, exercise of a power of sale or other reasons, Tenant shall recognize said mortgagee or other person as the same as Landlol"d hereunder. Tenant shall execute, at T .andlord1s request, any attornment agreement required by any mortgagee, or other such person containing sllch provisions as such mortgagee or other person requires. 16.4 NOll-disturbance bv Landlord. The Landlord shall obtain for the benefit of the Tenant, a non-disturbance agreement from any mortgagee. \vhich agreement shall be on such n1ortgagee's standanl form and shall provide that, in the event of a foreclosure or deed in lieu thereof, the tenancy of the Tenant shall not be disturbed. l\RTICLE 17 LL\IlILlTY, INDEMNl'tY AND "AS-IS" PREMISES 17.1 Limitations of Landlord's Liabilirv; fndcmnirv. Landlord shall nol be liable or in anI' way responsible to Tenant or any other person for al;Y loss, injury or datnage suffered by Tenant or others in respect of (a) property of Ten ant or others that is stolen of damaged, (b) injury or dan1age to persons or property resulting frorn fll"e, explosion, falling plaster, escaping liquid or gas, electricity, water, rain or leaks from any part of the Prenuses, or from any pipes, appliances or plumbing work therein, or from dampness, (c) damage caused by other occupants or persons in the Premises, or dle public, or caused by operations in the construction of any private or public work, (d) loss or damage, however caused, other than loss or damage directly caused by fault (i.e., gross negligence, act of ornission) of Landlord, ;lnd which is not othenvise excluded by the provisions of this p~uagraph. Tenant shall look solely to the estate and property of Landlord in the land anu building comprising the Prenuses for the coll cccion of any juugrnent, or in connection \-'lith any other judicial process reguiring the payment of money by Landlord, in the event of any default or breach by Landlord, under this T ,ease, and no other property or estates of Landlord shall be subject to levy, executlon or other enforcen1ent procedures for the satlsfaction of Tenant's remedies and rights under thi!'oi T .ease. 14 Agenda Item No. 1681 June 24, 2008 Page 17 of25 17.2 Tenant's Indemnitv of Landlord. Tenant shall indemnify and hold harmless Landlord against any and all dalnage"s or expenses arising out of or in connection with any accident or other occurrence on or about the Premises, and from all costs, liabilities, dalins, charges, injuries, damages or expenses, including, \vithout limitation, attorneys' or other professionals' fees and court cOSts, due to, arising out of, or in connection with loss of life, personal injury, damage to property, or any work done by, or act or omission of Tenant Of its officers, partners, agents, servants, employees, customers, contractors, invitees, concessionaires or licensees, in and about the Premises, or due to, arising out of, or in connection 'with Tenant's use or occupancy of the Prenuses. except in the event of gross negligence, act( s) or omission( s) of Landlord, its offi.cers, directors, shareholders, managers, employees, custOlners, guests and/or invitees. 1n case J ,andlord shall be made a party to any litigation against Tenant and except in the event of negligence, act(s) or omission(s) of Landlord, its officers, directors, shareholders, managers, employees, customers, guests and/or invitees, then 'lenant shall protect and hold Landlord harmle", and pay all costs and attorneysl fees incurred by Landlord in connection with such litigation, and any appeals thereof. ARTICLE 18 \\;' ;\STF, ENVJRONMF]'o;TAl., (;OVFRNi\lFNT:\l. RFC;l:l.!\T10NS 18.1 Waste or Nuisance. Tenant shall not commit, or suffer to be conlnutted, any waste upon the Premises, or .which may ad,rersely affect Landlord's interest in the Premises. ' 1 R.2 Environmental Provisions, Tenant agrees to comply strictly and in all respects \vith the requirements of any and all federal, state ;:Jnd local statutes, nllcs and regulations now, or hereinafter existing, relating to rhe discharge, spillage, storage, uncontrolled loss, seepage, filtration, disposal, renloval, or use of hazardous materials, including but not limited to the Conlprehensive Environmental Response. Comprehensive and r -iability Act of 1980, the Superfund ,\mendments and Reauthorization Act, the Resource Conversation and Recoverv Act, the Hazardous Materials Transportation ___\ct anu the rIorida Hazaruous Substances La\\' (c~)llectively the "Hazardous \Xlaste Law") and with all similar applicable laws and re~ulatioJJs. Tenant shall notify r ,andIord promptly in the event of any discharge, spillage, uncontrolled loss, seepage or filtration of any hazardous materials (a "Spill") or the presence of any substance or material presently or hereafter identified to be toxic or hazardous accoruing to any Hazaruolls Waste.: Law, incluuing '\virhout lin1itation, any asbestos, PCBs, radioacti\Te substance, tnethane, volatile Hydrocarbons, acids, pesticides, paints, petroleum based prouucts, leau, cyanide, DDT, printing inks, industrial sohrents or any otner tnarerial or substance which has in the past, or coulJ presently or at any tiJl1c 10 the future cause or constitute a health, safety or other environmental hazard to any person or property (collectively "Hazardous j\,latcrialsl!) upon the Prcn1iscs, Tenant shall prolnptly forward to T.andlord copies of all orders, notices, permits, applications or other comtnunications and reports~ in connection 'with any ~uch Spill or Hazardous ~latenals. Tenant shall not handle, use, generate, manufacture, store or r dispose of f Iazardous tvlatcrials in~ upon, under or about the Premises. Tenant shall indemnify" Landlord and hold Landlord harmless from and a~ainst all loss, penalT)', liability, damage and expense suffered or incurred by Landlord rdated to or arising out of rhe presence of Hazardous TVlatcrials on rhe Premises, where such loss, penalty, liability, dalnage, and/or expense resulted from a condition created or caused bv the actions of T enatlt, its offtccrs, directors, shareholders, tnanagers, employees, custotne;s, guests and/or invirees upon the Premises. Such loss. damage, penalty, liability, oan1age and expense sha111nclude, but not be Enured to (1) court costs, attorney's fees and expenses, and disbursements through and including any appellate proceedings; (2) all foreseeable and unforeseeable cooscyuent1al damages, directly or indi.rectly, arising out of the use, generation, storage or disposal of Hazatdous ~1aterials by Tenant; (3) the cost of any required or necessary repair, clean-up or detoxification of rbe Prerruscs~ and (4) The costs of preparation of any closure or other plans required under the Hazanlous \,\/aste La\v, nece~sary to sell or lease the Premises. 15 Agenda Item No. 1681 June 24, 2008 Page 18 of 25 ARTICLE 19 ~lISCEU"ANEOL!S 19.1 First-Class Operation. Tenant covenants and agrees that at all times the busine" to be conducted at, through and from the Premises, and the kind and quality of services to be offered in the conduct thereof, will be fust-class in evcfJ' respect. 19.2 i\ccord and Satisfaction. LancIJord is entitled to accept, receive and cash or deposit any payment made by Tenant for any reason or purpose and apply such payment, at l.andlord's option, to any obligation of Tenant; any such payment shall not constitute payment of any amount owed except that to which LancIJord has applied it. No endorsement or statement on any check or letter of Tenant shall be deemed an accord and satisfaction Of otherwise recognized fot any purpose whatsoever. The acceptance of any such check or payment shall be without prejudice to Landlord's right to recover any and all alnounts owed by Tenant and Landlord's right to pursue any other available remedy. 19..) Attorneys' Fees. In any litigation arising out of this Lease, the prevailing party shall be entitled to recover from the non-prevailing party, reasonable attorney's fees, costs, and expen::;cs of sllch suit and any appeal thereof, including any reasonable attorneys' and paraprofessional fees and costs, through and including all trial and appellate levels and post-judgment proceedings. 19.4 Entire Ap:reement. It is understood and agreed by Tenant that Landlord and Landlord's agents have made no rcprcsentacions or prolnises with respect to the Premise;.; or this Lease, except as cxpressly set forth in this I .eaRe, and that no claim or liability or cause for termination shall be asserted by Tenant against Landlord for, and Landlord shall not be liable by reason of, the breach of any representations or promises not expressly stated in this Lease. This Lease supersedes all prior agreements, written or verbal, \vith respect to the Premises, including, without limitation, any letter of intenr. 19.5 Interpretation. 111e parties agree that it is their intention to create only thc relationship of Landlord and Tenant, and no provision hercof or act of either party shall be construed as creating the relationship of principal and agent, or a partnership, joint venture or enterprise between the parties. Each of the parties has participated jointly in the negotiation and drafting of this Lease. In the event an ambiguity or question of intent or interpretation arises, this Lease shall be construed as if drafted jointly by the parries and no presumption or burden of proof shall arise favoring or disfavoring any party by virrue of the authorship of any of the provisions of this Lease. 19.6 Force Majeure. If eitller party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor trouble, inability to procure olaterial, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like narure not the fault of the party delayed in performing work or doing acts required under this Lease, the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding the foregoing, the provisions of this paragraph shall at no rime operate to excuse Tenant from any obligations for pa)'1nent of Rent, .Additional Rent, or any other payments required by the terms of this Lease when due, and all such alllounts shall be paid when due; 19.7 Notices. 1\11 notices from Tenant to Landlord required or permitted by any provision of the Lease shall be directed to Landlord by certified mail postage prepaid, hand delivery or by Federal Express or other nationally recognized overnight courier service at the address set forth in Paragraph 1.3 hereof, or at such other address as I.andIord may designate by written notice. All 16 Agenda Item No. 16G1 June 24, 2008 Page 19 of 25 notices from Landlord to Tenant required or permitted shall be directed to Tenant by certified mail postage prepaid, hand delivery or by Federa] Express or other nationally recognized overnight courier sen-ice at the address set forth in Paragraph 1.5 hereof, or at such other address as Tenant may designate by wfltten notice; or by posting on, or delivery to the demised Premises. Notice given as descrIbed above shall be sufficient service and shall be deemed given as of the date received as evidenced by the return receipt of the registered or certified mail or the refusal of acceptance of such notice, or after one (1) business day if any hand delivery or overnight courier service. 19.8 Captions and Section NUlTIbcts. This Lease shall be construed "\virhout reference to titles of articles and paragraphs, which arc inserted only for the convenience of reference. 19.9 Number and Gender. The use herein of a singular term shall include the plural and use of the Inasculine, feminine or neuter genders shall include all others. 19.10 Broker's Commission. Tenant represents and \\'arrants that it has caused Of incurn:J no claill1S for brokerage commissions or fmders' fees in connection with the execution of this Lease, and Tenant shall indemnify and hold Landlord harmless against and from all liabilioes arising from any such claims incurred by Tenant (including, without limitation, the cost of attorneysl fees in connection therewith). ] 9.11 Partial Invaliditv. f f any provision of this I.ease or the application thereof to any person or Clrcumstance shan be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each provision of thiS Lease shall be nlid and enforceable to the fullest extent permitted by law. 19.12 Recording. Landlord or Tenant may not record this Lease; except as required by Florida Sunshine Laws, and as certified by the Conier County Clerk "fCourt> for the eRA, this document will become a public record. 19.13 Governing Law. This Lease shall be governed exclusively by the provisions hereof and by the laws of the State of Florida. Venue for any action arising out of this Lease to enforce or interpret its terms or conditions shall be in Collier Counrv. Florida. 19.14 Provisions Bindin!,. Except as otherwise expressly provided, the terms of this lease shall be binding upon and shall inure to the benefit of the successors, legal representations and assigns, respecrively, of Landlord and Tenant. Each term and each provision of this Lease to be performed bv Tenant shall be construed to be both a covenant and a condidon. The reference contained to s{lCcessors and assigns of Tenant is not intended to constirute consent to assignment by Tenant which is controned hy the provisions of Paragraph 9.1. 19.15 Corporate Tenant (This Article Not Applicable to CRA as Tenant). ,"ny sub-leases submitTed by the CRA and approved by the Landlord, the parties executing tills Lease or any other documents related to this I,case 011 bt'half of sub-tenant, herebv covenant and warrant that sub-tenant is a duly qualified business entity in good standing;, and all steps have been taken prior to execution tu '1uahfy sub-tenant to do business in Florida; that the undersigned is authorized to execute this sub-lea~e on sub-tenant's behalf; all franchise and corporate taxes (if any) have been paid to date; and all future fOIms, reports, fees and other documents ncccssary to cOlnply \vith applicable la\vs win be filed when due. 19.16 Amcndtnents or ~v1odifications. No am.enchnent or modification of this Lease or anv consents or pennissions of Landlord required uncler this Lease, shall be valid or binding unless red~ced to writing and executed by the party against ,-,-,'hom enforcement is sought. 17 Agenda Item No. 1681 June 24, 2008 Page 20 of 25 ~ 19.17 Easements. Landlord reserves the right to grant any easements on, over, under and abm'e the property on which the Premises is located for such purposes as I,andlord determines in its sole discretion, provided that such easement will not materially adyersely interfere with Tenant's business. 19.18 Right of Entry. Landlord and Landlord's agents shall have the right to enter the Premises at all reasonable times (except in the event of an cnlcrgcncy in which case Landlord may enter at any tUlle and without notice) and to show them to prospectiye purchasers or lessees of the Premises, and to make such repairs. maintenance, serv.icing) alterations, improvements or additions as Landlord l1laY deem necessary or desirable. Nothing herein conL-uned, however, shall be deeIned and construed to impose upon Landlord any obligations, responsibility or liability whatsoever, for the care, maintenance. or repair of the building. or any part thereof, except as othcrv..'isc herein specifically provided. 19.19 loint and Several l.iabilitv. If two or more individuals, corporations, partnerships or other busin~ss associations, or any combination thereof shall sign this Lease as Tenant or as Guarantors, the liability of each such individual, corporation, partnership or other business association to pay rent and perform all other obligations under this I ,case shall be deemed to be joint and seyeral, and all notices, payments, and agreements given or made by, with or to anyone of such individuals, corporations, partnerships or other business associations shall be deemed to have been given or made by, "\vith, or to all of them. ,- 19.20 No Discrirnination. Tenant will not discriminate in the conduct and operation of its business in the Premises against any person or group of persons, including, but not limited to, reasons of the race, handicap, creed, sexual orientation, color, sex national origin or ancestry. 19.21 TinlC of Essence. TUlle is of the essence with respect to the pcrfol11lancc of every provision of this J ~ease. 19.22 WAIVER OF A TURYTRIAL. EXCEPT AS PROIlIDITf'D BY Ll\W, L\NDl.ORD AND TENANT HFRP.1W KNOWINC;I.S, VOU;NTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT or, UNDER OR IN CONNECTION WITH 'II IE LEASE, OR ANY COURSE or CONDUCT, COURSE OF DEALING, STATEMENTS (\.,(!HETHER VERBAl. OR WRITIEN) OR j\CTJON OF LANDLORD, TENANT OR ANY GUARANTOR. THIS WAIVER IS j\ lvL\TERIAL INDUCEMEKT FOR LA!\:DLORD TO ENTER I~TO TIllS J ,f'~ASE. FURTHERMORE, NEITHER LANDLORD NOR TENANT SHALL SEEK TO CONSOLlDj\TEJ\NY ACnON IN WHICH A Jl:RYTRI,,\L lIAS BFEN WATVFD WITH ANY LITIGATION IN WI-IICl I A .J1'RY TRIAl. CANNOT BE WAIVED. 19.23 Parking. Intentionally Omittcd. 19.24 Radon Gas. Radon is naturally occurring radioactive gas that, when it has accuIDuIated in a building in sufficient ,-!uantities, may present health risks to persons "\vho are exposed to it over time. Levels of radon that exceed federal state guidelines have been found in buildings in Florida. 19.25 Legal Representation. Intentionally Omitted. 19.26 19.26 Exclusivitv. Intentionally Omitted. 18 Agenda Item No. 16G1 June 24, 2008 Page 21 of 25 ; IN WITNESS WHEREOF, Landlord and Tenant have signed this lease as of the date set forth above: L\J\'DLORD; PALMYRA CLL'B I]\.,\'ESTORS, LLC A Florida .(muted liabilirv companv I' l' . I, . ~, - ./ '/'j r! Ih: ' . /"""'1 LiZ, Date; (< C fohn' Sreffan, \lsriag~r ~. , WI~,.2cS~<; (as to Landlord). ,'~7~ iftb tc of \Xhmess _ ! 'G--' ,): / i "\; () \~t( SV\c / ~ {Dot U Print~d "lame of Witness 'OIl II, {( L. ,.-b c (, S ,,-,,^- Printed I\:ame of Witness c/ ,\S TO TENA'-'T; ATTEST: DWIGHT E. BROCK COMMUNITY REDEVELOPMENT AGENCY OF COLLIER COUNTY. FLORIDA By: l3y: ----- DONNA FIALA, CHAIRMAN , Deputy Clcrk Approved as to form and legal sufficiency: --rrv~L"':-_ ,/Ju .uO~ - mM./. . ~nt-Stirling ~ Assistant County Attorney 19 ~",L{) ,.!Q.8 ~ "0 ",'N ~NN Z OJ E~Ol OJ"'" ;:::....,0.. '" '0 C OJ OJ <( ,- EXHIBT A '1 be Premises E . 0 .. . 0 u . ~ E . ~ 0 c . 0 . u . '" !II , .. ~ ~ E ! <( ~ ~ .. 0 III 0 :JII o~ . ~'" ~ .5 . 0..- . .. iii" . ~::;; . ~o<l 1 () - oj i .. . rr:;;' Cl . , .. t~~ u - E :~~: .. ~ 0 u <( E "" ~ 0 0 . 3:: .. . . " u . E . 0 . - . , . . '. .. - . -. ...-.--.---P ~ . ~ :b '- , . : / . .- S M / . ~ ~ . ~. a . ~ 20 ~ $ . - p , ~: if - /: i ~- ;s :<: } ~ ~ '" E ~ ; " " " ;;; 2 0' " Agenda Item No. 16G1 June 24, 2008 Page 23 of 25 EXHIBIT B MEMORANDUM OF UNDERSTANDING Non-Exclusive Use by Bavshore Cultural Arts, Inc., of a portion of 4069 Bayshore Drive, Naples. Florida This Memorandum of Understanding is madc and cntcrcd into this 1" day of July 2008, betwecn the Collier County Community Redevelopment Agency, doing business as Bayshore Gateway Triangle CRA hereinafter the "Primary Tenanl;' and the Bayshore Cultural Arts, Inc., a Florida Non-Profit Corporation, hereinafter the "Subtenant." I. Owner of the Property ("Landlord"). Palmyra Club Investors, LLC, is the fee owner of 4069 Bayshore Drive, Naples, Florida. 34112, further described in Exhibit A of the original lease ("Property"). 2. PrimarY Lease, Primary Tenant and the Landlord have entered into a Lease Agreement to Lease the Property and, pursuant to Paragraph 1.8 of the Lease Agreement; have agreed to the 24 month lease term to June 30, 2010. 3. Non-Exclusive Use of the Propertv. Primary Tenant agrees to the Subtenant's non- exclusive use of that portion of 4069 llayshore Drive, generally depicted in the attached Exhibit "A;' ("Subleased Property") and Primary Tenant has obtained the written consent of the Landlord pursuant to Paragraph 9.1 of the Lease Agreement. Primary Tenant will allow Subtenant's employees, guests and invitees to enter upon and use the Subleased Property for the uses noted below and subject to the following conditions. 4. Term. The term of this Memorandum of Understanding shall be concurrent with the Primary Lease, as amended and as may be further renewed. 5. No Changes to Propertv by Subtcnant. Subtenant shall make no alterations. additions and improvements to the Property except to the extent. if any, authorized by Primary Tenant in writing and permitted by the Primary Leasc. 6. Liens. Subtenant shall nol cause or allow any Lis Pendens or any liens to be filed against the Property, and if filed arising out of any act or omission by Subtenant at the property, Subtenant shall secure the lien's release. 7. Securitv to Property. Primary Tenant is under no obligation to provide additional security to the Property by virtue of this Memorandum of Understanding. 8. Utilities. Primary Tenant shall pay for all utilities with respect to the Property and pursuant 10 the Primary Lease. Subtcnanl shall have access to potable water, restroom faeililies, and electricity during its use of the Property. The Subtenant shall, at its expense, provide its own dedicated telephone. facsimile and Internet connections within the Subleased Property and pay all associated costs for labor and materials. 21 Agenda Item No. 1681 June 24, 2008 Page 24 of 25 9. Signs. Subtenant will not post any sign, card or placard on the Property except as approved in writing by the Primary Tenant and Landlord, and in no instance shall said approval exceed that permitted pursuant to the Primary Lease. 10. Waste to the Properlv. Subtenant shall not commit waste, nor suffer any waste to the Property. Subtenant shall be responsible for any damage caused by its guests and clients. II. Indemnification from Subtenant to Primary Tenant. Subtenant shall save and hold harmless and indemnify Primary Tenant from and against any and all liabilities, losses, damages, costs, expenses, causes of action, suits, penalties, claims, demands, and judgments, attorneys' fees, witness fees, and other expenses of defense (through all appeals and/or remands), alleged to arise out of intentional torts and/or negligent acts, errors or omissions of Primary Tenant's employees, guests and/or invitees, and notwithstanding all insurance coverages whatsoever throughout the entire term of this Memorandum of Understanding including all term extensions, ifany. 12. Insurance. Subtenant shall maintain a liability insurance policy which is acceptable to Landlord and lists the Primary Tenant as an additional insured. .~ 13. Subtenant Uses. Subtenant shall be allowed to use the Subleased Property for office space and routine meetings. Subtenant's use ofthe Property's main conference room shall be controlled by the Primary Tenant. 14. Revisions to this Memorandum of Understanding. This Memorandum of Understanding may be revised as necessary by mutual consent of both parties and the Landlord by written amendment or a revised Memorandum of Understanding. 15. Termination. Either the Primary Tenant or the Subtenant may terminate this Memorandum of Understanding by providing thirty (30) days' written notice to the other party; otherwise this Memorandum of Understanding will remain in force, subject to the duration of the Primary Lease. IN WITNESS WHEREOF, the parties hereto have caused this Mcmorandum of Understanding to be executed by their appropriate officials, as of the date first abovc written. ATTEST: DWIGHT E. BROCK COMMUNITY REDEVELOPMENT AGENCY OF COLLIER COUNTY, FLORIDA By: . Deputy Clerk By: DONNA FIALA, CHAIRMAN Approved as to form and legal suflieieney: ~,i~OO,jItf MarJ e Student-StJrhn Assistant County Attorney ~ 22 Agenda Item No. 16G1 June 24,2008 Page 25 of 25 AS TO BA YSHORE CULTURAL ARTS, INC. Signed, sc led ano- ivered in the presence of: Oy \h!,~'" ?if,,?: "'-- / Printed Name: 5C'1"~ r,' Q lA., "'" Title: \) (i' ':> I (. ( >\. '\ STATE OF FLORIDA COUNTY OF COLLIER .~ The foregoing instrument was acknowlcdged before me this --..J"v:.,c , 2008, by <:;<01{\('9...~ (k N-\!.\I'\i\' as 01,,>..<;ick "'- '-, Cultural Arts. Inc., who is personallv known to me or has produced as identification. J8'!!o day of of Bayshore :-<OTARY P1'BLIC.STATE OF FLORIDA """'"'''''' Shirley M. Garcia ~ ~ j Commissioo # DD501305 ",.,,,,,,,.,, Explfes; DEC. 21, 2009 BONDED THRU ATL.ANTlC BO:i1lING CQ., l:Nc, Ji-Il. cJ:1 ' ". t,,~.lA'}- CkJ1Uo., Notarv JYublic Print~ame: ~i~iQ.l~ (hfff~~(^- My Commission Expires: AS TO LANDLORD: PALMYRA CLen INVESTORS, LLC. A Florida limited liability company Approval fc\r-BaY:W9rc Gateway Triangle CRA to sublease space within Exhibit "A" lease space: , tf/ ' "y / " 0 , ';5-~1 D" ') 'y u: , !,/, '-, 'I. " ate: " ,L> ' , Jolm Steffan, Mmlager l/ wnNESSEs Cas to Landlord); ~~ ~/// c/ , ' Signaru" ~itnc:s ~t2 /. Q.~ t:d ,.,z: ~ Signature of \X7itness - I / 1:;;1( 0, ,) Of So\<;' (Y J 1Ik'_ Prinrco Name of\Xl1rness ):r.uii { J(c)CS';, ", Printed Name of \Xlitness '/ V 23