HomeMy Public PortalAbout21-9845 Eviction Proceedings for OLCDCSponsored by: City Manager
RESOLUTION NO. 21-9845
A RESOLUTION OF THE CITY COMMISSION OF
THE CITY OF OPA-LOCKA, FLORIDA, DIRECTING
THE CITY MANAGER TO INITIATE AN EVICTION
PROCEEDING AGAINST THE OPA-LOCKA
COMMUNITY DEVELOPMENT CORPORATION
(OLCDC) AND INITIATE LITIGATION FOR
UNPAID RENT; AUTHORIZING THE CITY
MANAGER TO TAKE ALL NECESSARY ACTION;
PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, City of Opa-Locka ("City") and representatives of the Opa-Locka
Community Development Corporation ("OLCDC") have held several meetings
regarding leasing office space at the City's Municipal Complex; and
WHEREAS, the City Commission authorized the execution of a lease
agreement between the City of Opa-Locka and the Opa-Locka Community
Development Corporation for suites 220, 250, and 251 at 780 Fisherman Street on
March 13, 2019, by passage of Resolution No. 19- 9628 (Attached hereto as Exhibit
"A"); and
WHEREAS, the intended lease of the subject premises was to cover 10,960 sq.
ft. for a period of five (5) years, however, the lease was never fully executed by the
parties; and
WHEREAS, OLCDC alleged that it is owed money for renovations made to
the subject premises prior to the time that it actually occupied said premises; and
WHEREAS, any renovations made would have been made without the City's
approval and consent; and
WHEREAS, OLCDC has not paid any rent to the City since the passage of
Resolution No. 19-9628 and the City Manager is seeking authorization to move
forward with legal eviction proceedings to recover any legally determined rents that
are due and owed to the City; and
WHEREAS, the City Commission finds it is the best interest of the City and
its residents to commence eviction proceedings against the Opa-Locka Community
Development Corporation for unpaid rent at 780 Fisherman Street, Opa-Locka, FL
33054.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
Resolution No. 21-9845
THE CITY OF OPA-LOCKA, FLORIDA, THAT:
Section 1. Adoption of Representations. The foregoing "Whereas" clauses
are hereby ratified and confirmed as being true and the same are hereby made a
specific part of this Resolution.
Section 2. Approval of Eviction Proceedings. The City Commission of the
City of Opa-Locka hereby authorizes the City Manager to initiate eviction
proceedings against the Opa-Locka Community Development Corporation for
unpaid rent for space occupied at 780 Fisherman Street, Opa-Locka, FL 33054.
Section 3. Effective Date. This Resolution shall be effective immediately
upon adoption hereof and approval by the Governor of the State of Florida or his
designee.
PASSED AND ADOPTED this 24th day of March, 2021.
Attest to:
Jo nna Flores
City Clerk
ekKAirk
Moved by: Commissioner Burke
Seconded by: Commissioner Davis
VOTE: 4-0
Matthew Pigatt, Mayor
Approved as to form and legal sufficiency:
446,iP Fs .
Burnadette Norri eeks, P.A.
City Attorney
Commissioner Burke YES
Commissioner Davis YES
Commissioner Taylor NOT PRESENT
Vice -Mayor Williams YES
Mayor Pigatt YES
City of Opa-locka
Agenda Cover Memo
Department
Director:
Department
Director
Signature:
City
Mana er:
g
John E. Pate
CM Signature:
Commission
Meeting
Date:
03/24/2021
Item Type:
(EnterXin box)
Resolution
Ordi ance
Other
X
Fiscal
Impact:
(EnterXin box)
Yes
No
Ordinance Reading.
(Enter X in box)
1st Reading
2nd Reading
X
Public Hearing:
(EnterXin box)
Yes
No
Yes
No
X
X
Funding
Source:
Account# :
(Enter Fund & Dept)
Ex:
Advertising Requirement:
(Enter X in box)
Yes
No
X
Contract/P.O.
Required:
(EnterXin box)
Yes
No
RFP/RFQ/Bid#:
X
Strategic
Plan Related
(Enter X in box)
Yes
No
Strategic Plan Priority
Enhance Organizational
Bus. & Economic Dev
Public Safety
Quality of Education
Qual. of Life & City Image
Communcation
Area:
ill
Strategic Plan Obj./Strategy:
(list the specific objective/strategy this
item will address)
X
11
CI
0
I.
•
Sponsor
Name
John E. Pate
Department:
City Manager
Short Title:
A resolution directing the City Manager to commence an eviction action against the Opa-locka Community
Development Corporation (OLCDC) and initiate litigation for unpaid rent.
Staff Summary:
The City Commission approved the lease agreement with the City of Opa-locka and the Opa-locka Community
Development Corporation for suites 220, 250, and 251 at 780 Fisherman Street on March 13, 2019 via
Resolution No. 19-9628.
Staff is seeking the authorization of the City Commission to move forth with eviction filings and the file suit for
unpaid rent that is currently due to the City.
Financial Impact
April 2019 - March 2020 (12 Months)
$13,006.17 + 5% late fees ($650.30) =$13,656.47 per month
=$163,877.64
April 2020 - December 2020 (9 Months)
$13,006.17 + 5% late fees ($650.30) =$13,656.47 per month =$122,908.23
January 2021- March 2021 (3 Months)
$13,006.17 + 5% late fees ($650.30) =$13,656.47 per month =$40,969.41
TOTAL - $327,755.28
This total excludes rent that would continue to accrue beyond March 31, 2021 until such time that the units
are returned to the City. Additionally, there is no estimate at this time of the legal and other expenses that
might occur in conjunction with the evicition process.
Proposed Action:
Staff recommends the approval of this legislation and upon adoption staff will act accordingly.
Attachment:
Resolution No. 19-9628
Sponsored by: City Manager
RESOLUTION NO. 19-9628
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE
CITY MANAGER TO EXECUTE A LEASE (EXHIBIT "A")
WITH THE OPA-LOCKA COMMUNITY DEVELOPMENT
CORPORATION TO OCCUPY SPACE AT 780 FISHERMAN
STREET; PROVIDING FOR INCORPORATION OF
RECITALS; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS; The Opa-locka Community Development Corporation, desires to
lease space at 780 Fisherman Street; and
WHEREAS, The City, as landlord, has a duty to secure suitable tenants for
occupancy at 780 Fisherman Street; and
WHEREAS, The City and the Opa-locka Community Development
Corporation mutually desire to enter into a lease (Exhibit "A") for space at 780
Fisherman Street.
NOW THEREFORE BE IT RESOLVED THAT THE CITY COMMISSION
OF THE CITY OF OPA LOCKA, FLORIDA:
Section 1. The recitals to the preamble herein are incorporated by reference.
Section 2. The City Commission hereby authorizes the City Manager execute
a lease (Exhibit "A") with the Opa-locka Community Development
Corporation for space at 780 Fisherman Street..
Section 3. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 13th day of March, 2019.
Resolution No. 19-9628
Attest to:
a Flores
City Clerk
Moved by:
Seconded by:
Commissioner Vote:
Commissioner Kelley:
Commissioner Burke:
Commissioner Bass:
Vice Mayor Davis:
Mayor Pigatt:
Matthew A. Pigatt
Mayor
Approved as to form and legal sufficiency:
Vincent T. Brown, Esq.
The Brown Law Group, LLC
City Attorney
COMMISSIONER KELLEY
COMMISSIONER BURKE
4-0
YES
YES
YES
ABSTAIN
YES
City of Opa-Locka
Agenda Cover Memo
Department
Director:
Department
Director Signature:
City Manager:
Newall J. Daughtrey
CM Signature:
Commission
Meeting Date:
03.13.2019
Item Type:
(Enter X in box)
Resolution
rdinan
they
X
Fiscal Impact:
(Enter X in box)
Yes
Ordinance Reading:
1st Reading
2°d Reading
No
(Enter X in box)
X
Public Hearing:
Yes
No
Yes
No
(Enter X in box)
x
x
Funding Source:
(Enter Fund &
Advertising Requirement:
Yes
No
Account# :
Dept)
Ex:
(EnterX in box)
x
Contract/P.O.
Yes
No
RFP/RFQ/Bi#:
Required:
(Enter X in box)
x
Strategic Plan
Yes
No
Strategic Plan Priority Area:
Strategic Plan Obj./Strategy:
Related
(Enter X in box)
X
Enhance Organizational
Bus. & Economic Dev
Public Safety
Quality of Education
Qual. of Life & City Image
Communication
0
IIII
IN
•
0
0
(list the specific objective/strategy this
item will address)
Sponsor Name
City Manager
Department:
City Manager
Short Title:
A resolution authorizing the City Manager to execute a lease agreement with Opa-locka Community Development
Corporation to occupy Suites 220, 250, and 251 at 780 Fisherman Street.
Staff Summary:
The Opa-locka Community Development Corporation currently has a State of the Art Tech Center that is open to
Opa-locka residents 7 days per week free of charge. The tech center will allow City residents which will include
adults and children access to laptops, computers, 3D pringting, and graphic design software. In addition, City of
Opa-locka staff will have access to use the high tech printers at no cost which will be a savings to the City. As a
Community Service entity Opa-locka Community Development have agreed to allow Arts Academy of Excellence
School to utilize the cafeteria for the students.
Proposed Action:
The City Manager recommends approving this resolution because of the opportunities Opa-locka Community
Development Corporation bring to the residents of the community.
Attachment:
Draft Lease Amendment
Lease Agreement
Opa-locka Community Development Corporation
DATE OF LEASE COMMENCEMENT:
As of April 1, 2019
A. LANDLORD:
B. TENANT: Corporation
C. ADDRESS OF 780 Fisherman Street, Ste. 220, 250, and 251
LEASED PREMISES: Opa-locka, Florida 33054
D. LEASED PREMISES: 10,960 rentable sq. ft.
E. LEASE DATE: April 1, 2019
F. LEASE TERM: Five (5) years
G. RENT: Suite 220 (4,322 sq. ft.) Base rent is $10.00 per sq. ft. The
rent shall be $3,601.66 per month.
City of Opa-locka
780 Fisherman Street
Opa-locka, Florida 33054
Opa-locka Community Development
Suite 250 Remaining Area (5,558 sq. ft.) Base rent is $17.50 per
sq. ft. The rent shall be $8,105.41 per month.
Suite 251 Cafeteria (1,080 sq. ft.) Base rent is $8.00 per sq. ft.
The rent shall be $720.00 per month.
Tenant is also responsible for paying their Proportionate Share
which is 4.66% ($579.10) of the monthly rent.
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I. COMMON AREA
MAINTENANCE, TAXES
AND INSURANCE:
Landlord will insure the building and will maintain in
good repair the building and all common areas, including
the parking areas, sidewalks and exterior landscaped
areas. Commencing on April 1, 2019, Tenant will pay its
prorate share of increases in Landlord's cost for real
estate taxes, insurance, management fees, utilities and
common area maintenance over a base year of 2019.
Such charges shall be payable in equal monthly
installments on the first day of each month and will be
adjusted annually, such adjustment to be effective as of
January 1 of each year. Tenant shall pay for all electricity
used at the premises, which shall be separately metered
in Tenant's name.
J. PARKING: Landlord shall provide sufficient parking for Tenant's
intended used, as per the site plan submitted to Tenant.
K. LANDLORD SERVICES DURING Landlord shall perform the following during the Term.
THE TERM:
L. REPAIRS:
• Cleaning and janitorial services will be provided in the
common areas of the building.
• Maintenance and repair of the exterior of the Building
and the Building grounds, including shrubbery and the
parking lot area.
• Security service for the Building.
Except as otherwise provided in Article 7, Landlord
shall make such repairs to the roof, exterior walls, floor
slabs and common facilities of the Building as may be
necessary to keep them in serviceable condition.
LEASE AGREEMENT
DATE OF LEASE EXECUTION:
As of April 1, 2019
ARTICLE 1
REFERENCE DATA
SUBJECTS REFERRED TO: Each reference in this Lease to any of the
following terms shall incorporate the data stated for that subject in this
Section
1.1.1 LANDLORD: City of Opa-locka
1.1.2 MANAGING AGENT: City of Opa-locka,780 Fisherman Street, Opa-locka,
Florida 33054
1.1.3 TENANT: Opa-locka Community Development Corporation
1.1.4 TENANT'S ADDRESS (FOR NOTICE & BILLING): The Premises
1.1.5 LOT: The parcel of land at 780 Fisherman Street, Opa-locka, Florida 33054,
on which the Building is located
1.1.6 TENANTS SPACE: Suites 220, 250, and 251 located on the second floor of
the Building, as shown on the floor plan attached hereto as Exhibit A
1.1.7 RENTABLE FLOOR AREA OF TENANT'S SPACE: Approximately
I0,960 square feet
1.1.8 TENANT'S PROPORTIONATE SHARE:4.66%
1.1.9 EFFECTIVE DATE: The date of lease execution set forth on the first page
hereof
1.1.10 TERM COMMENCEMENT DATE: April 1, 2019
TERM EXPIRATION DATE: March 31, 2024
1.1.1 1 ANNUAL AND MONTHLY BASE RENT INSTALLMENTS: Base rent
and Proportionate Share is due on the first day of each month.
1.1.12 SECURITY DEPOSIT: Not Applicable
1.1.13 PERMITTED USE: Community Resource
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1.1.14 BROKERS: None
1.2 EXHIBITS AND SCHEDULES: The exhibits and schedules listed below in
this Section are incorporated in this Lease by reference and are to be
construed as part of this Lease.
EXHIBIT A: Floor Plan of Premises
EXHIBIT B: Rules and Regulations
ARTICLE 2
PREMISES AND TERM
2.1 PREMISES: Subject to and with the benefit of the provisions of this Lease,
Landlord leases to Tenant, and Tenant leases from Landlord, Tenant's Space in the Building
located on the Lot, excluding exterior faces of exterior walls, the common facilities and
building service fixtures and equipment serving exclusively or in common other parts of the
Building. Tenant's Space, with such exclusions, is referred to in this instrument as the
"Premises". The Lot and the Building are sometimes referred to in this instrument as the
"Property".
2.1.1 Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to reasonable rules of general applicability to
tenants of the Building from time to time made by Landlord of which Tenant is given notice,
common facilities included in the Building or on the Lot, including use of the parking areas,
as set forth below to the extent from time to time designated by Landlord and the Building
and service fixtures and equipment serving the Premises.
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2.1.2 Tenant shall have use of the parking areas provided for the common use of
all tenants and their guests, subject to rules and regulations which may be promulgated by
Landlord from time to time.
2.1.3 Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use, (a) to install, repair, remove, use, maintain and relocate for service
to the Premises and to other parts of the Building or either building, service fixtures and equipment
wherever located in, the Building and (b) to alter or relocate any other common facility, including
the parking areas, provided that substitutions are substantially equivalent or better.
2.2 TERM: To have and to hold for the term beginning on the Commencement Date and
ending on the Expiration Date (the "Term"), unless sooner terminated as provided herein below,
in Section 7.1 or in Article 9. See Section 4.1 below relative to the Rent Commencement Date.
The Term may be extended as set forth in Exhibit C attached hereto and made a part hereof.
Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the right to
terminate this Lease prior to the Expiration Date if Tenant loses its federal funding and is unable
to continue. In such event, Tenant will give Landlord written notice of such loss of funding and
its intent to terminate this Lease not less than 30 days prior to such termination.
ARTICLE 3
CONSTRUCTION
3.1 DELIVERY OF PREMISES: Landlord shall deliver the Premises to Tenant
with the Premises finished as described in Schedule 3.1.
3.2 ACCESS: Landlord shall permit Tenant access for installing equipment and
furnishings in the Premises prior to the Commencement Date when it can be done without material
interference with remaining work. Such access shall be subject to the provisions of this Lease,
except for payment of Base Rent. Tenant shall indemnify and save Landlord harmless from
and against any and all loss, liability, damage, cost and expense, including without limitation
attorneys' fees and costs, claimed for or actually arising from, growing out of or related to any
act, negligence or failure to act of Tenant or anyone entering the Premises or Building with
Tenant's permission. Provided, however, this indemnification shall only be to the extent and within
the limitations of Section 768.28 Florida Statutes, subject to the provisions of that statute
whereby the Tenant shall not be held liable to pay a personal injury or property damage claim
or judgment by any one person which exceeds the sum of $200,000, or any claim or judgment
or portions thereof, which, when totaled with all other claims or judgments paid by the Tenant
arising out of the same incident or occurrence, exceed the sum of $300,000 from any and all
personal injury or property damage claims, liabilities, losses or causes of action which may
arise as a result of the negligence of the Tenant or the Tenant's officers, employees, servants,
agents, partners, principals or subcontractors. The provisions of this Section shall survive the
termination of this Lease.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION: All
construction work required or permitted by this Lease, whether by Landlord or by Tenant. shall
be done in a good and workmanlike manner and in compliance with all applicable laws and all
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lawful ordinances, regulations and orders of governmental authority and insurers of the Building.
Either party may inspect the work of the other at reasonable times and shall promptly give notice of
observed defects. Landlord shall have no further obligation to fund or complete construction work
once the Landlord's obligations contained in Section 3.1 have been fulfilled.
3.4 TENANT ALTERATIONS: Tenant shall not make any changes or alterations
to the Premises without Landlord's prior written consent; and shall not in any event make
unauthorized structural changes or additions to the Building or Premises or changes or
additions to the heating, ventilating and air conditioning or other systems of the Building,
consent to which may be withheld by Landlord in its sole discretion. Landlord may require
Tenant to provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. All Tenant alterations shall be accomplished in a good and
workmanlike manner at Tenant's sole expense, in conformity will all Applicable Laws, by a
licensed and bonded contractor approved in advance by Landlord, such approval not to be
unreasonably withheld or delayed. Upon completion of any such work, Tenant shall provide
Landlord with "as built" plans, copies of all construction contracts, and proof of payment for
all labor and materials. Any Tenant alterations to the Premises made by or installed by either
party hereto will remain upon and be surrendered with the Premises and become the property
of Landlord upon the expiration or earlier termination of this Lease without credit to Tenant;
provided, however, Landlord, at its option, may require Tenant to remove any additions
and/or repair any alterations to restore the Premises to the condition existing at the time
Tenant took possession, with all costs of removal or alterations to be borne by Tenant. This
clause will not apply to moveable equipment, furniture or moveable trade fixtures owned by
Tenant if (a) such equipment, furniture and trade fixtures are not then subject to any other
rights, liens and interests of Landlord, or (b) Tenant is not then in default.
3.5 NO LIENS: Tenant shall pay promptly; when due, the entire cost of any work
done on the Premises by Tenant, its agent, employees or independent contractors. Tenant shall
have no authority or power, express or implied, to create or cause any construction lien or
mechanics' or materialmen's lien or claim of any kind against the Premises, the Property or
any portion thereof. Tenant will promptly cause any such liens or claims to be released by
payment, bonding or otherwise within thirty (30) days after request by Landlord, and will
indemnify Landlord against losses arising out of any such claim including, without limitation,
legal fees and court costs. NOTICE IS HEREBY GIVEN THAT LANDLORD WILL NOT
BE LIABLE FOR ANY LABOR, SERVICES OR MATERIAL FURNISHED OR TO BE
FURNISHED TO TENANT, OR TO ANY ONE HOLDING THE PREMISES THROUGH
OR UNDER TENANT, AND THAT NO MECHANICS OR OTHER LIENS FOR ANY
SUCH LABOR. SERVICES OR MATERIALS WILL ATTACH TO OR AFFECT THE
INTEREST OF LANDLORD IN THE PREMISES. TENANT WILL DISCLOSE THE
FOREGOING PROVISIONS TO ANY CONTRACTOR ENGAGED BY TENANT
PROVIDING LABOR, SERVICES OR MATERIAL TO THEPREMISES.
ARTICLE 4
RENT
4.1 RENT: Tenant agrees to pay, without any offset or reduction whatsoever, to
Landlord fixed rent and proportionate share on the first day of each calendar month of the Term,
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beginning on the first day of the first (1st) full calendar month of the Tenn. The Base Rent shall
be applicable for the Term commencing on the Term Commencement Date (the "Rent
Commencement Date"). Tenant shall pay, with each payment of Rent, all sales and other
applicable taxes which may be due or payable thereon.
4.2 OPERATING COSTS AND TAXES; ESCALATION:
4.2.1 As used in this Section, these words and terms shall have the following
meanings:
(a) "Base Year" shall mean calendar year 2019.
(b) "Operating Costs" shall mean all costs incurred and expenditures
made by Landlord in the operation and management of the Building and the Lot, including
management and maintenance of the parking areas, exclusive of financing expenses, as determined
in accordance with generally accepted accounting principles. Operating Costs include, without
limitation security maintenance and repairs to the Property (including snow removal, landscaping,
elevators and other Building components); payments under all service contracts relating to the
operation and maintenance of the Property; management fees; wages, salaries; benefits, payroll
taxes and unemployment compensation insurance for employees of Landlord or any contractor of
Landlord engaged in the cleaning, operation, maintenance or security of the Property; insurance
relating to the Property; legal fees related to the management of tenants and operations of the
Property; auditing expenses; any capital expenditure made by Landlord following the
Commencement Date for the purpose of reducing other operating expenses or complying with any
governmental requirement so long as such expenditure is amortized in accord with generally
accepted accounting principles, provided however, that no other capital expenditure shall be
deemed an Operating Cost for purposes hereof; payments other than Taxes (as hereinafter defined)
(including, but not limited to, water and sewer charges, special assessments and other user fees),
supplies and all other expenses customarily incurred in connection with the operation of buildings
similar to the Building.
(c) "Taxes" shall mean all payments, all taxes, assessments and
betterments levied, assessed or imposed by any governmental or regulatory authority upon or
against the Property or payments in lieu therefor. If, at any time during the Term, any tax or excise
on rents or other taxes, however described, are levied or assessed against Landlord with respect to
the rent reserved hereunder, either wholly or partially in substitution for real estate taxes assessed
or levied on the Property, or payments in lieu thereof, such tax or excise on rent shall be included
in Taxes; however, Taxes shall not include franchise, estate, inheritance, succession, capital levy,
transfer, income or excess profit taxes assessed on Landlord.
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(d) "Operating Cost Escalation Statement" shall mean statements
in writing signed by Landlord setting forth the amounts payable by Tenant for a specified
calendar year or other computation period pursuant to this Section.
(e) "Tax Escalation Statements" shall mean statements in writing'
signed by Landlord setting forth the amounts payable by Tenant for a specified calendar year or
other computation period pursuant to this Section.
4.2.2 Tenant shall pay to Landlord an amount equal to Tenant's Proportionate
Share of any increase in the Taxes over the Base Year Taxes (the "Tax Cost Excess"). Such
amount or amounts shall be estimated by Landlord and due in monthly installments, together
with Tenant's payments of Base Rent. At the end of each calendar year, Landlord shall
compute the actual Tax Cost Excess, and shall inform Tenant of the amount in the Tax
Escalation Statement. Tenant shall be given a credit against its payment of any future Tax Cost
Excess for any overpayment of Tax Cost Excess that shall have been paid up to the time of such
statement. If Tenant has underpaid, then Tenant shall pay the balance due to Landlord within
thirty (30) days of the date of the Tax Escalation Statement, unless the statement is rendered at
the end of the Term, in which case any underpayment due Landlord will be paid by check at
the time Tenant delivers the Premises to Landlord, and any overpayment due Tenant will be
promptly refunded by Landlord. If this Lease shall commence or terminate in the middle of a
calendar year, Tenant shall be liable for only that portion of the Tax Cost Excess in respect of
such calendar year represented by a fraction, the numerator of which is the number of days of the
Term which fall within the calendar year and the denominator of which is three hundred sixty-
five (365).
4.2.3 Tenant shall pay to Landlord an amount equal to Tenant's Proportionate
Share of any increase in the Operating Costs over the Base Year Operating Costs (the
"Operating Cost Excess"). Such amount or amounts shall be estimated by Landlord and
due in monthly, together with Tenant's payments of Base Rent. At the end of each calendar
year, Landlord shall compute the actual Operating Cost Excess, and shall inform Tenant of
the amount in the Operating Cost Escalation Statement. Tenant shall be given a credit against
its payment of any future Tax Cost Excess for any overpayment of Operating Cost Excess
that shall have been paid up to the time of such statement. If Tenant has underpaid, then
Tenant shall pay the balance due to Landlord within thirty (30) days of the date of the
Operating Cost Escalation Statement, unless the statement is rendered at the end of the Term,
in which case any under payment due Landlord will be paid by check at the time Tenant
delivers the Premises to Landlord, and any over payment due Tenant will be promptly
refunded by Landlord. If this Lease shall commence or terminate in the middle of a calendar
year, Tenant shall be liable for only that portion of the Operating Cost Excess in respect of
such calendar year represented by a fraction, the numerator of which is the number of days
of the Term which fall within the calendar year and the denominator of which is three
hundred sixty-five (365).
4.2.4 If, after Tenant shall have made any payment of Tax Cost Excess to
Landlord pursuant to this Section, Landlord shall receive a refund of any portion of Taxes paid
by Tenant during the Term hereof as a result of abatement of such Taxes by legal proceedings,
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settlement or otherwise, Landlord shall pay or credit to Tenant the Tenant's share of the refund
(less the proportional, pro rata expenses, including attorney's fees and appraiser's fees, incurred
in connection with obtaining any such refund), as related to Taxes paid by Tenant to Landlord
with respect to any portion of the Term for which a refund is obtained. Tenant shall have no
right to seek or to control any abatement, dispute, or other proceedings with any other
governmental agency or entity.
4.2.5 Any disputes arising with respect to the amount of any payment due
under this Section shall, upon request by either party, be finally determined by a court of
competent jurisdiction in Miami -Dade County, Florida. Tenant shall pay all of its costs and
expenses of litigation, and if said litigation determines that the amount stated in the Tax
Escalation Statement or Operating Cost Escalation Statement is not more than ten percent
(10%) above the Tax Cost Excess or the Operating Cost Excess, respectively, as billed to
Tenant, Tenant shall also pay all of Landlord's costs and expenses of litigation, including,
without limitation, the fees of experts and reasonable attorneys' fees. Any obligation of
Tenant under this Section which shall not have been paid at the expiration of the Term shall
survive such expiration and shall be paid when and as the amount of same shall be determined
together with interest thereon at the prime rate of interest then currently charged by Bank of
America, N.A. (or, if applicable, its successors) plus 2% from the date the sum was first due
to Landlord.
4.2.6 The additional rent required to be paid by Tenant under this Section,
together with the Base Rent and any other sums due Landlord under this Lease, is hereinafter
collectively called the "Rent".
4.3 PAYMENTS: All payments of Rent shall be made to Managing Agent, or to
such other person as Landlord may from time to time designate.
4.4 LATE CHARGES: If any Base Rent or other payment due under this Lease is
not received by Landlord within ten (10) days of the due date of such payment, Tenant shall
pay in addition to such payment a late charge equal to the greater of 5% of the payment which
is past due or Two Hundred Fifty Dollars and No Cents ($250.00). If any payment due from
Tenant shall remain overdue for more than ten (10) days, interest shall accrue daily on the
past due amount from the date such amount was due until paid or judgment is entered at a
rate equivalent to the lesser of eighteen percent (18%) per annum or the highest rate permitted
by law. Interest on the past due amount shall be in addition to and not in lieu of the five
percent (5%) or $250.00 late charge or any other remedy available to Landlord.
4.5 ELECTRICITY: Tenant shall pay for all electricity consumed in Tenant's Space.
The consumption shall be measured by an independent meter installed specifically for the
Premises. The meter shall be in the name of Tenant, who shall have sole responsibility for paying
this expense directly to the utility company. The consumption of electricity for common areas
will be paid for by Landlord, and included in Operating Costs.
4.6 NET LEASE. This Lease shall be deemed and construed to be a "net lease" and
Tenant shall pay to Landlord, absolutely net throughout the teml of this Lease, the Base Rent,
and other payments hereunder, free of any charges, assessments, impositions or deductions of
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any kind and without abatement deduction or set-off, other than as here in expressly provided for,
and under no circumstances or conditions, whether now existing or hereafter arising, or whether
beyond the present contemplation of the parties, shall Landlord be expected or required to make
any payment of any kind whatsoever or be under any other obligation or liability hereunder except
as herein otherwise expressly set forth.
ARTICLE 5
LANDLORD'S OBLIGATIONS
5.1 LANDLORD'S SERVICES DURING THE TERM: Landlord shall perform the
following during the Term.
5.1.1 Building Services: Landlord will furnish the following services to Tenant,
and shall pay all costs for water, sewer and solid waste for the Property and the Leased Premises:
(a) Cleaning and janitorial services will be provided in the common
areas of the Building on Monday through Friday, except for national, state and local holidays and
for weekends, including holiday weekends;
(b) Automatically operated passenger elevator service and water at
those points of supply provided for general use of its tenants;
Tenant;
(c) Freight elevators on an "as available" basis for incidental use by
(d) Maintenance and repair of the exterior of the Building and Building
grounds, including shrubbery and the parking lot area; and
(e) Security service for the Building.
5.1.2 Additional Building Services: Landlord shall furnish, solely at Landlord's
election, through Landlord's employees or independent contractors, reasonable additional
Building operation services upon reasonable advance request of Tenant at equitable rates from
time to time established by Landlord to be paid by Tenant.
5.1.3 Repairs: Except as otherwise provided in Article 7, Landlord shall make
such repairs to the roof, exterior walls, floor slabs and common facilities of the Building as maybe
necessary to keep them in serviceable condition. It is agreed upon between Landlord and Tenant
that the Landlord shall be responsible for the maintenance and upkeep of the outside of the
Building and all repairs to the Leased Premises, including electrical, plumbing and air
conditioning within the Building, unless damage caused by the negligence or fault of Tenant, its
employees, agents or invitees, in which event Tenant shall be responsible for said costs, which
Landlord may charge to Tenant as additional rent. If the Leased Premises become un-tenantable
by reason of fire, windstorm or other events beyond the control of Tenant or Landlord, then during
such period the rental provided herein shall cease and be abated and the Landlord shall have a
reasonable time during which to make the required repairs, or in the event Landlord elects not to
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rebuild or repair the Leased Premises, then this Lease shall thereupon cease and be deemed
terminated.
5.2 QUIET ENJOYMENT: Landlord has the right to make this Lease and Tenant, on
paying the rent and performing its obligations hereunder, shall peacefully and quietly have, hold
and enjoy the Premises throughout the Term without any manner of hindrance or molestation
from Landlord or anyone claiming under Landlord, subject, however, to all the terms and
provisions hereof. Landlord shall not be liable to Tenant, which shall have no recourse against
Landlord, by reason of interference with quiet enjoyment caused by other tenants.
5.3 INTERRUPTIONS:
5.3.1 Landlord shall not be liable to Tenant for any compensation or reduction
of Rent by reason of inconvenience or annoyance or for loss of business arising from power
losses or shortages or from the necessity of Landlord's entering the Premises for any of the
purposes in this Lease authorized, or for repairing the Premises or any portion of the Property.
In case Landlord is prevented or delayed from making any repairs, alterations or improvements,
or furnishing any service or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's control, Landlord shall
not be liable to Tenant therefor, nor shall Tenant be entitled to any abatement or reduction of rent
by reason thereof, nor shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the Premises.
5.3.2 Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency or mil necessary repairs have been completed.
Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to
Tenant by reason thereof.
ARTICLE 6
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS DURING THE TERM: Tenant covenants during
the Term and such further time as Tenant occupies any part of the Premises, to do and perform
the following matters.
6.1.1 Tenant's Payments: Tenant shall pay, when due, (a) all Base Rent and
additional rent, (b) all taxes which may be imposed on Tenant's personal property in the Premises
(including, without limitation, Tenant's fixtures and equipment) regardless to whomever
assessed, (c) all sales taxes which may be imposed on the payment by Tenant of Base Rent and/or
additional rent due hereunder, (d) all charges for telephone, electricity and other utility services
(including service inspections therefor) rendered to the Premises and separately metered or billed
to Tenant, and (e) as additional rent, all charges of Landlord rendered pursuant to Section 4.2
here of and any other sums due Landlord pursuant to this Lease.
6.1.2 Repairs and Yielding Up: Tenant shall keep the Premises in good order,
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repair and condition, reasonable wear only excepted; at the expiration or termination of this Lease,
Tenant shall peaceably yield up the Premises and all changes and additions there in such order,
repair and condition. Subject to the provisions of Section 3.5, Tenant shall remove all personal
property of Tenant, and any items required to be removed by Landlord pursuant to Section 3.5 or
otherwise, repairing all damage caused by such removal and restoring the Premises and leaving
them clean and neat. Any property remaining on the Premises may, at Landlord's discretion, be
removed, destroyed, sold, stored or otherwise disposed of at Tenant's cost.
6.1.3 Occupancy and Use: Tenant shall, continuously from the Commencement
Date, use and occupy the Premises only for the Permitted Use, and shall not injure or deface the
Premises or Property, and shall not permit in the Premises any auction, sale, nuisance or the
emission from the Premises of any objectionable noise or odor, nor any use which is improper,
offensive, contrary to law or ordinances, or liable to invalidate or increase the premiums for any
insurance on the Building or its contents or liable to render necessary any alteration or addition
to the Building, nor cause the violation of any laws, ordinances, building codes, rules or
regulations, any order or judgment, permit or license, of any federal, state or local governmental
or regulatory entity having jurisdiction over or application to the Property, including but not
limited to the Board of Fire Underwriters and the Americans with Disabilities Act and all
regulations and orders promulgated to such act (collectively, "Applicable Laws"); Tenant
warrants that all improvements or alterations of the Premises made by Tenant or Tenant's
employees, agents or contractors, either prior to Tenant's occupancy of the Premises or at any
time during the term of this Lease, will comply with all Applicable Laws. Tenant will procure at
its own expense all permits and licenses required for the transaction of its business in the Premises.
6.1.4 Hazardous Materials: Throughout the Term, Tenant shall prevent the
presence, use, generation, release, discharge, storage, disposal, or transportation of any Hazardous
Materials (as hereinafter defined) on, under, in, above, to, or from the Premises other than in strict
compliance with Applicable Laws. For purposes of this provision, the term "Hazardous
Materials" will mean and refer to any wastes, materials, or other substances of any kind or
character that are or become regulated as hazardous or toxic waste or substances, or which require
special handling or treatment, under any Applicable Laws. If Tenant's activities at the Premises
or Tenant's use of the Premises (a) results in a release of Hazardous Materials that is not in
compliance with Applicable Laws or permits issued thereunder; (b) gives rise to any claim or
requires a response under common law or Applicable Laws or permits issued thereunder;
(c) causes a significant public health effect; or (d) creates a nuisance, then Tenant shall, at its sole
cost and expense: (i) immediately provide verbal notice thereof to Landlord as well as notice to
Landlord in the manner required by this Lease, which notice shall identify the Hazardous Materials
involved and the emergency procedures taken or to be taken; and (ii) promptly take all action in
response to such situation required by Applicable Laws, provided that Tenant shall first obtain
Landlord's approval of their mediation plan to be undertaken.
6.1.5 Rules and Regulations: Tenant shall comply with the Rules and Regulations
set forth in Exhibit B and all other reasonable Rules and Regulations hereafter made by Landlord,
of which Tenant shall have been notified, for the care and use of the Property.
6.1.6 Safety Appliances: Tenant shall keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of any public authority because
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of any use made by Tenant and to procure all licenses and permits so required and, if requested
by Landlord, shall do any work so required because of such use, it being understood that the
foregoing provisions shall not be construed to broaden in any way Tenant's Permitted Use.
6.1.7 Assignment and Subletting: Tenant shall not, without the prior written
consent of Landlord, assign this lease, make any sublease or permit occupancy of the Premises or
any part thereof by anyone other than Tenant, voluntarily or by operation of law (it being
understood that Landlord shall not unreasonably withhold or delay its consent herein required).
Tenant shall, as additional rent, reimburse Landlord promptly for reasonable legal and other
expenses incurred by Landlord in connection with any request by Tenant for consent to assign or
sublet. No consent by Landlord shall affect the continuing liability of Tenant (which, following
assignment, shall be joint and several with the assignee), and no consent to any of the foregoing
in a specific instance shall operate as a waiver in any subsequent instance. Any permitted assignee,
subtenant or other occupant must deliver a written instrument to Landlord, in form and substance
reasonably satisfactory to Landlord, by which such assignee, subtenant or other occupant agrees
to be bound by and assume all obligations of Tenant under this Lease relating to the portion of the
Premises acquired by such assignee, subtenant or other occupant. Any attempted assignment,
subleasing or other occupancy not approved by Landlord as required by this Subsection 6.1.7 shall
be void and a default under this Lease; any net income (after commercially reasonable brokerage
fees and out of pocket costs of leasing) which is payable to Tenant in connection with such
subleasing or assignment or occupancy, in excess of the sums due Landlord by Tenant under this
Lease, shall be payable one-half to Landlord, and one-half may be retained by Tenant.
6.1.8 Space Sharing: Opa-locka Community Development Corporation will
provide the City with a bi-weekly schedule of user agreements for the space at 780 Fisherman
Street and the City will provide a response to OLCDC within 72 hours. The Opa-locka
Community Development Corporation and users will list the City of Opa-locka as an insurer on
their liability insurance.
6.1.9 Loading: Tenant shall not place a load upon the Premises exceeding an
average rate of fifty (50) pounds of live load per square foot of floor area., and shall not move any
safe, vault or other heavy equipment in, about or out of the Premises, except in such manner and
at such times as Landlord shall in each instance approve. Tenant's business machines and
mechanical equipment which cause vibration or noise that may be transmitted to the Building
structure or to any other leased space in the Building shall be placed and maintained by Tenant in
settings of cork, rubber, spring or other types of vibration eliminators sufficient to eliminate such
vibration or noise.
6.1.10 Landlord's Costs: In case Landlord shall, without any fault on its part, be
made party to any litigation commenced by or against Tenant or by or against any parties in
possession of the Premises or any part thereof claiming under Tenant, Tenant shall pay, as
additional rent, all costs including, without implied limitation, reasonable attorneys' fees incurred
by or imposed upon Landlord in connection with such litigation and, as additional rent, shall also
pay all such costs and fees incurred by Landlord for any obligations of Tenant under this Lease.
6.1.11 Tenant's Property: All the furnishings, fixtures, equipment, effects and
property of every kind, nature and description of Tenant and of all persons claiming by, through
or under Tenant which, during the continuance of this Lease or any occupancy of the Premises
by Tenant or anyone claiming under Tenant, may be on the Premises or elsewhere in the Property
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shall be at the sole risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by leakage or bursting of water pipes, steam
pipes, or other pipes, by theft or from any other cause, no part of said loss or damage is to be
charged to or to be borne by Landlord unless located off the Premises and due to the willful act
or gross negligence of Landlord.
6.1.12 Holdover: Tenant shall pay to Landlord twice the total of the Base Rent
and additional rent then applicable for each month or portion thereof, in the event that Tenant
shall retain possession of the Premises or any part thereof after the termination of this Lease,
whether by lapse of time or otherwise, and shall also pay all damages sustained by Landlord on
account thereof. The provisions of this Subsection shall not operate as a waiver by Landlord of
any right of re-entry provided in this Lease, at the option of Landlord exercised by written notice
given to Tenant while such holding over continues. Such holding over shall, at Landlord's option,
exercised by written notice at any time during the holding over, constitute an extension of this
Lease for a period of one (1) year.
ARTICLE 7
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING: In case during the Term all or any substantial part
of the Premises, the Building or Lot or any one or more of them, are damaged materially by fire
or any other cause, this Lease shall terminate at Landlord's election, which may be made,
notwithstanding that Landlord's entire interest may have been divested, by notice given to Tenant
within sixty (60) days after the occurrence of the event giving rise to the election to terminate,
which notice shall sprc,ify the effective date of termination which shall not be less than thirty
(30) nor more than sixty (60) days after the date of the notice of such termination. In case during the Term
all or any substantial part of the Premises shall be taken by eminent domain, then either Landlord or Tenant
may within sixty (60) days after receipt of notice of such taking by notice in writing to the other terminate
this Lease as of the date of actual physical taking of possession under such taking. If in any such case the
Premises are rendered unfit for use and occupation and the Lease is not so terminated, Landlord shall use
due diligence to put the Premises, or, in the case of taking, what may remain thereof (excluding any items
installed or paid for by Tenant, which Tenant may be required or permitted to remove), into proper
condition for use and occupation to the extent permitted by the next award of insurance or damages and
applicable laws then in effect and a just proportion of the Base Rent and additional rent according to the
nature and extent of the injury shall be abated until the Premises or such remainder shall have been
substantially completed by Landlord in such condition. and in case of taking which permanently reduces
the area of the Premises, a just proportion of the Base Rent and additional rent shall be abated for the
remainder of the Term and an appropriate adjustment shall be made to the annual estimated Operating
Costs.
7.2 RESERVATION OF AWARD: Landlord reserves to itself any and all rights to
receive awards made for damages to the Premises, Building or Lot and the lease hold hereby
created, or any one or more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other authority. Tenant hereby
releases and assigns to Landlord all Tenant's rights to such awards, and covenants to deliver such
further assignments and assurances thereof as Landlord may from time to time request, hereby
irrevocably designating and appointing Landlord as its attorney -in -fact to execute and deliver in
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Tenant's name, it being agreed and understood, however, that Landlord does not reserve to itself
and Tenant does not assign to Landlord any damages payable for (i) movable trade fixtures
installed by Tenant or anybody claiming under Tenant, at its own expense, or (ii) relocation
expenses recoverable by Tenant from such authority in a separate action.
ARTICLE 8
RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE: Landlord or any mortgagee of Landlord, from time to
time, shall have the option to subordinate this Lease to any mortgage or deed of trust (a
"Mortgage") of the Lot or Building, or both (the "Mortgaged Premises"), provided that the
holder thereof ("Mortgagee") agrees in writing to recognize the rights of Tenant under this
Lease and to accept Tenant as a tenant of the Premises under the terms and conditions of this
Lease in the event of acquisition of title by such holder through foreclosure proceedings or
otherwise; Tenant agrees to recognize Mortgagee as Landlord in such event. The provisions of
this Section 8.1 shall bind and inure to the benefit of the successors and assigns of Tenant and of
Mortgagee and upon anyone purchasing the Mortgaged Premises at any foreclosure sale or
otherwise. Any such Mortgage to which this Lease shall be subordinated may contain such
terms, provisions and conditions as the Mortgagee deems usual or customary.
8.2 LIMITATION ON MORTGAGEE'S LIABILITY: Upon entry and taking
possession of the Mortgaged Premises for any purpose other than foreclosure, Mortgagee
shall have all rights of Landlord and, during the period of such possession, the duty to perform
all Landlord's obligations hereunder. Except during such period of possession, no such holder
shall be liable, either as mortgagee or as holder of a collateral assignment of this Lease, to
perform or be liable in damages for failure to perform, any of the obligations of Landlord,
unless and until such holder shall enter and take possession of the Mortgaged Premises for
the purpose of foreclosing a Mortgage. Upon entry for the purpose of foreclosing a Mortgage,
such holder shall be liable to perform all of the obligations of Landlord, subject to the
provisions of Section 3.3, provided that a discontinuance of any foreclosure proceeding
shall be deemed a conveyance under the provisions of Section 10.3 to the owner of the equity
of the mortgaged premises. In no event, however, shall the holder of a mortgage on the Lot and/or
the Building have any duty to perform or liability with respect to Landlord's obligations under this
Lease unless and until such holder acquires title to the Lot and/or Building through foreclosure or
otherwise, and if such holder does so acquire title, in no event shall such holder have any duty
to perform or any liability with respect to Landlord's obligations or any fact, circumstance or
condition existing, arising or accruing before such acquisition of title.
8.3 MORTGAGEE'S ELECTION: Notwithstanding any other prov1s10ns to the
contrary contained in this Lease, if prior to substantial completion of Landlord's obligations
under Article 3, any holder of a first mortgage on the mortgaged premises enters and takes
possession there9f for the purpose of foreclosing the Mortgage, such holder may elect, by written
notice given to Tenant and Landlord at any time within ninety (90) days after such entry and
taking of possession, not to perform Landlord's obligations under Article 3, and in such event
such holder and all persons claiming under it shall be relieved of all obligations to perform
and all liability for failure to perform said Landlord's obligations under Article 3, in which
I5
event Tenant may terminate this Lease and all its obligations hereunder by written notice to
Landlord and such holder given within thirty (30) days after the day on which such holder shall
have given its notice as aforesaid.
8.4 NO PREPAYMENT OR MODIFICATION: No Base Rent, additional rent, or any
other charge shall be paid more than thirty (30) days prior to the due dates thereof, and payments
made in violation of this provision shall (except to the extent that such payments are actually
received by a mortgagee in possession or in the process of foreclosing its mortgage) be a nullity
as against such mortgagee, and Tenant shall be liable for the amount of such payments to such
mortgagee. No assignment of this Lease and no agreement to make or accept any surrender,
termination or cancellation of this Lease and no agreement to modify so as to reduce the rent,
change the Term or otherwise materially change the rights of Landlord or holder of a mortgage
affecting the Premises under this Lease, or to relieve Tenant of any obligations or liability under
this Lease, shall be valid, unless consented to in writing by Landlord's mortgagees of record, if
any.
8.5 NO RELEASE OR TERMINATION: No act or failure to act on the part of
Landlord which would entitle Tenant under the terms of this Lease, or by law, to be relieved
of Tenant's obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) Tenant shall have first
given written notice of Landlord's act or failure to act to Landlord's Mortgagees of record, if
any, specifying the act or failure to act on the part of Landlord which could or would give
basis to Tenant's rights, and (ii) such Mortgagees, after receipt of such notice, shall have
failed or refused to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this Section 8.5 shall be deemed to impose any obligation
on any such Mortgagee to correct or cure any such condition. "Reasonable time" as used
above means and includes a reasonable time to obtain possession of the Mortgaged Premises
if the Mortgagee elects to do so and a reasonable time to corrector cure the condition if such
condition is determined to exist.
8.6 CONTINUING OFFER: The covenants and agreements contained in this Lease
with respect to the rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants and agreements contained in this Article 8) constitute a continuing offer
to any person, corporation or other entity, which by accepting or requiring an assignment of this
Lease or by entry or foreclosure assumes the obligations herein set forth with respect to such
Mortgagee, subject to the provisions of Section 8.3, such Mortgagee being hereby constituted a
party to this Lease as an oblige hereunder subject to the provisions of Section 8.3 to the same
extent as though its name was written hereon as such, and such Mortgagee shall be entitled to
enforce such provisions in its own name.
8.7 MORTGAGEE'S APPROVAL: Landlord's obligation to perform its covenants
and agreements hereunder is subject to the condition precedent that this Lease be approved by
the holder of any mortgage of which the Premises are a part and by the user of any commitment
to make a Mortgage loan which is in effect on the date hereof. Unless Landlord gives Tenant
written notice within fifteen (15) business days after the Effective Date that such holder or issuer,
or both, disapproves or has not approved this Lease, then this condition shall be deemed to have
been satisfied or waived and the provisions of this Section 8.7 shall be of no further force or
16
effect.
8.8 SUCCESSORS OF MORTGAGEE: All of the rights and privileges of the holders
of mortgages on the Lot and/or Building set forth in this Article 8 shall inure to the benefit of any
such holders and their respective successors and assigns, including without limitation where
applicable any purchases at foreclosure and other parties claiming title by, through or under any
such holders. Where reference is made herein to foreclosure, the same rights and privileges for
any such holder shall arise and the same results shall obtain if such holder instead acquires title
through deed in lieu of foreclosure or otherwise.
ARTICLE 9
DEFAULT
9.1 EVENTS OF DEFAULT: The occurrence of any of the following shall be
deemed to be an event of default under this Lease: if any default by Tenant continues after notice,
in case of Base Rent or any additional rent, for more than ten (10) days, or in any other case for
more than thirty (30) days and such additional time, if any, as is reasonably necessary to cure the
default (if the default is of such a nature that it is curable but cannot reasonably be cured in thirty
(30) days, Tenant has the obligation to commence to cure the default within thirty (30) days, and
thereafter diligently and continuously prosecutes such cure to completion), or if Tenant or any
Guarantor makes any assignment for the benefit of creditors, commits any act of bankruptcy or
files a petition under any bankruptcy or insolvency law, or if such a petition is filed against
Tenant or any Guarantor and is not dismissed within forty-five (45) days, or if a receiver or
similar officer becomes entitled to Tenant's leasehold hereunder and it is not returned to Tenant
within forty-five (45) days, or if such leasehold is taken on execution or other process of law in
any action against Tenant. In the event of any default under this Lease by Tenant, then without
prejudice to any other rights which it has pursuant to this Lease or at law or in equity, Landlord
shall have the following rights and remedies, which are cumulative and not alternative.
9.1.1 Landlord may cancel this Lease by notice to Tenant and retake possession of
the Premises for Landlord's account, or Landlord may terminate Tenant's right of
possession of the Premises. Tenant shall then quit and surrender the Premises to Landlord.
Tenant's liability under all of the provisions of this Lease shall continue notwithstanding
any expiration and surrender, or any re-entry, repossession, or disposition hereunder, including
to the extent legally permissible, payment of all Rent and other charges until the date this
Lease would have expired had such cancellation or termination not occurred. If Landlord so
elects, Rent shall be accelerated and Tenant shall pay Landlord damages in the amount of any
and all sums which would have been due for the remainder of the Term, subject to the
provisions of Section 9.1.5 below.
9.1.2 Landlord may enter the Premises as agent of Tenant to take
possession of any property of Tenant on the Premises, to store such property at the expense
and risk of Tenant or to sell or otherwise dispose of such property in such manner as
Landlord may see fit without notice to, and at the expense and risk of, Tenant. Re-entry
and removal may be effectuated by summary dispossess proceedings, by any suitable
action or proceeding, or otherwise. Landlord shall not reliable in anyway in connection
with its actions pursuant to this section, to the extent that its actions are in accordance with
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Applicable Laws.
9.1.3 Landlord may relet all or any part of the Premises for all or any part of
the unexpired portion of the Term of this Lease or for any longer period, and may accept any
rent then attainable; grant any concessions of rent, and agree to paint or make any special
repairs, alterations, and decorations for any new Tenant as it may deem advisable in its sole and
absolute discretion. Landlord shall be under no obligation to relet or to attempt to relet the
Premises.
9.1.4 Landlord may remedy or attempt to remedy any default of Tenant
under this Lease for the account of Tenant and may enter upon the Premises for such
purposes. No notice of Landlord's intention to perform such covenants need be given to
Tenant unless expressly required by this Lease. Landlord shall not be liable to Tenant for
any loss or damage caused by acts of Landlord in remedying or attempting to remedy such
default and Tenant shall pay to Landlord all expenses incurred by Landlord in connection
with remedying or attempting to remedy such default. Any expenses incurred by Landlord
shall accrue interest at the highest rate permitted by law from the date of payment by
Landlord until repaid by Tenant.
9.1.5 In calculating the amounts to be paid by Tenant to Landlord pursuant
to this Section 9, Tenant shall be credited with the net proceeds of any rents obtained by
Landlord by reletting the Premises, after deducting all Landlord's expenses in connection
with such reletting, including, without limitation, all repossession costs, brokerage
commissions, and fees for legal services. It is agreed by Tenant that Landlord may (i) relet
the Premises or any part or part thereof of a term or terms which may, at Landlord's option,
be equal to or less than or greater than the period which would otherwise have constituted
the balance of the Term and may grant such concessions and free rent as Landlord, in its
sole judgment, considers advisable or necessary to relet the same, and (ii) make such
alterations, repairs and decorations in the Premises as Landlord, in its sole judgment,
considers advisable or necessary to relet the same, and no action of Landlord in accordance
with the foregoing or failure to relet or to collect rent under reletting shall operate or be
construed to release or reduce Tenant's liability as aforesaid.
9.1.6 So long as at least twelve (12) months of the Term remain unexpired at the
time of such termination of this Lease or of Tenant's right of possession, in lieu of any other
damages or indemnity and in lieu of full recovery by Landlord of all sums payable under all the
foregoing provisions of this Section 9.1, Landlord may by written notice to Tenant, at any time
after this Lease is terminated under any of the provisions contained in this Section 9.1 or as
otherwise terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover and Tenant shall thereupon pay, as liquidated danlages an anlount equal to the
aggregate of the Base Rent and additional rent accrued in the twelve (12) months ended next
prior to such termination, plus the amount of Base Rent and additional rent of any kind accrued
and unpaid at the time of termination and less the amount of any recovery by Landlord under the
foregoing provisions of this Section 9.1 up to the time of payment of such liquidated damages.
9.1.7 Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of
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the termination of this Lease, an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceedings in which, the damages are to
be proved, whether or not the amount be greater, equal to or less than the amount of the loss or
damages referred to above.
92 COSTS: Tenant shall pay to Landlord on demand all costs incurred by Landlord,
including attorneys' fees and costs at all tribunal levels, incurred by Landlord in enforcing any of
the obligations of Tenant under this Lease. In addition, upon any default by Tenant, Tenant shall
also be liable to Landlord for the expenses to which Landlord may be put in re-entering the
Premises, reletting the Premises (including attorneys' fees and disbursements, marshal's fees, and
brokerage fees, in so doing), and any other expenses reasonably incurred by Landlord.
93 WAIVER: No delay or omission by Landlord in exercising aright or remedy shall
exhaust or impair the same or constitute a waiver of, or acquiescence to, a default.
ARTICLE 10
MISCELLANEOUS
10.1 INTERPRETATION: The titles of the Articles and Sections are for convenience
and are not to be considered in construing this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the singular. The masculine,
feminine and neuter genders shall each include the other. In any provision relating to the conduct,
acts or omissions of Tenant the term "Tenant" shall include Tenant's agents, employees,
contractors, invitees, successors or others using the Premises, Building or Property with
Tenant's expressed or implied permission.
102 NOTICE: Any notice, approval, consent, request, or election required or
permitted to be given or made pursuant to this Lease shall be addressed, if to Landlord, at
Landlord's address or at such other address as may have been specified by prior notice to
Tenant, and if to Tenant, at the Premises or Tenant's address or at such other place as may
have been specified by prior notice to Landlord. Any communication so addressed shall be
deemed duly served if personally delivered or sent by nationally recognized overnight delivery
service.
10.3 LANDLORD'S LIABILITY: CERTAIN DUTIES: The obligations of this Lease
shall run with the land, and this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assignees, except that the Landlord named herein and
each successive owner of the Premises shall be liable only for the obligations accruing during the
period of its ownership. Neither the Landlord named herein nor any successive owner of the
Premises, whether an individual, trust, a corporation or otherwise shall have any personal liability
related to this Lease beyond their equity interest in the Premises, and Tenant agrees that it shall
look solely to such equity interest then -owned by Landlord for collection of any judgment or any
other judicial process requiring the payment of money. Whenever the Premises are owned by a
trustee or trustees, the obligations of Landlord shall be binding upon Landlord's trust estate, but
not upon any trustee, beneficiary or shareholder of the trust individually. Any Landlord who
transfers its title or interest is relieved of all liability with respect to the obligations of Landlord
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under this Lease to be performed on or after the date of transfer, provided that such transfer is not
for the primary purpose of avoiding such obligations. However, each Landlord shall deliver to its
transfer real funds previously paid by Tenant if such funds have not yet been applied under the
terms of this Lease. Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure or diligently pursue a cure of such
nonperformance within thirty (30) days after receipt of Tenant's written notice or such longer time
as is reasonably necessary, provided that such cure is commenced with in such thirty (30) day
period and there after pursued with reasonable diligence.
10.4 NO SURRENDER: The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
10.5 NO WAIVER: The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of this Lease shall not be
deemed a waiver of such violation nor prevent a subsequent act which would have originally
constituted a violation, from having all the force and effect of an original violation, nor shall the
failure of Landlord to enforce any Rules and Regulations against Tenant or any other tenant in the
Building be deemed a waiver of any such Rules and Regulations. The receipt by Landlord of Base
Rent or additional rent with knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach by Landlord, unless such waiver be in writing signed by Landlord.
No consent or waiver, express or implied, by Landlord or Tenant to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
10.6 NO ACCORD AND SATISFACTION: No acceptance by Landlord of a lesser sum
than the Base Rent and additional rent then due shall be deemed to be other than on account of
the earlier installment of such rent due, nor shall any endorsement or statement on any check or
letter accompanying any check or payment as rent be deemed as accord and satisfaction and
Landlord may accept such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy in this Lease provided. All waivers must
be in writing and signed by the waiving party. Landlord's failure to enforce any provision of this
Lease or its acceptance of Rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future.
10.7 CUMULATIVE REMEDIES: The specific remedies to which Landlord may
resort under the terms of this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which it may be lawfully entitled in case of any breach or
threatened breach by Tenant of any provisions of this Lease. In addition to the other remedies
provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of the covenants, conditions or provisions of this Lease
or to a decree compelling specific performance of any such covenant, conditions or provisions.
10.8 PARTIAL INVALIDITY: If any term of this Lease, or the application thereof to
anypersonorcircumstancesshalltoanyextentbeinvalidorunenforceable,theremainderofthis Lease,
or the application of such term to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term of this Lease shall be valid
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and enforceable to the fullest extent permitted by law.
10.9 LANDLORD'S RIGHT TO CURE: If Tenant shall at any time default in the
performance of any obligation under this Lease, Landlord shall have the right, but not the
obligation, to enter upon the Premises and to perform such obligation, notwithstanding the fact
that no specific provision for such substituted performance by Landlord is made in this Lease with
respect to such default. In performing such obligation, Landlord may make any payment of money
or perform any other act. All sums so paid by Landlord (together with interest at the rate of 4%
per annum in excess of the then prime rate of interest being charged by a majority of the national
banks in Miami, Florida); and all necessary incidental costs and expenses in connection with the
performance of any such act by Landlord, shall be deemed to be additional rent under this Lease
and shall be payable to Landlord immediately upon demand_ Landlord may exercise the foregoing
rights without waiving any other of its rights or releasing Tenant from any of its obligations under
this Lease.
10.10 ESTOPPEL CERTIFICATE: Tenant agrees on the Commencement Date, and
from time to time thereafter upon not less than fifteen (15) days prior written request by Landlord,
to execute, acknowledge and deliver to Landlord a written statement in form requested by
Landlord, certifying that this Lease is unmodified and in full force and effect; that Tenant has no
defenses, offsets our counterclaims against its obligations to pay the Base Rent and additional rent
and to perform its other covenants under this Lease; that there are no uncured defaults of Landlord
or Tenant under this Lease (or, if there have been any modifications, that this Lease is in full force
and effect as modified and stating the modifications and, if there are any defenses, offsets,
counterclaims or defaults, setting them forth in reasonable detail), and the dates to which the Base
Rent, additional rent and other charges have been paid. Any such statement delivered pursuant to
this Section 10.10 may be relied upon by any prospective purchaser or mortgagee of the Property
or any prospective assignee of any such mortgagee.
10.11 FORCE MAJEURE: In any case where either party hereto is required to do any
act (other than the payment of rent or other monies hereunder), delays caused by or resulting
from war, civil commotion, fire, flood, other casualty, labor difficulties, shortages or other
unavailability of labor, materials, equipment, energy or utility services, governmental
regulations, unusually severe weather, Act of God or other causes beyond such party's reasonable
control (but not the inability to pay money), shall not be counted in determining the time during
which such act must be completed, and such time shall be deemed extended by such delay. In no
event, however, shall the foregoing excuse the late payment of rent or any other monies due
hereunder nor extend the time therefor.
10.12 WAIVER OF TRIAL BY JURY AND COUNTERCLAIMS • MEDIATION:
LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROC EEDINGORCOUNTERC LAIMBROUGHTB YEITHEROFTHEPARTIES HERETO
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS LEASE. TENANT FURTHER AGREES THAT IT SHALL
NOT INTERPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS (EXCEPT
COMPULSORY COUNTERCLAIMS) IN ANY SUMMARY PROCEEDING OR IN ANY
ACTION BASED UPON NONPAYMENT OF RENT OR ANY OTHER PAYMENT
REQUIRED BY TENANT UNDER THIS LEASE. UPON LANDLORD'S REQUEST,
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TENANTSHALLPARTICIPATEINMEDIATIONOFADISPUTEBETWEENLANDLORD
AND TENANT; THE COST OF A MEDIATOR SHALL BE BORNE EQUALLY BY
LANDLORD ANDTENANT.
10.13 RADON GAS NOTICE: Radon is a naturally occurring radioactive gas that, when
it has accumulate building insufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be obtained
from your county public health unit.
10.14 ATTORNEYS' FEES: Wherever provision is made in this Lease for attorneys'
fees, such term shall be deemed to include accountants' and attorneys' (including paralegals' and
similar persons) fees and costs, whether or not litigation is commenced, including those for
appellate, bankruptcy, probate, arbitration, mediation and collections proceedings.
10.15 LANDLORD'S ACCESS: Landlord shall be entitled at all reasonable times and
upon reasonable notice (but no notice is required in emergencies) to enter the Premises to examine
them and to make such repairs, alterations, or improvements thereto as Landlord considers
necessary or reasonably desirable. Tenant shall not unduly obstruct any pipes, conduits, or
mechanical or other electrical equipment so as to prevent reasonable access thereto. Landlord shall
exercise its rights under this section, to the extent possible in the circumstances, in such manner
so as to minimize interference with Tenant's use and enjoyment of the Premises. Landlord and its
agents have the right to enter the Premises at all reasonable times and upon reasonable notice to
show them to prospective purchasers, lenders, or anyone having a prospective interest in the
Building, and, during the last six months of the Term or any renewal thereof, to show them to
prospective tenants. Landlord may place customary "For Sale" or "For Lease" signs on the
Premises, Building or Property as Landlord deems necessary.
10.16 INCORPORATION OF PRIOR AGREEMENTS: MODIFICATIONS: This
Lease is the only agreement between the parties pertaining to this Lease of the Premises, Building
or Property and no other agreements either oral or otherwise are effective unless embodied herein.
All amendments to this Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
10.17 JOINT AND SEVERAL LIABILITY: All parties signing this Lease as Tenant
shall be jointly and severally liable for all obligations of Tenant.
10.18 EXECUTION OF LEASE: Submission or preparation of this Lease by Landlord
shall not constitute an offer by Landlord or option for the Premises, and this Lease shall constitute
an offer, acceptance or contract only as expressly specified by the terms of this Section In the
event that Tenant executes this Lease first, such action shall constitute an offer to Landlord, which
may be accepted by Landlord by executing this Lease, and once this Lease is so executed by
Landlord, such offer may not be revoked by Tenant and this Lease shall become a binding
contract. In the event that Landlord executes this Lease first, such action shall constitute an offer
to Tenant, which may be accepted by Tenant only by delivery to Landlord of a fully executed
copy of this Lease, together with a fully executed copy of any and all guaranty agreements and
addendums and moneys to be delivered at time of execution, provided that in the event that any
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party other than Landlord makes any material or minor alteration of any nature whatsoever to any
of said documents, then such action shall merely constitute a counteroffer, which Landlord, may,
at Landlord's election, accept or reject. Notwithstanding that the Commencement Date may occur
and the Term may commence after the date of execution of this Lease, upon delivery and
acceptance of this Lease in accordance with the terms of this Lease, this Lease shall be fully
effective, and in full force and effect and valid and binding against the parties in accordance with,
but on and subject to, the terms and conditions of this Lease.
10.19 AUTHORITY: As a material inducement to Landlord to enter into this Lease,
Tenant (and, individually, each party executing this Lease on behalf of Tenant), intending that
Landlord rely thereon, represents and warrants to Landlord that:
10.19.1 Tenant and the party executing on behalf of Tenant are fully and
properly authorized to execute and enter into this Lease on behalf of Tenant and to deliver this
Lease to Landlord;
10.19.2 This Lease constitutes a valid and binding obligation of Tenant,
enforceable against Tenant in accordance with the terms of this Lease;
10.19.3 Tenant is duly organized, validly existing and in good standing
under the laws of the state of Tenant's organization and has full power and authority to enter into
this Lease, to perform Tenant's obligations under this Lease in accordance with the terms of this
Lease, and to transact business in the state in which the Premises are located; and
10.19.4 The execution of this Lease by the individual or individuals
executing this Lease on behalf of Tenant, and the performance by Tenant of Tenant's obligation
under this Lease, have been duly authorized and approved by all necessary corporate or
partnership action, as the case maybe, and the execution, delivery and performance of this Lease
by Tenant is not in conflict with Tenant's bylaws or articles of incorporation (if a corporation),
agreement of partnership (if a partnership), and other charters, agreements, rules or regulations
governing Tenant's business as any of the foregoing may have been supplemented or amended in
any manner.
10.20 FLORIDA LAW: This Lease shall be governed by the laws of the State of Florida.
10.21 COUNTERPART: This Lease may be executed in more than one copy, each
counterpart of which shall be deemed an original and any of which shall be deemed to be complete
of it and may be introduced into evidence or used for any purpose without the production of the
other counterpart or counter parts.
10.22 TIME IS OF THE ESSENCE: Time is of the essence of this Lease and all
provisions contained herein.
10.23 APPROVAL OF PLANS AND SPECIFICATIONS: Neither review nor approval
by or on behalf of Landlord of any Tenant's plans nor any plans and specifications for any Tenant
alterations or any other work shall constitute a representation or warranty by Landlord, any of
Landlord's beneficiaries, the managing agent of the Building or Property or any of their respective
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agents, partners or employees that such plans and specifications either (i) are complete or suitable
for their intended purpose, or (ii) comply with Applicable Laws, it being expressly agreed by
Tenant that neither Landlord, nor any of Landlord's beneficiaries, nor the managing agent of the
Building or Property nor any of their respective agents, partners or employees assume any
responsibility or liability whatsoever to Tenant or to any other person or entity for such
completeness, suitability or compliance.
10.24 RELATIONSHIP: Landlord and Tenant disclaim any intention to create a
joint venture, partnership or agency relationship.
10.25 RIDERS AND EXHIBITS: All Riders and Exhibits attached to this Lease and all
Addendums attached to this Lease and executed by both Landlord and Tenant shall be deemed to
be a part of and are hereby incorporated in this instrument.
10.26 SURVIVAL: Tenant's ongoing or unfulfilled obligations shall survive the
termination of this Lease, including but not limited to payment of additional rent adjustments
which may be calculated and billed after the termination of the Lease.
ARTICLE 11
INSURANCE AND INDEMNITY
11.1 TENANT'S INSURANCE: Tenant shall throughout the term (and any other
period when Tenant is in possession of the Premises) carry and maintain, at its sole cost and
expense, the following types of insurance, which shall provide coverage on an occurrence basis,
with respect to the Picuiises, in the amounts specified and in the form hereinafter provided for:
11.1.1 Commercial General Liability Insurance. Commercial general liability
insurance with a combined single limit of not less than $1,000.000.00 per occurrence (General
Aggregate - $2,000,000, Products Aggregate - $2,000,000) for bodily injury and property
danlage insuring against legal liability of the insured with respect to said Premises or arising
out of the maintenance, use or occupancy thereof. Said insurance shall include, but not be limited
to, independent contractor liability, products and completed operations coverage, and the Broad
Form Commercial General Liability Endorsement, including personal injury and advertising
liability, contractual liability and premises medical payments.
11.1.2 Property Insurance. "Special Risk" property insurance including plate
glass coverage on a replacement cost basis, with coverage equal to not less than one hundred
percent (100%) of the full replacement value of all personal property, decorations, trade fixtures,
furnishings, equipment, alterations, leasehold improvements and betterments made by Tenant,
and all other contents located or placed therein.
11.1.3 Workers' Compensation and Employees' Liability Insurance. Workers'
Compensation Insurance covering all employees of Tenant, as required by the laws of the State
where the Premises are located and Employees' Liability coverage with not less than the
minimum statutory limits of coverage.
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11.1.4 Policy Form. All policies referred to above shall: (i) be taken out with underwriters
licensed to do business in Florida and a "Best Rating" of "A" or "A+" (ii) name Landlord and the
property manager, or their successors, as additional insured; (iii) be non-contributing with, and
shall apply only as primary and not as excess to any other insurance available to Landlord or any
mortgagee of Landlord; (iv) contain an undertaking by the insurers to notify Landlord and any
other additional insured by certified mail not less than thirty (30) days prior to any material
change, cancellation, or termination; and cv) provide that a defense against the primary insured
shall not be a defense against payment to the additional insureds. Binding certificates of insurance
with endorsements attached or, if required by a mortgagee, copies of such insurance policies
certified by an authorized officer of Tenant's insurer as being complete and current, shall be
delivered to Landlord promptly upon request. a) Tenant fails to take out or to keep in force any
insurance referred to in this Section 11, or should any such insurance not be approved by either
Landlord or any mortgagee, and b) Tenant does not commence and continue to diligently cure
such default within forty-eight (48) hours after written notice by Landlord to Tenant specifying
the nature of such default, then Landlord has the right without assuming any obligation in
connection therewith, to effect such insurance at the sole cost of Tenant and all outlays by
Landlord shall be paid by Tenant to Landlord without prejudice to any other rights or remedies of
Landlord under this Lease. Tenant shall not keep or use in the Premises any article which may be
prohibited by any fire or casualty insurance policy in force from time to time covering the
Premises or the Building.
11.2 INDEMNIFICATION OF THE PARTIES:
11.2.1 The Tenant shall indemnify nify and hold harmless Landlord, and its officers,
employees, agents, servants, agencies and instrumentalities from any and all liability, losses or
damages, including attorneys' fees and costs of defense, which Landlord and its officers,
employees, agents, servants, agencies or instrumentalities may incur as a result of any and all
claims, demands, suits, causes of action or proceedings of any kind or nature arising out of,
relating to or resulting from the performance of this Lease by the Tenant or the Tenant's officers,
employees, agents, servants, partners, principals or subcontractors. The Tenant shall pay all claims
and losses of any kind in connection therewith and shall investigate and defend all claims, suits
or actions of any kind or nature in the name of Landlord, where applicable, including appellate
proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon.
Provided, however, this indemnification shall only be to the extent and within the limitations of
Section 768.28 Florida Statutes, subject to the provisions of that statute whereby the Tenant shall
not be held liable to pay a personal injury or property damage claim or judgment by any one
person which exceeds the sum of $200,000, or any claim or judgment or portions thereof, which,
when totaled with all other claims or judgments paid by the Tenant arising out of the same incident
or occurrence, exceed the sum of $300,000 from any and all personal injury or property damage
claims, liabilities, losses or causes of action which may arise as a result of the negligence of the
Tenant or the Tenant's officers, employees, servants, agents, partners, principals or subcontractors.
11.2.2 The Landlord shall indemnify and hold harmless Tenant, and its officers,
employees, agents, servants, agencies and instrumentalities from any and all liability, losses or
damages, including attorneys' fees and costs of defense, which Tenant and its officers,
employees, servants, agents, agencies or instrumentalities may incur as a result of any and all
claims, demands, suits, causes of action or proceedings of any kind or nature arising out of,
25
relating to or resulting from the performance of this Lease by the Landlord or the Landlord's
officers, employees, agents, servants, partners, principals or subcontractors. The Landlord shall
pay all claims and losses in connection therewith and shall investigate and defend all claims, suits
or actions of any kind or nature in the name of Tenant, where applicable, including appellate
proceedings, and shall pay all costs, judgments, and attorneys' fees which may issue there on. The
Landlord expressly understands and agrees that any insurance policies required by this Lease or otherwise
provided by the Landlord shall in no way limit the responsibility to indemnify, keep and save harmless and
defend Tenant and its officers, employees, agents, servants, agencies and instrumentalities as herein
provided.
11.2.3 Term of Indemnification. The provisions of this indemnification shall
survive the expiration of this Lease and shall terminate upon the expiration of the applicable
statute of limitation.
11.3 RELEASE AND WAIVER OF SUBROGATION RIGHTS: The parties hereto,
for themselves and anyone claiming through or under them, hereby release and waive any and all
rights of recovery, claim, action or cause of action, against each other, their respective agents,
directors, officers and employees, for any loss or damage that may occur to the Premises or the
Building, and to all property, whether real, personal or mixed, located in the Premises or the
Building, by reason of any cause against which the releasing party is actually insured or, regardless
of the releasing party's actual insurance coverage, against which the releasing party is required to
be insured pursuant to the provisions of this Lease. This release and waiver shall apply regardless
of the cause or origin of the loss or damage, including negligence of the parties hereto, their
respective agents and employees. Each party agrees to provide the other with reasonable evidence
of its insurance carrier's consent to such waiver of subrogation. This Section 11.3 supersedes any
provision to the contrary which may be contained in this Lease.
EXECUTED as a sealed instrument as of the day and year first above written.
LANDLORD: CITY OF OPA-LOCKA
Witness:
By:
Name:
TENANT: OPA-LOCKA COMMUNITY
DEVELOPMENT CORPORATION
Witness:
26
By:
Name:
As To Legal Sufficiency and Form
City Attorney, City of Opa-locka
The Brown Law Group, LLC
780 - Fisherman Street
Opa-Locka
2"d Floor
Ste. 220 (CHAMBERS)
(4,322 ft2)
1
780 - Fi sherman Street
Opa-Locka
2nd Floor - We st
(Ste . 250)
(5,558 ft2)
780 - Fi sherman Street
Opa-Locka
2nd Floor - We st
(Room 251- Cafeteria)
(1,080 ft2)
Office of the City Manager
780 Fisherman Street, 4th Floor
Opa-locka, FL 33054
John E. Pate, MS, CM Telephone (786) 338-6598
City Manager Email: jpate@opalockafl.gov
February 16, 2021
Opa-locka Community Development Corporation
490 Opa-locka Boulevard
Opa-locka, FL 33054
RE: RENT PAYMENT AT 780 FISHERMAN STREET
Dear Sir/Madam:
The City of Opa-locka value you as a tenant at the Municipal Complex, however, it has been brought
to my attention that the City has not received a rent payment from Opa-locka Community
Development Corporation and your account is extremely past due.
This letter is to inform you that as of the date of this notice, you are delinquent for April 2019 -
February 2021. According to Article 4.1 of your lease agreement, "tenant agrees to pay, without any
offset or reduction whatsoever, to Landlord fixed rent and proportionate share on the first day of each
calendar month of the term." Additionally, 4.4 of the Lease Agreement states "Tenant shall pay in
addition to such payment a late charge of 5% of the payment which is past due or $250.00."
I hereby request you to pay the total amount listed below within three (3) business clays of receipt of
this letter or vacate the premises.
April 2019 — April 2020
$13,006.17 + 5% late fee ($650.30) =$13,656.47 per month
May 2020 — December 2020
$13,006.17 + 5% late fee ($650.30) =$13,656.47 per month
January 2021— February 2021
$13,006.17 + 5% late fee ($650.30) =$13,656.47 per month
TOTAL - $300,442.50
=$163,877.74
=$109,251.82
=$27,312.94
In the event you fail to bring your rent payments current or vacate the premises, we shall immediately
take legal action to evict you and to recover rent and damages for the unlawful detention of said
premises together with such future rents as may be due us for breach of your lease.
Your prompt attention to this matter is greatly appreciated.
Sincerely,
John E. Pate
City Manager
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