HomeMy Public PortalAbout2022-15 - Lease agreement with South Florida School of Excellence1st Reading/Public Hearing:
2"d Reading/Public Hearing:
Adopted:
Effective Date:
Sponsored By:
August 22, 2022
September 14, 2022
September 14, 2022
September 14, 2022
City Manager
ORDINANCE NO. 2022-15
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, AUTHORIZING THE INTERIM CITY
MANAGER TO EXECUTE A LEASE AGREEMENT WITH SFSE LLC
d/b/a SOUTH FLORIDA SCHOOL OF EXCELLENCE TO OCCUPY
SPACE AT 780 FISHERMAN STREET; PROVIDING FOR
ADOPTION OF REPRESENTATIONS; PROVIDING FOR
CONFLICT AND REPEALER; PROVIDING FOR SEVERABILITY;
PROVIDING FOR SCRIVERNER'S ERRORS; CONFLICTS OF LAW;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, On July 28, 2021, pursuant to Ordinance No. 2021-10, a Lease
Agreement was entered into by and between the City of Opa-Locka ("City") and SFSE
LLC d/b/a/ South Florida School of Excellence ("SFSE") for the premises located in a portion
of the second and third floor of the facility located at 780 Fisherman Street, Opa-locka,
FL. The lease for SFSE's current tenancy will expire on July 31, 2023; and
WHEREAS, SFSE desires to continue its current lease of the space at 780
Fisherman Street. The anticipated date for SFSE's occupancy of Suites 210, 220, and 250
is October 1, 2022; and
WHEREAS, SFSE seeks to provide well structured, academically focused classes
with high rigor curricula for Science, Technology, Engineering, and Mathematics for
Gifted and Autistic students grades K-12; and
WHEREAS, SFSE is dedicated to serving the educational, social and emotional
needs of all students, including those who are Average, At Risk, have Disabilities, Gifted,
Autistic, and have been diagnosed Asperger; and
WHEREAS, the proposed term of the lease is two (2) years with a monthly base
rent of Twenty Thousand, Nine Hundred Ninety Four Dollars and Seventy Nine Cents
($20,994.79) for the first year. The rent payments will provide annual revenue to the City
of Two Hundred Fifty -One Thousand, Nine Hundred Thirty -Seven Dollars and Fifty
Cents ($251,937.50) per year. Tenant will also be responsible for a Proportionate Share of
Eleven Thousand, Eight Hundred Ninety -One Dollars and Forty -Five Cents ($11,891.45)
per year. The base rent will be increased by three percent (3%) each year. The proposed
start date of the lease is October 1, 2022; and
WHEREAS, the City desires to enter into a Lease Agreement with SFSE for a
Ordinance No. 2022-15
portion of the property located at 780 Fisherman Street, in the City of Opa-locka, pursuant
to the terms and conditions set forth in the Lease Agreement, attached hereto as Exhibit
„A„ .
WHEREAS, the City Commission of the City of Opa-locka has determined that
entering into the Lease Agreement is in the best interest of the residents of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF OPA-LOCKA, FLORIDA, AS FOLLOWS:
SECTION 1. RECITALS ADOPTED
The recitals to the preamble herein are incorporated by reference.
SECTION 2. AUTHORIZATION
The City Commission of the City of Opa-Locka hereby authorizes the City Manager to
execute a lease agreement, attached hereto as Exhibit "A", with SFSE LLC d/b/a South
Florida School of Excellence for space located at 780 Fisherman Street, under the terms and
conditions set forth in Exhibit "A" hereto.
SECTION 3. SCRIVENER'S ERRORS
Sections of this Ordinance may be renumbered or re -lettered and corrections of
typographical errors which do not affect the intent may be authorized by the City
Manager, or the City Manager's designee, following review by the City Attorney, without
need of public hearing, by filing a corrected copy of same with the City Clerk.
SECTION 4. CONFLICT & REPEALER
All ordinances, parts of ordinances or code provisions in conflict herewith ordinance are
hereby repealed.
SECTION 5. SEVERABILITY
If any provision of this Ordinance or the application thereof to any person or
circumstance is held invalid, such invalidity shall not affect other provisions of the Code
or applications of this Ordinance that can be given affect other provisions of the Code or
applications of this Ordinance that can be given effect without the invalid provision or
application, and to this end the provisions of this Ordinance are declared to be severable.
SECTION 6. EFFECTIVE DATE.
This Ordinance shall take effect upon the adoption of this Ordinance by the Commission
of the City of Opa-Locka and upon a filing of a certified copy hereof with the Florida
Department of State and is subject to the approval of the Governor or Governor's
Designee.
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Ordinance No. 2022-15
Veronica J. Williams, Mayor
ATTEST:
Joai jna Flores, City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
Burnadette No is -Weeks, P.A.
City Attorney
Moved by: Vice Mayor Taylor
Seconded by: Commissioner Bass
VOTE: 4-0
Commissioner Bass YES
Commissioner Davis ABSENT
Commissioner Dominguez YES
Vice -Mayor Taylor YES
Mayor Williams YES
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City of Opa-locka
Agenda Cover Memo
Department
Director:
Department
Director Signature:
City Manager:
Darvin Williams
CM Signature:
Commission
Meeting Date:
08.22.2022
Item Type:
(Enter X in box)
Resolution
Ordinance
Other
X
Fiscal Impact:
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Yes
No
Ordinance Reading:
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lst Reading
2nd Reading
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X
Public Hearing:
(Enter X in box)
Yes
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Yes
No
X
Funding Source:
Account# :
(Enter Fund &
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Ex:
Advertising Requirement:
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X
Contract/P.O.
Required:
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RFP/RFQ/Bi#:
X
Strategic Plan
Related
(Enter X in box)
Yes
No
Strategic Plan Priority Area:
Enhance Organizational
Bus. & Economic Dev
Public Safety
Quality of Education
Qual. of Life & City Image
Communication
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Sponsor Name
City Manager
Department:
City Manager
Short Title:
An ordinance authorizing the Interim City Manager to execute a lease agreement with South Florida School of
Excellence to lease space at the Municipal Complex at 780 Fisherman Street, Opa-locka, FL.
Staff Summary:
South Florida School of Excellence (SFSE, LLC) provides education services for Gifted and Autistic students in
grades K-12. The school currently occupies space on the third floor at 780 Fisherman Street; however, there
is a great need for additional space to accommodate the entire school. The school recently closed its previous
location elsewhere because they felt it was necessary to make accommodations for the students and staff to
operate from one facility.
In contrast to the school's current lease, the new lease agreement will provide the school with sufficient
additional space on one floor of the Municipal Complex to accommodate their students and staff through
September 30, 2024, eliminating the current need of being in two different locations.
Financial Impact: The lease will be for two years with annual revenue in the first year of $263,828.95,
including the tenant's share of common area charges, with a 3% escalator for the second year. It is the City's
intent to allow this tenant (SFSE, LLC) to occupy this space at 780 Fisherman Street for two years.
Proposed Action:
Staff recommends that the City Commission authorize the Interim City Manager to execute a lease agreement
with the South Florida School of Excellence to lease the second floor of the Municipal Complex for a two-year
period commencing October 1, 2022.
Attachment:
1. Draft Lease Agreement
Lease Agreement
SFSE LLC d/b/a/ South Florida School of Excellence
DATE OF LEASE COMMENCEMENT:
As of October 1, 2022
A. LANDLORD:
B. TENANT:
C. ADDRESS OF
LEASED PREMISES:
D. LEASED PREMISES:
E. LEASE DATE:
F. LEASE TERM:
G. RENT:
City of Opa-locka
780 Fisherman Street
Opa-locka, Florida 33054
SFSE LLC d/b/a South Florida School of
Excellence
780 Fisherman Street, Ste. 210, 220, and 250
Opa-locka, Florida 33054
17,375 rentable sq. ft.
October 1, 2022
Two (2) years
Suite 210 (6,511 sq. ft.) Base rent is $14.50 per sq. ft. The rent
shall be $7,867.45 per month for year one ($94,409.50 per
year).
Base rent will be increased by 3% each year.
Suite 220 (4,274 sq. ft.) Base rent is $14.50 per sq. ft. The rent
shall be $5,164.41 per month for year one ($61,973.00 per
year).
Base rent will be increased by 3% each year.
Suite 250 (6,590 sq. ft.) Base rent is $14.50 per sq. ft. The rent
shall be $7,962.91 per month for year one ($95,555.00 per year).
Base rent will be increased by 3% each year.
Tenant is also responsible for paying their Proportionate Share
which is 4.72% of the monthly rent.
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H. 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 October 1, 2022, 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 2022.
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.
I. PARKING: Landlord shall provide sufficient parking for Tenant's
intended use.
J. LANDLORD SERVICES DURING Landlord shall perform the following during the Term.
THE TERM:
K. 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.
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LEASE AGREEMENT
DATE OF LEASE
EXECUTION:
As of October 1, 2022
1.1
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: SFSE LLC d/b/a South Florida School of Excellence
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 TENANT'S SPACE: Suites 210, 220, and 250 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 17,375
square feet
1.1.8 TENANT'S PROPORTIONATE SHARE: 4.72%
1.1.9 TENANT: The Tenant will be responsible for paying property taxes on its
condominium units to the City in the amount not to exceed $25,000.
1.1.10 EFFECTIVE DATE: The date of lease execution set forth on the first page
hereof.
1.1.11 TERM COMMENCEMENT DATE: October 1, 2022
TERM EXPIRATION DATE: September 30, 2024
1.1.12 ANNUAL AND MONTHLY BASE RENT INSTALLMENTS: Base rent
and Proportionate Share is due on the first day of each month.
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1.1.13 PERMITTED USE: School
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
constructed as part of this Lease.
EXHIBIT A: Floor Plan of Premises
EXHIBIT B: Rules and Regulations
On August 1, 2021, a Lease Agreement was entered into by and between the City of Opa-locka, a Florida
municipal corporation and SFSE LLC d/b/a South Florida School of Excellence for the premises located
in a portion of the second and third floor of the building located at 780 Fisherman Street in the City of
Opa-locka. Upon the signatures of the authorized agents, the parties hereby acknowledge:
1. The Lease shall allow the school to operate on the 2nd floor of the building located at 780
Fisherman Street, Opa-locka, FL 33054. The rentable floor area will be revised from 15,712 sq.
ft. to 17,375 sq. ft.
2. The Lease shall extend the term of the lease from August 1, 2021 - July 31, 2023 to October 1,
2022 — September 30, 2024.
3. Effective October 1, 2022 the monthly rent shall be $20,994.79, which is $14.50 per sq. ft.
Tenant is also responsible for paying its Proportionate Share which is 4.72% ($990.95) per
month.
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.
2.1.4 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.
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
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.
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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 THE PREMISES.
ARTICLE
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RENT
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, beginning on the
first day of the first (1st) full calendar month of the Term. The Base Rent shall be applicable for
the Term commencing on the Term Commencement Date (the "Rent Commencement Date").
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Tenant shall pay, with each payment of Rent, all sales and other applicable taxes which may be
due or payable thereon.
4.1.1 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".
4.1.2 PAYMENTS: All payments of Rent shall be made to Managing Agent,
or to such other person as Landlord may from time to time designate.
4.1.3 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.
4.1.4 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.
4.1.5 NET LEASE. This Lease shall be deemed and construed to be a "net lease"
and Tenant shall pay to Landlord, absolutely net throughout the term of this Lease, the Base Rent,
and other payments hereunder, free of any charges, assessments, impositions or deductions of 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.
(a) Automatically operated passenger elevator service and water at
those points of supply provided for general use of its tenants;
(b) Freight elevators on an "as available" basis for incidental use by
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Tenant; and
(c) Maintenance and repair of the exterior of the Building and Building
grounds, including shrubbery and the parking lot area; and
(d) 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
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 until necessary repairs have been completed.
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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,
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
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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
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 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
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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.
6.1.9 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.
6.1.10 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
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.
6.1.11 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 specify 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
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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
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
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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 provisions 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 thereafter 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 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.
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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 shallbe 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
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
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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
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
15
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
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.
10.2 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
16
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
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
17
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
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
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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,
PROCEEDINGORCOUNTERCLAIMB ROUGHTB 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,
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.
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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
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
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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
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 Premises, in the amounts specified and in the form hereinafter provided for:
11.1.1 Commercial General Liability Insurance. Commercial general liability
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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.
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 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,
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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,
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 Section11.3 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.
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LANDLORD: CITY OF OPA-LOCKA
Witness:
By:
Name:
TENANT: SFSE LLC d/b/a SOUTH FLORIDA SCHOOL
OF EXCELLENCE
Witness:
By:
Name:
As To Legal Sufficiency and Form
Bumadette Norris -Weeks, City Attorney
City of Opa-Locka
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