HomeMy Public PortalAbout18-9461 3 Year Commercial Lease Agreement w/Carnival Meals Cocina, LLC. Sponsored by: City Manager
RESOLUTION NO. 18-9461
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF OPA-LOCKA, FLORIDA, AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND ENTER A 3 YEAR
COMMERCIAL LEASE AGREEMENT WITH CARNIVAL
MEALS, INC.IMI COCINA, LLC, IN A FORM THAT IS
ACCEPTABLE TO THE CITY ATTORNEY, COMMENCING
FEBRUARY 19, 2018 THROUGH FEBRUARY 18, 2021;
PROVIDING FOR INCORPORATION OF RECITALS;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Carnival Meals, Inc./Mi Cocina, LLC desires to lease property
located at 780 Fisherman Street, Suite 110-B in the City of Opa-Locka; and
WHEREAS, the City Commission of the City of Opa-Locka desires to
authorize the City Manager to negotiate and enter into an agreement with Carnival
Meals, Inc./Mi Cocina, LLC, in a form acceptable to the City Attorney, to lease the
space described commencing February 19, 2018 through Februaryl8, 2021.
NOW THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF OPA LOCKA, FLORIDA:
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 negotiate and enter into an agreement with Carnival Meals,
Inc./Mi Cocina, LLC, in a form acceptable to the City Attorney, to lease
property located at 780 Fisherman Street, Suite 110-B in the City of Opa-Locka,
commencing February 19, 2018 through Februaryl8, 2021.
Section 3. SCRIVENER'S ERRORS.
Sections of this Resolution 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, without need of public hearing, by filing a
corrected copy of same with the City Clerk.
Resolution No. 18-9461
Section 4. EFFECTIVE DATE.
This Resolution shall take effect immediately upon adoption and is subject to the
approval of the Governor or his designee.
PASSED AND ADOPTED this 15th day of February, 2018.
i. !i� _,
i 4 yra L. Taylor
Mayor
Attest to: Approved as to form and legal sufficiency:
:kit �1 .. 'VA, ,�'-
c
J..nna Flores Vi, cr, own, Esq.
City Clerk e Brown Law Group, LLC
City Attorney
Moved by: COMMISSIONER RILEY
Seconded by: COMMISSIONER HOLMES
Commissioner Vote: 3-1
Commissioner Holmes: NO
Commissioner Riley: YES
Commissioner Pigatt: YES
Vice Mayor Kelley: YES
Mayor Taylor: NOT PRESENT
• A: iL •
City of Opa-Locka
Agenda Cover Memo
Department Department
Director: Director Signature:
Budget Ernesto Reyes Budget
Administrator: Administrator/AC
Signature:
Finance Director: Bryan Hamilton FD Signature:
Department 1
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Asst City Manager: William Green ACM Signature: i
City Manager: Ed Brown CM Signature:
1,/d,,
Commission 02.14.18 Item Type: _w. ...,..x.. .,. .. . � .5 .�
Meeting Date: X
(EnterXin box)
Fiscal Impact: Ordinance Reading: k w
(EnterXin box) (EnterXin box)
x Public Hearing:
(EnterXin box) X X
(Enter Fund& Advertising Requirement:
Funding Source: Dept) (EnterXin box)
Account#:
Ex:
Contract/P.O. RFP/RFQ/Bid#:
Required:
(Enter X in box)
Strategic Plan Strategic Plan Priority Area: Strategic Plan Obj./Strategy: Out
Related Enhance Organizational the specific objective/strategy this item will
(EnterXin box) X Bus.&Economic Dev address)
Public Safety p
Quality of Education El
Qual.of Life&City Image J
Communication 0
Sponsor Name City Manager Department: City Manager
A resolution authorizing the City Manager to enter into a 3 year Commercial Lease Agreement with Carnival
Meals Inc./Mi Cocina LLC.
It is in the best interest of the City to enter into a lease agreement to occupy the building located at 780
Fisherman Street.
PrOpOSedAdiOIE
Staff recommends recommendation.
Attachment:
Lease Agreement
Carnival Meals Inc. /Mi Cocina LLC
DATE OF LEASE COMMENCEMENT:
As of February 19,2018
A. LANDLORD: City of Opa-locka
780 Fisherman Street
Opa-Locka, Florida 33054
B. TENANT: Carnival Meals Inc. /Mi Cocina LLC
C. ADDRESS OF 780 Fisherman Street, Ste. 110-B
LEASED PREMISES: Opa-locka, Florida 33054
D. LEASED PREMISES: 652 rentable sq. ft.
E. LEASE DATE: February 19, 2018
F. LEASE TERM: Three (3) years
G. RENT: Monthly rent shall be $18.00 per square ft. The rent shall be
$978.00 per month.
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Page 2
I. COMMON AREA Landlord will insure the building and will maintain in
MAINTENANCE, TAXES good repair the building and all common areas,
AND INSURANCE: including the parking areas, sidewalks and
exterior landscaped areas. Commencing on April 1,
2017, 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 2017. 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:
• 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:
• Cleaning and janitorial services will be provided in
the Tenant occupied space and the common areas of
the Building on Monday through Friday, except for
national, state and local holidays and for weekends,
including holiday, weekends;
• Maintenance and repair of the exterior of the Building
and the Building grounds, including shrubbery and
the parking lot area; and
• Security service for the Building
L. 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
may be necessary to keep them in serviceable
condition.
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LEASE AGREEMENT
DATE OF LEASE EXECUTION:
As of February 19, 2018
ARTICLE 1
REFERENCE DATA
1.1 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: Carnival Meals Inc. /Mi Cocina LLC
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: Suite 110-B, located on the first 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 652
square feet
1.1.8 TENANT'S PROPORTIONATE SHARE:4.66%
1.1.9 EFF'ECTIVE DATE: The date of lease execution set forth on the first page
hereof
1.1.10 TERM COMMENCEMENT DATE: February 19, 2018
TERM EXPIRATION DATE: February 18, 2021
1.1.11 ANNUAL AND MONTHLY BASE RENT INSTALLMENTS: Base rent
is $18.00 per square ft. ($978.00)and due on the first day of each month
1.1.12 SECURITY DEPOSIT: Not Applicable
1.1.13 PERMITTED USE: Food Catering
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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.
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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.
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
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RENT
4.1 RENT: Tenant agrees to pay, without any offset or reduction whatsoever, to
Landlord fixed rent 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").
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 2018.
(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 rents
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shall be included in Taxes; however, Taxes shall not include franchise, estate, inheritance,
succession, capital levy, transfer, income or excess profits taxes assessed on Landlord.
(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 Commencing with March, 2018. 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 Commencing with March, 2018. 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
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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, 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 Noll 00 ($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.
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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
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 Tenant
occupied space and in 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;
(c) Freight elevators on an "as available" basis for incidental use by
Tenant;
(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 was 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.
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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.
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
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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
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 there mediation plan to be undertaken.
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6.15 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 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
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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 1:J?_e
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 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
useandoccupationtotheextentpermittedbythenetawardofinsuranceordamagesandapplicablelaws 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 a 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.
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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 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.
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8.3 MORTGAGEE'S ELECTION: Notwithstanding any other prov 1 s l Ons 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 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 shallbe
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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
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
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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 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
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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
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.
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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 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
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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 from war, civil commotion, fire, flood, other casualty, labor difficulties, shortages or
other unavailability of labor, materials, equipment, energy or utility services, governmental
21
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,
PROCEEDINGORCOUNTERCLAIMBROUGHTBYEITHEROFTHEPARTIESHERETO
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.
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.
22
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
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
23
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
24
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,
25
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
Section11.3supersedes any provision to the contrary which may be contained in this Lease.
26
EXECUTED as a sealed instrument as of the day and year first above written.
LANDLORD: CITY OF OPA-LOCKA
Witness:
By:
Name:
TENANT: CARNIVAL MEALS INC. /MI COCINA
Witness:
By:
Name:
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EXHIBIT B—RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators, and stairways shall not be
encumbered or obstructed by Tenants, Tenant's agents, servants, employees, licensees,
and visitors, not be used by them for any purpose other than for ingress and egress to and
from the Premises. The moving in or out of all safes, freight, furniture or bulky matter of
any description must take place during the hours which Landlord may determine from
time to time. Landlord reserves the right to inspect all freight and bulky matter to be
brought into the Building and exclude from the Building all freight and bulky matter
which violates any of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part of.
2. No curtains, blinds, shades, screens, or signs other than those furnished by Landlord shall
be attached to, hung in, or used in connection with any window or door of the Premises
without prior written consent of the Landlord. Said consent shall not be unreasonably
withheld and shall be consistent with other establishments of similar nature.
3. No additional locks or bolts of any kind shall be placed upon any of the doors or
windows by Tenant, nor shall any changes be made in existing locks or the mechanism
thereof without the prior written consent of the Landord, which consent shall not be
unreasonable. Tenant must, upon the termination of its tenancy, restore to Landlord all
keys of offices and restrooms either furnished to or otherwise procured by Tenant; and in
the event of the loss of any keys so furnished; Tenant shall pay to Landlord the cost
thereof.
4. Canvassing, soliciting and peddling in the Building or on the Lot are prohibited, and
Tenant shall cooperate to prevent same.
5. Tenant shall comply with all security measures from time to time established by Landlord
for the Building.
6. Tenant shall have the right to install within the Premises, at its sole expense, such a sign
or signs as may be reasonable and appropriate under the circumstances. All such signs
shall be located within the glass line of the Building and in accordance with all applicable
zoning codes, building codes and related rules, regulations and ordinances. Tenant shall
obtain and pay for all necessary permits and licenses. As a condition hereto, Tenant shall
submit to Landlord a graphic and written description of each proposed sign prior to its
installation for Landlord's approval. Landlord's approval of any sign will not be
unreasonably withheld or delayed.