HomeMy WebLinkAboutCity of Tamarac Resolution R-2015-098Temp. Reso. #12703
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October 14, 2015
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2015 /(
A RESOLUTION OF THE CITY COMMISSION OF
THE CITY OF TAMARAC, FLORIDA, AUTHORIZING
AND DIRECTING, ALAN J. POLIN, P.A. AS
TRUSTEE UNDER THE TAMARAC LAND TRUST
AGREEMENT DATED JULY 10, 2013 TO EXECUTE
THE GROUND LEASE AGREEMENT, ATTACHED
HERETO AS EXHIBIT "1", BY AND BETWEEN ALAN
J. POLIN, P.A. AS TRUSTEE AND JKM TAMARAC
VILLAGE, LLC; FOR THE PURPOSE OF
DEVELOPING THE TAMARAC VILLAGE
PROPERTY BEING MORE PARTICULARLY
DESCRIBED IN EXHIBIT 1" ATTACHED HERETO
AND INCORPORATED HEREIN; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The City of Tamarac has long had the vision of a Mixed -Use District,
where residents would live, work and play; and
WHEREAS, In support of this vision, in 2005 the City Commission approved the
first ever Mixed -Use District in the City; and
WHEREAS, The City of Tamarac has assembled seventeen properties
("Tamarac Village Lands") over a seven year period, beginning in 2006, in the Tamarac
Village area which is located along NW 57th Terrace between Pine Island Road and NW
94th Avenue; and
WHEREAS, on June 10, 2013, the City Commission approved Resolution R-
2013-77 establishing the Tamarac Land Trust, a Florida Land Trust, for the purpose of
holding ownership of the Tamarac Village Lands, with the City of Tamarac as the sole
beneficiary, in anticipation of the development of Tamarac Village; and
Temp. Reso. #12703
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October 14, 2015
WHEREAS, on July 10, 2013, the City of Tamarac entered into a Florida Land
Trust Agreement with Alan J. Polin, P.A. ("Trustee") to serve as Trustee for the Trust,
and
WHEREAS, on September 10, 2013, the City of Tamarac transferred sixteen
(16) properties to the Tamarac Land Trust, said properties located north of Commercial
Boulevard along 57th Terrace between Pine Island Road and NW 94th Avenue; and
WHEREAS, on December 11, 2013, the City transferred one additional parcel
into the Tamarac Land Trust; and
WHEREAS, Trustee took title to the Property in accordance with the provisions of
Section 689.071, Florida Statutes and will hold the title in trust for the uses and
purposes and subject to the terms and conditions of the Trustee Agreement; and
WHEREAS, On July 1, 2014, the City issued a Request for Proposal entitled
MASTER DEVELOPER FOR PURCHASE AND DEVELOPMENT OF A MIXED USE
CITY CENTER (AKA TAMARAC VILLAGE) with a response date of September 3, 2014.
The City received one response that was deemed non -responsive; and
WHEREAS, Subsequent to the Request for Proposal, staff contact and met with
various entities potentially interested in developing Tamarac Village; and
WHEREAS, Staff has negotiated a Ground Lease Agreement by and between
Alan J. Polin, P.A. as Trustee of the Tamarac Land Trust and JKM Tamarac Village,
LLC attached hereto as Exhibit 1", incorporated herein and made a specific part
hereof,; and
WHEREAS, The City Manager, the Director of Financial Services and the
Director of Community Development recommend that the Trustee of the Tamarac Land
Temp. Reso. #12703
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October 14, 2015
Trust be directed to execute the Ground Lease Agreement by and between Alan J.
Polin, P.A. as Trustee under the Tamarac Village Land Trust Agreement dated July 10,
2013; and
WHEREAS, The City Commission of the City of Tamarac, Florida, deems it to be
in the best interest of the citizens and residents of the City of Tamarac to authorize and
direct the Trustee for the Tamarac Village Land Trust to execute the Ground Lease
Agreement for the development of Tamarac Village attached hereto and incorporated
herein as Exhibit 1".
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
SECTION 1: The foregoing "WHEREAS" clauses are HEREBY ratified and
confirmed as being true and correct and are hereby made a specific part of this
Resolution upon adoption hereof and all exhibits referenced and attached hereto are
incorporated herein and made a specific part of this resolution.
SECTION 2: That Alan J. Polin, P.A. as Trustee for the Tamarac Village
Land Trust is hereby authorized and directed, pursuant to this resolution and that
certain Florida Land Trust Agreement between Alan J. Polin, P.A. dated July 10, 2013,
to execute the Ground Lease Agreement by and between Alan J. Polin, P.A. as Trustee
under the Tamarac Land Trust Agreement and JKM Tamarac Village, LLC, attached
hereto and incorporated herein as Exhibit 1".
SECTION 3: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 4: If any clause, section or other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid,
Temp. Reso. #12703
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October 14, 2015
in part or application, it shall not affect the validity of the remaining portions or
applications of this Resolution.
SECTION 5: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this day of, ``''�"� , 2015.
HARRY DRESSLER
ATTEST:
PATRICIA TE0FEV , CMC
CITY CLERK
I HEREBY CERTIFY THAT I HAVE
APPROVED THIS RESOLUTION
AS TO FORM
- A
SA EL S. GORE
CITY ATTORNEY
RECORD OF COMMISSION VOTE:
MAYOR DRESSLER
DIST 1:
VICE MAYOR BUSHNELL
DIST 2:
COMM. GOMEZ
'
DIST 3:
COMM. GLASSER
.�
DIST 4:
COMM. PLACKO-:—
C
GROUND LEASE
AND
BETWEEN
ALAN I POLIN, P.A., AS TRUSTEE UNDER THE
TAMARAC LAND TRUST AGREEMENT
DATED JULY 109 2013
•..
JKM TAMARAC VILLAGE, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
REGARDING PROPERTY COMMONLY KNOWN AS
TAMARAC LAND TRUST PROPERTY
APPROXIMATELY +/- 22.0 ACRES OF VACANT LAND AND IMPROVEMENTS
LOCATED IN
TAMARAC, BROWARD COUNTY, FLORIDA
GROUND LEASE
THIS GROUND LEASE (this "Lease") is made as of October , 2015, between Alan
J. Polin, P.A., as Trustee under the Tamarac Land Trust Agreement dated July 10, 2013
("Landlord"), and JKM Tamarac Village, LLC, a Florida limited liability company ("Tenant").
A. In consideration of the mutual agreements contained in this Lease, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord that certain real property
located in Tamarac, Broward County, Florida, and being more particularly described in Exhibit
"A" attached to this Lease, together with all appurtenant easements, rights and privileges (the
"Premises" or the "Property"). The Premises are leased subject to the following (the "Permitted
Encumbrances"): (a) rights of the public in streets and highways adjoining the Property, if any;
(b) zoning and building laws, ordinances, resolutions and regulations; (c) real estate taxes and
assessments for public improvements which are not delinquent and not yet due and payable, (d)
set back lines, easements, rights of way, encroachments, boundary line disputes and other
matters which would be disclosed by an accurate survey and inspection of the Property; (e) all
easements, rights of way, agreements, covenants and restrictions of record which are acceptable
to Tenant; and (f) any reservations, exceptions or other conveyances of oil, gas, or other minerals
as exist of record.
B. Subject to the terms and conditions of this Lease, Tenant intends to develop upon
the Property a mixed -use, mid -rise, multi -family and lifestyle retail development (the "Project")
anticipated to be based upon the conceptual site plan and related specifications set forth on
Exhibit `B" (the "Conceptual Plan"), consisting of a parcel containing approximately 400
residential dwelling units (the "Residential Parcel") and a parcel containing approximately
35,000 square feet of commercial, retail, and/or restaurant space (the "Commercial Parcel");
although prior to the execution of this Lease and the performance of the inspections and
investigations permitted hereby and the receipt by Tenant of all necessary governmental
approvals which are a condition precedent to certain obligations under this Lease, neither the
Residential Parcel nor the Commercial Parcel nor the exact composition thereof has been finally
identified or legally described, and the Site Plan itself is merely a conceptual approximation of
what Tenant anticipates may be the ultimate developed use of the Property. Upon receiving all
necessary approvals in accordance with the terms of this Lease, it is anticipated that Tenant shall
construct buildings and other improvements upon the Property (all such buildings and
improvements constructed by Tenant or to be constructed by Tenant, but not any improvements
existing as of the Effective Date of this Lease, are herein referred to as the "Improvements").
In consideration of the foregoing, of the covenants and provisions contained herein, and
of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Ter n,i
1.1 Effective Date. The Effective Date of this Lease shall be the date upon which the last
party to this Lease, be it Landlord or Tenant, fully executes it.
1.2 Commencement Date. Commencement Date shall mean the date thirty (30) calendar
days subsequent to the date upon which the following conditions have been satisfied:
(i) Tenant's site plan, as approved by the City Commission of the City of Tamarac,
has become final and all appeal periods with respect thereto have expired, and (ii) the
Property has been rezoned to "PD" or to such other designation as the City"s revised
municipal code shall designate as the zoning designation which will permit the
Tenant's development of the Property substantially in accordance with the
Conceptual Plan, and the determination of such rezoning shall have become final and
all appeal periods with respect thereto shall have expired.
1.3 Term. Subject to the satisfaction of certain conditions set forth in this Lease, the
terms and conditions of this Lease shall become effective upon the Effective Date, but
the Term of this Lease (and Tenant's obligations in connection with the tenancy
hereunder) shall not commence until the Commencement Date) and shall end upon
the expiration of the ninety-ninth (99th) year following the Commencement Date,
unless sooner terminated, including pursuant to the exercise of any option provided
for under this Lease.
SECTION 2. Payments
2.1 Deposits.
2.1.1 First Deposit. Within five (5) calendar days following the Effective Date of
this Lease, Tenant shall deposit with PG Law, as escrow agent ("'Escrow
Agent"'), the sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) ("First Deposit") which shall be held in Escrow Agent's IOTA
trust account with Chase Bank, NA ("Trust Account") in accordance with the
terms of this Lease. The First Deposit shall be refundable at any time prior to
the expiration of the Site Analysis Period, for any reason or for no reason,
upon any termination by either party in accordance with the terms of Section
3.3. Thereafter, the First Deposit shall be refundable only upon a default by
Landlord under the terms of this Lease, which default continues beyond any
applicable grace or cure period.
2.1.2 Second Deposit. On or prior to the Commencement Date, Tenant shall
deposit with Escrow Agent the sum of Seven Hundred Fifty Thousand and
00/100 Dollars ($750,000.00) ("Second Deposit") which shall be held in the
Trust Account in accordance with the terms of this Lease. The Second
Deposit shall be refundable only upon a default by Landlord under the terms
of this Lease prior to satisfaction of all of the conditions of Section 3.8, which
default continues beyond any applicable grace or cure period.
2.1.3 Treatment of Deposits. At such time as all of the conditions of Section 3.8
have been satisfied, Tenant shall deliver written notice thereof to Landlord
and to Escrow Agent. Escrow Agent shall, within five (5) business days after
the date of such notice, deliver the Lease Deposits to Landlord, and as a result
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thereof, the Lease Deposits shall thereafter be non-refundable for any reason
other than as a result of a default by Landlord under this Lease.
2.2 Rent. Tenant shall pay Landlord
payment of $100.00 payable in
"Commencement Date".
SECTION 3. Site Anatysis Period
as annual rent (the "Rent',) for the Property a
arrears on or before each anniversary of the
3.1 Deliveries. Promptly after the execution of this Lease, Landlord agrees to deliver to
Tenant true and correct copies of any of the following documents and any other
documents relating to the Property, if they exist, which are in Landlord's possession:
(a) All surveys of the Property showing the location of any improvements thereon
and any easements encumbering the Property.
(b) Soil, topographical, environmental and other reports relating to the Property.
(c) All written contracts for repair, maintenance, garbage removal, concessions,
vending, service contracts, and other services to be performed with respect to the
Property.
(d) All written leases, licenses, concessions, and tenancies with tenants occupying or
having the right to occupy any portion of the Property, and Landlord's written
statement of any oral leases, licenses, concessions, and tenancies with tenants,
licensees, concessionaires, or others occupying or having the right to occupy or
use any portion of the Property.
(e) All architectural drawings, engineering studies, plans, and specifications and
contracts relating to any prior or contemplated construction activity relating to the
Property.
(f) All warranties and guaranties from any contractors, subcontractors, vendors, and
suppliers relating to their performance, quality of workmanship, and quality of
materials supplied in connection with the construction, manufacture,
development, installation, and operation of any and all fixtures, equipment, items
of personal property and improvements located in or used in connection with the
Property.
(g) Governmental approvals and permits, agreements relating to impact fees, and
developer's agreements.
To the extent that any of the foregoing Materials are assignable, Landlord shall
assign the rights with respect to such Materials to Tenant, and, if requested by Tenant,
Landlord shall cooperate with Tenant in seeking reliance letters or similar assurances from
any professionals who prepared any of the Materials providing for Tenant to rely upon the
information, opinions, and conclusions contained in the Materials.
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3.2 Access. Landlord shall provide Tenant, together with Tenant's agents and
representatives, complete access to any portion of the Property for the purpose of
making a physical inspection of the Property to determine whether, in Tenant's sole
and absolute discretion, the Property is suitable for Tenants purposes. Such
inspection may include, among other things, survey, site, engineering, appraisal,
environmental and feasibility studies. Tenant hereby agrees to indemnify and hold
harmless Landlord from and against any material loss, liability, damages, costs, or
expenses incurred by Landlord as a result of the exercise of the right of inspection
granted to Tenant under this paragraph.
3.3 Site Analysis Period. Tenant shall have the "Site Analysis Period" in which to
ascertain whether the Property is acceptable to Tenant in order for Tenant to proceed
with seeking approvals, permits and licenses necessary for the development of the
Property in substantial conformance with the Conceptual Plan. "Site Analysis
Period" shall mean the period commencing on the Effective Date of this Agreement
and expiring on the date which is sixty (60) calendar days subsequent to the Effective
Date. If the Property is determined to be unacceptable to Tenant in its sole discretion,
Tenant shall notify the Landlord by providing written notice of its determination that
the Property is unacceptable for its intended use no later than 5:00 p.m. Florida time
on the final day of the Site Analysis Period, in which event the First Deposit shall be
returned to Tenant, and neither party shall have any further rights or obligations
hereunder.
3.4 Submittal Period. Tenant shall have the right, during the Site Analysis Period and
throughout the term hereof, to seek and secure all approvals, permits and licenses
(i.'Approvals") deemed by Tenant and Landlord to be necessary or advisable in
connection with the development of the Property in accordance with the Site Plan
("Submittal Period"). Landlord agrees to execute such consents and other documents
requested by Tenant and to otherwise cooperate with Tenant in obtaining all licenses,
platting and zoning approvals, and other permits and governmental approvals as may
be necessary or required for the development of the Property in accordance with the
Site Plan and Tenant's intended use. Tenant's securing final and unappealable site
plan approval in such form and upon such terms and conditions as it shall reasonably
determine is a condition precedent to Tenant's further obligations hereunder. In
connection with obtaining the Approvals, Tenant agrees to diligently pursue and
make application for such Approvals as it shall determine are necessary, and agrees
that complete applications with respect to site plan and zoning shall be made no later
than Three Hundred Sixty -Five (365) calendar days from the Effective Date; for
purposes of this Section 3.4, an application shall be complete if all items of
documentation required by the applicable rules and regulations in order to make such
application has been submitted, as reasonably determined in good faith by the
applicable authority, even if it is subsequently determined by the applicable authority
that additional information or documentation is required. Tenant and Landlord agree
that time is of the essence with respect to their individual obligations and
responsibilities regarding the seeking of Approvals, and if Tenant fails to submit
complete applications with respect to site plan and zoning within Three Hundred
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Sixty -Five (365) calendar days from the Effective Date, then the First Deposit shall
immediately thereafter become non-refundable.
3.5 Grants. The City of Tamarac is entitled to certain grants to be received in connection
with the development of the Property (the "Grants"), and the availability of such
Grants is a material inducement to Tenant's desire to enter into this Lease and to
develop the Property. During the Submittal Period, Tenant shall enter into a
Construction Agreement with the City of Tamarac for infrastructure improvements
for the fulfillment of the grants, upon such terms and conditions as Tenant and the
City of Tamarac shall reasonably agree.
3.6 Tower. During the Submittal Period, with respect to the cell tower located upon the
Property (including all of its associated structures and equipment, the "Tower"),
Landlord shall obtain written confirmation from the Tower owner, or shall arrange for
and/or obtain consent from the Tower owner, permitting the relocation and/or
removal of the Tower to a location off of the Property (such confirmation or consent,
the "Tower Consent"). Landlord shall be responsible for, and (to the extent not paid
by the Tower owner) shall pay all costs associated with, the relocation and/or removal
of the Tower (including all of its associated structures and equipment) to a location
off of the Property in accordance with the Tower Consent, and such relocation and/or
removal shall be completed within sixty (60) calendar days subsequent to the
Submittal Period.
3.7 CDD. No later than thirty (30) calendar days from the Effective Date of this Lease,
the Tenant shall be entitled to have one (1) individual of its choosing to be appointed
to the Tamarac Village Community Development District Board of Supervisors. No
later than thirty (30) calendar subsequent to the Commencement Date, the Landlord
agrees that the Tenant shall be entitled to have two (2) additional individuals it shall
designate appointed to the Tamarac Village Community Development District Board
of Supervisors. The Landlord agrees not to oppose any of Tenant's proposed
appointments and Landlord further represents that it will take all appropriate action
necessary, including resignations, to effectuate and allow for the appointment to the
Tamarac Village Community Development District Board of Supervisors of Tenant's
designated individuals.
3.8 Lease Conditions. The terms and conditions of this Lease shall not become effective
unless and until:
(a) The Title
Company
is prepared to and will issue on
the Commencement Date at
Tenant's
expense,
the Leasehold Title Policy to
Tenant insuring Tenant's
leasehold
interest in
the Property, free and clear of all
liens and encumbrances.
(b) Tenant has secured all Approvals in substantial conformance with the Site Plan.
(c) Landlord shall have obtained the Tower Consent, in such forms and upon such
terms and conditions as Tenant shall determine in its reasonable discretion shall
be necessary in order to proceed with the development of the Project;
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(d) Landlord and all
other necessary parties
shall
have executed and delivered any
and all documents
necessary in connection
with
the Tower Consent:
(e) Tenant has negotiated and entered into a Construction Contract with the City of
Tamarac, Florida for all infrastructure improvements required for the property
related to the Grants.
3.9 Park. Tenant shall construct or otherwise provide for parks on two parcels of real
property (together, the "Park Property") consisting of an approximately 0.79 acre site,
the general location of which is shown on Exhibit B and which are labeled the City
of Tamarac Open Public Square, which location shall not be changed in any material
respect without the prior written consent of Landlord, which consent shall not be
unreasonably withheld if required as a condition to the receipt of any Approvals.
Tenant shall complete construction of the Park Property (construction shall only
include the installation of irrigation systems, grading, and sodding of the Park
Property, and shall not include the construction or installation of any additional
improvements, facilities, or landscaping) no later than the time when Tenant receives
a certificate of occupancy for the seventh (7Ih) building with respect to the Residential
Parcel (i.e., the completion of the first phase of development). Upon completion of
the construction of the Park Property, Tenant and Landlord shall revise the legal
description of the Property in order to exclude the Park Property (the ``Park Property
Release").
3.10 Permitted Use. Tenant shall develop the Premises for a mixed use development
comprised of retail, residential and park use and any other lawful use consistent with
the City's Land Development Regulations and as further defined in an approved
Development Agreement in accordance with Florida Statutes sections 163.3220-163-
3243, except to the extent otherwise agreed upon in connection with the Commercial
Repositioning Option.
3.11 Bonds. Tenant shall use commercially reasonable efforts to cause Landlord to be
named as an additional obligee (subordinate to any construction lender) on any
payment or performance bond issued with respect to construction of improvements.
Prior to the issuance of a building permit, Tenant will obtain a surety bond (a) for any
and all improvements which may be required within dedicated rights of way and/or
public facility easements, and (b) for all public works pursuant to section 255.05
Florida Statutes, as same may be amended from time to time.
3.12 Reports. Tenant agrees to provide Landlord with accurate and reasonably complete
quarterly (during design and construction) written updates "Progress Reports"
regarding its progress and construction activities in substantially the same form as
provided to Tenant's lenders and/or financial partners, including any third party
reports (such as from engineers, etc.), but excluding any financial data, commencing
on the first day of the month three (3) months subsequent to the Commencement
Date. These reports shall be delivered to the Landlord or his designee. Thereafter, the
Progress Reports shall be due on the 30t}1 day of each calendar quarter (i.e., January
30, April 30, July 30, and October 30) on a quarterly basis. The provision of
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information and materials under this Section is intended solely for informational
purposes to allow Landlord to monitor the progress of Development and compliance
with this Lease in an efficient fashion and not for purposes of consent or approval; in
connection therewith, no more than once per calendar quarter following the delivery
of any Progress Report, Landlord (or his designees) may arrange to review with
Tenant certain additional information in support of the Progress Report. Any failure
to timely provide a Progress Report shall result in Tenant owing, as additional rent, a
fee in the amount of Five Hundred Dollars and 00/100 ($500.00) per day until such
time as Tenant has provided the applicable Progress Report; if applicable, Tenant
shall promptly pay such amount following receipt of written request from Landlord
for such payment.
SECTION 4. Title and Title Insurance
4.1 Title Commitment. During the Submittal Period, Tenant shall have the right to
obtain, at Tenant's sole cost and expense, a commitment for an ALTA owner's title
insurance policy in the amount of Twenty -One Million Dollars ($21,000,000) (the
"Title Commitment") issued by Escrow Agent, as agent on behalf of Chicago Title
Insurance Company (the "Title Insurance Company"), together with a legible copy of
each document described on Schedule B, Section II thereof.
4.2 Status of Title. In accordance with the Option afforded Tenant as set forth herein,
Landlord agrees to convey the Property, and Tenant agrees to purchase the Property,
free and clear of all liens and encumbrances other than any liens and encumbrances
accepted or deemed accepted by Tenant under this Lease (the "Permitted Title
Exceptions").
4.3 Review Period. Tenant shall have until the end of the Site Analysis Period to review
the Title Commitment and notify Landlord of any objections Tenant may have to any
title exceptions reported in the Title Commitment ("Title Defects"). Tenant shall
notify Landlord in writing ("Title Objection Notice") specifying the Title Defects and
the curative action required to render such matters acceptable to Tenant. Landlord
shall have a period of thirty (30) calendar days to notify Tenant of Landlord's
agreement or refusal to cure or remove the Title Defects prior to the Commencement
Date. If Landlord does not agree within such thirty (30) calendar day period to cure
or remove the Title Defects by the Commencement Date, Tenant may: (i) accept title
to the Property as it then is without modification to the terms hereof or claim against
Landlord therefore; or (ii) demand a refund of the Lease Deposits, which shall
forthwith be returned to Tenant by Escrow Agent, and thereafter Tenant and Landlord
shall be released from all further obligations under this Lease except those that
specifically survive termination. If Tenant fails to demand a return of the Lease
Deposits within five (5) calendar days after receipt of Landlord's notice or of
Landlord's failure to provide such notice to Tenant, Tenant shall be deemed to have
elected to accept title to the Property. If Landlord agrees to cure or remove a Title
Defect prior to the Commencement Date, but Landlord fails to cure or remove such
Title Defect prior to the Commencement Date, such failure shall be a default by
Landlord and Tenant shall have the remedies set forth in Section 15.4 of this Lease or
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Tenant shall have the right to terminate this Lease and receive a return of the Lease
Deposits. Notwithstanding anything to the contrary in this Section 4.3, if title to the
Property is unmarketable because of liens in a liquidated amount that can be released
if satisfied by payment of money alone (and provided that such liens were caused by
the action or inaction of Landlord and not by any action or inaction of Tenant or any
failure of Tenant to comply with the terms of this Lease or to pay any amount
required by this Lease to be paid by Tenant), then Tenant shall have the option to
accept title to the Property as it then is and to have the Escrow Agent reserve a
portion of the Lease Deposits such that, at the time of the Commencement Date, such
liens shall be paid from the Lease Deposits, and the amount due Landlord shall be
reduced by such amount, or Landlord shall remove the same by statutory permitted
bond. Landlord agrees that Landlord shall use its best efforts to cure the Title Defect
within the time limits set forth in this Lease. Notwithstanding the foregoing,
Landlord agrees that Landlord shall pay all outstanding governmental or quasi -
governmental assessments, and any outstanding judgments or liens against Landlord
and/or the Property, including all penalties and interest, which existed prior to the
Commencement Date as a result of any action or inaction by Landlord or any of its
agents, employees, beneficiaries, contractors or invitees.
4.4 Additional Title Defects. If at any time subsequent to the delivery of the Title
Commitment and prior to the Commencement Date, title to the Property is found to
be subject to additional exceptions not revealed by the Title Commitment
("Additional Title Defects"), Tenant shall give written notice of such Additional Title
Defects to Landlord no later than thirty (30) calendar days prior to the
Commencement Date, or if discovered fewer than thirty (30) calendar days prior to
the Commencement Date, then promptly upon discovery thereof. Any Additional
Title Defects, other than those created by, through or under Tenant, shall be removed
of record by Landlord and, if necessary, the Commencement Date shall be delayed by
a period not to exceed sixty (60) calendar days to allow such removal. If such
Additional Title Defects are not corrected within such sixty (60) calendar day period,
then Tenant shall have the same options upon written notice from Landlord as Tenant
has been granted in Section 4.3 as if Landlord did not cure such Title Defects.
Notwithstanding the foregoing, if Landlord is responsible for causing such Additional
Title Defects, Landlord shall be obligated to remove such Additional Title Defects.
4.5 Surve . During the Site Analysis Period, Tenant may obtain, at Tenant's expense, a
currently dated survey (the "Survey") of the Property prepared by a Florida licensed
surveyor certified to Tenant, Tenant's attorney, Tenant's lender, if any, and Title
Company. If the Survey shows any easements, encroachments or other matters, any
of which may impair Tenant's proposed development or use of the Property, or affect
marketability and/or Insurability of the Property or that will prevent removal of the
survey exception from the Title Commitment, the same shall be treated as a Title
Defect and such Title Defect shall be governed by the provisions contained within
Section 4.3 of this Lease.
SECTION 5. Repair wid Maintenance
E'�
5.1 Tenant's Obligations. Tenant acknowledges that if, upon completion of the Site
Analysis Period, Tenant delivers notice to Landlord that Tenant has determined that
the Property is acceptable to Tenant, Tenant shall be deemed to have accepted the
Property in its "as is" condition, subject, however, to those specific representations
and warranties made by Landlord and Landlord's indemnification obligations set
forth in this Lease Agreement. Throughout the Term, Tenant, at its sole cost and
expense, shall keep and maintain all of the Property, including all of the
Improvements, in good repair and condition and shall make all repairs, replacements
and renewals, foreseen or unforeseen, ordinary or extraordinary, necessary to put or
maintain the Property in such state of repair and condition; for the avoidance of
doubt, Tenant shall have no obligations to maintain the Park Property after the date of
the Park Property Release.
5.2 Landlord's Obligations. Landlord shall not be required to maintain, repair or rebuild
all or any part of the Property (other than the Park Property from and after the date of
the Park Property Release). Tenant waives the right to (a) require Landlord to
maintain, repair or rebuild all or any part of the Property (other than the Park Property
from and after the date of the Park Property Release), or (b) make repairs at the
expense of Landlord pursuant to any legal requirement, contract, easement, covenant,
condition or restriction at any time in effect. In addition, Tenant shall keep the
Property in a safe and sanitary condition as required by all applicable governmental
laws, codes, and regulations.
SECTION 6. Coulpliance With Laws; Hazardous Waste
6.1 Compliance with Laws. During the term hereof, Tenant shall comply with and cause
the Property to be in compliance with (i) all laws, ordinances and regulations, and
other governmental rules, orders and determinations, whether or not presently
contemplated (collectively, "Legal Requirements") applicable to the Property or the
uses conducted on the Property, (ii) the provisions of any insurance policies required
to be maintained by Tenant with respect to the Property, and (iii) the terms of any
easements, covenants, conditions and restrictions affecting the Property which are
Permitted Encumbrances or are created after the date of this Lease. If any additions,
alterations, changes, repairs or other work of any nature, structural or otherwise, shall
be required or ordered or become necessary at any time during the Term because of
any of these requirements, the entire expense of the same, irrespective of when the
same shall be incurred or become due, shall be the sole liability of Tenant.
6.2 Hazardous Substances.
6.2.1 Compliance. Tenant shall not cause or permit any Hazardous Substance (as
hereinafter defined) to be brought, kept or used in or about the Property by
Tenant, its subtenants, agents, employees, contractors, or invitees except in
commercial quantities similar to those quantities usually kept on similar
premises by others in the same business or profession. Tenant shall store, use
and dispose of such materials in compliance with all applicable federal, state
and local laws, including, without limitation, Applicable Environmental Law
0
(as hereinafter defined). If any Hazardous Substance which is found, kept or
brought on, in or under the Property during the Term is released or otherwise
results in any contamination of the Property or any adjoining property or the
air, soil, surface water or ground water, Tenant shall promptly take all actions,
at its sole expense, as are necessary to return the affected area(s) to the
condition existing prior to the introduction of any such Hazardous Substance,
including, without limitation, any investigation or monitoring of site
conditions or any clean up, remediation, response, removal, encapsulation,
containment or restoration work required because of the presence of any such
Hazardous Substance on in or under the Property or any release or suspected
release or threat of release of any such Hazardous Substance in the air, soil,
surface water or ground water (collectively, the "Remedial Work"). Tenant
shall obtain all necessary licenses, manifests, permits and approvals to
perform the Remedial Work. Tenant shall perform all Remedial Work and the
disposal of all waste generated by the Remedial Work in accordance with all
Applicable Environmental Law.
6.2.2 Tenant Responsibility. Without limiting the generality of the foregoing or any
other provision of this Lease, Tenant shall be solely and completely
responsible for responding to, defending against and/or complying with any
administrative order, request or demand relating to potential or actual
contamination on the Property or release of any Hazardous Substance into any
adjoining property or the air, soil, surface water or ground water, or third party
claims (including the claims of current or future subtenants in the Property, or
other tenants or subtenants in units or parcels adjoining or near the Property)
for Remedial Work or for the costs of any such Remedial Work or for the
costs of any such Remedial Work which the third -party claimant has
undertaken, whether such order, request, demand or claim names Landlord,
Tenant or both, or refers to the property in any way, except where the
contamination was caused solely by Landlord. The responsibility conferred
under this paragraph includes but is not limited to responding to such orders,
requests, demands and claims on behalf of Landlord and defending against
any assertion of Landlord's financial responsibility or individual duty to
perform thereunder.
6.2.3 Tenant Acts. Tenant shall indemnify, save harmless and defend Landlord
from and against any and all claims (including, without limitation, third party
claims for personal injury or real or personal property damage), actions,
administrative proceedings (including informal proceedings), judgments,,
damages, punitive damages, penalties, fines, costs, liabilities, interest or losses
(including, without limitation, diminution in value of the Premises and sums
paid in settlement of claims, attorney, s fees, consultant fees, expert fees and
any fees and expenses incurred in enforcing this indemnity) incurred by,
sought from or asserted directly or indirectly against Landlord during or after
the Term as a result of the presence of any Hazardous Substance on, in or
under the Property or any release of any Hazardous Substance into the air,
soil, surface water or ground water, which Hazardous Substance was brought,
10
kept or used by Tenant in or about the Property at any time during the Term or
any extension thereof. Tenant shall assume, pursuant to the foregoing
indemnity, any liabilities or responsibilities which are assessed against
Landlord in any action described under this Section 6.2.3 and under Section
6.2.2 above. Tenant shall provide to Landlord copies of all communications,
filings or other writings, photographs or materials given to or received from
any person, entity or agency in connection with any cleanup or Remedial
Work conducted by Tenant, and shall notify Landlord of, and permit
Landlord's representative to attend any meetings or oral communications
relating thereto.
6.2.4 Landlord Acts. Subject to Section 768.28 of the Florida Statutes, Landlord
shall indemnify, save harmless and defend Tenant and any member, manager,
officer, director, partner or shareholder of Tenant from and against any and all
claims (including, without limitation, third party claims for personal injury or
real or personal property damage), actions, administrative proceedings
(including informal proceedings), judgments, damages, punitive damages,
penalties, fines, costs, liabilities, interest or losses (including, without
limitation, diminution in value of Tenant's leasehold estate and sums paid in
settlement of claims, attorney's fees, consultant fees, expert fees and any fees
and expenses incurred in enforcing this indemnity) incurred by, sought from
or asserted directly or indirectly against Tenant during or after the Tenn as a
result of the presence of any Hazardous Substance, which is brought, kept or
used on, in or about the Property during the term of this Lease by Landlord, its
agents, employees, contractors or invitees or which existed on, in, or about the
Property as of the Effective Date.
6.2.5 Survival.
The
obligations of Tenant
and the indemnities set forth in this
Section 6
shall
survive the
termination
or expiration of
this
Lease.
6.2.6 Notwithstanding the warranties set forth above, Landlord makes and shall
make no warranty regarding the title to the Property except as to any warranties
which will be contained in the instruments to be delivered by Landlord should
the Tenant exercise the option to purchase the Property in accordance with this
Lease, and Landlord makes and shall make no representation or warranty either
expressed or implied (except as specifically set forth in the Lease) regarding
condition, operability, safety, fitness for intended purpose, use, governmental
requirements, development potential, utility availability, legal access, economic
feasibility or any other matters whatsoever with respect to the Property. The
Tenant specifically acknoxA ledges and agrees that Landlord shall lease to the
Tenant and Tenant agrees and acknowledges that it shall lease the Property on an
"AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for the
Landlord's representations and warranties specifically set forth in this
Agreement, Tenant is not relying on any representations or warranties of any
kind whatsoever, express or implied, from Landlord its agents, officers, or
employees, as to any matters concerning the Property including, without
limitation, any matters relating to (1) the quality, nature, adequacy, or physical
condition of the Property, (2) the quality nature, adequacy or physical condition
of soils, fill, geology, or any groundwater, (3) the existence, quality, nature,
adequacy or physical condition of utilities serving the Property, (4) the
development potential, income potential, expenses of the Property, (5) the
Property's value, use, habitability, or merchantability, (6) the fitness, suitability,
or adequacy of the Property for any particular use or purpose, (7) the zoning or
other legal status of the Property, (8) the compliance of the Property or its
operation with any applicable codes, laws, rules, regulations, statutes,
ordinances, covenants, judgments, orders, directives, decisions, guidelines,
conditions, or restrictions of any governmental or quasi -governmental entity or
of any other person or entity, including, without limitation, environmental person
or entity, including without limitation, environmental laws, (9) the presence of
Hazardous Materials (as defined herein) or any other hazardous or toxic matter
on, under, or about the Property or adjoining or neighboring property, (10) the
freedom of the Property from latent or apparent vices or defects, (11)
environmental matters of any kind or nature whatsoever relating to the Property,
(12) any development order or agreement, or (13) any other matter or matters of
any nature or kind whatsoever relating to the Property.
6.2.7 Notwithstanding the disclaimers set forth in Section 6.2.6, during the term of this
Lease, Tenant shall, and may peacefully have, hold and enjoy the Premises
against all persons claiming by, through or under Landlord, subject to the other
terms hereof, provided that Tenant pays all rent and other sums required under
this Lease to be paid by Tenant and performs all of Tenant's covenants and
agreements herein contained.
6.3 Hazardous Waste Definition. As used herein, the term "Hazardous Materials" means
(i) those substances included within the definitions of "hazardous substances",
"hazardous materials", "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §960 et
seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.,
the Hazardous Materials Transportation Act, 49 U.S. C. §1801 et seq., or the Clean
Water Act, 33 U.S.C. §1321 et seq., as amended, and in the regulations promulgated
pursuant thereto; (ii) those substances listed in the United States Department of
Transportation Table (49 CFR § 172.101) or by the Environmental Protection Agency as
"hazardous substances", "hazardous materials", "toxic substances" or "solid waste", iii
such other substances, materials and wastes which are regulated, or classified as
hazardous or toxic, under applicable local, state or federal laws, ordinances or
regulations; and any material, waste or substance which is petroleum, asbestos,
polychlorinated, biphenyls, flammable explosives or radioactive materials.
SECTION 7. Mechanics' Liens
7.1 Limitation of Lien Rights. Pursuant to Florida Statutes Section 713.10, any and all
liens or lien rights shall extend to and only to the right, title, and interest of Tenant in
the Project, Improvements, Property, and this Lease.
12
7.2 Impact of Liens on Landlord's Interest. The right, title, and interest of Landlord in
the Property and this Lease shall not be subject to liens or claims of liens for
improvements made by Tenant. Nothing contained in this Lease shall be deemed or
construed to constitute the consent or request of Landlord, express or implied, by
implication or otherwise, to any contractor, subcontractor, labor, or materialman for
the performance of any labor or the furnishing of any materials for any specific
improvement of, alteration to the Property, , any Improvements, or any part thereof,
nor as giving Tenant, any lender, subtenant, lessee, or sublessee any right, power or
authority to contract for, or permit the rendering of, any services or the furnishing of
materials that would give rise to the filing of any lien, mortgage, or other
encumbrance against landlord's interest in the Property, or any part thereof, or against
any assets of Landlord, or against Landlord's interest in any rent or other monetary
obligations of Tenant under this Lease, or any other rights whatsoever with respect to
this Lease.
7.3 Notice. Notice is hereby given, and Tenant shall cause all construction agreements
entered into between Tenant and any general contractor or other contractor in privity
with Tenant to provide that:
(a) Landlord shall not be liable for any work performed or to be performed at the
Property, or any part thereof, for Tenant, any lender, subtenant, lessee, or
sublessee, or for any materials furnished or to be furnished to the Property, or any
part thereof, for any of the foregoing; and
(b) No mechanic's, laborer's, vendor's, materialmen's, or other similar statutory lien
for such work or materials shall be attached to or affect Landlord's interest in the
Property, or any part thereof, or any assets of Landlord, or any interest of
Landlord's in any rent or other monetary obligations of Tenant under this Lease,
or any other rights whatsoever with respect to this Lease.
7.4 Contestinpr Liens. If Tenant desires to contest any such lien prohibited by this Section
71 it shall notify Landlord of its intention to do so within ten (10) business days after
the filing of such lien. In such case, Tenant, at Tenant's sole cost and expense, shall
protect Landlord by a good and sufficient bond against any such lien in any cost,
liability, or damage arising out of such contest. The lien, if Tenant timely provides the
bond described above, shall not be considered a default hereunder. In the event of any
such contest, Tenant shall protect and indemnify Landlord against all loss, expense
and damage resulting therefrom.
7.5 Restatement. The terms of this Section
Lease in sufficient detail to satisfy the
Statutes.
7 will be restated in the Memorandum of
requirements of Section 713.10, Florida
SECTION 8. Payment of Costs Regarding the Property
8.1 Taxes; Assessments, etc.
This Lease
is a triple net lease.
Accordingly, Tenant shall
pay, prior to delinquency:
any and all
taxes, assessments,
levies, fees, fines, penalties
13
and all other governmental charges, general and special, ordinary and extraordinary,
foreseen and unforeseen subsequent to the Effective Date, which are during the Term
hereof imposed or levied upon or assessed against (a) the Property, (b) the
Improvements on the Property, or (c) this Lease, the leasehold estate hereby created
or which arises in respect of the operation, possession or use of the Property. Tenant
shall deliver to Landlord proof of payment of taxes required to be paid by Tenant
hereunder. If Tenant fails to pay any of the foregoing before they become delinquent,
Landlord, after notice to Tenant, may pay such delinquent taxes, assessments, levies,
fees, fines, penalties and governmental charges, and all expenditures and costs
incurred thereby shall be payable as additional rent hereunder within Thirty (30)
calendar days after such notice to Tenant, If the Premises or any portion thereof are
included in a tax parcel with other properties, Tenant shall be responsible for only
that portion of taxes and assessments allocated to the Premises, as determined in
Landlord's reasonable judgment. Landlord shall furnish to Tenant copies of tax bills
together with statements of the amount due from Tenant. Tenant shall pay these
amounts to Landlord within Thirty (30) calendar days after receipt of Landlord's
statement. Tenant's obligations under this Section shall survive the expiration or
termination of this Lease. Tenant may, if it desires, contest the validity or amount of
any such tax, in which event, Tenant shall pay to the applicable taxing authority at
least the minimum amount required in order to contest such tax obligation, in which
case Tenant may subsequently seek a refund upon a favorable determination or shall
otherwise remit to the applicable taxing authority the unpaid balance, if any,
following an unfavorable determination. Tenant shall not be deemed in default under
this Lease during the pendency of any contest with respect to any tax which is the
subject of such contest.
8.2 Utilities. Tenant, at its sole cost and expense, shall obtain and promptly pay for all
utility services furnished to or consumed on the Property, including, but not limited
to, electricity, gas, water, sewer, heat, telephone, cable, internet, telecommunication,
garbage collection, and all charges related to any of these services.
8.3 Triple Net Lease. This Lease is a "triple net" lease. Tenant shall pay all rent and all
other charges due under this Lease without notice or demand and free from any
charges, taxes, assessments, impositions, claims, damages, expenses, deductions, set-
offs, counterclaims, abatements, suspensions or defenses of any kind. It is the
intention of the parties that the obligations of Tenant shall be separate and
independent covenants, that the rent and all other charges payable by Tenant shall
continue to be payable in all events, and that the obligations of Tenant shall continue
unaffected unless the requirement to pay or perform the same shall have been
terminated or modified pursuant to an express provision of this Lease. Except as
otherwise specifically provided in this Lease, Tenant shall pay and be responsible to
Landlord for all costs, expenses, obligations, liabilities and acts necessary to and for
the proper use, operation, maintenance, care and occupancy of the Property.
SECTION 9. Insurance
14
9.1 Liability Insurance. As of the Effective Date, Tenant shall provide and keep in force,
at its sole cost and expense, with responsible insurance companies reasonably
acceptable to Landlord, comprehensive general liability insurance covering the
Property and providing coverage with maximum limits of liability of not less than
One Million Dollars ($1,000,000) for personal injury to or death of any one person,
Two Million Dollars ($2,000,000) for personal injury to or death of any group of
persons as a result of one accident, and One Million Dollars ($1,000,000) for property
damage. Such policy shall name Landlord as an additional insured.
9.2 Casualty Insurance. Tenant, at its sole expense, shall keep all Improvements on the
Premises insured against loss by fire and all of the risks and perils usually covered by
an ``all risk" endorsement to a policy of fire insurance upon property comparable to
the Improvements, including vandalism and malicious mischief endorsements, in an
amount equal to at least eighty percent (80%) of the replacement cost of the
Improvements. Tenant shall furnish to Landlord evidence of coverage and any
renewals or replacements of this insurance. Landlord shall be named an additional
insured under this policy. Landlord, however, waives all rights and disclaims any
interest in any insurance adjustments and settlements with respect to damage to the
Improvements unless this Lease is terminated, in which event the proceeds shall be
paid to Landlord.
9.3 Evidence of Insurance. Prior to Tenant taking possession of the Premises, Tenant
shall provide satisfactory evidence of all required insurance to Landlord, in the form
of either: (a) a certificate of insurance; or (b) a certified copy of the actual insurance
policy. All insurance policies must specify that they are not subject to cancellation or
non -renewal without a minimum of Ten (10) calendar days of notification to Tenant.
Tenant shall, in addition to any other obligation to indemnify the Landlord and to the
fullest extent permitted by law, protect, defend, indemnify and hold harmless the
Landlord, their agents, elected officials and employees from and against all claims,
actions, liabilities, losses (including economic losses), costs arising out of any actual
or alleged: a). Bodily injury, sickness, disease or death, or injury to or destruction of
tangible property including the loss of use resulting therefrom, or any other damage
or loss arising out of or resulting, or claimed to have resulted in whole or in part from
any actual or alleged act or omission of the Tenant , anyone directly or indirectly
employed by any of them, or anyone for whose acts any of them may be liable in the
performance of the obligations under the Lease; or b). violation of law, statute,
ordinance, governmental administration order, rule, regulation, or infringement of
patent rights by Tenant in the performance of the obligations under the Lease; or c).
liens, claims or actions made by the Tenant or any subcontractor under workers
compensation acts; disability benefit acts, other employee benefit acts or any statutory
bar. Any cost of expenses, including attorneys fees, incurred by the Landlord to
enforce this Lease shall be borne by the Lessee.
9.4 Upon expiration of this Lease, or the cornpletion of all obligations and duties
provided for in this Lease, or in the event of termination of this Lease for any reason,
the terms and conditions of this Article shall survive indefinitely.
15
9.5 The Tenant shall pay all claims, losses, liens, settlements or judgments of any nature
whatsoever in connection with the foregoing indemnifications including, but not
limited to, reasonable attorneys fees (including appellate attorney's fees) and costs.
9.6 Landlord reserves the right to select its own legal counsel to conduct any defense in
any such proceeding and all reasonable costs and fees associated therewith shall be
the responsibility of Tenant under the indemnification agreement. Nothing contained
herein is intended nor shall it be construed to waive Landlord's rights and immunities
under the common law or Florida Statute 768.28 as amended from time to time.
9.7 The Tenant shall insure that it provides all insurance coverages as required in the
Insurance Requirements which is attached hereto as Exhibit "C and incorporated
herein by reference. At all times during the term of this Lease, Tenant shall at a
minimum maintain the coverages described on Exhibit "C but if the coverages
required by any mortgage lender to Tenant are more comprehensive or require higher
policy limits, then this Lease shall be deemed to require the types of coverage and
limits then required by Tenant's mortgage lender.
9.8 The Tenant shall maintain such insurance in full force and effect during the term of
this Lease, including any renewal terms. The Tenant shall provide to the Landlord's
Risk Manager current certificates of all insurance required under this section prior to
beginning any work under this Lease. No material change or cancellation of any
policies shall be made by the Tenant unless the Tenant has first provided the Landlord
with written notice of the change or cancellation no less than thirty (30) calendar days
prior to the effective date of cancellation or change.
9.9 Tenant shall provide that the insurance company issuing the insurance policy or
policies shall not have the right of subrogation against the Landlord. On or before the
Commencement Date of this Lease, and thereafter not less than fifteen (15) calendar
days prior to the expiration dates of said policy or policies, Tenant shall provide
copies of policies or certificates of insurance evidencing coverages required by this
Lease. The insurance required under this Lease shall be issued by insurance
companies authorized to do business in the State of Florida with a financial rating of
at least an "A-VII" as rated in the most recent edition of Best's Insurance Reports or a
rating agency of equal legal and business strength and reputation (the "Insurance
Period").
9.10 Tenant shall indemnify and save the Landlord harmless from any claim, damage,
loss, or suit resulting to the Landlord, its agents, employees, officials, and
representatives as a result of Tenant's or any of its subcontractors failure to obtain or
maintain such insurance.
9.11 Tenant shall be responsible for the payment of all deductibles and self-insurance
retentions. The Landlord may require that the Tenant purchase a bond to cover the
full amount of the deductible or self -insured retention.
16
9.12 Any covered or insured loss shall be payable notwithstanding any act or negligence of
the Tenant, or the Landlord, which might otherwise result in the forfeiture of said
Insurance.
9.13 The amounts of insurance coverage required herein shall be reviewed on an annual
basis to ensure insurance coverage required hereunder satisfies all legal requirements
imposed upon Landlord or otherwise, and to ensure that Tenant has insurance in place
which satisfies at a minimum the requirements attached hereto as Exhibit "C or
such additional coverages and/or higher policy limits as may then be required by any
mortgage lender to Tenant.
9.14 Tenant shall maintain at all times insurance covering all of the items included in
Tenant's improvements, infrastructure, appurtenances, and related trade fixtures and
personal property, from time to time in or upon the Property, and alterations,
additions or changes made by Tenant in an amount not less than eighty (80%) percent
of their full replacement cost as detennined from time to time by the Landlord during
the Term, providing protection against vandalism and malicious mischief.
SECTION 10. Financing
10.1 Tenant's Financing. Tenant shall have the right during the Term to subject the
Improvements and Tenant's leasehold interest in the Premises to one or more
mortgages, deeds of trust, assignments of lease, security agreements or other methods
of financing or refinancing (a "Mortgage,'' any holder of which is called a
"Mortgagee"), or to any one or more extensions, modifications or renewals or
replacements of a Mortgage. Tenant shall immediately notify Landlord in writing of
the name and address of any Mortgagee.
10.2 At such time as Tenant receives a loan commitment or other evidence of a loan which
it intends to accept, Tenant shall provide to Landlord within Ten (10) days of
Landlord's written request a copy of such loan commitment or other evidence.
SECTION 11. Rights of Mortgagee
11.1 Notice to Mortgagee. If Tenant shall be in default under this Lease, and the
applicable grace period for cure by Tenant shall have expired, Landlord shall send a
copy of the written notice of the default to Mortgagee at its address as provided in
writing to Landlord by Tenant. Mortgagee shall have thirty (30) calendar days after
delivery of the written notice from Landlord within which to cure or remove the
default, and if the default cannot with diligence be cured within the thirty (30)
calendar day period, then Mortgagee shall have a reasonable time thereafter but not to
exceed sixty (60) calendar- days to effect such cure' provided that Mortgagee
promptly commences to cure the same and thereafter pursues the curing of the default
with diligence. Notwithstanding any other provision of this Lease, at any time when
any Mortgage is in effect, Landlord shall not have any right pursuant to this Lease or
otherwise to terminate this Lease due to Tenant's default unless Landlord shall have
first given a copy of the written notice of default to Mortgagee and unless Mortgagee
17
shall have failed to cure or remove, or cause to be cured or removed, the default,
within the time required by this Section 11.
11.2 Acceptance of Cure. Subject to the terms of an agreed upon subordination agreement
between Landlord and any Mortgagee, Landlord will accept a timely and complete
performance by Mortgagee of any covenant, agreement or obligation of Tenant
contained in the Lease with the same effect as though performed by Tenant.
11.3 New Lease. If this Lease is terminated for any reason, including, but not limited to
any termination following Mortgagee's failure to cure a default as permitted in
Section 11.1, or in the event of the rejection or disaffirmance of this Lease pursuant to
bankruptcy laws or other laws affecting creditors' rights, Landlord will enter into a
new lease of the Property with Mortgagee, or with any affiliated party of Mortgagee
designated by the Mortgagee, within 30 days after the request of Mortgagee referred
to below. The new lease shall be effective as of the date of termination, rejection or
disaffirmance of this Lease and shall be upon the same terms and provisions
contained in this Lease (including the amount of rent and other sums due from Tenant
hereunder and including all rights and obligations with respect to the Option
described herein). In order to obtain a new lease, Mortgagee must make a written
request to Landlord for the new lease within 30 days after Mortgagee is notified of
the effective date of termination, rejection or disaffirmance of the Lease, as the case
may be, and the written request must be accompanied by a copy of the new lease,
duly executed and acknowledged by Mortgagee or the affiliated party of Mortgagee
designated by Mortgagee as tenant. In addition, Mortgagee shall cure all defaults
under the Lease that can be cured by the payment of money and pay to Landlord all
rent and other sums that would have been due and payable by Tenant under this Lease
but for the rejection, disaffirmance or termination. Any new lease made pursuant to
this Section 11.3 shall be senior and superior to any other encumbrances on the
Property. Mortgagee's rights under this Section 11.3 are in addition to, and not
limited by, Mortgagee's right to cure under Section 11.1. From the effective date of
termination, rejection or disaffirmance of this Lease to the date of execution and
delivery of such new lease or the expiration of the period during which Mortgagee
may make a request, Mortgagee may, upon payment of the rent and any other sums as
may be due from Tenant, use and enjoy the leasehold estate created by this Lease
without hindrance by Landlord.
11.4 Delay for Foreclosure. If Landlord has given Mortgagee notice of Tenant's default
under Section 11.1 and Mortgagee desires to cure Tenant's default but is unable to do
so while Tenant is in possession of the Property, or if Landlord has elected to
terminate this Lease and Mortgagee desires to obtain a neNv lease pursuant to Section
11.3 but has not yet acquired Tenant's leasehold interest in this Lease, then
Mortgagee shall have the right to postpone the specified date for effecting a cure of
this Lease but in no event shall that postponement exceed Ninety (90) calendar days
or obtaining a new lease for a period reasonably sufficient to enable Mortgagee or its
designee to acquire Tenant's interest in this Lease by foreclosure of its Mortgage or
otherwise, as long as Mortgagee pays Landlord the rent and other sums due under this
Lease during the postponement. Mortgagee shall exercise the right to extend the cure
IR
period or the date for obtaining a new lease by giving Landlord written notice at least
three (3) calendar days prior to the last date that Landlord would otherwise be entitled
to elect a cure or obtain a new lease and by tendering to Landlord any rent and other
charges then in default.
11.5 No Surrender.
If any Mortgage is in effect, Landlord will not accept a voluntary
surrender of this Lease.
11.6 Obligations regarding Covenants. The provisions of this Section 11 are for the
benefit of Mortgagee and may be relied upon and shall be enforceable by any
Mortgagee. Neither Mortgagee nor any other holder or owner of the indebtedness
secured by the Mortgage or otherwise shall be liable upon the covenants, agreements
or obligations of Tenant contained in this Lease, unless and until Mortgagee or that
holder or owner acquires the interest of Tenant.
11.7 Certain Conditions; Rights of Landlord. In order for any Mortgagee to be entitled to
the benefits provided by this Section 11.7, the Mortgagee must expressly agree in a
written agreement with Landlord in recordable form as follows: (i) that the Mortgagee
will give Landlord notice of any default by Tenant under such Mortgage, and that
Landlord will have the option, but not the obligation, to exercise either of the
following rights within thirty (30) calendar days after receipt of such notice: (A)
Landlord may cure said default within such 30-calendar day period if it shall so
choose, unless such default is of such a nature that it cannot be completely cured
within such 30-calendar day period, in which event Landlord shall have such longer
period as shall be reasonably necessary to cure such default if Landlord shall so
choose, provided Landlord commences such cure with such 30-day period and
thereafter diligently prosecutes such cure to completion, or (B) Landlord may
purchase the outstanding loan secured by the Mortgage and all related documents by
giving the Mortgagee written notice of its intent to do so within such 30-day period;
(ii) the purchase price for the loan shall be the total of (A) the outstanding principal
balance of the loan as accelerated, (B) all accrued but unpaid interest, (C) all costs
incurred by Mortgagee in connection with any of its attempts to collect the loan and
enforce its remedies, including reasonable attorneys, fees and other costs in
connection with preparation for foreclosure, and (D) all other amounts due and owing
under the loan documents; provided, however, the purchase price shall not include
any prepayment penalties or fees; and (iii) the transfer of the loan to Landlord will be
without recourse. Tenant hereby consents to any cure by Landlord of any default by
Tenant under a Mortgage. Tenant shall reimburse Landlord for all payments, costs
and expenses made, paid or incurred, together with interest thereon (which payments
costs, expenses and interest shall be considered additional rent hereunder), by
Landlord in connection with the cure of an), such default or the acquisition of any
loan by Landlord, including attorney's fees, immediately upon receipt of Landlord's
written demand for reimbursement.
SECTION 12. Casualtj7
19
12.1 Duty to Except as otherwise provided in this Section 12 and subject to the
terms and conditions of any Mortgage, if the Improvements or any part thereof shall
be damaged or destroyed by any casualty or cause whatsoever, Tenant shall within
five (5) calendar days after Tenant becomes aware that any casualty to the
Improvements or any part thereof is of a material nature give written notice thereof
to Landlord, and Tenant shall be responsible to restore, repair, or rebuild the
Improvements to substantially the same condition that existed prior to such damage or
destruction. Tenant shall commence reconstruction, repair, restoration, or rebuilding
of the damaged or destroyed portion within thirty (30) calendar days following the
later to occur of (i) the date when Tenant may commence repairs on the damaged
Improvements after having satisfied all requirements with respect to the inspections
and investigations required in connection with the claims procedures required by any
insurer in connection with any applicable insurance policies, and (ii) receipt of all
permits and approvals required to be obtained from applicable authorities in
connection with the restoration of the Improvements, and thereafter Tenant shall
diligently pursue the same to completion.
12.2 Tenant's Election to Terminate. In case of any damage or destruction occurring in
the last 10 years of the Term or the renewal term rendering the project untenable,
Tenant may, at Tenant's option, by notice in writing given Landlord within thirty (30)
calendar days after- the occurrence of such damage or destruction, elect to terminate
this Lease. This Lease shall then terminate on the date specified in the notice, except
as provided below and except with respect to obligations and liabilities of Landlord
and Tenant under this Lease that have arisen on or before such date of termination. In
the event of termination, the insurance proceeds payable in connection with the
damage or destruction of the Improvements shall be payable to the Mortgagee in the
event that a Mortgage is in effect, with the balance payable to Landlord. In no event
shall Landlord be entitled to any proceeds or compensation awarded for Tenant's lost
profits under any policy of insurance maintained by Tenant. Upon this termination,
regardless of the amount of proceeds available, Tenant shall satisfy and cause to be
released any mortgages (including any Mortgage), liens or other encumbrances
placed or suffered to be placed on the Premises by Tenant. In addition, Tenant shall
do any work (e.g. demolition) necessary that the Premises will be surrendered to
Landlord in safe and proper condition.
12.3 Landlord's Election to Terminate. Tenant's failure to commence its repair,
restoration, rebuilding, or reconstruction of the Improvements in accordance with this
Section 12, shall, unless such failure is due to circumstances which are beyond the
control of Tenant, be deemed a default under this Lease.
12.4 Payment of Proceeds. Subject to the terms and conditions of any Mortgage, all
insurance proceeds paid on account of such damage or destruction, less the
reasonable cost, if any, incurred in connection with adjustment of the loss and the
collection thereof, shall be paid to Tenant and are to be applied solely to the payment
of the costs of the aforesaid restoration, repair, rebuilding or reconstruction, including
the cost of temporary repairs or for the protection of property pending the completion
of permanent restoration, repairs, rebuilding, or reconstruction. Following completion
20
of the restoration or repair work, any balances of the insurance money paid to Tenant
shall be retained by Tenant.
12.5 No Abatement. No destruction of or damage to the Improvements by fire or any
other casualty or cause shall relieve Tenant from any term or provision of this Lease.
Except as set forth herein, Tenant waives any rights now or hereafter conferred upon
it by statute or other applicable law to terminate or surrender this Lease or the
Improvements or any part thereof, or to any suspension, diminution, abatement or
reduction of rent on account of any such destruction or damage. If the Improvements
shall be damaged or rendered wholly or partially untenantable by fire or other
casualty during the Term, no rent shall abate during such period, whether the Property
is tenantable or not.
SECTION 13. Condemnation
13.1 Participation in Proceedings. In the event that the Premises in whole or in any part,
shall be taken in condemnation proceedings or by exercise of any right of eminent
domain or by agreement between Landlord, Tenant, and those authorized to exercise
such right (any such matters being herein referred to as a "Taking"), Landlord,
Tenant, and any person having an interest in the award or awards, including, without
limitation, any Mortgagee, shall have the right to participate in any such
condemnation proceedings or agreement for the put -pose of protecting their interests
hereunder. Each party so participating shall pay its own expenses therein.
13.2 Effect of Taking; Termination of Lease. If at any time during the Term or the
renewal term of this Lease there shall be a Taking of substantially all of the Premises,
this Lease shall terminate and expire on the date of such Taking. For the purpose of
this Article, "substantially all of the Premises" shall be deemed to have been taken if
the Taking would result in fifty-one percent (51%) or more of the Improvements
being removed or rendered unusable, or if the portion of the Improvements so taken,
in Tenant's reasonable judgment, would render the remainder of the Improvements
insufficient for the economic and feasible operation thereof by Tenant.
13.3 Allocation of Proceeds. Any award or compensation paid on account of any Taking
shall be paid to Tenant; provided, however, to the extent such award or compensation
is required to be paid to a Mortgagee pursuant to a Mortgage, Tenant's share of such
award or compensation shall be paid to such Mortgagee.
13.4 Continuation of Lease After Taking. If any Taking shall not be of substantially all of
the Premises, this Lease shall continue after any such partial Taking and shall remain
unaffected, except that Tenant shall commence the restoration work in the time -frame
specified below and diligently pursue the same to completion. Tenant shall
commence the restoration work within thirty (30) calendar days following its receipt
of the condemnation award and all permits and approvals required to be obtained by
applicable authorities in connection with the restoration of the Improvements, and
thereafter Tenant shall diligently pursue the same to completion.
21
13.5 Taking of Lesser Interests. In the event of the Taking of an easement or any other
taking which shall be of an interest or estate in the Premises less than a fee simple, as
a result of which the Premises shall be insufficient for the economic and feasible
operation thereof by Tenant, this Lease shall terminate and expire with the same force
and effect as in the case of a Taking pursuant to Section 13.2 hereof. Otherwise, such
Taking shall be deemed insufficient to terminate this Lease, and the division of the
award shall be governed by Section 13.3 hereof. For purposes of this Section, any
change of grade of a roadway on which the Premises abuts, to the extent that such
change impairs Tenant's use of the Premises and requires Tenant to make changes to
the Premises to restore such use, shall be deemed a partial Taking subject to this
Section 13, and any recovery as a result of the same shall be paid to Tenant to the
extent provided in this Section 13 for restoration costs.
SECTION 14. Assignment; Subletting
14.1 Restriction. Except for any assignment or subletting permitted pursuant to this Lease,
Tenant shall not assign this Lease or sublet all or any portion of the Premises (other
than residential or commercial leases of all or any portion of the Improvements
entered into in the ordinary course of Tenant's business) unless and until Tenant shall
first obtain Landlord's prior written consent, which consent shall not be unreasonably
withheld but may be conditioned upon such assignee having financial resources that
are comparable to or more substantial than those of the Tenant.
14.2 Continuing Liability. In the event of any assignment of this Lease or sublease of all
or a portion of the Premises, Tenant shall not be relieved from liability for any of the
obligations hereunder without Landlord's written consent, which shall not be
unreasonably withheld.
SECTION 15. Defaults; Remedies
15.1 Default. If one or more of the following events (`Defaults") shall happen and be
continuing: (a) Tenant fails to pay within five (5) calendar days of when due any
amount to be paid under this Lease by Tenant and the failure continues for ten (10)
calendar days after written notice from Landlord; (b) Tenant fails to perform or
observe any other covenant or condition to be performed or complied with by Tenant
under this Lease, and the failure continues for ten (10) calendar days after written
notice by Landlord to Tenant; or, if the default complained of is not a monetary
default and is of such a nature that it cannot reasonably be completely cured or
remedied within such ten (10) calendar day period, Tenant fails to commence to cure
the default during the ten (10) calendar day period, or does not thereafter diligently
prosecute such remedy or cure to completion, (c) Tenant files or there is filed against
Tenant a petition in bankruptcy or a petition or answer- seeking reorganization under -
the Federal Bankruptcy Code or any other applicable statute; or (d) an order is entered
adjudicating Tenant a bankrupt or approving an involuntary petition seeking a
reorganization of Tenant under the Federal Bankruptcy Code or any other applicable
statute or appointing a receiver, trustee or conservator for all or any substantial part of
the property of Tenant, and the order is not vacated or stayed within ninety (90)
22
calendar days of entry; then, and in any of those events (but subject to the provisions
of Section 15.3 below), Landlord shall have the right, at its option, then or at any time
while the default continues, to give a written notice specifying a date on which this
Lease shall terminate, and on that date, subject to the provisions of this Section
relating to the survival of Tenant's obligations, this Lease shall terminate; provided,
however, that Tenant shall have the right to nullify Landlord's termination by curing
the default prior to the termination date set forth in Landlord's notice.
15.2 Damages. In the event of any default and recovery of possession of the Property by
Landlord, whether or not this Lease is terminated by Landlord, Landlord shall have
the right, at its option and as liquidated and agreed damages (and not as a penalty)
due to the difficulty of ascertaining actual damages to collect not only the fixed
annual rent but an amount payable as additional rent equal to the debt service related
to the Property incurred by the Landlord for every day of Tenant's default. Landlord
and Tenant agree that such additional rent shall be deemed to be Landlord's best
estimate of the damages which will be incurred by Landlord as a result of Tenant's
default. The parties agree that it would be impracticable and extremely difficult to
ascertain the actual damages suffered by Landlord as a result of Tenant's failure to
complete the transactions contemplated pursuant to this Lease, and that under the
circumstances existing as of the date of this Lease, the liquidated damages provided
for in this Section represent a reasonable estimate of the damages which Landlord
will incur as a result of such failure. The parties acknowledge that the payment of
such liquidated damages is not intended as a forfeiture or penalty under any legal or
equitable theory, but is intended to constitute liquidated damages to Landlord.
15.3 Right to Cure Defaults. If Tenant shall fail to make any payment of taxes,
assessments or other charges, maintain required insurance coverages, or perform any
other act required to be made or performed under this Lease, Landlord, without
waiving or releasing any obligation or default, may (but shall be under no obligation
to) following reasonable prior written notice to Tenant, make the payment or perform
the act for the account and at the expense of Tenant. All sums so paid by Landlord
shall constitute additional rent and shall be paid by Tenant to Landlord on demand,
together with interest thereon from the date said funds were advanced at a rate equal
to the lower of (i) eighteen percent (18%), or (ii) the highest rate permissible at law.
15.4 Tenant Remedies. Notwithstanding anything to the contrary in this Lease, if
Landlord defaults on its obligations hereunder to convey to Tenant possession of the
leasehold interest contemplated by this Lease in accordance ",Tith the terms of this
Lease, Tenant shall have all remedies at law or in equity, including, but not limited to,
the remedy,, of specific performance.
SECTION 16. Quiet Enj( 1piient
16.1 Tenant's Right to Quiet Enjoyment. Tenant, upon paying all rent and other charges
provided for, and upon observing and keeping all covenants, agreements and
conditions of this Lease to be kept on its part, shall quietly have and enjoy the
Premises during the term of this Lease without hindrance or molestation by anyone
23
claiming by, through or under Landlord; subject, however, to the exceptions,
reservations and conditions of this Lease.
16.2 Waste. Tenant shall not permit, commit, or suffer waste or impairment of the Project,
or any part thereof; provided, however, demolition of existing improvements on the
Property existing on the Commencement Date shall not constitute waste.
16.3 Surrender. At the expiration or earlier termination of the Term, Tenant shall yield the
Property to Landlord in good order and repair. Except as otherwise provided in this
Lease, the Improvements and any other leasehold improvements shall become the
sole property of Landlord at the expiration of the term without any compensation to
Tenant. By expiration or earlier termination of this Lease, Tenant (and any tenant of
any of the Improvements) may remove any of Tenant's (or any such tenant's) trade
fixtures, furniture, furnishings, and other personal property from the Property, and
Tenant shall repair any damage which may result to the Property from such removal.
In the event Tenant fails to remove those items, the items shall be deemed abandoned
and shall be the property of Landlord. On or before the expiration or termination of
this Lease, Tenant shall cause any mortgages, deeds of trust, liens or encumbrances
created by, through or under Tenant to be fully released and discharged.
16.4 Landlord's Right of Entry. Tenant shall permit Landlord and its authorized
representatives to enter the Premises during ordinary working hours on business days,
in each case upon at least twenty-four hours prior notice to Tenant, for the purpose of
inspecting the same; provided, however, that due to the dangerous nature of the
construction sites resulting from construction of the Improvements upon the Property,
Landlord shall at no time enter upon the Property without being accompanied by a
representative of Tenant.
SECTION 17. Estoppel Certificate
17.1 Estoppel Certificate. Landlord or Tenant shall at any time and from time to time
upon not less than ten (10) calendar days' prior written notice from the other party
execute, acknowledge and deliver to the requesting party a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease, as so modified,
is in full force and effect) and the dates to which the Rent and other charges are paid
in advance, if any, and (ii) acknowledging that there are not, to the requested party's
knowledge, any uncured defaults on the part of the requesting party hereunder, or
specifying such defaults if any are claimed. Such estoppel certificate shall act to estop
the issuer from asserting a claim or defense against any bona fide prospective
purchaser, subtenant, assignee, or encumbrancer of all or any portion of the Premises
or the real property of which the Premises are a part to the extent that such claim or
defense is based upon facts known to the issuer as of the date of the estoppel
certificate which are contrary to the facts contained therein. and such bona fide
purchaser, subtenant, assignee, or encumbrancer has acted in reasonable reliance
upon such estoppel certificate without knowledge of facts to the contrary. The
issuance of an estoppel certificate shall in no event subject the issuer to any liability
M
for the negligent or inadvertent failure of the issuer to disclose correct and/or relevant
information, nor shall such issuance be construed to waive any rights of the issuer to
challenge acts committed by the other party for which approval by the issuer of the
estoppel certificate was required but not sought or obtained. Subject to the foregoing,
the requested party's failure to deliver such statement within such time shall be
conclusive upon such requested party (i) that this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii) that
there are no uncured defaults in the requesting party, s performance known to the
requested party except as noted therein, and (iii) that not more than one year's rental
has been paid in advance unless otherwise stated.
17.2 SNDA. Upon a request by Landlord, this Lease, and Tenant's rights hereunder shall
be subject and subordinate to the lien of any mortgages or deeds of trust or other
similar instrument that may now exist or may hereafter be placed upon the Property
and all renewals, replacements, and extensions thereof provided the holder of such
mortgage or deed of trust shall execute and deliver a Subordination, Non -Disturbance
and Attornment Agreement in recordable form mutually acceptable to the parties
thereto.
SECTION 18. Non -Subordination of Landlord's Interest
18.1 Non -Subordination of Landlord's Interest. Notwithstanding any provision in this
Lease to the contrary, Landlord's fee interest in and ownership of the Property and
Landlord's rights and interest in this Lease (including, without limitation, the rights to
rents, public charges, and other monetary obligations of Tenant to Landlord under this
Lease) shall not be subject or subordinate to or encumbered by any financing for the
Project or lien or encumbrances affecting Tenant's interest in this Lease or the
Improvements or by any acts or omissions of Tenant or any sublessee hereunder. In
this regard, all rents and other monetary obligations of Tenant to Landlord under this
Lease then payable at any point in time during the Tenn shall be paid by Tenant to
Landlord and shall be superior in right to all claims or rights hereunder or described
above in this Section.
SECTION 19. Confidentiality
19.1 Confidentiality. Except to the extent required by applicable law, specifically Chapter
119 of the Florida Statutes as may be amended from time to time, Landlord and Tenant
agree that the terms and conditions of this Lease, and all other agreements and
instruments executed and delivered by the respective parties in connection with this
Lease, including all preliminary drafts of such documents (collectively, the
"Transaction Documents"), shall remain confidential. Neither Landlord nor Tenant or
their respective agents and representatives, shall distribute or make publicly available
the Transaction Documents, or any part thereof, to any third party unless required by
law to do so.
19.2 Permitted Disclosures. Notwithstanding the foregoing, Tenant may provide copies of
the Transaction Documents and any preliminary drafts thereof to (i) third party lenders
25
or equity partners with whom Tenant is negotiating to provide financing related to the
Premises, the Project, or the Improvements, and (ii) any party who is contemplating an
acquisition of or investment in all or any part of the Premises, the Project, or the
Improvements.
SECTION 20. Conitnercial Parcel Options
20.1 Notice of Option. No later than thirty (30) months from the Commencement Date of
this Lease, Tenant shall advise Landlord in writing (the "Commercial Parcel Notice')
if it does not intend to develop the Commercial Parcel as conternplated as of the
Effective Date. Landlord shall have ninety (90) calendar days following receipt of
the Commercial Parcel Notice to advise Tenant in writing (the "Commercial Parcel
Election") either (i) that Landlord intends to amend this Lease by revising the
description of the Premises to exclude the Commercial Parcel and any provisions
applicable to the Commercial Parcel(the "Commercial Amendment Option"), or that
(ii) Tenant may seek to amend the Site Plan to develop the Commercial Parcel
pursuant to a plan of development as agreed upon by both Landlord and Tenant,
which may include (subject to applicable law), without limitation, for multi -family
residential or other residential purposes (the "Commercial Repositioning Option"). If
Landlord does not timely deliver the Commercial Parcel Election to Tenant, Landlord
shall be deemed to have elected the Commercial Amendment Option as of the last
date of such ninety (90) calendar day period.
20.2 Commercial Amendment Option. In the event the Landlord elects the Commercial
Amendment Option, then both the Landlord and Tenant mutually agree and consent
to entering into a Lease Amendment for the purpose of amending the Lease
description to extract that portion consisting of the Commercial Parcel and all
obligations with respect thereto, but without imposing any additional costs,
obligations, or liabilities upon Tenant as a result of such amendments. Provided that
the Lease Amendment does not impose any additional costs, obligations, or liabilities
upon Tenant agrees to execute a Lease Amendment. The parties agree to make
commercially reasonable efforts to agree to and executed the Lease Amendment no
later than forty-five (45) calendar days subsequent to the date of Landlord's
Commercial Parcel Election. Thereafter, within thirty (30) calendar days following
receipt of the Commercial Parcel Election, Tenant shall remove any personal property
remaining upon the Commercial Parcel. For the avoidance of doubt, upon election of
the Commercial Termination Option, this Lease shall only tenninate with respect to
the Commercial Parcel, and this Lease shall continue in full force and effect with
respect to the Residential Parcel (unless this Lease has previously been terminated
With respect to the Residential Parcel as a result of an Option Closing [as described in
Section 21 ] or otherwise by agreement of the parties).
20.3 Commercial RepositioningOption. If Landlord elects the Commercial Repositioning
Option, then Tenant shall have the right to seek all approvals, permits and licenses
deemed by Tenant, to be necessary or advisable in connection with the development
of the Commercial Parcel. Landlord agrees to execute all consents and other
documents requested by Tenant in connection with seeking such approvals and to
otherwise cooperate with Tenant in obtaining all licenses, platting and zoning
approvals, and other permits and governmental approvals as may be necessary or
required for the development of the Commercial Parcel in accordance with Tenant's
intended use.
SECTION 21. option to Purchase
21.1 Grant and Exercise of Option. Provided Tenant is not then in default of any terms or
provisions of this Lease, Tenant shall have the option at any time after the
Commencement Date, to purchase all of the Property or to purchase the Residential
Parcel only or the Commercial Parcel only upon the terms and conditions set forth
herein (the "Option''). Tenant shall exercise the Option by executing and delivering
to Landlord written notice (the "Option Notice") of its intention to exercise the
Option, identifying the portion(s) of the Property (Residential Parcel only,
Commercial Parcel only, or both Residential Parcel and Commercial Parcel) with
respect to which the Option is being exercised (the "Option Parcel',), together with all
relevant information to the proposed exercise. Unless and until a closing occurs
pursuant to an Option Notice (the "Option Closing"), Landlord and Tenant shall
continue to comply in all respects with the terms and conditions of this Lease as then
in effect.
21.2 Revocation of Option Notice. Tenant may, without penalty and at any time following
delivery of an Option Notice (but in all events subject to the payment of any
applicable Option Extension Fee(s) for the applicable time periods), revoke such
Option Notice, in which case the Lease shall continue in full force and effect, and
Tenant shall retain its Option to purchase all or any portion of the Property at any
time thereafter, which Option may be exercised by Tenant, at its sole and absolute
discretion, as set forth in Section 21.1. Such revocation shall not constitute a default
under this Lease, and the parties acknowledge and agree that there shall be no penalty
against Tenant, that Landlord shall not have been damaged thereby, and that Landlord
shall have no need for any remedy with respect thereto.
21.3 Definitions. For purposes of this Section 21, the following terms shall have the
following meanings:
21.3.1 Deposits. The Lease Deposits.
21.3.2 Sixty Month Anniversary. The date that is sixty (60) months after the
Commencement Date.
21.3.3 Sales Price shall mean:
27
From
Month
33
1 Month
36
Residential Parc I
and Commercial,
Parcel
$ 19,083,386.00
Re idential Parcel
Only
$ 15,266,709.00
Commercial
Parcel Only
$ 3,816,677.00
36
39
$ 19,319,042.00
$ 15,455,234.00
$3,863,808.00
39
42
$ 19,557,608.00
$ 15,646,086.00
$3,911,522.00
42
45
$ 19,799,120.00
$ 15,839,296.00
$31959,824.00
45
48
$ 20,043,615.00
$ 16,034,892.00
$41008,723.00
48
51
$ 20,291,128.00
$ 16,232,903.00
$4,058,225.00
51
54
$ 20,541,698.00
$ 16,433,359.00
$4,108,339.00
54
57
$ 20,795,363.00
$ 16,636,290.00
$4,159,073.00
57
60
$ 21,000,000.00
$ 16,800,000.00
$41200,000.00
60
63
$ 21,259,324.00
$ 17,007,459.00
$41251,865.00
63
66
$ 21,52 850.00
$ 17,117,480.00
$4, 304,370.00
66
69
$ 21,787,618.00
$ 17,430,094.00
$4,357,524.00
69
72
$ 22,056,668.00
$ 17,645,334.00
$4,411,334.00
72
75
$ 22,329,040.00
$ 17,863,232.00
$4,465,808.00
75
78
$ 2204,776.00
$ 18,083,821.00
$4,520,955.00
78
81
$ 22,883,917.00
$ 18,307,134.00
$41)576,783.00
81
84
$ 23,166,505.00
$ 18,533,204.00
$4,633,301.00
84
87
$ 23,452,582.00
$ 18,762,066.00
$400,516.00
87
90
$ 23,742,193.00
$ 18,993,754.00
$4,748,439.00
90
93
$ 24,035,379.00
$ 19,228,303.00
$418071076.00
93
96
$ 24,332,186.00
$ 19,465,749.00
$4,866,437.00
96
99
$ 24,632,658.00
$ 19,706,127.00
$4,926,531.00
99
102
$ 24,936,841.00
$ 191)949,473.00
$41987,368.00
102
105
$ 25,244,780.00
$ 201)195,824.00
$5,048,956.00
105
108
$ 25,556,521.00
$ 20,445,217.00
$5,111,304.00
108
111
$ 251872J 13.00
$ 201)697,690.00
$5,1741,423.00
111
114
$ 26,191,601.00
$ 20,953,281.00
$5,238,320.00
114
117
$ 2615159034.00
$ 21,212,028.00
$59303,006.00
117
120
$ 26,842,462.00
$ 21,473,970.00
$5,368,492.00
21.3.4 Option Extension Fee.
(a) Option Extension Fee shall mean a fee delivered in connection
with an Option Extension Notice delivered to the Landlord. The
amount of each Option Extension Fee for a Ninety (90) day
extension shall be (i) if with respect to both the Residential Parcel
and the Commercial Parcel, Two Hundred Fifty Thousand and
00/100 dollars ($250,000.00), (ii) if with respect to only the
Residential Parcel, Two Hundred Thousand and 00/100 dollars
m
($200,000.00), or (iii) if with respect to only the Commercial
Parcel, Fifty Thousand and 00/100 dollars ($50,000.00). Each
Option Extension Fee shall upon delivery become non-refundable
and not credited to the Purchase Price.
(b) Commending on the beginning of the Seventy -Second (72" d)
month subsequent to the Commencement Date, the Option
Extension Fee for a twelve (12) month period shall be (i) if with
respect to both the Residential Parcel and the Commercial Parcel,
One Million and 00/100 dollars ($1,000,000.00), (ii) if with respect
to only the Residential Parcel, Eight Hundred Thousand and
00/100 dollars ($800,000.00), or (iii) if with respect to only the
Commercial Parcel, Two Hundred Thousand and 00/100 dollars
($200,000.00); any such extension shall not be subject to any
proration.
21.3.5 Option Extension Notice shall mean a notice extending any obligation to
deliver an Option Notice.
21.3.6 Option Extension Period shall mean a ninety (90) day period or a one (1)
year period, as applicable, of extension for the time required to deliver a
mandatory Option Notice; such extension shall apply, as applicable, either
from sixty (60) months subsequent to the Commencement Date or from
the end of the preceding Option Extension Period.
21.4 Title Matters. within twenty (20) calendar days from Tenant's exercise of its option,
Tenant shall obtain, at Tenant's sole cost and expense, a commitment for an owner's
title insurance policy. Landlord and Tenant shall follow substantially the same
procedures, and shall have the same obligations, as set forth in Section 4 in order for
Tenant to satisfy itself with the condition of title, with corresponding adjustments
regarding the applicable dates.
21.5 Closing Coordination. Subject to satisfaction of all of the other conditions to an
Option Closing, the Option Closing shall occur in escrow upon such escrow
conditions as Landlord, Tenant, their respective attorneys, and any other interested
parties agree (e.g., a lender providing financing that will fund the purchase pursuant
to the Option). If no Option Closing has occurred by the date which is one hundred
twenty (120) calendar days following delivery of an Option Notice, unless the parties
have otherwise agreed in writing, Tenant shall be deemed to have revoked such
Option Notice, in which case the Lease shall continue in full force and effect, and
Tenant shall retain its Option to purchase all or any portion of the Property at any
time thereafter, which Option may be exercised by Tenant, at its sole and absolute
discretion, in the method set forth in Section 21.1 hereof. Such revocation shall not
constitute a default under this Lease, and the parties acknowledge and agree that there
shall be no penalty against Tenant, that Landlord shall not have been damaged
thereby, and that Landlord shall have no need for any remedy with respect thereto.
For the avoidance of doubt, although there shall be no penalty to Tenant in
29
connection with any such deemed revocation, Tenant shall in all events remain liable
for the payment of any applicable Option Extension Fee(s) for the applicable time
periods.
21.6 Closing Deliveries. Landlord shall deliver to Tenant at closing a deed, a bill of sale,
and all other affidavits and other appropriate instruments of transfer and sale to fully
effectuate the purchase of the Option Parcel and the transfer of all assets (real and
personal, tangible and intangible) of Landlord in connection with the Option Parcel to
Tenant, free and clear of all encumbrances. All documents are to be in form and
substance satisfactory to Tenant., its counsel, and any title insurer to be issuing a title
insurance policy in connection with the Option Closing.
21.7 Payment. At the Option Closing, Tenant will pay to Landlord by wire transfer of
funds the Option Purchase Price, subject to pro -rations and adjustments as set forth in
this Lease.
21.8 Tenant's Conditions. Tenant shall not be obligated to close on the acquisition of the
Option Parcel unless and until:
(a) Title to the Option Parcel is delivered in accordance with the provisions of
this Agreement and the Title Company is prepared to and will issue on the
Option Closing Date, at Tenant's expense, an owner's policy of title
insurance to Tenant, in the amount of the Option Purchase Price (or of the
total acquisition cost, if a party is acquiring both an Option Parcel and the
Improvements located thereon), insuring that marketable fee simple title to
the Option Parcel is vested in Tenant, free and clear of all liens and
encumbrances, specifically including the mortgage and any other
mortgages placed on the Premises or the Option Parcel by Landlord.
(b) Landlord is not in default in the performance of any of its obligations
under- this Lease beyond any applicable grace periods, or if any of the
representations or warranties of Landlord are untrue or inaccurate in any
material respect as of the Option Closing Date.
21.9 Landlord's Conditions.
unless and until:
Landlord shall not be obligated to convey the Option Parcel
(a) Tenant has delivered the Option Purchase Price and tendered any and all
Option Extension Fees.
(b) Tenant is not in default in the performance of any of its obligations under
this Lease beyond any applicable grace periods, except for any default that
would be cured as a result of the Option Closing.
21.10 Tenant Remedies. If Landlord defaults on its obligations hereunder to convey the
Option Parcel to Tenant in accordance with the terms of this Lease, Tenant shall have
all remedies at law or in equity, including, but not limited to, the remedy of specific
performance.
30
21.11 Mandatory
Exercise of
Option.
In connection with the following circumstances,
Tenant shall
be required
to
deliver
an Option
Notice:
21.11.1 Sale of Improvements. In connection with the proposed sale of all or any
of the Improvements developed upon the Property, Tenant shall deliver an
Option Notice in order to transfer the corresponding portion of the
Property with the applicable portion of the Improvements to be sold.
21.11.2 Sixty (60 Months. On or before the expiration of sixty (60) months from
the Commencement Date (or at the end of any prior Option Extension
Period), Tenant shall either deliver an Option Notice to Landlord
regarding the entire Property (or so much as remains subject to this Lease
at such time), or, if Tenant determines, in its sole and absolute discretion,
that for any reason an Option Closing is not feasible at such time, then in
lieu of such Option Notice (or at the end of any prior Option Extension
Period), Tenant may deliver an Option Extension Notice, and in
connection therewith, shall deliver to Landlord the applicable Option
Extension Fee.
21.12 Assi nment. The parties acknowledge that the exercise of an Option is likely to
occur where it is anticipated that the Option Parcel will be transferred to a purchaser
of the Improvements located upon such Option Parcel, or to an entity intending to
acquire title to such Option Parcel in order to develop the Improvements upon such
Option Parcel. In such event, the parties shall coordinate such that Tenant may assign
its right at closing on the Option Parcel to receive title to such Option Parcel to such
proposed acquirer, such that Landlord may deliver title to the Option Parcel directly
to such proposed acquirer, in order to avoid any potential gaps in title and in order to
minimize the transaction costs related to such transaction.
21.13 Effect of Partial Purchase. If the Option is exercised and an Option Closing has
occurred hereunder with respect to less than all of the Property, then this Lease shall
continue in full force and effect with respect to that portion of the Property which has
not been purchased pursuant to an Option or reclaimed by Landlord pursuant to the
Commercial Termination Option.
SECTION 22. Warranties
22.1 Landlord's Warranties. Landlord represents and warrants to Tenant that: Landlord
has full authority to execute, deliver and perform this Lease and each instrument and
agreement to be executed and delivered by Landlord pursuant hereto and to take all of
the actions contemplated hereby to be taken b}i Landlord, including, but not limited
to, delivery of possession of the Premises to Tenant, free and clear of all title
exceptions, except as provided herein; there is no pending proceeding to which
Landlord is a party, or of which it has been given notice concerning any
condemnation proceedings, which would materially and adversely affect the
Premises; there are no actions, suits, investigations or proceedings pending or, to the
best of Landlord's knowledge, threatened to be brought in any court or before any
31
governmental agency which could have a materially adverse effect on the ability of
Tenant to develop the Premises for multi -family residential and/or commercial retail
use or delay or prohibit possession of the Premises by Tenant as contemplated by this
Lease, nor are there any unsatisfied judgments or consent decrees which could have
any such effect. Landlord is not in default with respect to or in violation of any order,
writ, injunction or decree of any court, governmental department, agency or
instrumentality having jurisdiction over the Premises, which related to the Premises;
no toxic and/or hazardous wastes have been used or stored on, under or about the
Premises by Landlord, nor has Landlord received notice of the presence of toxic
and/or hazardous waste on, under, or about the Premises; and there are no other
tenants of the Premises or other licensees, occupants, invitees, or guests with any
right to occupy or enter upon the Premises.
22.2 The Tenant shall obtain all necessary licenses, permits and inspections necessary to
operate the Project on the Property at its own expense.
22.3 The Landlord approved General Contractor for the Project shall post a legally
sufficient Performance and Payment Bond in an amount representing 100% of the
cost of construction or in the alternative the Tenant shall post a legally sufficient
Payment Bond in an amount representing 100% of the cost of construction. The
Bond posted by the General Contractor or the Bond posted by the Tenant shall
identify the Landlord as an additional obligee. Prior to commencing construction of
the Project, Tenant shall provide Landlord with a copy of the Payment Bond or the
Contractor's Performance and Payment Bond. In the event any contractor or
subcontractor records a Claim of Lien, pursuant to Chapter 713, Florida Statutes
against the Property, Tenant shall take all necessary action to insure that the Claim of
Lien is released from the Premises within ten (10) calendar days from its recordation
or else shall protect Landlord by a good and sufficient bond against any such lien or
any cost, liability, or damage arising in connection with any such lien.
SECTION 23. Provisions with Respect to Escrow Agent
23.1 Escrow Agent. It is understood and agreed that the duties of Escrow Agent are purely
ministerial in nature. In addition to, and not in limitation of, any other provisions of
this Lease with respect to Escrow Agent, it is further agreed that:
23.1.1 No Obligations. Escrow Agent shall not be responsible for the performance
by Tenant or Landlord of their respective obligations under this Lease.
Escrow Agent shall not be liable or responsible to perform any act pertaining
to this Lease other than as set forth in this Lease, or because of the loss of any
monies arising through insolvency or the act or default or omission of any
person other than Escrow Agent.
23.1.2 Reliance. Escrow Agent shall have the right to act in reliance upon any
document, instrument or signature believed by it in good faith to be genuine
and to assume (unless it has reason to believe otherwise) that any person
purporting to give any notice or instructions in accordance with this Lease or
32
in connection with any transaction to which this Lease relates has been duly
authorized to do so. Escrow Agent shall not be obligated to make any inquiry
as to the authority, capacity, existence or identity of any person purporting to
give any such notice or instructions. Escrow Agent is authorized, in its sole
discretion, to disregard any and all notices or instructions given by Tenant or
Landlord or by any other person, firm or corporation, except only such notices
or instructions as are herein provided for and orders or process of any court.
23.1.3 Conflicting Instructions or Uncertainty. In the event that Escrow Agent shall
be uncertain as to its duties or rights hereunder or shall receive instructions
with respect to the Deposit which, in its sole opinion, are in conflict with
either other instructions received by it or any provision of this Lease, it shall
be entitled to hold the Deposit, or a portion thereof, pending the resolution of
such uncertainty to Escrow Agent's sole satisfaction, by entry of an order,
judgment or decree by a court or courts of competent jurisdiction or
otherwise; or Escrow Agent, at its option, may deposit the Deposit in the
registry of a court of competent jurisdiction, in a proceeding to which all
parties in interest are joined. Upon so depositing such Deposit and filing its
complaint and interpleader, Escrow Agent shall be completely discharged and
released from further liability.
23.1.4 No Liability. Escrow Agent shall not be liable for any action taken or omitted
hereunder except in the case of its bad faith, gross negligence or willful
misconduct. Escrow Agent shall be entitled to consult with counsel of its own
choosing and shall not be liable for any action taken, suffered or omitted by it
in reasonable reliance upon the advice of such counsel. Any reasonable
expenses incurred by Escrow Agent in connection with such consultation shall
be reimbursed jointly and severally by the parties hereto.
23.1.5 Indemnification. Tenant and Landlord, jointly and severally, indemnify
Escrow Agent and holds it harmless from and against any and all claims,
liabilities, damages, costs, penalties, losses, actions, suits or proceedings at
law or in equity, or any other expenses, fees, or charges of any character or
nature, which it may incur or with which it may be threatened directly or
indirectly arising from or in any way connected with the Deposit or which
may result from Escrow Agent following instructions from any of them; and
in connection therewith, each of Tenant and Landlord, jointly and severally,
indemnifies Escrow Agent against any and all expenses, including attorneys"
fees and the cost of defending any action, suit, or proceeding or resisting any
claim, xvhether or not litigation is Instituted. Escrow Agent will be vested
with a lien on the Deposit to secure the aforementioned indemnity.
23.1.6 Right to Select Attorney. Escrow Agent will have the right to utilize the
services of the attorneys of its choice, and such election will not affect or in
any way prejudice or limit Escrow Agent's entitlement to reasonable
attorneys, fees for the services of such attorneys as set forth herein.
33
23.1.7 Limitation of Duties. This Lease sets forth exclusively the duties of Escrow
Agent with respect to any and all matters pertinent hereto and no implied
duties or obligation shall be read into this Lease against Escrow Agent.
SECTION 24. Notices
24.1 Notice Procedure. Any notice required or permitted to be given to a party under the
provisions of this Lease shall be in writing and may be delivered via courier or hand -
delivery, by nationally recognized overnight air courier, or by certified or registered
United States mail, postage prepaid. return receipt requested, addressed as follows:
Landlord: Alan J. Polin, P.A., Trustee
7525 NW 88t" Avenue
Tamarac, FL 33351
with a copy to: Michael Cernech, City Manager
7525 NW 88"' Ave.
Tamarac, FL 33351
Tenant: J KM Tamarac Village, LLC
Attn: John K. Markey and Adam P. Freedman
2300 Glades Road
Suite 202E
Boca Raton, FL 33431
with a copy to: Stephen J. Grave de Peralta, Esq.
PG Law
5030 Champion Blvd., Suite G11-281
Boca Raton, Florida 33496
Escrow Agent: PG Law
5030 Champion Blvd., Suite G 11-281
Boca Raton, Florida 33496
Each such notice, request, or other communication shall be considered given and shall
be deemed delivered (a) on the date delivered if by personal delivery or courier
service; or (b) on the date on which the return receipt is signed or delivery is refused
or the notice is designated by the postal authorities as not deliverable, as the case may
be, if mailed. Rejection, refusal to accept, or inability to deliver shall be deemed to
be a receipt of such notice, request, or other communication. The respective attorneys
for Tenant and Landlord are hereby authorized to give any notice pursuant to this
Agreement on behalf of their respective clients. Copies of applicable notices shall be
given to Escrow Agent.
24.2 Change of Address. Either party may, from time to time, change its notice address by
written notice to the other party at its then -current mailing address, in accordance
with the provisions of this section.
34
SECTION 25. Radon Gas
25.1 Notice. Radon is
a naturally occurring
radioactive gas that, when it
has accumulated
in a building in
sufficient quantities,
may present health risks to
persons who are
exposed to it over time. Levels that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from the County Public Health Unit.
SECTION 26. Miscellaneous
26.1 No Waiver. No waiver of any condition or covenant of this Lease shall be deemed to
imply or constitute a further waiver of the same or any other condition or covenant,
and nothing contained in this Lease shall be construed to be a waiver on the part of
Landlord of any right or remedy in law or otherwise.
26.2 Binding Effect. This Lease and the covenants and agreements of the parties shall be
binding upon and inure to the benefit of Landlord and its successors and assigns and
to the benefit of Tenant and its permitted successors and assigns.
26.3 Partial Invalidity. In the event any clause, tern or condition of this Lease shall be
determined to be illegal or unenforceable under any applicable governmental laws,
orders, rules or regulations, this Lease shall remain in full force and effect as to all
other terms, conditions and provisions.
26.4 Counterparts. This Lease may be executed simultaneously or in two or more
counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
26.5 Governing Law. This Lease shall be governed by the laws of the state of Florida.
This Lease is subject to and shall comply with the charter of the City of Tamarac as
the same is in existence as of the execution of this Lease and the ordinances of these
City of Tamarac. Any conflict between this Lease and the aforementioned charter of
the City of Tamarac and ordinances shall be resolved in favor of the latter.
26.6 Memorandum of Lease. Landlord and Tenant have executed and delivered to each
other a memorandum of this Lease for recording. Landlord shall promptly record the
Memorandum of Lease in the appropriate public records in and for Broward County,
Florida. This Lease shall not be recorded unless Tenant shall have consented thereto.
26.7 Costs. Whenever, in this Lease, anything is to be done or performed by Tenant or
Landlord, unless otherwise expressly provided to the contrary, it shall be done or
performed at the sole cost and expense of Tenant or Landlord, as the case may be.
26.8 Brokers. Tenant and Landlord represent and warrant to each other that neither has
had any dealings or discussions with any broker or agent, licensed or otherwise) in
connection with this Lease. Landlord and Tenant each covenants to protect, defend,
hold harmless and indemnify the other from and against any and all losses, liabilities,
damages, costs and expenses (including reasonable legal fees) arising out of or in
35
connection with any claim by any brokers or agents for brokerage commissions
relating to this Lease alleged to be due because of dealings or discussions with the
indemnifying party.
26.9 Force Ma'el ure. Whenever performance is required of any party hereunder, such party
shall use commercially reasonable diligence to perform and take all reasonably
necessary measures to perform its obligations; provided, however, that if completion
of performance shall be delayed at any time by reason of acts of God (including,
without limitation, hurricanes and other tropical storms and the weather conditions
and market conditions resulting therefrom), significant variations from normal
weather conditions reasonably expected during the period in question, war, civil
commotion, riots, strikes, picketing, or other labor disputes, unavailability of labor or
materials or damage to work in progress by reason of fire or other casualty or causes
beyond the reasonable control of a party (other than financial reasons), then the time
for performance as herein specified shall be appropriately extended to account for any
such delay.
26.10 Conditions and Covenants. All of the provisions of this Lease shall be deemed as
running with the land, and construed to be "conditions', as well as "covenants" as
though the words specifically expressing or imparting covenants and conditions were
used in each separate provision.
26.11 Survival of Indemnities. All representations, warranties and indemnities under this
Lease shall survive the expiration or sooner termination of this Lease.
26.12 No Partnership or Joint Venture. It is mutually understood and agreed that nothing
contained in this Lease is intended or shall be construed in any manner or under any
circumstances whatsoever as creating or establishing the relationship of partners or
co -venturers, or creating or establishing the relationship of a joint venture between
Tenant and Landlord, or as appointing or constituting Tenant as the agent or
representative of Landlord for any purpose or in any manner whatsoever.
26.13 Interpretation; Conflict. Landlord and Tenant acknowledge that they were each
represented by counsel in connection with this Lease and that each of them or their
respective counsel reviewed and revised this Lease and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease. The words "hereof," "herein" and
"herewith" and words of similar import shall, unless otherwise stated, be construed to
refer to this Lease as a whole and not to any particular provision of this Lease, and
article, section, paragraph, exhibit and schedule references are to the articles, sections,
paragraphs, exhibits and schedules of this Lease unless otherwise specified. The
words denoting persons shall include corporations, partnerships, limited liability
companies, and other entities, and vice versa. The word "day" shall be interpreted to
mean a calendar day unless specifically provided that such day is a "business day
which shall mean any day other than Saturday, Sunday, or any national legal holiday
or other legal holiday recognized by the City of Tamarac, Florida; the term "days
subsequent to" shall be interpreted to mean such period immediately following the
36
referenced date or event. Any conflict between the printed provisions of this Lease
and the typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
26.14 Headings, Interpretation, Entire Agreement. The headings used in this Lease are
inserted for convenience and are not to be considered in the construction of the
provisions of this Lease. This Lease constitutes the entire agreement of the parties
with respect to the subject matter hereof and may be amended or modified only in
writing signed by both parties, and all prior agreements or understandings between
the parties, either oral or written, are superseded by this Lease.
26.15 Attorneys' Fees and Costs. In all matters relating to the enforcement or preservation
of rights and remedies under this Lease, and in all matters of collection, whether or
not an event of default has actually occurred or has been declared and thereafter
cured, the losing party shall reimburse the prevailing party for all costs and expenses,
and the prevailing party shall be entitled to recover its reasonable legal fees and
expenses. The parties agree that a party's legal fees and expenses shall include,
without limitation: (a) reasonable attorneys' and paralegals' fees and disbursements;
(b) the fees and expenses of any litigation (including appeals), bankruptcy,
insolvency, receivership and any other similar proceeding, including, without
limitation, attorney's fees and costs; (c) court costs; (d) the expenses of such party, its
employees, agents, attorneys and witnesses in preparing for litigation, administrative,
bankruptcy, insolvency and other proceedings and for lodging, travel, and attendance
at meetings, hearings, depositions, and trials; and (e) consulting and witness fees and
expenses incurred by such party in connection with any litigation or other proceeding.
26.16 Waiver of Trial bY. To the fullest extent permitted by applicable law, the parties
hereto shall and they hereby do intentionally, knowingly, and voluntarily waive trial
by jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises and/or any claim or injury or damage.
26.17 Contingent Nature of Leasehold Interest. Notwithstanding the use of the terms
"Tenant" and "Landlord" and "Lease" throughout this agreement, the parties hereto
acknowledge and agree that until such time as all of the conditions to this agreement
have been satisfied such that the Commencement Date occurs prior to the termination
of this agreement, the "Tenant" shall only have those rights to perform the inspections
provided for in this agreement and to access the property as permitted in this
agreement, and the "Tenant" shall not have any right to the exclusive possession of
the Property unless and until the Commencement Date occurs. As a result, the parties
acknowledge and agree that, although the terms of this agreement are binding upon
the parties and their permitted successors and assigns from the Effective Date hereof,
the parties do not intend that this agreement should be considered to constitute an
effective lease or serve to convey a leasehold interest from "Landlord„ to "Tenant"
unless and until "Landlord" delivers possession of the Property to "Tenant" on the
37
Commencement Date, at which point the parties acknowledge and agree that this
agreement shall constitute a lease.
(Signatures appear on the following pages)
Executed as of the day and year first written above.
WITNESSES:
Name:'���,�
Name:
Name: qv-x
yr
ame:�` i"S'. -.
ec4ll
LANDLORD:
Alan J. Polin, P.A., as Trustee under the
Tamarac Land Trust Agreement
dated July 10, 2013
By:
Nar...,.
Title: -rEe
TENANT:
JKM Tamarac Village, LLC,
a Florida limited liability company
By: JKM Tamarac Village Capital, LLC,
a Florida limited liability company,
6 1 %A its Manager
39
M
EXHIBIT A
Land
494108 02 0080
Lot 8, together with a portion of Lots 6 and 7, Block 9, LYON S COMMERCIAL
SUBDIVISION UNIT NO. 2, according to the Plat thereof as recorded in Plat Book 69, Page 43,
Public Records of Broward County, Florida, being fully described as follows:
Beginning at the Northwest corner of said Lot 8; thence South 88°59'06" East, along the North
line of said Lot 8, a distance of 100.00 feet to the Northwest corner of said Lot 7; thence
continue South 88°59'06" East, a distance of 96.28 feet, the last three calls being coincident with
the South right-of-way line of N.W. 57th Street; thence South 00°01'37" East, a distance of
200.73 feet to the Point of Intersection with the East line of the aforesaid Lot 7; thence continue
South 00°01'37" East, a distance of 92.28 feet, to a point on the North right-of-way line of N.W.
56th Street (West Commercial Boulevard); thence North 88°59'06" West, a distance of 1.61 feet
to the Point of Intersection with the East property line of the aforesaid Lot 7; thence continue
North 88°59'06" West, a distance of 100.00 feet to the Point of Intersection with the West
property line of the aforesaid Lot 7; thence continue North 88°59'06" West a distance of 100.00
feet to the Point of Intersection with the West property line of the aforesaid Lot 8, the last three
calls being coincident with the North right-of-way line of N.W, 56th Street (West Commercial
Boulevard); thence North 01 °00"54" East, along the West line of the aforesaid Lot 8, a distance
of 292.96 feet, to the Point of Beginning.
Subject to the Official Records Book 32920, Page 120, Public Records of Broward County,
Florida.
Said
lands
situate,
lying and being in
Broward County, Florida.
Said
lands
contain
52,284
square
feet
(1.338
acres), more or less.
494108
02
0120;
494108
02
0130;
494108
02
0140; 494108 02 0150; 494108 02 0160
494108
02
0170;
494108
02
0180;
494108
02
0190
Lots 2, 31 41 5, 6, 7, 8, and 9, Block 10 of Lyons Commercial Subdivision, Unit 2, according to
the Plat thereof, as recorded in Plat Book 69, Page 43, of the Public Records of Broward County,
Florida; LESS the South 7 feet thereof.
494108 03 0060
9099 NW 57th Street, Tamarac, FL
Lot 1,
Block 3,
Lyons
Industrial Park, according to the Plat thereof as recorded in Plat Book 71,
Page
1 B, of the
Public
Records of Broward County.
494108 02 0090; 494108 02 0100; 494108 02 0110
Lot 9, less the South 7 feet thereof, Block 9 of Lyons Commercial Subdivision Unit No. 21, in
Section 8, Township 49 South, Range 41 East, according to the Plat thereof, as recorded in Plat
Book 69, Page 43, of the Public Records of Broward County.
LVED
Lot 10 of Block 9 in Lyons Commercial Subdivision Unit No. 2 according to the Plat thereof,
recorded in Plat Book 69, Page 43 of the Public Records of Broward County, Florida; Less and
Except;
The South seven (7.0') feet of Lot 10, Block 9, according to the Plat of Lyons Commercial
Subdivision Unit No. 2, as recorded in Plat Book 60, Page 43, of the Public records of Broward
county, Florida: and, that portion of said Lot 10, lying Southwesterly of the chord based on a
25.00 foot radius, the arc of which is concave to the Northeast and falls tangent to the West line
of said lot 10 and tangent to a line seven (7.0') feet North of and parallel with the South line of
said Lot 10.
AND
Lot One (1), Block Ten (10), Lyons Commercial Subdivision Unit No. 2, according to the Plat
thereof recorded in Plat Book 69, Page 43, of the Public Records of Broward County, Florida;
LESS the South 7.0 feet of Lot 1, Block 10, according to the Plat of Lyons Commercial
Subdivision Unit No. 2, as recorded in Plat Book 69, Page 43, of the Public Records of Broward
County, Florida, and ALSO LESS that portion of said Lot 1, lying Southeasterly of the chord
based on a 25.0 foot radius, the arc of which is concave to the Northwest and falls tangent to the
East line of said Lot 1, and tangent to a line seven (7') feet North of and parallel with the South
line of said Lot 1.
494108 03 0150; 494108 03 0160; 494108 03 0200
Lots 6 through
12, inclusive,
Block 4,
Lyons
Industrial Park, according to the Plat thereof as
recorded in Plat
Book 71,
Page
1, of
the
Public
Records
of
Broward
County, Florida.
494108 02 0200
Lot 10, Block 10, LYONS COMMERCIAL SUBDIVISION UNIT No. 2, according to the plat
thereof, as recorded in Plat Book 69, at Page 43, of the Public Records of BroNATard County,
Florida.
LESS AND EXCEPT That part conveyed to Broward County, a political subdivision of the State
of Florida by Deed recorded in the Officials Records Book 7462, Page 332 being described as
follows:
The South Seven (7.0') feet of Lot 10, Block 10, according to the plat of LYONS
COMMERCIAL SUBDIVISION UNIT No. 2, as recorded in Plat Book 69, at Page 43, of the
Public Records of Broward County, Florida:
TOGETHER 'WITH
THAT PORTION of said Lot 10 lying Southwesterly of the chord based on a 25.0 foot radius,
the arc of which is concave to the Northeast and falls tangent to the West line of said Lot 10 and
tangent to a line Seven (7.0') feet North of and parallel with the South line of said Lot 10.
AND LESS AND EXCEPT that part conveyed to the City of Tamarac, a municipal corporation
of the State of Florida recorded in Official Records Book 44307, Page 130 being described as
follows:
A portion of Lot 10, Block 10, LYONS COMMERCIAL SUBDIVISION UNIT NO. 2,
according to the plat thereof as recorded in Plat Book 69, at Page 43, of the Public Records of
Broward County, Florida, being more particularly described as follows:
Commence at the Southeast corner of said Lot 10, Block 10; thence along the East line of said
Lot 10, North 00°23'58" West, 7.00 feet to the point of beginning; thence along a line being 7.00
feet North of and parallel with the South line of said Lot 10, South 89°36'02' West 201.10 feet;
thence North 45°55' 13" West, 12.67 feet to a line being 15.88 feet North of and parallel with the
South line of said Lot 10; thence along said line South 89°36'02" East 210.14 feet to the East
line of said Lot 10; thence along said line, South 00°23'58" East, 8.88 feet to the point of
beginning.
EXHIBIT B
Conceptual Site Plan
[SEE ATTACHED
Exhibit B - Conceptual Site Plan
Site Plan
Tamarac Village
29
NORTH
[NOT TO SCALE
5/5/2015
ALL DRAWINGS, SPECIFICATIONS AND RENTED DOCUMENTS ARE THE
COPYRIGHT PROPERTY OF .ACM DEVELOPERS, LLC. AND ITS AFFIUVTED
ENTITIES AND MUST BE RETURNED UPON REQUEST. REPRODUCTION
AND/OR DISTRIBUTION OF DRAMANGS, SPECIFICATIONS AND RELATED
DOCUMENTS IN PART OR IN WHOLE IS FORBIDDEN WITHOUT THE SPECIFIC
WRITTTEN PERMISSION OF XM DEVELOPERS, LLC. OR ITS AFFILIATED
ENTITIES.
RESIDENTIAL SITE DATA
TOTAL
RES.
ACRES
12.69 AC,
TOTAL
RES.
UNITS
400
DU. l
TOTAL RES. DENSITY
TOTAL NO. OF BUILDINGS
BUILDING HEIGHT
TOTAL PARKING PROVIDED
SURFACE SPACES
DRIVEWAY SPACES
GARAGE SPACES
SIDE STREET PARKING
PARKING RATIO
31.52 DU./AC.
QQ
WIW
13 BUILDINGS
z
z
4 STORIES
u
819 SP.
Q
Q
487 SP.
132 SP.
i
132 SP.
68 SP.
2.05 SP./DU.
! Exhibit B - Conceptual Site Plan
Site Plan
Tamarac
5/5/20 5
NOT TO SCAL1
Village
' ALL DRAWINGS. SPECIFICATIONS AND RELATED DOCUMENTS ARE THE
COPYRIGHT PROPERTY OF JKM DEVELOPERS, LLC. AND ITS AMLAITED
ENTITIES AND MUST BE RETURNED UPON REQUEST. REPRODUCTION
AND/OR DISTRIBUTION OF DRAWINGS, SPECIFICATIONS AND RELATED
DOCUMENTS IN PART OR IN WHOLE IS FORBIDDEN WITHOUT THE SPECIFIC
%RIIIIEN PERMISSION OF JKM DEVELOPERS, LLC. OR ITS AFFILIATED
ENTITIES.
COMMERCIAL SITE DATA
TOTAL ACRES (LESS SQUARE)
TOTAL N0. OF BUILDINGS
BUILDING HEIGHT
TOTAL COM. SQUARE FOOTAGE
COM. AC SQUARE FOOTAGE
COM. OUTDOOR DINING SF.
TOTAL PARKING PROVIDED
SURFACE SPACES
SIDE STREET SPACES
PARKING RATIO
3.50 AC,
3 BUILDINGS
1 STORY
35,000 SF.
302220 SF.
41780 SF.
229 SP.
209 SP.
20 SP.
SP./153 SF.
EXHIBIT C
Insurance Requirements
The following are required types and minimum limits of insurance coverage, which the Tenant
agrees to maintain during the term of this lease agreement (or which will be provided by any
applicable contractor or subcontractor of Tenant providing the applicable services with respect to
the Premises:
Line of Business/ Coverage Occurrence Aggregate
Commercial General Liability and or S110001000 S210001000
Umbrella/Excess Liability
Including:
Premises/Operations
Contractual Liability
Contractors Liability
Personal Injury/Advertising
Explosion, Collapse, Underground Lazard
Products/Completed Operations
Broad Form Property Damage
Cross Liability and Severability of Interest Clause
Employment Practices and Employer Benefits Liability
Errors and Omissions S190009000 S290009000
Automobile Liability S190001000 S210001000
Owned and Leased
Hired and Non -owned
Personal Injury Protection Statutory
Storage Tank Liability (when applicable) S190005000 S290009000
Pollution Liability S 1,000,000 $290009000
Flood Insurance (when applicable)
Property Insurance
(All Risk Peril Policy including Hurricane/Wind or a comparable Special Risk Policy
covering approved list of perils)
Builders' Risk Coverages (while under construction)
Boiler and Machinery
Contents
Workers' Compensation
Employers -Liability
Bodily
Injury
by
Accident
Bodily
Injury
by
Disease
Bodily Injury by Disease Policy Limit
Statutory
S 1,000,000
$19000,000
$19000,000
Neither the Tenant nor subtenant or contractor shall commence work under this lease until they have
obtained all insurance required under this section and have supplied the Landlord with evidence of
such coverage in the form of an insurance certificate and endorsement. The Tenant will ensure that
all subtenants or contractors will comply with the above guidelines and will maintain the necessary
coverages throughout the term of this agreement. In addition, the Tenant and any subtenants or
contractors shall insure that all insurance coverages required by all applicable Florida Law is
provided.
All insurance carriers shall be rated at least A-VII per Best's Key Rating Guide and be licensed to
do business in Florida. Policies shall be "Occurrence" form. Each carrier will give the Landlord at
least thirty (30) days' notice prior to cancellation.
The Tenant's and any subtenant's or contractor's liability insurance policies (General Liability,
Automobile Liability, and Pollution Liability) in addition to any other policies as determined by the
Landlord's Risk Manager shall be endorsed to add the City of Tamarac as an "additional insured".
The Tenant's (and any subtenants, or contractor's) Workers' Compensation carrier- will provide a
Waiver of Subrogation to the Landlord.
"Claims -Made" forms are acceptable for D&O/Errors and Omissions coverage.
The Tenant and any subtenant or contractor shall be responsible for the payment of all deductibles
and self -insured retentions. The Landlord may require the Tenant to purchase a bond to cover the
full amount of the deductible or self -insured retention.
If the Tenant or any subtenant or contractor is to provide professional services under this
Agreement, they must provide the Landlord with evidence of Professional Liability insurance
with, at a minimum, a limit of $1,000,000 per occurrence and in the aggregate. "Claims -Made"
forms are acceptable for Professional Liability.
The tenant and any subtenants or contractors agree to perform the work under the agreement as an
independent contractor(s), and not as a subcontractor(s), agent(s) or employee(s) of Landlord.
For purposes of this exhibit, a subtenant shall mean only a commercial subtenant of Tenant, and
shall not include any residential subtenant of Tenant under the Lease. Furthermore, no subtenant
shall be required to obtain any form of insurance required by this Exhibit except for General
Liability and, if required by law with respect to such subtenant, Workers' Compensation.