HomeMy WebLinkAboutR-02-0216J--02-144
2/20/02
RESOLUTION NO.
11
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A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT (S), AUTHORIZING THE CITY
MANAGER TO EXECUTE A LEASE AGREEMENT
(`AGREEMENT"), IN SUBSTANTIALLY THE ATTACHED
FORM, WITH TECHNOLOGY CENTER OF THE AMERICAS
LLC, A DELAWARE LIMITED LIABILITY COMPANY
("LESSOR"), FOR THE USE OF APPROXIMATELY
1,526 SQUARE FEET OF OFFICE SPACE, LOCATED AT
50 NORTHEAST 9TH STREET, MIAMI, FLORIDA, FOR
THE OPERATION OF THE DOWNTOWN NEIGHBORHOOD
ENHANCEMENT TEAM, PROVIDING AS FOLLOWS:
(1) A TERM OF FIVE YEARS WITH NO OPTION TO
RENEW, IN AN ANNUAL AMOUNT NOT TO EXCEED
$1.00; (2) LESSOR TO PAY ALL COMMON AREA
OPERATING CHARGES; AND (3) LESSOR TO PROVIDE
TWO PARKING SPACES, WITH ADDITIONAL TERMS AND
CONDITIONS MORE PARTICULARLY SET FORTH IN THE
AGREEMENT.
BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The City Manager is authorized'/ to execute a
Lease Agreement ("Agreement"), in substantially the attached
form, with Technology Center of the Americas LLC, a Delaware
limited liability company ("Lessor"), for the use of
approximately 1,526 square feet of office space, located at
if The herein authorization is further subject to compliance with al.l
requirements that may be imposed by the City Attorney, including but not
limited to those prescribed by applicable City Charter and Code
provisions.
5
N ti Rl :W , -E til
CITY iCGIVMSSION
MEETING 6F
MP 0 7 2002
Re&s Iuflon M.
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50 Northeast 9th Street, Miami, Florida, for the operation of the
Downtown Neighborhood Enhancement Team, providing as follows:
(1) a term of five years with no option to renew, in an annual
amount not to exceed $1.00; (2) Lessor to pay all common area
operating charges; and (3) Lessor to provide two parking spaces,
with additional terms and conditions more particularly set forth
in the Agreement.
Section 2. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor.z/
PASSED AND ADOPTED this 7th day of March 2002.
ANUEL A.'DIAZ, MAY
ATTEST:
SY IA SCHEIDER
AC NG CITY RK
APPROV AS 0 FORM ORRECTNESS:
RO VILARELLO
ATTORNEY
6006:tr:LB
2� If the Mayor does not sign this Resolution, it shall become effective at
the end of ten calendar days from the date it was passed and adopted.
If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
Page 2 of 2
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Basic Lease Information Rider
Technology Center of the Americas
The terms of this Basic Lease Information Rider ("Rider") contain fundamental
information relating to the Lease, many of the principal economic terms, the commencement
dates, and related obligations. The Rider and the Lease are, by this reference, hereby
incorporated into one another. Terms defined herein apply both for the purpose of this Rider and
the Lease. Capitalized terms that are defined in the Lease have the same meaning when used in
this Rider. In the event of any conflict between the terms of the Rider and the terms of the Lease,
the terms of the Rider shall control.
1. Lease Date: , 2002 ("Effective Date"). (See first
paragraph of Lease Agreement)
2. Landlord: Technology Center of the Americas LLC, a Delaware limited
liability company. (See first paragraph of Lease Agreement)
3. Tenant: City of Miami (See first paragraph of Lease Agreement)
4. Building: The Building consists of the improvements to the real property
described and depicted on Exhibit A. The address of the Building is 50 Northeast Ninth Street,
Miami, Florida 33132.
5. Premises: (See Article 2 of Lease Agreement)
A. The Premises is office space located on the ground floor of the Building
with a separate entrance and is shown on Exhibit B- l attached to the Lease.
B. Tenant shall control its own access to the Premises. Tenant shall give a
key to Landlord for emergency access to the Premises.
6. Rentable Area: (See Article 2.1 (a) of the Lease Agreement) The initial
Rentable Area of the Premises contains 1,526 square feet on the ground floor of the Building.
The Rentable Area consists of the rentable square footage of the Premises.
7. Proportionate Share: (See Article 5.1 (a) of the Lease Agreement) Tenant's
Proportionate Share is a fraction, stated in decimal terms, the numerator of which is the Rentable
Area of the Premises and the denominator of which is 747,572. Tenant's Proportionate Share is
agreed to be two-tenths of one percent (,02 %) (unless Tenant occupies additional space, in
which event Tenant's Proportionate Share shall be recomputed, by using the increased Rentable
Area as the numerator and 747,572 as the denominator).
8. Lease Commencement Date and Delivery Date: (See Article 3 of the Lease
Agreement) The Lease Commencement Date and the Delivery Date are the date hereof. It is
understood and agreed that Tenant is authorized to have access to the Premises from and after the
Lease Commencement Date and prior to the Rent Commencement Date. The Lease provisions
and terms, except for the obligation to pay Base Rent and Additional Rent, which shall
commence in accordance with paragraph 9 below, shall apply from and after the Lease
Commencement Date.
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9. Rent Commencement Date: (See Article 3,2 of the Lease Agreement) The Rent
Commencement Date is the date hereof. The Rent Commencement Date is the date on which the
Base Rent and the Additional Rent shall commence being paid by Tenant.
10. Expiration Date: (See Article 3 of the Lease Agreement) The last day of the
month, which is five (5) years after the Rent, Commencement Date.
11. Lease Term: (See Article 3 of the Lease Agreement) From the Lease
Commencement Date to the Expiration Date, unless extended or sooner terminated in accordance
with the Lease.
12. Renewal Options: Tenant shall not have any right to extend the Lease Term for
additional periods.
13, Base Rent: (See Article 4 of the Lease Agreement) Notwithstanding anything to
the contrary contained in the Lease, in consideration of the Tenant operating the Downtown NET
facility within the Premises, which includes providing a reasonable police presence at the
Premises 24 hours a day, 7 days a week, Landlord agrees that Base Rent shall be equal to $1.00
per year through the Term.
14. Additional Rent: (See Article 5.1 (a) of the Lease Agreement) Notwithstanding
anything to the contrary contained in the Lease, in consideration of the Tenant operating the
Downtown NET facility within the Premises, which includes providing a reasonable police
presence at the Premises 24 hours a day, 7 days a week, Landlord agrees that Additional Rent
shall be equal to $0.00 per Rentable Square Foot through the Tenn.
15. Tenant Improvements: (See Article 9 of the Lease Agreement) Landlord agrees
to provide a basic build out of the Premises, which shall include two (2) offices, one (1) unisex
bathroom and a counter for miscellaneous use. Flooring material shall be VCT and ceiling will
contain standard acoustical tile. The cost and expense of any additional improvements shall be
the sole responsibility of Tenant.
16. Operating Charges: (See Article 5.1 (b) of the Lease Agreement)
Notwithstanding anything to the contrary contained in the Lease, in consideration of the Tenant
operating the Downtown NET facility within the Premises, Landlord agrees that Tenant's share
of operating charges, including all costs and expenses incurred by Landlord, in connection with
the occupancy of the Premises shall be equal to $0.00 through the Term.
17. Real Estate Taxes: (See Article 5.1 (c) of the Lease Agreement)
Notwithstanding anything to the contrary contained in the Lease, in consideration of the Tenant
operating the Downtown NET facility within the Premises, Landlord agrees that Tenant's share
of real estate taxes, including general and special assessments incurred by Landlord, in
connection with its occupancy of the Premises shall be equal to $0.00 through the Term.
1s. Security Deposit Paid: (See Article 12 of the Lease Agreement) No security
deposit shall be required to be paid hereunder.
19. Use of Premises: (See Article 6 of the Lease Agreement) City of Miami
Downtown NET Service Center, which shall include an Administrator, police officers, and shall
provide municipal services that are high priority needs to the citizens of each area.
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20. Parking Spaces: (See Article 25 of the Lease Agreement) Landlord shall
provide Tenant with two (2) parking spaces within the Building for the term of the Lease at no
cost or expense to Tenant.
21. Tenant's Address for Notices:
City of Miami
City Manager
444 S.W. 2nd Avenue, 10`x` Floor
Miami, Florida 33130
WITH COPIES TO:
City of Miami
Office of Asset Management
444 S.W. 2"d Avenue, Suite 325
Miami, Florida 33130
City of Miami
City Attorney
444 S.W. 2n Avenue, Suite 945
Miami, Florida 33130
22. Services and Utilities: (See Article 15 of the Lease Agreement) Landlord shall
provide all utilities, except for telephone, cable television, if available, hook-up, and connection
charges.
23. Insurance: (See Article 6, Article 14, and Article 16 of the Lease Agreement)
Landlord acknowledges that the Tenant is self-insured for general liability, and that a certificate
of insurance cannot be issued nor can the Landlord be named as additional insured. Tenant
agrees to defend all claims brought against the Tenant due to the Tenant's use of the Premises;
provided, however, that such defense shall be subject to the immunities and limitations included
within Florida Statutes, Section 768.28.
24. Holdover: (See Article 23 of the Lease Agreement) In the event Tenant does
not surrender the Premises upon expiration of the Lease Term, and the parties agree to negotiate
a new Lease, Tenant shall become a tenant by the month and rent shall be $0.00 per Rentable
Square Foot through the holdover period. Landlord further agrees that Tenant's share of
operating charges in connection with the occupancy of the Premises shall remain equal to $0.00
through the holdover period.
25. Broker(s): (See Article 26.3 of the Lease Agreement) the parties recognize that
no brokers are entitled to any fee or commission in connection with this transaction.
26. Tenant Access to Premises: Tenant shall be granted access to the Premises
following completion of the Tenant Improvements, as described in Section 15 herein
27. Management: The Building shall be professionally managed for Landlord by a
management company (which may be affiliated with Landlord) selected by Landlord.
28. Environmental Report: Landlord agrees to provide Tenant with a Phase I
Environmental Report for the Property.
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29. Signage: (See Article 10 of the Lease Agreement) Subject to Landlord's
approval of the size, design and appearance of exterior signage, Landlord will permit Tenant, at
Tenant's sole cost and expense, to place exterior signage on the Premises.
IN WITNESS WHEREOF, the parties hereto have executed this Basic Lease
Information Rider on this day of , 2002, intending that it be, and the
same hereby is, incorporated into and made a part of the Technology Center of the
Americas Miami Lease.
Attest:
Walter J. Foeman
City Clerk
APPROVED AS INSURANCE
REQUIREMENTS:
Mario Soldevilla
Risk Management Division
Witness:
Print Name:
Print Name:
Tenant:
City of Miami
By:
Carlos A. Gimenez
City Manager
APPROVED AS TO FORM AND
CORRECTNESS:
Alejandro Vilarello
City Attorney
Landlord:
Technology Center of the
Americas, LLC, a Delaware
limited liability company
By: Tecota Services Corp, a
Delaware Corporation, and its
managing member
By:
Its Managing
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•
•
TECHNOLOGY CENTER OF THE AMERICAS
LEASE AGREEMENT - STANDARD PROVISIONS
THIS LEASE AGREEMENT ("Lease") is dated as of the day of October, 2001,
by and between Technology Center of the Americas LLC, a Delaware limited liability
company ("Landlord"), and City of Miami ("Tenant").
ARTICLE 1
INCORPORATION OF BASIC LEASE INFORMATION RIDER
1. The Basic Lease Information Rider ("Rider") attached hereto, and all of the
defined terms contained therein, are incorporated herein by reference and made a part hereof.
ARTICLE 2
PREMISES
2.1 (a) Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, for the term and upon the conditions and covenants set forth herein. The
Premises are outlined on Exhibit 11-11 which is attached hereto for locational purposes only and
by this reference made a part hereof.
(b) In addition to the occupancy of the Premises, Tenant and its officers,
employees, agents, customers and invitees also shall have the right to the non-exclusive use of
public parking areas , if any, (as distinguished from parking areas or portions thereof that are
specifically licensed to tenants of the building from time -to -time during the Term hereof),
walkways, landscaped areas, driveways and sidewalks within the Building that are designated
by Landlord from time to time as areas for the common use of all tenants (the "Common
Areas"). Landlord agrees to make the Common Areas continuously available to Tenant for the
non-exclusive use by Tenant, other tenants and the their respective officers, employees, agents,
customers and invitees during the Lease Term and any extension thereof, except when portions
of the Common Areas temporarily may be unavailable for use by reason of repair work then
being underway thereon and as a result of the temporary use of such Common Areas by
Landlord and other tenants and their respective contractors while they are engaged in the
construction and/or renovation of other areas of the Building. Landlord shall have the right from
time to time temporarily to close the Common Areas to prevent the acquisition of public rights
thereon. Landlord shall, as part of Operating Charges, operate and maintain the Common Areas
during the Lease Term and any extensions thereof in good order and repair in accordance with
the standards of comparable Buildings in the area in which the Premises are located.
ARTICLE 3
TERM
3.1 The Lease Term shall be as set forth on the Rider and shall continue for the period
set forth thereon. The Lease Term shall also include any renewal or extension of the term of this
Lease as described in the Rider.
3.2 The Rent Commencement Date shall be the date set forth in the Rider.
3.3 "Lease Year" shall mean a period of twelve (12) consecutive months, the first
such Lease Year to commence on the Lease Commencement Date; provided, however, that if the
Lease Commencement Date is not the first day of a month, then the first Lease Year shall
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commence on the Lease Commencement Date and shall continue for the balance of the month in
which the Lease Commencement Date occurs and for a period of twelve (12) consecutive months
thereafter. Each succeeding Lease Year shall be a period of twelve (12) consecutive months
commencing immediately upon the expiration of the prior Lease Year.
ARTICLE 4
RASE RENT
4.1 Commencing on the Rent Commencement Date and during each Lease Year of
the Lease Term, Tenant shall pay the Base Rent specified in the Rider attached hereto and made
a part hereof The Base Rent shall be due and payable in equal monthly installments, without
notice, demand, setoff or deduction, in advance on the first day of each month during each Lease
Year.
4.2 All sums payable by Tenant under this Lease shall be paid to Landlord in legal
tender of the United States by wire transfer (in accordance with wire transfer instructions
contained on Schedule 4.2 attached hereto and made a part hereof, as same may be amended
from time -to -time in accordance with the notice provisions of this Lease) or by check drawn on a
U.S. bank (subject to collection), at the address to which notices to Landlord are to be given or to
such other party or such other address as Landlord may designate in writing. Landlord's
acceptance of rent after it shall have become due and payable shall not excuse a delay upon any
subsequent occasion or constitute a waiver of any of Landlord's rights. If Tenant elects to pay by
wire transfer, Tenant shall bear the full risk of receipt of funds by 2:00 pm on the date due at
Landlord's depository bank. In the event that Landlord's lender imposes special collection and
bank account procedures on Landlord as a condition of Landlord's financing, Tenant agrees to
cooperate fully with Landlord in assisting Landlord in complying with such requirements and
such modified terms shall be deemed to be made a part hereof.
ARTICLE 5
OPERATING CHARGES AND
REAL ESTATE TAXES
5.1 (a) Tenant shall also pay as additional rent ("Additional Rent"): (i) Tenant's
Proportionate Share of the Operating Charges (as defined in Section 5.1(b)) incurred during each
calendar year falling entirely or partly within the Lease Term and (ii) Tenant's Proportionate
Share of the amount of Real Estate Taxes (as defined in Section 5.1(c)) incurred during each
calendar year falling entirely or partly within the Lease Term. Tenant's Proportionate Share has
been set forth on the Rider. fn the event the number of square feet comprising the Premises
increases or decreases, respectively, pursuant to any provision of this Lease or of the Rider, or in
the event the number of square feet of rentable area in the Building increases or decreases,
Tenant's Proportionate Share shall increase or decrease accordingly. Total Rentable Space for
the Building may change from time to time. Therefore, if and when same occurs, Tenant's
Proportionate Share will be appropriately adjusted and Landlord will provide Tenant with a
written statement describing the adjustment.
(b) Operating Charges shall mean all costs and expenses incurred by the
Landlord in the operation of the Building, including without limitation, those items set forth on
Schedule 5.1(b) attached hereto and made a part hereof.
(c) Real Estate Taxes shall mean (1) all real estate taxes, vault and/or public
space rentals (including general and special assessments, if any), which are imposed upon
Landlord or assessed against the Building and/or the land upon which the Building is located (the
"Land"), (2) any other present or future taxes or governmental charges that are imposed upon
Landlord or assessed against the Building and/or the Land which are in the nature of or in
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substitution for real estate taxes, including any tax levied on or measured by the rents payable by
tenants of the Building, and (3) expenses (including reasonable attorneys', consultants' and
appraisers' fees) incurred in reviewing, protesting or seeking a reduction of Real Estate Taxes.
Real Estate Taxes will not include capital stock, succession, transfer, franchise, gift, estate or
inheritance taxes imposed on Landlord.
5.2 (a) Tenant shall make estimated monthly payments to Landlord on account of
the Operating Charges and Real Estate Taxes that are expected to be incurred during each
calendar year. From time to time, Landlord will submit a statement to Tenant setting forth
Landlord's reasonable estimate of such charges and the amount of Tenant's Proportionate Share
thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such
statement, until Tenant's receipt of the succeeding annual statement, an amount equal to one -
twelfth (1/12) of such share (estimated on an annual basis).
(b) Within one hundred twenty (120) days following the end of each calendar
year, Landlord shall submit a statement showing (1) Tenant's Proportionate Share of the actual
amount of Operating Charges and Real Estate Taxes actually incurred during the preceding
calendar year, and (2) the aggregate amount of Tenant's estimated payments during such year. If
such statement indicates that the aggregate amount of such estimated payments exceeds Tenant's
actual liability, then Tenant shall deduct the net overpayment from its next monthly payment(s)
of estimated Operating Charges and Real Estate Taxes. If such statement indicates that Tenant's
actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay
the amount of such excess within thirty (30) days of Tenant's receipt of such notice of excess
due. Such statement of Operating Charges and Real Estate Taxes shall become binding and
conclusive if not contested by Tenant within sixty (60) days after it is rendered.
Notwithstanding anything to the contrary in the Lease, within sixty (60)
days of Tenant's receipt of Landlord's statement, in the event any dispute arises between
Landlord and Tenant as to Operating Charges and/or Real Estate Taxes, Tenant shall have the
right, upon reasonable notice, to inspect and photocopy, if desired, Landlord's records
concerning the Operating Charges and/or Real Estate Taxes of the Building. If, after such
inspection, Tenant continues to dispute Operating Charges and/or Real Estate Taxes, Tenant
shall be entitled, within such sixty (60) day period, to retain an independent accountant or
accountancy firm that has a specialty in auditing operating expenses to conduct an audit. The
results of any such audit shall be completed not later than one hundred twenty days (120) days
after Tenant's receipt of Landlord's statement. If as to any specific issue it is determined that
Tenant has been overcharged, then Tenant shall receive a credit against the next month's
required payment of Operating Charges in the amount of such overcharge. If the audit reveals
that Tenant was undercharged, then, within thirty (30) days after the results of such audit are
made available to Tenant, Tenant shall reimburse Landlord for the amount of such undercharge.
Tenant shall pay the cost of any audits requested by Tenant, unless any audit reveals that
Landlord's determination of the Operating Charges and/or Real Estate Taxes was in error by
more than five percent (5%), in which case Landlord shall pay the cost of such audit. Landlord
shall be required to maintain records of the Operating Charges and Real Estate Taxes for the
three-year period following each Operating Charges statement. To the extent either party owes
any amount to the other, and such obligation arises at the end of the Term, such amount shall be
paid in its entirety within thirty (30) days following the completion of the audit process.
(c) If the Lease Term commences or expires on a day other than the first day
or the last day of a calendar year, respectively, then Tenant's liability for Tenant's Proportionate
Share of Operating Charges and Real Estate Taxes incurred during such calendar year shall be
equitably apportioned on a pro -rata basis.
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ARTICLE 6
USE OF PREMISES
6.1 (a) Tenant may use, occupy and operate the Premises in accordance with the
use clause set forth in the Rider. Tenant agrees at all times during the Lease Term and any
extensions thereof to comply with all applicable laws affecting the use of the Premises.
(b) Intentionally Omitted,
(c) Tenant shall not use the Premises for any unlawful purpose or in any
manner that will constitute waste, nuisance or unreasonable annoyance to Landlord or any other
tenant of the Building, or in any manner that will increase the number of parking spaces required
for the Building at full occupancy or otherwise as required by law. Except as otherwise provided
in this Lease, Tenant shall not generate, use, store, or dispose of any materials posing a health or
environmental hazard in or about the Building, nor use or occupy the Premises in any manner
which may result in an increase in Landlord's insurance premiums payable in respect of the
Building. Tenant shall comply with and conform to all present and future laws, ordinances,
regulations and orders of all applicable governmental or quasi -governmental authorities having
jurisdiction over the Premises, including those concerning the use, occupancy and condition of
the Premises and all machinery, equipment and furnishings therein. The party installing the
initial leasehold improvements described in Exhibit D hereto shall obtain the initial certificate of
occupancy for the Premises. Any amended or substitute certificate of occupancy necessitated by
Tenant's particular use of the Premises or any Alterations made by Tenant in the Promises shall
be obtained by Tenant at Tenant's sole expense. (The foregoing sentence shall not be construed
as to constitute the consent of the Landlord for any Alterations of the Premises.) Use of the
Premises is subject to all covenants, conditions and restrictions of record.
6.2 Tenant shall pay, within thirty (30) days of notice thereof, but in any event before
delinquency, any business, rent or other taxes or fees that are now or hereafter levied, assessed or
imposed upon Tenant's use or occupancy of the Premises, the conduct of Tenant's business in the
Premises or Tenant's equipment, fixtures, furnishings, inventory or personal property. If any
such tax or fee is enacted or altered so that such tax or fee is levied against Landlord or so that
Landlord is responsible for collection or payment thereof, then Tenant shall pay to Landlord as
Additional Rent the amount of such tax or fee within thirty (30) days of its having been assessed,
but in no event in a fashion as to constitute a delinquency in the payment of such taxes, fees or
assessments. Tenant shall also promptly pay any sales tax and/or other local tax now or hereafter
in existence that is imposed. Any sales tax on rent shall be paid by Tenant to Landlord
simultaneously with the monthly payment of Base Rent. Any such tax obligation shall be
deemed Additional Rent.
6.3 (a) Except as otherwise provided in this Lease, Tenant shall not cause or
permit any Hazardous Materials to be generated, used, released, stored or disposed of in or about
the Building. At the expiration or earlier termination of this Lease, Tenant shall surrender the
Premises to Landlord free of Hazardous Materials and in compliance with all Environmental
Laws. "Hazardous Materials" means (a) asbestos and any asbestos containing material and any
substance that is then defined or listed in, or otherwise classified pursuant to, any Environmental
Law or any other applicable Law as a "hazardous substance," "hazardous material," "hazardous
waste," "infectious waste," "toxic substance," "toxic pollutant" or any other formulation intended
to define, list, or classify substances by reason of deleterious properties such as ignitabihty,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (b) any petroleum and drilling fluids, produced waters, and
other wastes associated with the exploration, development or production of crude oil, natural gas,
or geothermal resources, and (c) any petroleum product, polychlorinated biphenyls, urea
formaldehyde, radon gas, radioactive material (including any source, special nuclear, or by-
product material), medical waste, chlorofluorocarbon, lead or lead-based product, and any other
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substance whose presence could be detrimental to the Building or the Land or hazardous to
health or the environment. "Environmental Law" means any present and future Law and any
amendments (whether common law, statute, rule, order, regulation or otherwise), permits and
other requirements or guidelines of governmental authorities applicable to the Building or the
Land and relating to the environment and environmental conditions or to any Hazardous Material
(including, without limitation, CERCLA, 42 U.S.C. § 9601 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., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.,
the Clean Air Act, 33 U.S.C. § 7401 et seg., the Toxic Substances Control Act, 15 U.S.C. § 2601
et seg., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., the Emergency Planning and
Community Right -To -Know Act, 42 U.S,C, § 1101 et seq., the Occupational Safety and Health
Act, 29 U.S.C. § 651 et seq., and any so-called "Super Fund" or "Super Lien" law, any Law
requiring the filing of reports and notices relating to hazardous substances, environmental laws
administered by the Environmental Protection Agency, and any similar state and local Laws, all
amendments thereto and all regulations, orders, decisions, and decrees now or hereafter
promulgated thereunder concerning the environment, industrial hygiene or public health or
safety).
(b) Notwithstanding any termination of this Lease, Tenant shall indemnify
and hold Landlord, its employees and agents, and, if applicable, Landlord's prime landlord under
any ground lease to which Landlord is a party, and Landlord's lender(s), harmless from and
against any damage, injury, loss, liability, charge, demand or claim based on or arising out of the
presence or removal of, or failure to remove, Hazardous Materials generated, used, released,
stored or disposed of by Tenant or any Invitee in or about the Building, whether before or after
Lease Commencement Date. In addition, Tenant shall give Landlord immediate verbal and
follow-up written notice of any actual or threatened Environmental Default, which
Environmental Default Tenant shall cure at the sole expense of the Tenant in accordance with all
Environmental Laws and to the satisfaction of Landlord and only after Tenant has obtained
Landlord's prior written consent. An "Environmental Default" means any of the following by
Tenant or any Invitee: a violation of an Environmental Law; a release, spill or discharge of a
Hazardous Material on or from the Premises, the Land or the Building; an environmental
condition requiring responsive action; or an emergency environmental condition. Upon any
Environmental Default, in addition to all other rights available to Landlord under this Lease, at
law or in equity, Landlord shall have the right, but not the obligation, to immediately enter the
Premises, to supervise and approve any actions taken by Tenant to address the Environmental
Default, and, if Tenant fails to immediately address same to Landlord's satisfaction, to perform,
at Tenant's sole cost and expense, any lawful action necessary to address same. This provision
will survive the termination or expiration of this Lease, and any renewals, extensions or
expansions thereof.
(c) Landlord represents and warrants that the Building is being constructed so as
to be free of Hazardous Materials, except for those Hazardous Materials to be used in the
operation of, or to be stored in, the Building in connection with the lawful occupancy and use of
the Building for the purposes for which it is intended, with Landlord having obtained the
necessary governmental approvals for the Hazardous Materials for which Landlord may be
responsible.
ARTICLE 7
ASSIGNMENT AND SUBLETTING
7.1 Tenant will not sell, assign, transfer, mortgage or otherwise encumber this Lease
or sublet, rent or permit occupancy or use of the Premises or any part thereof by others.
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ARTICLE 8
MAINTENANCE AND REPAIRS
8.1 Tenant shall keep and maintain the Premises and all fixtures and equipment
located therein, in clean, safe and sanitary condition, shall take good care thereof and make all
repairs thereto, and shall suffer no waste or injury thereto. At the expiration or earlier
termination of the Lease Term, Tenant shall surrender the Premises, in the same order and
condition in which they were on the Lease Commencement Date, ordinary wear and tear and
unavoidable damage by the elements excepted. Except as otherwise provided in Article 18, all
injury, breakage and damage to the Premises and to any other part of the Building or the Land
caused by any act or omission of Tenant or of any invitee, agent, employee, subtenant, assignee,
contractor, client, family member, licensee, customer or guest of Tenant (collectively,
"Invitees"), including any act or omission in connection with the installation and/or removal of
any of Tenant's furniture, fixtures and equipment, shall be repaired by and at Tenant's expense,
except that Landlord shall have the right at Landlord's option to make any such repair and to
charge Tenant for all costs and expenses incurred in connection therewith.
8.2 Landlord shall keep and maintain in good order and repair the base -building
structure and systems, including the roof, exterior walls, elevators, electrical, plumbing and
common area HVAC systems (which excludes such, portions of electrical, plumbing and HVAC
systems to the extent same are located within or exclusively service the Tenant's Premises, in
which event same shall be governed by Section 8.1 above), and the ground floor lobby and other
common areas and facilities of the Building.
ARTICLE 9
INITIAL TENANT IMPROVEMENTS AND ALTERATIONS
9.1 The original improvement of the Premises shall be accomplished in accordance
with Exhibit D. Landlord is under no obligation to make, or to permit Tenant or Tenant's
contractors to make, any structural or other alterations, decorations, additions, improvements or
other changes (collectively "Alterations") in or to the Premises except as set forth in Exhibit D
or otherwise expressly provided in this Lease. Prior to the commencement by Tenant of the
construction of any original improvements, Tenant shall obtain and deliver to Landlord written,
unconditional waivers of mechanics' and materialmen's liens against the Complex from all
proposed contractors, subcontractors, laborers and suppliers in connection with such original
improvements, in form and content reasonably satisfactory to Landlord.
9.2 Tenant shall not make or permit anyone for whom Tenant is responsible to make
any Alterations in or to the Premises or the Building (other than interior, non structural Premises
Alterations), without Landlord's prior written consent. The criteria for such consent shall be
whether same shall have an impact upon the structural integrity of the Building or a Building
system of general use, or shall have an impact on a tenant other than the Tenant, in which event,
the consent or approval of the Landlord may be granted, conditioned or withheld in the sole and
absolute discretion of the Landlord. If the two impacts described in the preceding sentence are
not factors, in the reasonable judgment of Landlord, then the consent or approval of the Landlord
to an Alteration shall not be unreasonably withheld, conditioned or delayed. Any authorized
and approved Alteration made by Tenant shall be made: (a) in a good, workmanlike, first-class
and prompt manner; (b) using new materials only; (c) by an experienced, reputable contractor,
approved in advance by the Landlord in its reasonable discretion or expressly identified on the
Rider, and constructed in accordance with plans and specifications approved in writing by
Landlord; (d) in accordance with all applicable legal requirements and requirements of any
insurance company insuring the Building or portion thereof; (e) after having obtained any
required consent of the holder of any Mortgage (as defined in Section 22.1); (f) after Tenant has
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obtained public liability and worker's compensation insurance policies approved in writing by
Landlord; and (g) after Tenant has obtained and delivered to Landlord written, unconditional
waivers of mechanics' and materialmen's liens against the Premises and the Building from all
proposed contractors, subcontractors, laborers and material suppliers for all work and materials
in connection with such Alteration. Any such Alteration shall be performed in a manner
consistent with the Building Rules and Regulations as same may be promulgated from time -to -
time by the Landlord.
9.3 In the event of an approved Alteration after the initial build -out of Tenant's
Premises, Tenant agrees that Tenant shall reimburse Landlord for its actual costs of plan review,
construction monitoring and oversight by Landlord. Said reimbursement shall be due within
thirty (30) days of Tenant's receipt of Landlord's statement therefore, and shall be considered
Additional Rent.
9.4 If, notwithstanding the foregoing, any mechanic's or materialman's lien (or a
petition to establish such lien) is filed in connection with any Alteration, then such lien (or
petition) shall be discharged by Tenant at Tenant's expense within twenty (20) days thereafter by
the payment thereof or the filing of a bond in a form acceptable to Landlord. If Tenant shall fail
to discharge any such mechanic's or materialman's lien, Landlord may, at its option, discharge
such lien and treat the cost thereof (including attorneys' fees incurred in connection therewith) as
additional rent payable with the next monthly installment of Base Rent falling due; it being
expressly agreed that such discharge by Landlord shall not be deemed to waive of release the
default of Tenant in not discharging such lien. If Landlord gives its consent to the making of any
Alteration, then such consent shall not be deemed to constitute Landlord's consent to subject its
interest in the Premises, the Building or the Land to any mechanic's or materialman's lien which
may be filed in connection therewith.
9.5 Consent to an Alteration shall not constitute consent or authorization by the
Landlord to the placement of financing by the Tenant relating to the Alterations that purports to
create any security interest in the Building or that purports to subordinate this Lease to any such
financing, and any such effort or agreement by Tenant shall constitute an Event of Default.
9.6 Tenant acknowledges and agrees that, during the construction of initial
improvements, any subsequent Alterations and thereafter during the operation of the Building,
Landlord has authority to coordinate access to loading areas, freight elevators, the roof, shafts,
space and other areas of the Building, and that Landlord has authority to adopt reasonable rules
and regulations pertaining to same, and to approve such Tenant access, Tenant will also cause
its Contractor(s) to coordinate their use of and access to the foregoing with Landlord's Base
Building Contractor, which will have authority to approve such access during construction.
ARTICLE 10
SIGNS
10.1 Landlord will permit Tenant, at Tenant's expense, to place mutually agreeable
signage on the exterior of the Premises subject to Landlord's reasonable approval of such
signage.
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ARTICLE 11
TENANT'S EQUIPMENT
11.1 Tenant may, from time to time during the Term or any extension hereof, install,
maintain, replace, repair, expand, construct and operate in or upon the Premises and remove
therefrom such trade fixtures and equipment as it may deem necessary or appropriate to its
business operations; provided, any damage which may be caused to the Premises by the
installation or removal of any of Tenant's trade fixtures or equipment shall be repaired by Tenant
at its expense forthwith. Landlord may impose reasonable rules and regulations concerning the
location, weight and timing and method of installation of trade fixtures or equipment, whether
installed in the Premises,
11.2 Tenant covenants and agrees that, if directed by the Landlord at its sole
discretion, Tenant shall remove, at Tenant's sole risk and expense, all fixtures and improvements
to the Premises upon the expiration of the Lease Term. If so requested by the Landlord, Tenant
shall restore the Premises to their original condition, normal wear and tear, and approved
structural changes excepted. Tenant shall also exercise extraordinary care in removing such
fixtures and improvements so as to eliminate damage to the Building, the premises and property
of other tenants and the inconvenience to the operation of the Building and its tenants.
ARTICLE 12
SECURITY DEPOSIT
[Intentionally Deleted]
ARTICLE 13
ACCESS AND INSPECTION
13.1 Tenant shall permit Landlord and its designees to enter the Premises, without
charge therefore and without diminution of the rent payable by Tenant, to inspect the Premises,
to make such alterations and repairs as Landlord may deem necessary, or to exhibit the Premises
to prospective tenants during the last two hundred seventy (270) days of the Lease Term. Tenant
shall at all times during its occupancy of the Premises provide Landlord duplicates of the keys to
the doors and other points of entry to the Premises. In connection with any such entry, Landlord
shall make reasonable efforts to minimize the disruption to Tenant's use of the Premises and shall
conform to Tenant's reasonable security requirements. Except in an emergency, Landlord shall
give Tenant reasonable prior notice (which shall be in writing, except in an emergency) of any
entry into the Premises pursuant to this Section.
ARTICLE 14
INSURANCE
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14.1 Tenant will not conduct or permit to be conducted any activity, or place any
equipment in or about the Premises or the Building, which will, in any way, invalidate the
insurance coverage in effect or increase the cost of insurance on or for the Building; and if any
invalidation of coverage or increase in the cost of insurance is stated by any insurance company
or by the applicable Insurance Rating Bureau to be due to any activity or equipment of Tenant in
or about the Premises or the Building, such statement shall be conclusive evidence that same is
due to such activity or equipment and, as a result thereof, Tenant shall be liable for same and
shall reimburse Landlord therefore upon demand and any such sum shall be considered
Additional Rent payable with the monthly installment of Rent next becoming due.
14.2 Tenant, at Tenant's expense, shall carry and keep in full force and effect at all
times during the Lease Term for the protection of Tenant, Landlord and any other persons
designated by Landlord pursuant to Section 14.4 hereof commercial general liability insuranc4
including contractual liability coverage with a combined single limit of at least Three Million
Dollars ($3,000,000.00) for each occurrence of bodily or personal injury, death or property
damage and Tenant shall deliver to Landlord a copy of said policy or, at Landlord's option, a
binder or certificate showing the same to be in full force and effect. It is understood and agreed
that liability coverage provided for hereunder shall extend beyond the Premises to portions of the
common area of the Building used from time to time by Tenant, its agents, employees,
contractors, invitees, licensees, customers, clients, family members and guests, and, further, shall
include contractual liability coverage insuring the indemnity provisions of this Lease.
Notwithstanding the foregoing, during the construction of the initial improvements, Tenant shall
carry such policy with coverage limitations of at least Five Million Dollars ($5,000,000.00).
14.3 Tenant, at Tenant's expense, shall further carry a policy of "all risk" insurance
covering all of Tenant's personal property and improvements in the Premises for not less than the
full insurable cost and replacement cost of such personal property and improvements without
reduction for depreciation. All proceeds of such insurance shall be used solely to restore, repair
or replace the Tenant's personal property and improvements.
14.4 Said commercial general liability and "all risk" insurance policies and any other
insurance policies carried by Tenant with respect to the Premises and/or any common areas
accessible to Tenant shall (i) be issued in form acceptable to Landlord by good and solvent
insurance companies qualified to do business in the jurisdiction in which the Building is located
and otherwise reasonably satisfactory to Landlord, (ii) designate as additional named insureds,
besides Tenant as named insured, Landlord, Landlord's managing agent, Landlord's lender(s) as
may exist from time to time, and any other person from time to time designated in writing by
notice from Landlord to Tenant, (iii) be written as primary policy coverage and not contributing
with or in excess of any coverage which Landlord may carry, (iv) provide for thirty (30) days'
prior written notice to Landlord of any cancellation or other expiration or material modification
of such policy or any defaults thereunder, and (v) contain an express waiver of any right of
subrogation by the insurance company against Landlord. Neither the issuance of any insurance
policy required hereunder nor the minimum limits specified herein with respect to Tenant's
insurance coverage shall be deemed to limit or restrict in any way Tenant's liability arising under
or out of this Lease.
14.5 Tenant shall obtain such additional amounts of insurance and additional types of
coverage as Landlord may reasonably request from time to time. If Tenant fails to comply with
any of the insurance requirements of this Lease, Landlord may obtain such insurance and keep
the same in effect, and Tenant shall pay Landlord as Additional Rent the premium cost thereof
with the next installment of Rent otherwise due.
14.6 Notwithstanding anything to the contrary contained in this Lease, Landlord and
Tenant and all parties claiming under them, to the extent covered by insurance (or to the extent
such party would have been covered by insurance had such party maintained the insurance
required by the terms hereof to be maintained by such party), each hereby waives any and all
rights of recovery, claim, action and liability against the other, its agents, officers or employees
for any loss or damage that may occur to the Building and Premises, or any improvements
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thereto, and any personal property owned by them therein, by reason of fire, the elements or any
other cause(s) which could be covered by "all risk" property insurance, regardless of cause or
origin, including negligence of the other party hereto.
ARTICLE 15
SERVICES AND UTILITIES
15.1 Landlord shall provide the following services and utilities in a manner consistent
with the standards for quality followed in comparable facilities in the jurisdiction in which the
Building is located:
(i) Electrical service to operate the common areas of the Building, and
electrical capacity to a point of connection at the Building in accordance with the
provisions of Exhibit C.
(ii) HVAC for the common areas of the Building during normal hours
of operation of the Building as set forth in Section 15.3 below.
(iii) Hot and cold water for drinking, lavatory and toilet purposes at
those points of supply provided for the exclusive use of Tenant within the Premises and
for the nonexclusive general use of other tenants at the Building, and supplies for such
lavatory and toilet purposes.
(iv) Operatorless passenger elevator service 24 hours per days, 365
days per year, and freight elevator service (subject to scheduling by Landlord) in
common with Landlord and other tenants and their contractors, agents and visitors;
provided, however, that Landlord shall have the right to remove elevators from service as
they are required for moving freight or for servicing and/or maintaining the elevators
and/or the Building.
(v) Replacement of all Building standard lighting tubes and bulbs, if
any, located in common areas.
15.2 Landlord agrees to operate and maintain the Building, in accordance with the
standards for quality followed by other comparable facilities in the jurisdiction in which the
Building is located and to provide building security personnel, equipment, procedures and
systems in the Building similar to other such comparable facilities. Landlord reserves the right
to interrupt, curtail or suspend the services required to be furnished by Landlord under this
Article 15 when the necessity therefore arises by reason of accident, emergency, mechanical
breakdown, or when required by any Law, or for any other cause beyond the reasonable control
of Landlord. Landlord shall use reasonable efforts to complete all repairs or other work so that
Tenant's inconvenience resulting therefrom may be for as short a period of time as circumstances
will permit.
15.3 Landlord will furnish all services and utilities required by this Lease only during
the normal hours of operation of the Building, unless otherwise specified herein, in a manner
consistent with industry standards for comparable buildings in the jurisdiction in which the
Building is located. The normal hours of operation of the Building are twenty four (24) hours a
day, seven days a week. It is understood and agreed that Landlord shall not be liable for failure
to furnish, or for delay, suspension or reduction in furnishing, any of the utilities, services or
other manner of thing required to be furnished by Landlord hereunder, if such failure to furnish
or delay, suspension or reduction in furnishing same is caused by breakdown, maintenance,
repairs, strikes, scarcity of labor or materials, acts of God, Landlord's compliance with
governmental regulation or legislation or judicial or administrative orders or from any other
cause whatsoever; provided, however, that Landlord shall, in the event of a breakdown, use
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reasonable diligence to repair all equipment owned by Landlord and all building standard
equipment furnished by Landlord which is required to provide such utilities and services.
15.5 Tenant shall have the right to provide and maintain a security system within the
Premises in accordance with plans and specifications approved by the Landlord in accordance
with the Tenant Work approval process or, in the event that such system is installed atter
completion of the Tenant Work, in accordance with the approval of Alterations under Article 9
above.
ARTICLE 16
LIABILITY OF LANDLORD
16.1 Landlord, its employees and agents shall not be liable to Tenant, any Invitee or
any other person or entity for any damage (including indirect and consequential damage), injury,
loss or claim (including claims for the interruption of or loss to business) based on or arising out
of any cause whatsoever (except as otherwise provided in this Section), including without
limitation the following: repair to any portion of the Premises or the Building; interruption in the
use of the Premises or any equipment therein; any accident or damage resulting from any use or
operation (by Landlord, Tenant or any other person or entity) of elevators or heating, cooling,
electrical, sewerage or plumbing equipment or apparatus; termination of this Lease by reason of
damage to the Premises or the Building; fire, robbery, theft, vandalism, mysterious
disappearance or any other casualty; actions of any other tenant of the Building or of any other
person or entity; failure or inability of Landlord to furnish any utility or service specified in this
Lease; and leakage in any part of the Premises or the Building, or from water, rain, ice or snow
that may leak into, or flow from, any part of the Premises or the Building, or from drains, pipes
or plumbing fixtures in the Premises or the Building. Any property stored or placed by Tenant or
Invitees in or about the Premises or the Building shall be at the sole risk of Tenant, and Landlord
shall not in any manner be held responsible therefore. If any employee of Landlord receives any
package or article delivered for Tenant, then such employee shall be acting as Tenant's agent for
such purpose and not as Landlord's agent. For purposes of this Article, the term "Building" shall
be deemed to include the Land. Notwithstanding the foregoing provisions of this Section,
Landlord shall not be released from liability, if any, to Tenant for any damage caused by
Landlord's willful misconduct or gross negligence, to the extent such damage is not covered by
insurance carried by Tenant or required to be carried by Tenant.
16.2 Tenant shall indemnify and hold Landlord, its employees and agents harmless
from and against all costs, damages, claims, liabilities and expenses (including attorneys' fees)
suffered by or claimed against Landlord, directly or indirectly, based on or arising out of (a)
Tenant's use and occupancy of the Premises or the business conducted by Tenant therein, (b) any
act or omission of Tenant or any Invitee, (c) any breach of Tenant's obligations under this Lease,
including failure to surrender the Premises upon the expiration or earlier termination of the
Term, or (d) any entry by Tenant or any invitee upon the Land prior to the Lease
Commencement Date,
16.3 If any landlord hereunder transfers the Building or such landlord's interest therein,
then such landlord shall not be liable for any obligation or liability based on or arising out of any
event or condition occurring on or after the date of such transfer. Within fifteen (15) days after
any such transferee's request, Tenant shall attorn to such transferee and execute, acknowledge
and deliver any requisite or appropriate document submitted to Tenant confirming such
attomment.
16.4 Tenant shall not have the right to offset or deduct the amount allegedly owed to
Tenant pursuant to any claim against Landlord from any rent or other sum payable to Landlord,
Tenant's sole remedy for recovering upon such claim shall be to institute an independent action
against Landlord.
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16.5 Notwithstanding anything to the contrary contained herein, if Tenant or any
Invitce is awarded a money judgment against Landlord, then recourse for satisfaction of such
judgment shall be limited to execution against Landlord's estate and interest in the Building. No
other asset of Landlord, any member or partner of Landlord or any other person or entity shall be
available to satisfy, or be subject to, such judgment, nor shall any such member, partner, person
or entity be held to have personal liability for satisfaction of any claim or judgment against
Landlord or any member or partner of Landlord.
16.6 Notwithstanding anything to the contrary contained in this Lease, if any provision
of this Lease expressly or impliedly obligates Landlord not to unreasonably withhold its consent
or approval, an action for declaratory judgment or specific performance will be Tenant's sole
right and remedy in any dispute as to whether Landlord has breached such obligation.
16.7 Landlord shall not be liable in any manner to Tenant, its agents, employees,
invitees or visitors for any injury or damage to Tenant, Tenant's agents, employees, invitees or
visitors, or their property, caused by the criminal or intentional misconduct of third parties or of
Tenant, Tenant's employees, agents, invitees or visitors, All claims against Landlord for any
such damage or injury are hereby expressly waived by Tenant, and Tenant hereby agrees to hold
harmless and indemnify Landlord from all such damages and the expense of defending all claims
made by Tenant's employees, agents, invitecs, or visitors arising out of such acts.
ARTICLE 17
RULES
17.1 Tenant and its Invitees shall at all times abide by and observe the rules set forth in
Exhibit E. Tenant and its invitees shall also abide by and observe any other rule that Landlord
may reasonably promulgate from time -to -time for the operation and maintenance of the
Building, provided that notice thereof is given and such rule is not inconsistent with the
provisions of this Lease. Except for Landlord's obligation to enforce the rules in a non-
discriminatory manner, nothing contained in this Lease shall be construed as imposing upon
Landlord any duty to enforce such rules or any condition or covenant contained in any other
lease against any other tenant, and Landlord shall not be liable to Tenant for the violation of such
rules or regulations by any other tenant or its invitees.
ARTICLE 18
DAMAGE OR DESTRUCTION
18.1 If the Premises or the Building are totally or partially damaged or destroyed,
thereby rendering the Premises totally or partially inaccessible or unusable, then Landlord shall
diligently repair and restore the Premises and the Building to substantially the same condition
they were in prior to such damage or destruction; provided, however, that if in Landlord's
reasonable judgment such repair and restoration cannot be completed within one hundred eighty
(180) days after the adjustment of the loss in connection with such damage or destruction, then
Landlord shall have the right, at its sole option, to terminate this Lease by giving written notice
of termination within forty-five (45) days after the occurrence of such damage or destruction.
18.2 If Landlord determines, in its reasonable judgment, that the repairs and restoration
cannot be substantially completed within one hundred eighty (180) days after the date of
adjustment of the loss in connection with such damage or destruction, Landlord shall promptly
notify Tenant of such determination. For a period of thirty (30) days after receipt of such
determination, Tenant shall have the right to terminate this Lease by providing written notice to
Landlord. If Tenant does not elect to terminate this Lease within such thirty (30) day period, and
provided that Landlord has not elected to terminate this Lease, Landlord shall proceed to repair
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and restore the Premises and the Building. Notwithstanding the foregoing, Tenant shall not have
the right to terminate this Lease if the act or omission of Tenant or any of its Invitees shall have
caused the damage or destruction.
18.3 If this Lease is terminated pursuant to Section 18.1 or 18.2 above, then all rent
shall be apportioned (based on the portion of the Premises which is usable after such damage or
destruction) and paid to the date of termination. If this Lease is not terminated as a result of such
damage or destruction, then until such repair and restoration of the Premises are substantially
complete, Tenant shall be required to pay the Base Rent and additional rent only for the portion
of the Premises that is usable while such repair and restoration are being made. Landlord shall
bear the expenses of repairing and restoring the Premises and the Building; provided, however,
that Landlord shall not be required to repair or restore any Alteration previously made by Tenant
or any of Tenant's trade fixtures, furnishings, equipment or personal property; and provided
further that if such damage or destruction was caused by the act or omission of Tenant or any
Invitee, then Tenant shall pay the amount by which such expenses exceed the insurance
proceeds, if any, actually received by Landlord on account of such damage or destruction.
18.4 Notwithstanding anything herein to the contrary, Landlord shall not be obligated
to restore the Premises or the Building and shall have the right to terminate this Lease if (a) the
holder of any Mortgage fails or refuses to make insurance proceeds available for such repair and
restoration, (b) zoning or other applicable laws or regulations do not permit such repair and
restoration, or (c) the cost of repairing and restoring the Building would exceed fifty percent
(50%) of the replacement value of the Building, whether or not the Premises are damaged or
destroyed, provided the leases of all other tenants in the Building are similarly terminated.
18.5 Notwithstanding the foregoing Sections of this Article 18, Landlord shall not be
obligated to restore the Tenant Work which was a part of the work required to be performed
under Exhibit D attached hereto. Rather, the restoration of such Tenant Work shall be the sole
expense and responsibility of Tenant.
ARTICLE 19
CONDEMNATION
19.1 If one-third or more of the Premises or occupancy thereof shall be permanently
taken or condemned by any governmental or quasi -governmental authority for any public or
quasi -public use or purpose or sold under threat of such a taking or condemnation (collectively,
"condemned"), then this Lease shall terminate on the date title thereto vests in such authority and
rent shall be apportioned as of such date. If less than one-third of the Premises or occupancy
thereof is condemned, then this Lease shall continue in full force and effect as to the part of the
Premises not condemned, except that as of the date title vests in such authority Tenant shall not
be required to pay the Base Rent and additional rent with respect to the part of the Premises
condemned.
19.2 All awards, damages and other compensation paid by such authority on account
of such condemnation shall belong to Landlord, and Tenant assigns to Landlord all rights to such
awards, damages and compensation. Tenant shall not make any claim against Landlord or the
authority for any portion of such award, damages or compensation attributable to damage to the
Premises, value of the unexpired portion of the Lease Term, loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall prevent Tenant
from pursuing a separate claim against the authority for the value of furnishings and trade
fixtures installed in the Premises at Tenant's expense and for relocation expenses, provided that
such claim shall in no way diminish the award, damages or compensation payable to or
recoverable by Landlord in connection with such condemnation.
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ARTICLE 20
DEFAULT
20.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure to
make any payment of the Base Rent, Additional Rent or other sum on or before such payment's
due date, provided that, on up to two (2) occasions in any twelve (12) month period, there shall
exist no Event of Default unless Tenant shall have been given written notice of such failure and
shall not have made the payment within five (5) days following the giving of such notice; (b)
Tenant's violation or failure to perform or observe any other covenant or condition within twenty
(20) days atter notice thereof from Landlord; (c) Tenant's vacation or abandonment of the
Premises; (d) an Event of Bankruptcy as specified in Article 21 with respect to Tenant, any
general partner or member or managing member of Tenant (a "General Partner") or any
Guarantor; or (e) Tenant's dissolution or liquidation. If, prior to the commencement of the Lease
Term, Tenant notifies Landlord of or otherwise unequivocally demonstrates an intention to
repudiate this Lease, Landlord may, at its option, consider such anticipatory repudiation an Event
of Default. In addition to any other remedies available to it hereunder or at law or in equity,
Landlord may retain all rent paid upon execution of the Lease and the security deposit, if any, to
be applied to damages of Landlord incurred as a result of such repudiation, including without
limitation attorneys' fees, brokerage fees, costs of reletting, and loss of rent. Tenant shall pay in
full for all tenant improvements constructed or installed within the demised premises to the date
of the breach, and for materials ordered at its request for the Premises,
20.2 If there shall be an Event of Default, including an Event of Default prior to the
j Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this
Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate
Tenant's right of possession and take possession of the Premises. The provisions of this Article
shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the
Premises being hereby expressly waived. If necessary, Landlord may proceed to recover
j possession of the Premises under and by virtue of the laws of the jurisdiction in which the
Building is located, or by such other proceedings, including re-entry and possession, as may be
applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of
possession, then everything contained in this Lease to be done and performed by Landlord shall
cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other
sums accrued through the later of termination or Landlord's recovery of possession. Whether or
not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be
obligated to, relet the Premises or any part thereof, alone or together with other premises, for
such rent and upon such terms and conditions (which may include concessions or free rent and
alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall
not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to
relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is
terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or
damages which may be due or sustained prior to such default, all costs, fees and expenses
(including without limitation reasonable attorneys' fees, brokerage fees and expenses incurred in
placing the Premises in first-class rentable condition) incurred by Landlord in pursuit of its
remedies and in renting the Premises to others from time to time. Tenant shall also be liable for
additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent and Additional Rent which would have
become due during the remainder of the Lease Term, less the amount of rental, if any,
which Landlord receives during such period from others to whom the Premises may be
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rented (other than any additional rent payable as a result of any failure of such other
person to perform any of its obligations), which damages shall be computed and payable
in monthly installments, in advance, on the first day of each calendar month following
Tenant's default and continuing until the date on which the Lease Term would have
expired but for Tenant's default. Separate suits may be brought to collect any such
damages for any month(s), and such suits shall not in any manner prejudice Landlord's
right to collect any such damages for any subsequent month(s), or Landlord may defer
any such suit until after the expiration of the Lease Term, in which event the cause of
action shall be deemed not to have accrued until the expiration of the Lease Term; or
(b) an amount equal to the present value (as of the date of the termination of
this Lease) of the difference between (i) the Base Rent and Additional Rent which would
have become due during the remainder of the Lease Term, and (ii) the fair market rental
value of the Premises for the same period, which damages shall be payable to Landlord in
one lump sum on demand. For purpose of this Section, present value shall be computed
by discounting at a rate equal to one (1) whole percentage point above the discount rate
then in effect at the Federal Reserve Bank of New York (or, if such rate is not reasonably
available, such substitute rate as Landlord reasonably shall select).
Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease
under any present or future law, including any such right which Tenant would otherwise have if
Tenant shall be dispossessed for any cause.
20.3 Landlord's rights and remedies set forth in this Lease are cumulative and in
addition to Landlord's other rights and remedies at law or in equity, including those available as a
result of any anticipatory breach of this Lease. Landlord's exercise of any such right or remedy
shall not prevent the concurrent or subsequent exercise of any other right or remedy. Landlord's
delay or failure to exercise or enforce any of Landlord's rights or remedies or Tenant's
obligations shall not constitute a waiver of any such rights, remedies or obligations, Landlord
shall not be deemed to have waived any default unless such waiver expressly is set forth in an
instrument signed by Landlord. If Landlord waives in writing any default, then such waiver shall
not be construed as a waiver of any covenant or condition set forth in this Lease except as to the
specific circumstances described in such written waiver. Neither Tenant's payment of a lesser
amount than the sum due hereunder nor Tenant's endorsement or statement on any check or letter
accompanying such payment shall be deemed an accord and satisfaction, and Landlord may
accept the same without prejudice to Landlord's right to recover the balance of such sum or to
pursue any other remedy available to Landlord. Landlord's re-entry and acceptance of keys shall
not be considered an acceptance of a surrender of this Lease.
20.4 If more than one natural person and/or entity shall execute this Lease as Tenant,
then the liability of each such person or entity shall be joint and several. Similarly, if Tenant is a
general partnership or other entity the partners or members of which are subject to personal
liability, then the liability of each such partner or member shall be joint and several.
20.5 If Tenant fails to make any payment to any third party or to do any act herein
required to be made or done by Tenant, then Landlord may, but shall not be required to, make
such payment or do such act. Landlord's taking such action shall not be considered a cure of
such failure by Tenant or prevent Landlord from pursuing any remedy to which it is otherwise
entitled in connection with such failure. If Landlord elects to make such payment or do such act,
then all expenses incurred, plus interest thereon at a rate per annum (the "Default state") which is
five (5) whole percentage points higher than the prime rate published from time to time in the
Money Rates section of The Wall Street Journal (or, if such rate is not reasonably available, such
substitute rate as Landlord reasonably shall select), from the date incurred to the date of
payment thereof by Tenant, shall constitute additional rent.
20.6 if Tenant fails to make any payment of the Base Rent, Additional Rent or any
other sum payable to Landlord within five (5) days after the date such payment is due and
payable, then Tenant shall pay a late charge of five percent (5%) of the amount of such payment.
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In addition, such payment and such late fee shall bear interest at the Default Rate from the date
such payment was due to the date of payment thereof.
ARTICLE Zf
BANKRUPTCY
21.1 The following shall be Events of Bankruptcy under this Lease: (a) Tenant's, a
Guarantor's, a General Partner's, or a Managing Member's becoming insolvent, as that term is
defined in Title 11 of the United States Code (the "Bankruptcy Code"), or under the insolvency
laws of any state (the "Insolvency Laws"); (b) appointment of a receiver or custodian for any
property of Tenant, a Guarantor, a General Partner or a Managing Member, or the institution of a
foreclosure or attachment action upon any property of Tenant, a Guarantor, a General Partner; or
a Managing Member (c) filing of a voluntary petition by Tenant, a Guarantor, a General Partner
or a Managing Member under the provisions of the Bankruptcy Code or Insolvency Laws; (d)
filing of an involuntary petition against Tenant, a Guarantor, a General Partner or a Managing
Member as the subject debtor under the Bankruptcy Code or Insolvency Laws, which either (i) is
not dismissed within thirty (30) days of filing, or (ii) results in the issuance of an order for relief
against the debtor; or (e) Tenant's, a Guarantor's, a General Partner's or a Managing Member's
making or consenting to an assignment for the benefit of creditors or a composition of creditors.
21.2 (a) Upon occurrence of an Event of Bankruptcy, Landlord shall have all rights
and remedies available pursuant to Article 20; provided, however, that while a case in which
Tenant is the subject debtor under the Bankruptcy Code is pending, Landlord shall not exercise
its rights and remedies pursuant to Article 20 so long as (i) the Bankruptcy Code prohibits the
exercise of such rights and remedies, and (ii) Tenant or its trustee in Bankruptcy ("Trustee") is in
compliance with the provisions of Section 21.2(b).
(b) If Tenant becomes the subject debtor in a case pending under the
Bankruptcy Code, then Landlord's right to terminate this Lease pursuant to Section 21.2(a) shall
be subject, to the extent required by the Bankruptcy Code, to any rights of Trustee to assume or
assign this Lease pursuant to the Bankruptcy Code. Trustee shall not have the right to assume or
assign this Lease unless Trustee promptly (1) cures all defaults under this Lease, (2) compensates
Landlord for monetary damages incurred as a result of such defaults, (3) provides adequate
assurance of future performance on the part of Tenant as debtor in possession or of the assignee
of Tenant, and (4) complies with all other requirements of the Bankruptcy Code. This Lease
may be terminated in accordance with Section 21.2(a) if the foregoing criteria for assumption or
assignment are not met, or if Tenant, Trustee or such assignee defaults under this Lease after
such assumption or assignment. Adequate assurance of future performance, as used in this
Section 21.2(b), shall mean that all of the following minimum criteria must be met: (A) Tenant's
gross receipts in the ordinary course of business during the thirty (30) day period immediately
preceding the initiation of the case under the Bankruptcy Code must be greater than two (2)
times the next monthly installment of the Base Rent and additional rent; (B) both the average and
median of Tenant's monthly gross receipts in the ordinary course of business during the six (6)
month period immediately preceding the initiation of the case under the Bankruptcy Code must
be greater than two (2) times the next monthly installment of the Base Rent and additional rent;
(C) Tenant must pay its estimated pro rata share of the cost of all services performed or provided
by Landlord (whether directly or through agents or contractors and whether or not previously
included as part of the Base Rent) in advance of the performance or provision of such services;
(D) Trustee must agree that Tenant's business shall be conducted in a first-class manner, and that
no liquidating sale, auction or other non -first-class business operation shall be conducted in the
Premises; (E) Trustee must agree that the use of the Premises as stated in this Lease shall remain
unchanged and that no prohibited use shall be permitted; (F) Trustee must agree that the
assumption or assignment of this Lease shall not violate or affect the rights of other tenants in the
Building; (G) Trustee must pay to Landlord at the time the next monthly installment of the Base
Rent is due, in addition to such installment, an amount equal to the monthly installments of the
Base Rent and additional rent due for the next six (6) months thereafter, such amount to be held
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as a security deposit; and (H) all assurances of future performance specified in the Bankruptcy
Code must be provided.
ARTICLE 22
SUBORDINATION
22.1 This Lease is subject and subordinate to the lien, provisions, operation and effect
of all mortgages, deeds of trust, ground leases or other security instruments which may now or
hereafter encumber the Building or the Land (collectively "Mortgages"), to all funds and
indebtedness intended to be secured thereby, and to all renewals, extensions, modifications,
recastings or refinancings thereof, provided that such holder of the Mortgages respectively shall
provide Tenant with agreements of non -disturbance of Tenant under the terms of this Lease, on
such holder's standard form of non -disturbance agreement
22.2 In confirmation of the foregoing subordination, Tenant shall at Landlord's request,
but in no event later than five (5) business days following a request therefore, execute and
deliver any requisite or appropriate document. Tenant waives the provisions of any statute or
rule of law now or hereafter in effect which may give or purport to give Tenant any right to
terminate or otherwise adversely affect this Lease or Tenant's obligations in the event any such
foreclosure proceeding is prosecuted or completed or in the event the Land, the Building or
Landlord's interest therein is sold at a foreclosure sale or by deed in lieu of foreclosure. If this
Lease is not extinguished upon such sale or by the purchaser following such sale, then, at the
request of such purchaser, Tenant shall attorn to such purchaser and shall recognize such
purchaser as the landlord under this Lease. Upon such attornment such purchaser shall not be (a)
bound by any payment of the Base Rent or additional rent more than one (1) month in advance,
(b) bound by any amendment of this Lease made without the consent of the holder of each
Mortgage existing as of the date of such amendment, (c) liable for damages for any breach, act or
omission of any prior landlord, or (d) subject to any offsets or defenses which Tenant might have
against any prior landlord; provided, however, that after succeeding to Landlord's interest, such
purchaser shall perform in accordance with the terns of this Lease all obligations of Landlord
arising after the date such purchaser acquires title to the Building. Within fifteen (15) days after
the request of such purchaser, Tenant shall execute, acknowledge and deliver any requisite or
appropriate document submitted to Tenant confirming such attornment,
22.3 (a) After Tenant receives notice from any person, firm or other entity that it
holds a Mortgage on the Building or the Land, no notice from Tenant to Landlord alleging any
default by Landlord shall be effective unless and until a copy of the same is given to such holder,
provided that Tenant shall have been furnished with the name and address of such holder. Any
such holder shall have thirty (30) days after its receipt of notice from Tenant of a default by
Landlord under this Lease to cure such default before Tenant may exercise any remedy
hereunder. The curing of any of Landlord's defaults by such holder shall be treated as
performance by Landlord.
(h) In the event that any lender providing construction, interim or permanent
financing or any refinancing for the Building requires, as a condition of such financing, that
modifications to this Lease be obtained, and provided that such modifications (i) are reasonable;
(ii) do not adversely affect in a material manner Tenant's use of the Premises as herein permitted;
and (iii) do not increase the rent and other sums to be paid by Tenant hereunder, Landlord may
submit to Tenant a written amendment to this Lease incorporating such required changes, and
Tenant hereby covenants and agrees to execute, acknowledge and deliver such amendment to
Landlord within fifteen (15) days of Tenant's receipt thereof.
ARTICLE 23
HOLDING OVER
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23.1 If Tenant does not immediately surrender the Premises upon the expiration or
earlier termination of the Lease Term, then Tenant shall become a tenant by the month and the
rent shall be increased to the fair market rent for the Premises (but in no event less than $20.04
per Rentable Square Foot), additional rent and other sums that would have been payable pursuant
to the provisions of this Lease if the Lease Term had continued during such holdover period.
Such rent shall be computed on a monthly basis and shall be payable on the first day of such
holdover period and the first day of each calendar month thereafter during such holdover period
until the Premises have been vacated. Landlord's acceptance of such rent shall not constitute
consent by Landlord to tenant's holdover possession and shall not in any manner adversely affect
Landlord's other rights and remedies, including Landlord's right to evict Tenant and to recover
damages.
ARTICLE 24
COVENANTS OF LANDLORD
24.1 Landlord covenants that it has the right to enter into this Lease and that if Tenant
shall perform timely all of its obligations hereunder, then subject to the provisions of this Lease
Tenant shall during the Lease Term peaceably and quietly occupy and enjoy the full possession
of the Premises without hindrance by Landlord or any party claiming through or under Landlord.
24.2 Landlord reserves the following rights: (a) to relocate the Tenant to another space
within the Building, provided that Landlord absorbs the costs of such relocation; (b) to change
the street address and name of the Building; (c) to change the arrangement and location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets or other public parts
of the Building; (d) to erect, use and maintain pipes and conduits in and through the Premises;
and (e) to grant to anyone the exclusive right to conduct any particular business in the Building
not inconsistent with Tenant's permitted use of the Premises. Landlord shall also have the right
to construct a building on the property owned by Landlord adjacent to the Building and to install
connections and/or passageways linking the Building to such neighboring building. Landlord
may exercise any or all of the foregoing rights without being deemed to be guilty of an eviction,
actual or constructive, or a disturbance of Tenant's business or use or occupancy of the Premises.
In addition, Landlord reserves for itself the exclusive use of all portions of the roof of the
Building.
ARTICLE 25
PARKING
25.1 During the Lease Term, Tenant shalt have the right to lease two (2) parking
spaces, as described in the Rider. Tenant shall not sell, assign or permit anyone other than
Tenant's personnel to use any of the aforesaid parking spaces, except in conjunction with a
permitted assignment of this Lease or a permitted sublease of the Premises. Tenant and its
personnel shall comply with all reasonable rules and regulations promulgated by Landlord or
Landlord's parking area manager for the orderly functioning of the Building's parking areas.
ARTICLE 26
GENERAL PROVISIONS
26.1 Tenant acknowledges that neither Landlord nor any broker, agent or employee of
Landlord has made any representations or promises with respect to the Premises or the Building
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except as herein expressly set forth, and no right, privilege, easement or license is being acquired
by Tenant except as herein expressly set forth.
26.2 Nothing contained in this Lease shall be construed as creating a partnership or
joint venture between Landlord and Tenant or to create any other relationship other than that of
landlord and tenant.
26.3 Landlord and Tenant each warrant to the other that in connection with this Lease
neither has employed or dealt with any broker, agent or finder, other than the Broker(s) identified
in the Rider. Landlord acknowledges that it shall pay any commission or fee due to the
Broker(s), pursuant to the terms of the Rider or, if existent, a separate written agreement. Tenant
shall indemnify and hold Landlord harmless from and against any claim for brokerage or other
commissions asserted by any broker, agent or finder employed by Tenant or with whom Tenant
has dealt, other than the Broker(s).
26.4 (a) At any time and from time to time upon not less than fifteen (15) days prior
written notice, Tenant and each subtenant or assignee of Tenant or occupant of the Premises shall
execute, acknowledge and deliver to Landlord and/or any other person or entity designated by
Landlord, an estoppel certificate: (a) certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force and effect as modified
and stating the modifications); (b) stating the dates to which the rent and any other charges have
been paid; (c) stating whether or not, to the best knowledge of Tenant, Landlord is in default in
the performance of any obligation of Landlord contained in this Lease, and if so, specifying the
nature of such default; (d) stating the address to which notices are to be sent; (e) subject to the
terms of the Subordination, Non -Disturbance and Attomment Agreement, confirming that this
Lease is subject and subordinate to all Mortgages encumbering the Building or the Land; and (f)
certifying to such other matters as Landlord may reasonably request. Any such statement may be
relied upon by any owner of the Building or the Land, any prospective purchaser of the Building
or the Land, or any holder or prospective holder of a Mortgage. Tenant acknowledges that time
is of the essence to the delivery of such statements and that Tenant's delay, failure or refusal to
deliver such statements may cause substantial damages resulting from, for example, delays in
obtaining financing secured by the Building. Tenant shall be liable for all such damages. Upon
request, but not more frequently than annually, Tenant agrees to furnish Landlord with current
financial statements for Tenant and any Guarantor.
26.5 Landlord, Tenant, and al Guarantors of Tenant, if any, waive trial by jury in
any action, proceeding, claim or counterclaim brought in connection with any matter
arising out of or in any way connected with this 'Lease, the landlord -tenant relationship,
Tenant's use or occupancy of the Premises or any claim of injury or damage. Tenant
consents to service of process and any pleading relating to any such action at the location
identified in Section 30%f the Rider. Landlord, Tenant, and all Guarantors waive any
objection to the venue of any action filed in any court situated in the jurisdiction in which
the Building is located and waive any right under the doctrine of forum non conveniens or
otherwise, to transfer any such action filed In any such court to any other court.
26.6 All notices or other required communications hereunder shall be in writing and
shall be deemed duly given when delivered in person (with receipt therefore), or when sent by
Express Mail or overnight courier service (provided a receipt will be obtained) or by certified or
registered mail, return receipt requested, postage prepaid, to the following addresses: (i) if to
Landlord, care of TLCOTA Services Corp. c/o Terremark Management Services, Inc., 2601
South Bayshore Drive, Ninth Floor, Coconut Grove, Florida 33133, with a copy to General
Counsels Office, Terremark Worldwide, Inc., 2601 South Bayshore Drive, Suite 900, Coconut
Grove, Fl 33133; (ii) if to Tenant, at the Tenant Address for Notices identified in paragraph 21 of
the Rider. Either party may change its address for the giving of notices by notice given in
accordance with this Section. If Landlord or the holder of any Mortgage notifies Tenant that a
copy of each notice to Landlord shall be sent to such holder at a specified address, then Tenant
shall send (in the manner specified in this Section and at the same time such notice is sent to
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.02. 216
Landlord) a copy of each such notice to such holder, and no such notice shall be considered duly
sent unless such copy is so sent to such holder.
26.7 Each provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law. If any provision of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, then such provision shall be
deemed to he replaced by the valid and enforceable provision most substantively similar to such
invalid or unenforceable provision, and the remainder of this Lease and the application of such
provision to persons or circumstances other than those as to which it is invalid or unenforceable
shall not be affected thereby.
26.8 Feminine, masculine or neuter pronouns shall be substituted for those of another
form, and the plural or singular shall be substituted for the other number, in any place in which
the context may require such substitution.
26.9 The provisions of this Lease shall be binding upon and inure to the benefit of the
parties and each of their respective representatives, successors and assigns, subject to the
provisions herein restricting assignment or subletting,
26.10 This Lease contains the entire agreement of the parties hereto and supersedes all
prior agreements, negotiations, letters of intent, proposals, representations, warranties,
understandings and discussions between the parties hereto. Any representation, inducement,
warranty, understanding or agreement that is not contained in this Lease shall be of no force or
effect. This Lease may be modified or changed in any manner only by an instrument duly signed
by both parties.
26.11 This Lease shall be governed by and construed in accordance with the laws of the
jurisdiction in which the Building is located.
26.12 Article and section headings are used for convenience and shall not be considered
when construing this Lease.
26.13 The submission of an unsigned copy of this document to Tenant shall not
constitute an offer or option to lease the Premises. This Lease shall become effective and
binding only upon execution and delivery by both Landlord and Tenant.
26.14 Time is of the essence of each provision of this Lease.
26.15 This Lease may be executed in multiple counterparts, each of which shall be
deemed an original and all of which together constitute one and the same document.
26.16 This Lease shall not be recorded. Landlord and Tenant agree to execute, in
recordable form, a short -form memorandum of this Lease, provided that such memorandum shall
not contain any of the specific rental terms set forth herein. Such memorandum may be recorded
in the land records of the jurisdiction in which the Building is located at Tenant's cost.
26.17 Except as otherwise provided in this Lease, any Additional Rent or other sum
owed by Tenant to Landlord, and any cost, expense, damage or liability incurred by Landlord for
which Tenant is liable, shall be considered Additional Rent payable pursuant to this Lease and
paid by Tenant no later than ten (10) days after the date Landlord notifies Tenant of the amount
thereof.
26.18 Tenant's liabilities existing as of the expiration or earlier termination of the Lease
Term shall survive such expiration or earlier termination. Similarly, Landlord's obligation to
refund to Tenant the excess, if any, of the amount of Tenant's estimated payments on account of
increases in Operating Charges and Real Estate Taxes for the last calendar year falling wholly or
partly within the Lease Term over Tenant's actual liability therefore shall survive the expiration
or earlier termination of the Lease Term.
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26.19 If Landlord is in any way delayed or prevented from performing any of its
obligations under this Lease due to fire, act of God, governmental act or failure to act, strike,
labor dispute, inability to procure materials or any other cause beyond Landlord's reasonable
control (whether similar or dissimilar to the foregoing events), then the time for performance of
such obligation shall be excused for the period of such delay or prevention and extended for a
period equal to the period of such delay or prevention. if Tenant is in any way delayed or
prevented from performing any of its non -monetary obligations under this Lease due to fire, act
of God, governmental act or failure to act, strike, labor dispute, inability to procure materials or
any other cause beyond Landlord's reasonable control (whether similar or dissimilar to the
foregoing events), then the time for performance of such obligation shall he excused for the
period of such delay or prevention and extended for a period equal to the period of such delay or
prevention; provided, that such extension of the period of performance shall not excuse Tenant
from any monetary obligation, including, but not limited to, the payment of Base rent or
Additional Rent.
26.20 The person executing and delivering this Lease on Tenant's behalf warrants that
such person is duly authorized to so act. Simultaneously with the execution of this Lease, Tenant
shall deliver to Landlord certified copies of any corporate resolution or partnership consent
necessary to evidence the due execution of this Lease on Tenant's behalf.
26.21 This Lease includes and incorporates the Rider and all Exhibits attached hereto.
26.22 This Lease shall, for purposes of applicable law, be deemed a deed of lease
executed under seal.
26.23 1n the event that it is necessary for either party to resort to judicial relief to
enforce or vindicate their rights under this Lease, then the substantially prevailing party shall be
entitled, in addition to any other relief or remedy to which said party shall be entitled, to an
award of reasonable attorney's fees and costs of litigation.
[signature on following page]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, under seal,
as of the day and year first above written.
WITNESS:
Print
Print Na
LANDLORD:
Technology Center of the Americas, LLC
a Delaware limited liability company
By: Tecota Services Corp, a Delaware
Corporation, its managing member
By:
Nam
Title
WITNESSIATTEST: TENANT:
Print Name•
Print
—22-
City of Miami
Name•
Title:
02- 216
EXHIBIT A
THE BUILDING
Legal Description
Lots 1 through 20, inclusive, in Block 38 North, City of Miami, according to the Plat thereof
recorded in Plat Book B, at Page 41, of the Public Records of Miami -Dade County, Florida.
02- 216
EXHIBIT A-1
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EXHIBIT C
All work necessary to obtain a certificate of occupancy for the Premises to be used for the
purposes set forth herein, including the building of a bathroom within the Premises.
02- 216
EXHIBIT D
WORK AGREEMENT -- TENANT'S WORK
General Considerations.
a) Tenant acknowledges that all improvements to the Premises and related
installations desired by Tenant shall be made strictly in accordance with the terms of this Lease
and at Tenant's sole cost and expense. All of Tenant's Work shall be in compliance with an F-2
construction type within the meaning of and in accordance with the currently effective South
Florida Building Code. Landlord's only obligation with respect to the improvement of the
Premises is set forth and listed in the Rider, the Lease and Exhibit C above, All of Tenant's
Work, and the installation of any of Tenant's Equipment, shall be in compliance with all
applicable laws, codes and regulations of any federal, state and local government or agency
having jurisdiction thereof.
b) All improvements desired to be performed by Tenant, and approved by
Landlord in accordance with the terms of this Lease, are hereinafter referred to as "Tenant's
Work". All such improvements shall be installed by Tenant at its sole risk and expense.
Tenant's contractor must coordinate all of its work with the Landlord's designated base building
contractor or construction manager ("CM") and shall work in cooperation with said CM (subject
to the reasonable rules and regulations imposed by the CM) so as to coordinate the use of and
access to the Property and Building common areas, the loading facilities, freight elevators, risers,
etc. throughout the development and alteration of the Property, Building and the Premises.
c) Notwithstanding anything to the contrary in the Rider and the Lease,
Tenant shall submit all plans and specifications for construction of improvements and installation
of equipment and materials, and for any riser or chaseway space, to the Landlord and CM for
review, comments and approval in conformity with the Rider and Lease, Given the
extraordinary complexity of the inter -relationship between the needs of the various tenants of the
Complex, and Landlord's wish to accommodate the needs of all tenants to the extent reasonably
possible as they relate to the initial construction and alteration of their respective premises,
Tenant has a duty to consult with Landlord and CM and to afford them adequate opportunity to
coordinate work and installations so as to ensure that no conflict arises between or among
tenants.
2. Electrical Service: Tenant shall obtain and pay for its entire supply of electrical
power directly from the public utility, with such service to include direct metering and billing of
utilization,
3. Loading Docks, Freight Elevator Use during construction: Tenant shall coordinate
its construction activities and deliveries with Landlord's CM so as to ensure that its use and
scheduling of freight elevators and other facilities is compatible with Landlord's reasonable
requirements and those of other tenants. Landlord shall review and respond to Tenant requests
for review of plans and specifications of structural matters within thirty (30) business days of
their submission to Landlord's CM. Landlord shall review and respond to tenant requests for
review of plans and specifications of non-structural matters within five (5) business days of their
submission and receipt to Landlord's CM.
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EXHIBIT E
RULES AND REGULATIONS
This Exhibit is attached to and made a part of that certain Lease Agreement dated
as of the day of October 2001 (the "Lease"), by and between Technology Center of the
Americas LLC, a Delaware limited liability company ("Landlord") and City of Miami
("Tenant").
The following Rules and Regulations have been formulated for the safety and
well-being of all tenants of the Building and to ensure compliance with all municipal said other
requirements. Strict adherence to these Rules and Regulations is necessary to guarantee that
each and every,tenant will enjoy a safe and unannoyed occupancy in the Building in accordance
with the Lease. Any continuing violation of these Rules and Regulations by Tenant, after notice
from Landlord, shall be deemed to be an Event of Default under the Lease.
Landlord may, upon request by any tenant, waive the compliance by such tenant
to any of these Rules and Regulations, provided that (i) no waiver shall be effective unless
signed by Landlord or Landlord's authorized agent, (ii) any such waiver shall not relieve such
tenant from the obligation to comply with such Rule and Regulation in the future unless
expressly consented to by Landlord, (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the Rules and Regulations unless such other tenant
has received a similar waiver in writing from Landlord, and (iv) any such waiver by Landlord
shall not relieve Tenant from any obligation or liability of Tenant to Landlord pursuant to the
Lease for any loss or damage occasioned as a result of Tenant's failure to comply with any such
Rule or Regulation.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, halls and other parts of the Building not occupied by any tenant shall not be
obstructed or encumbered by any tenant or used for any purpose other than ingress and egress to
and from the Premises, and if the Premises are situated on the ground floor of the Building, then
Tenant shall, at its own expense, keep the sidewalks and curbs directly in front of the Premises
clean and free from ice and snow. Landlord shall have the right to control and operate the public
portions of the Building and the facilities furnished for common use of the tenants in such
manner as Landlord deems best for the benefit of the tenants generally. No tenant shall permit
the visit to the Premises of persons in such numbers or under such conditions as to interfere with
the use and enjoyment by other tenants of the entrances, corridors, elevators and other public
portions or facilities of the Building.
2. No awnings or other projections shall be attached to any wall of the
Building without the prior written consent of Landlord. No drapes, blinds, shades or screens
shall be attached to or hung in, or used in connection with, any window or door of the Premises,
without the prior written consent of Landlord. Such awnings, projections, curtains, blinds,
shades, screens or other fixtures must be of a quality, type, design and color, and attached in the
manner, approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors or vestibules without the
prior written consent of Landlord.
4. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no sweepings, rubbish,
rags, chemicals, paints, cleaning fluids or other substances shall be thrown therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
5. There shall be no marking, painting, drilling into or in any way defacing
the Building or any part of the Premises visible from public areas of the Building. Tenant shall
not construct, maintain, use or operate within the Premises any electrical device, wiring or
apparatus in connection with a loud speaker system or other sound system, except as reasonably
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required for its communication system and approved prior to the installation thereof by Landlord.
No such loudspeaker or sound system shall be constructed, maintained, used or operated outside
of the Premises.
6. No bicycles, vehicles, animals, birds or pets of any kind shall be brought
into or kept in or about the Premises, and no cooking (except for hot -plate or microwave cooking
by Tenant's employees for their own consumption, the equipment for and location of which are
first approved by Landlord) shall be done or permitted by any tenant on the Premises. No tenant
shall cause or permit any unusual or objectionable odors to be produced upon or to permeate
from the Premises.
7. The use of the Premises by each tenant was approved by Landlord prior to
execution of the Lease and such use may not be changed from the Permitted Use without the
prior approval of Landlord. No space in the Building shall be used for manufacturing of goods
for sale in the ordinary course of business, for the storage of merchandise for sale in the ordinary
course of business or for the sale at auction of merchandise, goods or property of any kind.
S. No tenant shall make any unseemly or disturbing noises or disturb or
interfere with occupants of the Building or neighboring buildings or Premises or those having
business with them whether by the use of any musical instrument, radio, talking machine,
unmusical noise, whistling, singing or in any other way. No tenant shall throw anything out of
the doors or windows or down the corridors or stairs.
9. No flammable, combustible or explosive fluid, chemical, asbestos or other
hazardous substance or any other material harmful to tenants of the Building shall be brought,
installed in or kept upon the Premises. No space heaters, fans or individual air conditioning units
may be used in the Premises. Any electrical or extension cords deemed to be a fire hazard by
Landlord in Landlord's sole discretion shall be removed.
I0, No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant nor shall any changes be made in existing locks or the
mechanism thereof. The doors leading to the corridors or main halls shall be kept closed at all
times except as they may be used for ingress or egress. Each tenant shall, upon the termination
of its tenancy, restore to the Landlord all keys of stores, offices, storage and toilet rooms either
furnished to, or otherwise procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to Landlord the cost thereof.
E-6-
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SCHEDULE 5.1(b)
TENANT'S OPERATING CHARGES
Operating Charges shall mean all costs and expenses incurred by Landlord in the
ownership and operation of the Building, including but not limited to all of the following: (1)
electricity, gas, water, sewer and other utility charges with respect to the operation of common
areas of the Building; (2) premiums and other charges for insurance (including, but not limited
to, property insurance, rent loss insurance and liability insurance); (3) all market rate
management fees incurred in the management of the Building; (4) all costs incurred in
connection with service and maintenance contracts; (5) maintenance and repair expenses and
supplies; (G) amortization (calculated over the useful life of the improvement, with interest at
Landlord's cost of funds or (if the improvement is not financed) at the prime rate reported in The
Wall Street Journal) for capital expenditures which have been approved by Tenant or which are
made by Landlord for the purpose of complying with legal or insurance requirements or that are
intended to result in a net decrease in Operating Charges (hereinafter referred to as "Qualified
Capital Expenditures"); (7) salaries, wages, benefits and other expenses of Building personnel;
(8) legal fees (except as excluded below), administrative expenses, and accounting, architectural
and other professional fees and expenses; (4) costs of any service not provided to the Building on
the Lease Commencement Date but thereafter provided by Landlord in the prudent management
of the Building; (10) charges for security (including the costs associated with the downtown net
office to be located on the ground floor of the Building), janitorial, char and cleaning services
and supplies furnished to the Building; (11) costs associated with the provision or operation of
any common facilities and service amenities; (12) the cost of maintaining management,
engineering and/or maintenance offices in the Building (including the fair market rental value of
the space devoted to such uses); (13) any business, professional and occupational license tax paid
by Landlord with respect to the Building; (14) any personal property tax payable with respect to
Landlord's property located at the Building that is used in connection with the maintenance,
repair, or operation of the Building; and (15) any other expense incurred by Landlord in
maintaining, repairing or operating the Building and related property. Operating Charges shall
not include the following:
(i) Principal payments or interest payments on any mortgage, other
debt costs and ground rent payments on any ground lease.
(ii) Leasing commissions paid by Landlord,
(iii) Cost of repair or other work occasioned by fire, windstorm or other
casualty, or by condemnation, to the extent reimbursed by insurance proceeds or
condemnation award, and any other costs of items for which Landlord receives
reimbursement from a third party.
(iv) Costs incurred due to renovating, decorating, redecorating or
otherwise improving space for tenants in the Building.
(v) Costs of correcting latent defects (not standard repairs) during the
initial warranty period after construction. All repairs and replacements resulting from
ordinary wear and tear, use, fire, casualty, vandalism and other matters shall not be
deemed to be latent construction defects.
(vi) Tenant's costs of electricity.
(vii) Depreciation and amortization of the Building or any fixtures or
improvements therein.
(viii) Expenses in connection with services or other benefits of a type
which are not standard for the Building and which are not available to Tenant without
specific charge therefore, but which are provided to another tenant or occupant and for
which such other tenant or occupant is specifically charged by Landlord.
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(ix) Costs, penalties, fines and associated legal expenses incurred due
to violation by Landlord or any tenant in the Building of the terms of any applicable
federal, state or local government laws, codes or similar regulations that would not have
been incurred but for any such violations by Landlord, it being intended that each party
shall be responsible for costs resulting from its own violation of such laws, codes and
regulations as the same shall pertain to the Building. Notwithstanding the foregoing,
interest or penalties incurred in connection with assessments or taxes which aro
reasonably contested by Landlord shall be included as an acceptable Operating Charge.
(x) Costs of Landlord's general overhead and general administrative
expenses (individual, partnership or corporate, as the case may be), which costs would
not be chargeable to operating expenses of the Building in accordance with generally
accepted accounting principles, consistently applied.
(xi) Any compensation paid to clerks, attendants or other persons in
commercial concessions (such as snack bar or restaurant), if any, operated by Landlord.
(xi i) All items and services for which Tenant or any other building
tenant specifically reimburses Landlord.
(xiii) Legal fees in connection with leasing, tenant disputes or
enforcement of leases.
(xiv) Capital expenditures, except Qualified Capital Expenditures
(xv) Costs of overtime HVAC service whether provided to the Tenant
or any other tenant of the Building.
(xvi) Costs of repairing, replacing or otherwise correcting defects
(including latent defects) in or inadequacies of (but not the costs of ordinary and
customary repair for normal wear and tear) the initial design or construction of the
Building.
(xvii) Allowances, concessions, permits, licenses, inspections and other
costs and expenses incurred in completing, fixturing, renovating or otherwise improving,
decorating or redecorating space for tenants (including Tenant), prospective tenants or
other occupants of the Building, or vacant leasable space in the Building, or constructing
or finishing demising walls and public corridors with respect to any such space,
(xviii) Any amount specifically required to be paid by Landlord to Tenant
under this Lease, and any cost or expense (A) which is due to Landlord's negligence or
willful misconduct, (B) which is incurred pursuant to any Landlord indemnification
and/or hold harmless provision, or (C) which is a result of any breach of this Lease or any
other lease for space in the Building.
(xix) Costs incurred in connection with the sale, financing, refinancing,
mortgaging, selling or change of ownership of the Land or Building.
(xx) Costs, fines, interest, penalties, legal fees or costs of litigation
incurred due to the late payments of utility bills and other costs of operating the Building
incurred by Landlord's failure to make such payments when due.
(xxi) All amounts which would otherwise be included in Operating
Charges which are paid to any affiliate or subsidiary of Landlord, or any representative,
employee or agent of same, to the extent the costs of such services exceed the
competitive rates for similar services of comparable quality rendered by persons or
entities of similar skill, competence and experience. It is hereby acknowledged by
Tenant that the management fee in the amount of 5% of gross rentals to be paid to an
affiliate of Landlord is a competitive, market rate fee.
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(xxii) Increased insurance premiums caused by Landlord's or any other
tenant's hazardous acts.
(xxiii) Moving expense costs of tenants of the Building.
(xxiv) Advertising, public relations and promotional costs associated with
the promotion or leasing of the Building, and costs of signs in or on the Building
identifying the owners of the Building or any tenant of the Building.
(xxv) Costs incurred to correct violations by Landlord of any law,
regulation, rule, order or ordinance which was in effect as of the Lease Commencement
Date.
(xxvi) Non-cash items, such as interest on capital invested, bad debt
losses, rent losses and reserves for such losses.
In the event a single expenditure pays for the provision of a good or service to both the Building
and any neighboring building owned by Landlord, then Operating Charges of the Building shall
include only the portion of such payment that is equitably allocable to the Building, as
reasonably determined by Landlord.
02- 216
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO : The Honorable Mayor and Members DATE: RLF
of the City Commission
SUBJECT : Lease Agreement for Downtown
Neighborhood Enhancement Team
Carlos A. Gimenez
FROM, City Manager REFERENCES:
ENCLOSURES:
RECOMMENDATION:
The Administration recommends that the City Commission approve the attached Resolution
authorizing the City Manager to execute a Lease Agreement (the "Agreement"), in substantially
the attached form, between Technology Center of the Americas LLC (the "Lessor"), and the City
of Miami ("City"). This Agreement is for the use of approximately 1,526 square feet of space
within the Network Access Point building located at 50 Northeast Ninth Street, Miami Florida, to
be occupied by the Downtown Neighborhood Enhancement Team (the "NET"). The Agreement
shall be for a term of five (5) years, at an annual rental of $1.00 for each year of the term, and
Lessor to pay all common area charges and provide two (2) parking spaces, with terms and
conditions as more particularly set forth in the Agreement.
BACKGROUND:
The Downtown Net office presently occupies space at 915 N.W. 1st Avenue but desires to
relocate its offices to the Network Access Point building, located at 50 Northeast Ninth Street.
The Administration negotiated with the Lessor to locate its Downtown Net office, at no cost to
the City of Miami, for space within the premises to better serve the public. Technology Center of
the Americas LLC, owner of the subject property, has agreed to enter into a Lease Agreement
with the City for use of the subject property.
Highlights of the Lease Agreement are as follows:
Term: Five (5) years.
Option: No option to renew.
Rent: Annual rental of $1.00.
Security
Deposit: No security deposit is required.
Improvements: Landlord to provide basic buildout which shall include two (2) offices, one
(1) unisex bathroom, a counter for miscellaneous use, flooring, and
02- 216
The Honorable Mayor and Members
of the City Commission
Page 2...
acoustical tile for ceiling. Additional improvements to be provided by the
City.
Parking: Lessor to provide two free (2) parking spaces.
Utilities: Landlord pays except for telephone and cable television service.
Maintenance: Landlord Pays.
Technology Center of the Americas LLC , a Deleware Limited liability company.
4�
CAG/DB/LWk City Commission— Lease for Downtown NET.doc
OR.. 216
TO
CITY OF MIAMI, FLORIDA * CA -7
INTER -OFFICE MEMORANDUM
The Honorable Mayor and Members DATE: FED 2 6 2002 FILE:
of the City Commission
ar os A. Gimenez
FROM : City Manager
RECOMMENDATION:
SUBJECT: Lease Agreement for Downtown
Neighborhood Enhancement Team
REFERENCES:
ENCLOSURES:
The Administration recommends that the City Commission approve the attached Resolution
authorizing the City Manager to execute a Lease Agreement (the "Agreement"), in substantially
the attached form, between Technology Center of the Americas LLC (the "Lessor"), and the City
of Miami ("City"). This Agreement is for the use of approximately 1,526 square feet of space
within the Network Access Point building located at 50 Northeast Ninth Street, Miami Florida, to
be occupied by the Downtown Neighborhood Enhancement Team (the "NET"). The Agreement
shall be for a term of five (5) years, at an annual rental of $1.00 for each year of the term, and
Lessor to pay all common area charges and provide two (2) parking spaces, with terms and
conditions as more particularly set forth in the Agreement.
BACKGROUND:
The Downtown Net office presently occupies space at 915 N.W. 1st Avenue but desires to
relocate its offices to the Network Access Point building, located at 50 Northeast Ninth Street.
The Administration negotiated with the Lessor to locate its Downtown Net office, at no cost to
the City of Miami, for space within the premises to better serve the public. Technology Center of
the Americas LLC, owner of the subject property, has agreed to enter into a Lease Agreement
with the City for use of the subject property.
Highlights of the Lease Agreement are as follows:
Term: Five (5) years.
Option: No option to renew.
Rent: Annual rental of $1.00.
Security
Deposit: No security deposit is required.
Improvements: Landlord to provide basic buildout which shall include two (2) offices, one
(1) unisex bathroom, a counter for miscellaneous use, flooring, and
02- 216
The Honorable Mayor and Members
of the City Commission
Page 2...
acoustical tile for ceiling. Additional improvements to be provided by the
City.
Parking: Lessor to provide two free (2) parking spaces.
Utilities: Landlord pays except for telephone and cable television service.
Maintenance: Landlord Pays.
Technology Center of the Americas LLC, a Deleware Limited liability company.
CAGlDB/!k City Commission — Lease for Downtown NET.doc
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