HomeMy WebLinkAbout24597AGREEMENT INFORMATION
AGREEMENT NUMBER
24597
NAME/TYPE OF AGREEMENT
CG BID & MM CONTINENTAL PLAZA, LLC
DESCRIPTION
OFFICE LEASE AGREEMENT/OFFICE BUILDING LOCATED AT
3250 MARY STREET/MATTER ID: 23-476
EFFECTIVE DATE
ATTESTED BY
TODD B. HANNON
ATTESTED DATE
9/1/2023
DATE RECEIVED FROM ISSUING
DEPT.
9/12/2023
NOTE
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of the date last
executed and dated by Landlord and Tenant below (the "Effective Date"), between MM
CONTINENTAL PLAZA, LLC, a Delaware limited liability company authorized to transact
business in Florida ("Landlord"), and COCONUT GROVE BUSINESS IMPROVEMENT
DISTRICT, a municipal board of the City of Miami ("Tenant"). The Landlord and Tenant may
each be individually referred to as a "party" or collectively as the "parties."
WITNESSETH:
For and in consideration of the covenants contained in this Lease, and upon the terms and
conditions set forth in this Lease, Landlord and Tenant, intending to be legally bound, agree as
follows:
1. Definitions. The following are definitions of some of the defined terms used in
this Lease. The definition of other defined terms are found throughout this Lease.
A. "Building" shall mean the office building located at 3250 Mary Street,
Miami, Florida 33133, currently known as Continental Plaza.
B. "Base Rent": Base Rent shall be paid according to the following schedule,
subject to the provisions of Section 4 hereof. As used herein, "Lease Month" shall mean
a period of time commencing on the same numeric day as the Commencement Date and
ending on (but not including) the day in the next calendar month that is the same numeric
date as the Commencement Date; provided, however, that if the Commencement Date
does not occur on the first day of a calendar month, then the first (1st) Lease Month shall
be extended to end on the last day of the first (1st) full calendar month following the
Commencement Date, Tenant shall pay Base Rent and Additional Rent during the
resulting partial calendar month at the same rate payable for the first (1st) Lease Month
(prorated based on the number of days in such partial calendar month), and the
succeeding Lease Months shall commence on the first day of each calendar month
thereafter.
PERIOD
(LEASE MONTHS)
PERIOD
BASE RENT
MONTHLY INSTALLMENTS
OF BASE RENT
1-12
$62,370.00
$5,197.50
13 - 24
$65,488.56
$5,457.38
25 - 36
$68,762.88
$5,730.24
37 - 48
$72,201.12
$6,016.76
49 - 60
$75,811.08
$6,317.59
The Base Rent due for the First (1st) Lease Month during the Lease Term, in the amount of
$5,197.50, shall be paid by Tenant to Landlord contemporaneously with Tenant's execution
hereof.
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C. "Additional Rent" shall mean any other sums (exclusive of Base Rent)
that are required to be paid to Landlord by Tenant hereunder, which sums are deemed to
be Additional Rent under this Lease.
D. Reserved.
E. Reserved.
F. "Security Deposit" shall mean the sum of $12,635.18. The Security
Deposit shall be paid by Tenant to Landlord contemporaneously with Tenant's execution
hereof.
G. "Lease Term" shall mean a period of sixty (60) months commencing on
the earlier to occur of (a) occupancy of the Premises by Tenant for the purpose of
conducting business and (b) the date upon which Landlord's Work (as defined in Exhibit
D) in the Premises has been substantially completed (the earlier to occur of such dates
being defined as the "Commencement Date"). "Expiration Date" shall mean the last
day of the Lease Term. Notwithstanding the foregoing, if the Expiration Date, as
determined herein, does not occur on the last day of a calendar month, the Lease Term
and the last Lease Month thereof shall be extended by the number of days necessary to
cause the Expiration Date to occur on the last day of the last calendar month of the Lease
Term. Tenant shall pay Base Rent and Additional Rent for such additional days at the
same rate payable for the portion of the last calendar month immediately preceding such
extension. Tenant shall execute and deliver a Commencement Letter to Landlord in the
form of Exhibit E attached hereto (the "Commencement Letter") setting forth the
Commencement Date and the Expiration Date, within the time frame set forth in the
Work Letter.
H. "Premises" shall mean the office space known as Suite 305 located on
the third floor of the Building and outlined on Exhibit A to this Lease. If the Premises
include one or more floors in their entirety, all corridors and restroom facilities located on
such full floor(s) shall be considered part of the Premises.
I. "Rentable Area in the Premises" shall mean 1,134 square feet. This
square footage figure includes an add -on factor for Common Areas in the Building and
has been agreed upon by the parties as final and correct and is not subject to challenge or
dispute by either party.
J. "Rentable Area in the Building" shall mean 78,143 square feet.
K. Reserved.
L. "Permitted Use" shall mean general office use and no other use or
purpose.
M. Reserved.
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N. "Guarantor(s)" shall mean any party that agrees in writing to guarantee
Tenant's obligations under the Lease. As of the date of this Lease, there are no
Guarantor(s).
O. "Broker" shall mean Jones Lang LaSalle Brokerage, Inc., representing
Landlord.
P. "Business Day(s)" shall mean Mondays through Fridays exclusive of the
normal business holidays.
Q. "Common Areas" shall mean those areas located within the Building or
on the Property designated by Landlord, from time to time, for the common use or benefit
of tenants generally and/or the public.
R. "Default Rate" shall mean the lower of (i) eighteen percent (18%) per
annum, or (ii) the highest rate of interest from time -to -time permitted under applicable
federal and state law.
S. "Normal Business Hours" for the Building shall mean 7:00 a.m. to 6:00
p.m. Mondays through Fridays, and 9:00 a.m. to 1:00 p.m. on Saturdays, exclusive of
holidays.
T. "Property" shall mean the Building and the parcel(s) of land on which it
is located, which land is described in Exhibit A-1 attached hereto, other improvements
located on such land, adjacent parcels of land that Landlord operates jointly with the
Building, and other buildings and improvements located on such adjacent parcels of land.
U. "Notice Addresses" shall mean the following addresses for Tenant and
Landlord, respectively:
Tenant:
Prior to Commencement Date:
Coconut Grove Business Improvement District
3390 Mary Street, Suite 130
Miami, FL 33133
Attn: Executive Director
With copies to:
City of Miami
Office of the City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: City Attorney
From and after Commencement Date:
Coconut Grove Business Improvement District
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3250 Mary Street, Suite 305
Miami, Florida 33133
Attn: Executive Director
With copies to:
City of Miami
Office of the City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: City Attorney
Landlord:
MM Continental Plaza, LLC
c/o Madison Marquette
1000 Maine Avenue SW, Suite 300
Washington, DC 20024
Attn: Chief Financial Officer
Attn: Legal & Risk Management Departiiient
With copies to:
MM Continental Plaza, LLC
c/o Madison Marquette
1000 Main St., Suite 2400
Houston, TX 77002
Attn: Marilyn Lucas, EVP/Managing Director, Asset
Management
Shutts & Bowen LLP
1858 Ringling Boulevard, Suite 300
Sarasota, FL 34236
Attn: E. Zachary Rans
Payments of Rent only shall be made payable to the order of Landlord at
the following addresses:
If paying by wire or ACH:
Wire:
Bank of America, N.A.
ABA#: 026009593
Acct: 466001390667
Acct Name: MM Continental Plaza, LLC
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ACH:
Bank of America, N.A.
ABA#: 011000138
Acct #: 466001390667
Acct Name: MM Continental Plaza, LLC
To mail to the lockbox:
USPS:
MM Continental Plaza, LLC
P. O. Box 745622
Atlanta, GA 30374-5624
Overnight delivery:
Bank of America Lockbox Services:
Lockbox 745622
6000 Feldwood Road
College Park, GA 30349
All checks should be made payable to "MM
CONTINENTAL PLAZA, LLC"
or such other name and address as Landlord shall, from time to time,
designate.
2. Lease Grant/Possession.
A. Subject to and upon the terms herein set forth, Landlord leases to Tenant
and Tenant leases from Landlord the Premises on an "as is" basis (except as otherwise
expressly set forth herein), together with the right, in common with others, to use the
Common Areas. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order and satisfactory
condition, with no representation or warranty by Landlord as to the condition of the
Premises or the Building or suitability thereof for Tenant's use.
B. Notwithstanding anything to the contrary contained in this Lease, if
Landlord is unable to tender possession of any portion of the Premises on the
Commencement Date due to the holding over of another party or for any other reason,
this Lease shall not be void or voidable or otherwise affected and Tenant shall have no
claim for damages against Landlord. In such event, the Commencement Date shall be
postponed until the date Landlord delivers possession of the Premises to Tenant, the
Expiration Date shall, at the option of Landlord, correspondingly be postponed on a per
diem basis.
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C. Subject to the provisions in this Section 2C and Section 2D below,
Landlord shall allow Tenant to enter the Premises fourteen (14) calendar days prior to the
date of substantial completion of Landlord's Work for the sole purpose of installing
Tenant's furniture, cabling and wiring (the "Early Entry Purpose"), provided such
permission is conditioned upon Tenant working in harmony and not interfering with or
delaying Landlord and Landlord's contractors in performing Landlord's Work and not
interfering with other tenants and occupants of the Building.
D. If, with Landlord's prior written approval, Tenant takes possession of the
Premises prior to the Commencement Date, such possession shall be subject to all of the
terms and conditions of the Lease, except that Tenant shall not be required to pay Rent
with respect to the period of time prior to the Commencement Date. Tenant shall,
however, be liable for the reasonable cost of any services (e.g., electricity, HVAC, freight
elevators) that are provided to Tenant during the period of Tenant's possession prior to
the Commencement Date. Without limitation as to other provisions, Tenant hereby
expressly acknowledges that Tenant's responsibility, liability (including under a breach
of contract claim by Landlord) and related obligations under Section 14 of the Lease
applies to all claims and matters arising from early entry to the Premises. Nothing herein
shall be construed as granting Tenant the right to take possession of the Premises other
than for the Early Entry Purpose prior to the Commencement Date, without the prior
written consent of Landlord.
3. Use.
A. The Premises shall be used for the Permitted Use and for no other purpose.
Tenant agrees not to use or permit the use of the Premises for any purpose which is
illegal or dangerous, which creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building. Tenant will conduct its business and
control its agents, servants, employees, customers, licensees, and invitees in such a
manner as not to interfere with or disturb other tenants or Landlord in the management of
the Property. Tenant will maintain the Premises in a clean and healthful condition, and
comply with all laws, ordinances, orders, rules and regulations of any governmental
entity with reference to the use, condition, configuration or occupancy of the Premises.
Tenant shall not, and shall not allow its employees, agents, contractors or invitees, to
bring into the Building or the Premises any dangerous or hazardous materials, except for
customary office and cleaning supplies, provided Tenant uses, stores and disposes of the
same in compliance with all applicable law. Tenant, at its expense, will comply with the
rules and regulations of the Building attached hereto as Exhibit B and such other rules
and regulations adopted and altered by Landlord from time -to -time and will cause all of
its agents, employees, invitees and visitors to do so. All such changes to rules and
regulations will be reasonable and shall be sent by Landlord to Tenant in writing and
shall be effective as to Tenant five (5) business days after such changes are sent to
Tenant. In the event of a conflict between the rules and regulations and the terms of this
Lease, the terms of this Lease shall control. Landlord shall not knowingly enforce the
rules and regulations against Tenant in a discriminatory manner.
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B. Tenant represents, warrants, covenants and agrees that, except as
otherwise expressly provided herein, Tenant and its employees, agents, contractors and/or
invitees (i) will not (a) use, introduce or maintain any hazardous or toxic chemical,
material, substance or waste (collectively, "Hazardous Materials") in, on, under or
about any portion of the Premises or the Building or (b) conduct any activity or activities
in or on the Premises or the Building involving, directly or indirectly, the use, generation,
treatment, storage, disposal or release of any Hazardous Materials and (ii) shall not be,
nor permit the Premises to be, in violation of any applicable local, state or federal
environmental laws, statutes or ordinances (or the rules and regulations promulgated
thereunder) ("Environmental Laws"); provided that Tenant may use customary office
and cleaning supplies so long as the same are used, stored and disposed of in compliance
with, and in quantities not reportable under, all applicable Environmental Laws. Tenant
expressly acknowledges and accepts its responsibility under applicable law and its
liability (including under a breach of contract claim by Landlord) for all loss, cost,
damage, liability and expense arising in connection with any breach by Tenant of any of
the representations, warranties, covenants and agreements set forth herein. This is a
statement of Tenant responsibility but is not to be construed or interpreted as hold
harmless, duty to defend, covenant not to sue, release, or indemnification by the Tenant
or the City of Miami to any third party, including Landlord. The Tenant expressly
reserves its sovereign immunity, and its privileges, defense, limitations to liability, and
claims relating to sovereign immunity. Tenant shall pay to Landlord within 5 business
days of written demand all costs and expenses incurred by Landlord in connection with
any breach by Tenant of any of the representations, warranties, covenants and agreements
set forth herein. The provisions of this paragraph shall survive the expiration or earlier
termination of the Lease.
4. Rent.
A. Tenant covenants to pay to Landlord during the Lease Term, without any
notice, setoff, or deduction, except as otherwise expressly provided herein, the full
amount of all Base Rent and Additional Rent as and when due hereunder and the full
amount of all such other sums of money as shall become due under this Lease, all of
which hereinafter may be collectively called "Rent." Subject to the provisions of Section
37 hereof, Tenant shall pay, as Additional Rent, all rent, sales and use taxes or other
similar taxes, if any, now or hereafter levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all other
payments required to be paid to Landlord by Tenant under this Lease. Such payments
shall be paid concurrently with the payments of the Rent on which the tax is based. Base
Rent and Additional Rent for each calendar year or portion thereof during the Lease
Term, shall be due and payable in advance in monthly installments on the first day of
each calendar month during the Lease Term, without demand. If the Lease Tenn
commences on a day other than the first day of a month or terminates on a day other than
the last day of a month, then the installments of Base Rent and Additional Rent for such
month or months shall be prorated, based on the number of days in such month. All
amounts received by Landlord from Tenant hereunder shall be applied first to the earliest
accrued and unpaid Rent then outstanding. Tenant's covenant to pay Rent shall be
independent of every other covenant set forth in this Lease.
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B. To the extent allowed by law, all installments of Rent not paid when due
shall bear interest at the Default Rate from the date due until paid. In addition, if Tenant
fails to pay any installment of Base Rent and Additional Rent or any other item of Rent
when due and payable hereunder, a "Late Charge" equal to five percent (5%) of such
unpaid amount will be due and payable immediately by Tenant to Landlord.
5. Security Deposit. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the Security Deposit shall not be
considered an advance payment of Rent or a measure of Tenant's liability for damages in case of
default by Tenant. Landlord shall not be required to keep the Security Deposit separate from its
other accounts, shall have no fiduciary responsibilities or trust obligations whatsoever with
regard to the Security Deposit. Landlord may, from time -to -time, without prejudice to any other
remedy and without waiving such default, use the Security Deposit to the extent necessary to
cure or attempt to cure, in whole or in part, or to pay sums due in connection with, any default of
Tenant hereunder. Following any such application of the Security Deposit, Tenant shall pay to
Landlord within five (5) business days after demand the amount so applied in order to restore the
Security Deposit to its original amount. If Tenant is not in default at the termination of this
Lease, the balance of the Security Deposit remaining after any such application shall be returned
by Landlord to Tenant within sixty (60) calendar days thereafter. If Landlord transfers its
interest in the Premises during the Lease Term, Landlord shall assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of such Security Deposit.
6. Services to be Furnished by Landlord.
A. Subject to the rights reserved to Landlord under Section 27 hereof,
casualty, force majeure, governmental rules, regulations, mandates, restrictions,
ordinances and guidelines, Landlord shall provide the following services, utilities,
facilities and supplies comparable in quality to those customarily provided by landlords
in buildings of a similar design in the area in which Property is located: (i) heating and air
conditioning during Normal Business Hours to provide a temperature condition required,
in Landlord's reasonable judgment, for comfortable occupancy of the Premises under
normal business operations Monday — Fridays during Normal Business Hours (and on
Saturdays during Normal Business Hours, but only if requested by Tenant in writing by
5:00 p.m. on the immediately preceding Friday). If Tenant shall require space heating or
cooling outside the hours and days above specified, Landlord shall provide such service
at Tenant's expense (currently $40.00 per hour, subject to annual adjustment by
Landlord) in accordance with any advance notice requirements established from time to
time by Landlord; (ii) water at those points of supply provided for general use of tenants
in the Building, and, subject to Landlord's approval, water at Tenant's expense for any
private restrooms and office kitchen requested by Tenant; (iii) janitorial service in the
Premises and Common Areas five (5) days a week (excluding holidays); and (iv)
electricity to the Premises for general office use, in accordance with and subject to the
terms and conditions of Section 10 of this Lease. Except for the utilities and services
listed in this section, Landlord shall have no obligation to provide any other utilities or
services to the Premises. In the event that any utilities are supplied to or metered
exclusively for the Premises, Tenant shall be solely responsible for and shall promptly
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pay such utilities directly to the utility provider. Tenant shall be solely responsible for all
costs associated with the provision of a separate meter or sub -meter for the Premises.
B. If Tenant requests any other utilities or Building services in addition to
those identified in Section 6.A., or any of the above utilities or Building services in
frequency, scope, quality or quantities substantially greater than the standards set by
Landlord for the Building, then Landlord shall use reasonable efforts to attempt to furnish
Tenant with such additional utilities or Building services. Landlord may impose a
Building standard charge for such additional utilities or Building services, upon providing
the Tenant with written notice, which shall be paid monthly by Tenant as Additional Rent
on the same day that the monthly installment of Base Rent is due.
C. The failure by Landlord to any extent to furnish, or the interruption or
termination of utilities and Building services identified in Section 6.A. in whole or in
part, resulting from adherence to laws, regulations and administrative orders, wear, use,
repairs, improvements, alterations or any causes shall not render Landlord liable in any
respect nor be construed as an actual or constructive eviction of Tenant, nor give rise to
an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement hereof.
D. Notwithstanding anything to the contrary contained in this Section 6, if:
(i) Landlord ceases to furnish any service described in Section 6A in the Premises for a
period in excess of five (5) consecutive Business Days after Tenant notifies Landlord of
such cessation (the "Interruption Notice"); (ii) such cessation does not arise as a result
of an act or omission of Tenant; (iii) such cessation is not caused by a fire or other
casualty (in which case Section 16 shall control); (iv) the restoration of such service is
reasonably within the control of Landlord; and (v) as a result of such cessation, the
Premises or a material portion thereof, is rendered untenantable and Tenant in fact ceases
to use the Premises, or material portion thereof, then Tenant, as its sole remedy, shall be
entitled to receive an abatement of Base Rent payable hereunder during the period
beginning on the sixth (6th) consecutive Business Day following Landlord's receipt of
the Interruption Notice and ending on the day when the service in question has been
restored. In the event the entire Premises has not been rendered untenantable by the
cessation in service, the amount of abatement that Tenant is entitled to receive shall be
prorated based upon the percentage of the Premises so rendered untenantable and not
used by Tenant.
7. Leasehold Improvements; Tenant's Property. All fixtures, equipment,
improvements and appurtenances attached to, or built into, the Premises at the commencement of
or during the Lease Term, whether or not by, or at the expense of, Tenant ("Leasehold
Improvements"), shall be and remain a part of the Premises; shall be the property of Landlord;
and shall not be removed by Tenant except as expressly provided herein. All unattached and
moveable partitions, trade fixtures, moveable equipment or furniture located in the Premises and
acquired by or for the account of Tenant, without expense to Landlord, which can be removed
without structural damage to the Building or Premises, and all personalty brought into the
Premises by Tenant ("Tenant's Property") shall be owned and insured by Tenant. Landlord
may, nonetheless, at any time prior to, or within one (1) month after, the expiration or earlier
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termination of this Lease or Tenant's right to possession of the Premises, require Tenant to
remove any Leasehold Improvements (the "Required Removables") at Tenant's sole cost.
Upon the termination of the Lease Term or the sooner termination of Tenant's right to possession
of the Premises, Tenant shall remove Tenant's Property, all electronic, phone and data cabling
exclusively serving the Premises (whether such cabling is located within or outside of the
Premises), and all Required Removables. Tenant shall, at its sole cost and expense, repair any
damage caused by such removal and perform such other work as is reasonably necessary to
restore the Premises to a "move in" condition. If Tenant fails to remove any of the foregoing
items or to perform any required repairs and restoration, (i) Landlord, at Tenant's sole cost and
expense, may remove the same (and repair any damage occasioned thereby) and dispose thereof
or deliver such items to any other place of business of Tenant, or warehouse the same, and
Tenant shall pay the cost of such removal, repair, delivery, or warehousing of such items within
five (5) business days after demand from Landlord and (ii) such failure shall be deemed a
holding over by Tenant under Section 23 hereof until such failure is rectified by Tenant or
Landlord.
8. Signage. Tenant shall not install any signage visible from the exterior of the
Premises; all signage shall be in the standard graphics for the Building and no other signs or
graphics shall be used or permitted without Landlord's prior written consent. At no charge to
Tenant, Landlord shall provide Building standard signage for the Premises in the ground floor
lobby building directory and adjacent to the entrance of the Premises.
9. Maintenance, Repairs and Alterations.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant shall, at its sole cost and expense, maintain the Premises in good order,
condition and repair throughout the entire Lease Term, ordinary wear and tear excepted.
Tenant agrees to keep the areas visible from outside the Premises in a neat, clean and
attractive condition at all times. Tenant shall, within thirty (30) calendar days after
Landlord's written demand therefor, reimburse Landlord for the cost of all repairs,
replacements and alterations (collectively, "Repairs") in and to the Premises, Building
and Property and the facilities and systems thereof, plus an administration charge of ten
percent (10%) of such cost, the need for which Repairs arises out of (1) Tenant's use or
occupancy of the Premises, (2) the installation, removal, use or operation of Tenant's
Property or Required Removables, (3) the moving of Tenant's Property and Required
Removables into or out of the Building, (4) any Alterations (hereinafter defined) or other
work performed by or on behalf of Tenant, or (5) the act, omission, misuse or negligence
of Tenant, its agents, contractors, employees or invitees.
B. Tenant shall not make or allow to be made any alterations, additions or
improvements to the Premises (collectively, "Alterations"), without first obtaining the
written consent of Landlord. Prior to commencing any Alterations and as a condition to
obtaining Landlord's consent, Tenant shall deliver to Landlord plans and specifications
acceptable to Landlord; names and addresses of contractors reasonably acceptable to
Landlord; copies of contracts; necessary permits and approvals; evidence of contractor's
and subcontractor's insurance in accordance with Section 13 hereof; and a payment bond
or other security, all in form and amount satisfactory to Landlord. Tenant shall be
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responsible for insuring that all such persons procure and maintain insurance coverage
against such risks, in such amounts and with such companies as Landlord may reasonably
require. All Alterations shall be constructed in a good and workmanlike manner using
Building standard materials or other new materials of equal or greater quality. Landlord,
to the extent reasonably necessary to avoid any disruption to the tenants and occupants of
the Building, shall have the right to designate the time when any Alterations may be
performed and to otherwise designate reasonable rules, regulations and procedures for the
performance of work in the Building. Upon completion of the Alterations, Tenant shall
deliver to Landlord "as -built" plans, contractor's affidavits and full and final waivers of
lien and receipted bills covering all labor and materials. All Alterations shall comply
with the insurance requirements and with applicable codes, ordinances, laws and
regulations. Tenant shall reimburse Landlord upon demand for all reasonable sums, if
any, expended by Landlord for third party examination of the architectural, mechanical,
electrical and plumbing plans for any Alterations. In addition, if Landlord so requests,
Landlord shall be entitled to oversee the construction of any Alterations that may affect
the structure of the Building or any of the mechanical, electrical, plumbing or life safety
systems of the Building. If Landlord elects to oversee such work, Landlord shall be
entitled to receive a fee for such oversight in an amount equal to ten percent (10%) of the
cost of such Alterations. Landlord's approval of Tenant's plans and specifications for
any Alterations performed for or on behalf of Tenant shall not be deemed to be
representation by Landlord that such plans and specifications comply with applicable
insurance requirements, building codes, ordinances, laws or regulations or that the
Alterations constructed in accordance with such plans and specifications will be adequate
for Tenant's use. Tenant will pay all costs of construction done by it or caused to be done
by it in the Premises as permitted by this Lease.
C. Landlord shall keep and maintain in good repair and working order and
perform maintenance upon the: (i) structural elements (including the foundation) of the
Building; (ii) mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (iii) Common Areas; (iv) roof of the Building;
(v) exterior windows of the Building; and (vi) elevators serving the Building.
10. Electrical Services. Landlord shall have the right at any time and from time -to -
time during the Lease Term to contract for electricity service from such providers of such
services as Landlord shall elect (each being an "Electric Service Provider"). Tenant shall
cooperate with Landlord, and the applicable Electric Service Provider, at all times and, as
reasonably necessary, shall allow Landlord and such Electric Service Provider reasonable access
to the Building's electric lines, feeders, risers, wiring, and any other machinery within the
Premises. Tenant's use of electrical services furnished by Landlord shall not exceed in voltage,
rated capacity, or overall load that which is standard for the Building. In the event Tenant shall
request that it be allowed to consume electrical services in excess of Building standard, Landlord
may refuse to consent to such usage or may consent upon such conditions as Landlord
reasonably elects, and all such additional usage shall be paid for by Tenant as Additional Rent.
Landlord, at any time during the Lease Term, shall have the right to separately meter electrical
usage for the Premises or to measure electrical usage by survey or any other method that
Landlord, in its reasonable judgment, deems appropriate.
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11. Assignment and Subletting.
A. Tenant shall not assign, sublease, transfer or encumber any interest in this
Lease or allow any third party to use any portion of the Premises (collectively or
individually, a "Transfer") without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed with respect to a proposed
sublease or assignment (other than a collateral assignment, in which case Landlord may
withhold its consent in its sole and absolute discretion). Without limitation, it is agreed
that Landlord's consent shall not be considered unreasonably withheld if: (1) the
proposed transferee's financial condition is not adequate for the obligations such
transferee is assuming in connection with the proposed Transfer; (2) the transferee's
business or reputation is not suitable for the Building considering the business and
reputation of the other tenants and the Building's prestige, or would result in a violation
of another tenant's rights under its lease at the Building; (3) the transferee is a
governmental agency or occupant of the Building; (4) Tenant is in default beyond any
applicable notice and cure period; (5) any portion of the Building or the Premises would
likely become subject to additional or different laws as a consequence of the proposed
Transfer; or (6) Landlord or its leasing agent has received a proposal from or made a
proposal to the proposed transferee to lease space in the Building within six (6) months
prior to Tenant's delivery of written notice of the proposed Transfer to Landlord. Any
attempted Transfer in violation of this Section 11, shall, exercisable in Landlord's sole
and absolute discretion, be void. Consent by Landlord to one or more Transfers shall not
operate as a waiver of Landlord's rights to approve any subsequent Transfers. If Tenant
alleges that Landlord wrongfully withheld its consent to any Transfer contrary to the
provisions of this Section 11, Tenant's sole remedy shall be to seek an injunction in
equity to compel performance by Landlord to give its consent and Tenant expressly
waives any right to damages in the event of such withholding by Landlord of its consent.
In no event shall any Transfer release or relieve Tenant from any obligation under this
Lease or any liability hereunder.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall submit to
Landlord (i) financial statements for the proposed transferee, (ii) a copy of the proposed
assignment or sublease, and (iii) such other information as Landlord may reasonably
request. After Landlord's receipt of the required information and documentation,
Landlord shall either: (1) consent or refuse consent to the Transfer in writing; (2) in the
event of a proposed assignment of this Lease terminate this Lease effective the first to
occur of ninety (90) calendar days following written notice of such termination or the
date that the proposed Transfer would have come into effect; and (3) in the event of a
proposed subletting, terminate this Lease with respect to the portion of the Premises
which Tenant proposes to sublease effective the first to occur of ninety (90) calendar days
following written notice of such termination or the date the proposed Transfer would
have come into effect. Tenant shall pay Landlord a review fee of $1,000.00 for
Landlord's review of any proposed Transfer.
C. Tenant shall pay to Landlord 50% of all cash and other consideration
which Tenant receives as a result of a Transfer that is in excess of the Rent payable to
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Landlord hereunder for the portion of the Premises and Lease Term covered by the
Transfer within ten (10) days following receipt thereof by Tenant.
D. If Tenant is a corporation, limited liability company, partnership or similar
entity, and the person, persons or entity which owns or controls a majority of the voting
interests at the time changes for any reason (including a merger, consolidation or
reorganization), such change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose outstanding stock is listed
on a nationally recognized security exchange, or if at least eighty percent (80%) of its
voting stock is owned by another entity, the voting stock of which is so listed.
12. Mechanic's Liens. Tenant will keep the Building free and clear of all
construction, mechanic's, materialman's, laborer's and supplier's liens, resulting from
construction done by or for Tenant. The interest of Landlord in the Premises and the Building
shall not be subject to liens for improvements made by or on behalf of Tenant. This exculpation
is made with express reference to Section 713.10, Florida Statutes. Tenant represents to
Landlord that any improvements that might be made by Tenant to the Premises are not required
to be made under the terms of this Lease and that any improvements which may be made by
Tenant do not constitute the "pith of the lease" under applicable Florida case law. Any lien filed
by any contractor, materialman, laborer or supplier performing work for Tenant shall attach only
to Tenant's interest in the Premises. Tenant expressly acknowledges and accepts its
responsibility under applicable law and its liability (including under a breach of contract claim
by Landlord) for any and all construction, mechanic's, materialman's, laborer's and supplier's
liens placed on the Premises in performing work for Tenant. Tenant shall pay to Landlord within
5 business days of written demand all costs and expenses incurred by Landlord in connection
with any and all construction, mechanic's, materialman's, laborer's and supplier's liens placed
on the Premises in performing work for Tenant. This is a statement of Tenant responsibility but
is not to be construed or interpreted as hold harmless, duty to defend, covenant not to sue,
release, or indemnification by the Tenant or the City of Miami to any third party, including
Landlord. The Tenant expressly reserves its sovereign immunity, and its privileges, defense,
limitations to liability, and claims relating to sovereign immunity. All persons and entities
contracting or otherwise dealing with Tenant relative to the Premises or the Building are hereby
placed on notice of the provisions of this Section, and Tenant shall further: (a) notify in writing
such persons or entities of the provisions of this Section prior to commencement of any Tenant
work in the Premises, and (b) include such notice in all contracts with Tenant's contractors. If
any construction, mechanic's, materialman's, laborer's or supplier's lien is ever claimed, fixed or
asserted against the Premises or any other portion of the Building or Property in connection with
any such Tenant work, Tenant shall, within ten (10) business days after receipt by Tenant of
notice of such lien, discharge same as a lien either by payment or by posting of any bond as
permitted by law. If Tenant shall fail to discharge any such lien, whether valid or not, within ten
(10) business days after receipt of notice from Landlord, Landlord shall have the right, but not
the obligation, to discharge such lien on behalf of Tenant and all costs and expenses incurred by
Landlord associated with the discharge of the lien, including attorneys' fees, shall constitute
additional Rent hereunder and shall be immediately due and payable by Tenant.
13. Insurance.
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A. Landlord shall, at all times during the Lease Term, procure and maintain:
(i) policies of insurance covering loss or damage to the Property in an amount equal to
the full replacement cost of the Building (including, without limitation, all buildings,
other improvements and the Common Areas), which shall provide protection against loss
by fire and other special form casualties including earthquake and flood and such other
property insurance as may be required by Landlord's mortgagee or as otherwise desired
by Landlord, and (ii) commercial general liability insurance applicable to the Building
and the Common Areas, in such amounts as Landlord deems necessary or desirable.
B. Tenant is self insured subject to the limitations and provisions of Section
768.28 of the Florida Statutes.
C. The insurance requirements set forth in this Section 13 are independent of
the waiver, responsibility, liability (including under breach of contract theories) and other
obligations under this Lease and will not be construed or interpreted in any way to
restrict, limit or modify the waiver, responsibility, liability (including under breach of
contract theories) and other obligations or to in any way limit any party's liability under
this Lease.
D. Notwithstanding anything to the contrary set forth herein, neither Landlord
nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to
any insurance company insuring the other party) for any loss or damage to any of the
property of Landlord or Tenant, as the case may be, with respect to their respective
property, the Building, the Property or the Premises or any addition or improvements
thereto, or any contents therein, to the extent covered by insurance carried or required to
be carried by a party hereto EVEN THOUGH SUCH LOSS MIGHT HAVE BEEN°
OCCASIONED BY THE -ACTIVE OR PASSIVE NEGLIGENCE OR WILLFUL ACTS
OR OMISSIONS OF THE LANDLORD OR TENANT OR . THEIR RESPECTIVE
EMPLOYEES 'AGENTS CONTRACTORS OR INVITEES. Landlord and Tenant shall
give each insurance company which issues policies of insurance, with respect to the items
covered by this waiver, written notice of the terms of this mutual waiver, and shall have
such insurance policies properly endorsed, if necessary, to prevent the invalidation of any
of the coverage provided by such insurance policies by reason of such mutual waiver.
For the purpose of the foregoing waiver, the amount of any deductible applicable to any
loss or damage shall be deemed covered by, and recoverable by the insured under the
insurance policy to which such deductible relates.
14. Tenant Responsibility and Liability. Tenant is responsible for and shall be
liable for (including under a breach of contract claim by Landlord) any claim, loss, damage, rent,
charge or expense which arises or is alleged to have arisen out of, in connection with, or
attributable to, (a) Tenant's or its employees, agents, contractors or invitees (all of said persons
or entities are hereinafter collectively referred to as "Tenant Parties") use or occupancy of the
Premises or the Property, (b) any act, fault, omission, misconduct or neglect of a Tenant Party,
(c) Tenant's failure to perform any or its obligations under the Lease, (d) the existence, use or
disposal of any Hazardous Material brought on to the Property by a Tenant Party, or (e) any
other matters for which Tenant has agreed to accept responsibility and/or liability hereunder
pursuant to any other provisions of this Lease (the foregoing being the "Responsibility
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Matters"). This is an acceptable of Tenant responsibility and liability but is not to be construed
or interpreted as hold harmless, duty to defend, covenant not to sue, release, or indemnification
by the Tenant or the City of Miami to any third party, including Landlord. The Tenant expressly
reserves its sovereign immunity, and its privileges, defense, limitations to liability, and claims
relating to sovereign immunity. Tenant shall pay to Landlord within 5 business days of written
demand all costs and expenses incurred by Landlord in connection with any of the Responsibility
Matters.
Tenant's liability and agreement to accept responsibility pursuant to this Section 14 is not
intended and shall not relieve any insurance carrier of its obligations under policies required to
be carried by Tenant pursuant to the provision of this Lease. Tenant's compliance with the
insurance requirements under this Lease shall not restrict, limit, or modify Tenant's obligations
under this Section 14. Tenant's obligations under this Section shall survive the expiration or
termination of this Lease unless specifically waived in writing by Landlord after said expiration
or termination.
15. Damages from Certain Causes. To the extent not expressly prohibited by law
and notwithstanding anything in Section 14 to the contrary, Landlord shall not be liable to
Tenant or Tenant's employees, contractors, agents, invitees or customers, for any injury to
person or damage to property sustained by Tenant or any such party or any other person claiming
through Tenant resulting from any accident or occurrence in the Premises or any other portion of
the Building caused by the Premises or any other portion of the Building becoming out of repair
or by defect in or failure of equipment, pipes, or wiring, or by broken glass, or by the backing up
of drains, or by gas, water, steam, electricity, or oil leaking, escaping or flowing into the
Premises (except where due to Landlord's grossly negligent or willful failure to make repairs
required to be made pursuant to other provisions of this Lease, after the expiration of a
reasonable time after written notice to Landlord of the need for such repairs) EVEN IF SUCH
DAMAGE ;RESULTS; FROM ,THE NEGLIGENCE, OR WILLFUL MISCONDUCT OF
LANDLORD OR ITS PARTNERS OR THEIR RESPECTIVE ,
AGENTS OR EMPLOYEES, nor shall Landlord be liable to Tenant for any loss or damage that
may be occasioned by or through the acts or omissions of other tenants of the Building or of any
other persons whomsoever, including riot, strike, insurrection, war, court order, requisition, order
of any governmental body or authority, acts of God, fire or theft.
16. Casualty Damage. If the Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice thereof to Landlord. Landlord shall
notify Tenant of the estimated repair period within ninety (90) calendar days after the date of
such casualty. However, in case the Building shall be so damaged that substantial alteration or
reconstruction of the Building shall, in Landlord's sole opinion, be required (whether or not the
Premises shall have been damaged by such casualty) or in the event there is less than two (2)
years of the Lease Term remaining or in the event Landlord's mortgagee should require that the
insurance proceeds payable as a result of a casualty be applied to the payment of the mortgage
debt or in the event of any material uninsured loss to the Building, Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination within ninety (90)
calendar days after the date of such casualty. If Landlord does not elect to terminate this Lease,
but if more than seventy-five percent (75%) of the Premises shall have been damaged by such
casualty and less than twelve (12) months shall remain in the term at the end of the estimated
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repair period, or if the repairs are estimated by Landlord to take more than nine (9) months to
complete, then Tenant shall also have the right to teiuiinate this Lease by notifying Landlord in
writing of such termination within thirty (30) calendar days following receipt of Landlord's
notice of the estimated repair period. If neither Tenant nor Landlord thus elects to terminate this
Lease, Landlord shall commence and proceed with reasonable diligence to restore the Building,
and the improvements located within the Premises to substantially the same condition in which it
was immediately prior to the happening of the casualty. Notwithstanding the foregoing,
Landlord's obligation to restore the Building, and the improvements located within the Premises
shall not require Landlord to expend for such . repair and restoration work more than the
insurance proceeds actually received by Landlord as a result of the casualty. When the repairs
described in the preceding two sentences have been completed by Landlord, Tenant shall
complete the restoration of all furniture, fixtures and equipment which are necessary to permit
Tenant's reoccupancy of the Premises. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof, except that Rent shall be abated from the date of the damage or destruction
for any portion of the Premises that is unusable by Tenant, which abatement shall be in the same
proportion that the Rentable Area of the Premises which is unusable by Tenant bears to the total
Rentable Area of the Premises; provided that Tenant shall not be entitled to any abatement of
Rent if the damage or destruction in the Premises is restored within five (5) Business Days after
Landlord's receipt of written notice from Tenant of the occurrence of the damage or destruction.
17. Condemnation. If the whole or any substantial part of the Premises or if the
Building or any portion thereof which would leave the remainder of the Building unsuitable for
use comparable to its use on the Commencement Date, or if the land on which the Building is
located or any material portion thereof, shall be taken or condemned for any public or quasi
public use under governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, then Landlord may, at its option, terminate this Lease and Rent
shall be abated during the unexpired portion of this Lease, effective when the physical taking of
said Premises or said portion of the Building or land shall occur. If this Lease is not terminated,
the Rent for any portion of the Premises so taken or condemned shall be abated during the
unexpired Lease Term effective when the physical taking of said portion of the Premises shall
occur. All compensation awarded for any taking or condemnation, or sale proceeds in lieu
thereof, shall be the property of Landlord, and Tenant shall have no claim thereto, the same
being hereby expressly waived by Tenant, except for any portions of such award or proceeds
which are specifically allocated by the condemning or purchasing party for the taking of or
damage to trade fixtures of Tenant and moving costs, which Tenant specifically reserves to itself.
18. Events of Default. The following events shall be deemed to be "Events of
Default" under this Lease: (i) Tenant fails to pay any Rent when due; (ii) Tenant fails to
perform any other provision of this Lease not described in Section 18(i), (iii), (iv), (v), (vi) and
(vii), and such failure is not cured within thirty (30) calendar days (or immediately if the failure
involves a hazardous condition) after notice from Landlord, however, other than with respect to a
hazardous condition, if Tenant's failure to comply cannot reasonably be cured within thirty (30)
calendar days, Tenant shall be allowed additional time (not to exceed thirty (30) additional
calendar days) as is reasonably necessary to cure the failure so long as Tenant begins the cure
within thirty (30) calendar days and diligently pursues the cure to completion; (iii) Tenant fails to
observe or perform any of the covenants with respect to (a) assignment and subletting as set forth
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in Section 11, (b) construction, mechanic's, materialmen's, laborer's or supplier's liens as set
forth in Section 12, (c) insurance as set forth in Section 13 or (d) delivering subordination
agreements or estoppel certificates as set forth in Section 24, (iv) the leasehold interest of Tenant
is levied upon or attached under process of law; (v) Tenant or any guarantor of this Lease dies or
dissolves; (vi) Tenant abandons or vacates the Premises; or (vii) any voluntary or involuntary
proceedings are filed by or against Tenant or any guarantor of this Lease under any bankruptcy,
insolvency or similar laws and, in the case of any involuntary proceedings, are not dismissed
within sixty (60) calendar days after filing.
19. Remedies.
A. Upon the occurrence of any Event of Default, Landlord shall have the
following rights and remedies, in addition to those allowed by law or equity, any one or
more of which may be exercised without further notice to or demand upon Tenant and
which may be pursued successively or cumulatively as Landlord may elect:
(1) Landlord may re-enter the Premises and attempt to cure any default
of Tenant, in which event Tenant shall, upon demand, reimburse
Landlord as Additional Rent for all reasonable costs and expenses
which Landlord incurs to cure such default;
(2) Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Lease Term shall
end, and all right, title and interest of Tenant hereunder shall
expire, on the date stated in such notice;
(3)
Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant
that Tenant's right to possession shall end on the date stated in
such notice, whereupon the right of Tenant to possession of the
Premises or any part thereof shall cease on the date stated in such
notice; and
(4) Landlord may enforce the provisions of this Lease by a suit or suits
in equity or at law for the specific performance of any covenant or
agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all
moneys due or to become due from Tenant under any of the
provisions of this Lease.
(5)
If Landlord shall not elect to terminate this Lease pursuant to
Section 19A(2) or 19A(3) above, notwithstanding reentry upon the
Premises by Landlord and in addition to and without limiting
Landlord's right to other damages upon the occurrence of an Event
of Default, Tenant shall be and remain liable to Landlord in an
amount computed as follows (the "Accelerated Rent
Component"): (a) an amount equal to the sum of all Rent then in
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arrears plus the aggregate of all Rent which is payable under this
Lease for the balance of the Term, computed as if no Event of
Default had occurred and any reentry had not been made
(including Tenant's Pro Rata Share of Taxes and Basic Costs
which would be owing for the remainder of the Lease Term, as
reasonably estimated by Landlord); plus (b) all costs and expenses
incurred by Landlord in connection with the Event of Default and
any reletting of the Premises, including (i) costs of reentry, repair
and renovation, (ii) the value of all inducements granted or paid to
new tenants of the Premises in connection with reletting including
construction allowances and the value of rent-free periods, (iii)
brokers' commissions and advertising expenses, (iv) watchman's
wages and any sheriff's, marshall's, constable's or other officials'
commissions, whether chargeable to Landlord or Tenant and (v)
attorneys' fees, costs and expenses; plus (c) interest at the Default
Rate accrued on the aggregate of the aforesaid sums from the date
each was payable (or, with respect to sums owing under clause (b)
from the date each was incurred by Landlord) until paid by Tenant
(whether before or after judgment); which sum shall be credited
with (d) all rentals actually received by Landlord during the
remainder of the Lease Term from any replacement tenant to
which the Premises are relet.
Landlord shall not be required to serve Tenant with any notices or demands as a
prerequisite to its exercise of any of its rights or remedies under this Lease, other than those
notices and demands specifically required under this Lease. Thus, any notices to be given by
Landlord under this Lease may be the same as any notice under Section 83.20, Florida Statutes,
or any successor statute, and this Lease shall not be construed to require Landlord to give two (2)
separate notices to Tenant before proceeding with any remedies. Landlord may, without notice,
remove and either dispose of or store, at Tenant's expense, any property belonging to Tenant that
remains in the Premises after Landlord has regained possession thereof. Tenant acknowledges
that the provisions of this paragraph of this Lease supersede the applicable provisions of Florida
law and Tenant further warrants and represents that it hereby knowingly waives any rights it may
have thereunder. TENANT EXPRESSLY WAIVES THE SERVICE OF ANY
STATUTORY DEMAND OR NOTICE WHICH IS A PREREQUISITE TO
LANDLORD'S COMMENCEMENT OF EVICTION PROCEEDINGS AGAINST
TENANT, INCLUDING THE DEMANDS AND NOTICES SPECIFIED IN ANY
APPLICABLE STATE STATUTE OR CASE LAW.
B. If Landlord exercises either of the remedies provided in Sections 19A(2)
or 19A(3), Tenant shall surrender possession and vacate the Premises and immediately
deliver possession thereof to Landlord, and Landlord may re-enter and take complete and
peaceful possession of the Premises, with or without process of law to the extent
permitted by applicable law, without being deemed guilty in any manner of trespass,
eviction or forcible entry and detainer and without relinquishing Landlord's right to Rent
or any other right given to Landlord hereunder or by operation of law.
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C. If Landlord terminates the right of Tenant to possession of the Premises
without terminating this Lease, Landlord shall have the right to immediate recovery of all
amounts then due hereunder. Such termination of possession shall not release Tenant, in
whole or in part, from Tenant's obligation to pay Rent hereunder for the full Lease Term,
and Landlord shall have the right, from time to time, to recover from Tenant, and Tenant
shall remain liable for, all Rent accruing as it becomes due under this Lease during the
period from the date of such notice of termination of possession to the stated end of the
Lease Term. In attempting to relet the Premises, without any obligation to do so,
Landlord may make repairs, alterations and additions in or to the Premises and redecorate
the same to the extent reasonably deemed by Landlord necessary or desirable, and Tenant
upon demand shall pay the reasonable cost of all of the foregoing together with
Landlord's reasonable expenses of reletting. The rents from any such reletting shall be
applied first to the payment of the expenses of reentry, redecoration, repair and
alterations and the expenses of reletting (including reasonable attorneys' fees and
brokers' fees and commissions) and second to the payment of Rent herein provided to be
paid by Tenant. Any excess or residue shall operate only as an offsetting credit against
the amount of Rent due and owing as the same thereafter becomes due and payable
hereunder.
D. If this Lease is terminated by Landlord, Landlord shall be entitled to
recover from Tenant all Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by Tenant, or for which
Tenant is liable or for which Tenant has agreed to accept responsibility, which may be
then owing and unpaid, and all reasonable costs and expenses, including court costs and
reasonable actual attorneys' fees incurred by Landlord in the enforcement of its rights
and remedies hereunder. In addition, Landlord shall be entitled to recover as damages for
loss of the bargain and not as a penalty (1) the unamortized portion of any and all
commissions paid by Landlord and any and all inducements and/or concessions provided
by Landlord to Tenant in connection with this Lease, including Landlord's contribution
to the cost of tenant improvements, if any, installed by either Landlord or Tenant
pursuant to this Lease or any work letter in connection with this Lease, any so-called
"free" or "abated" rent, any moving allowances and any rental assumptions by Landlord,
all of which shall be amortized on a straight-line basis with interest at the Default Rate
over the Lease Months of the initial Lease Term excluding any period of free or abated
Base Rent, and (2) the aggregate sum which at the time of such termination represents the
excess, if any, of the present value of the aggregate Rent which would have been payable
after the termination date had this Lease not been terminated, including the amount
projected by Landlord to represent Additional Rent for the remainder of the Lease Term,
over the then present value of the then aggregate fair rent value of the Premises for the
balance of the Lease Term, such present worth to be computed in each case on the basis
of a ten percent (10%) per annum discount from the respective dates upon which such
Rent would have been payable hereunder had this Lease not been terminated, and (3) any
damages in addition thereto including reasonable attorneys' fees and court costs, which
Landlord sustains as a result of the breach of any of the covenants of this Lease other
than for the payment of Rent.
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E. Landlord shall in no event be responsible or liable for any failure to relet
the Premises or any part thereof, or for any failure to collect any rent due upon a reletting.
F. The receipt by Landlord of less than the full Rent due shall not be
construed to be other than a payment on account of Rent then due, nor shall any
statement on Tenant's check or any letter accompanying Tenant's check be deemed an
accord and satisfaction, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the Rent due or to pursue any other remedies
provided in this Lease. The acceptance by Landlord of Rent hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant or condition of
this Lease. No act or omission by Landlord or its employees or agents during the term of
this Lease shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such a surrender shall be valid unless in writing and signed by
Landlord.
G. In the event of any litigation between Tenant and Landlord to enforce or
interpret any provision of this Lease or to enforce any right of either party hereto, each
party shall be responsible for its respective costs and attorneys' fees.
H. All property of Tenant removed from the Premises by Landlord pursuant
to any provision of this Lease or applicable law may be handled, removed or stored by
Landlord at the cost and expense of Tenant, and Landlord shall not be responsible in any
event for the value, preservation or safekeeping thereof. Tenant shall pay Landlord for
all expenses incurred by Landlord with respect to such removal, handling and/or storage
so long as the same is in Landlord's possession or under Landlord's control. All or any
portion of such property not removed from the Premises or retaken from storage by
Tenant within thirty (30) calendar days after the end of the Lease Term or termination of
Tenant's right to possession of the Premises, however terminated, at Landlord's option,
shall be conclusively deemed to have been conveyed by Tenant to Landlord by bill of
sale with general warranty of title without further payment or credit by Landlord to
Tenant, and/or be deemed to have been abandoned by Tenant.
20. No Waiver. Failure of either party to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of default, shall not
constitute a waiver of such default, nor shall it constitute an estoppel against the non -defaulting
party, but the non -defaulting party shall have the right to declare the default at any time and take
such action as is lawful or authorized under this Lease. Failure by non -defaulting party to
enforce its rights with respect to any one default shall not constitute a waiver of its rights with
respect to any subsequent default.
21. Quiet Enjoyment. Landlord covenants and agrees that, on Tenant's paying rent
and performing all of the other provisions of this Lease on its part to be performed, Tenant may
peaceably and quietly hold and enjoy the Premises for the Lease Term without material
hindrance or interruption by Landlord or any other person claiming by, through, or under
Landlord, subject, nevertheless, to the terms, covenants, and conditions of this Lease and all
existing or future ground leases, underlying leases, or mortgages encumbering the Property.
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22. Relocation. Landlord at its sole discretion shall be entitled to cause Tenant to
relocate from the Premises to a comparably -sized space, of comparable design and tenant
improvements (the "Relocation Space") within the Building or adjacent buildings within the
same Property at any time upon sixty (60) calendar days' prior written notice to Tenant. The
reasonable costs actually incurred in connection with the physical relocation of Tenant to the
Relocation Space shall be at the expense of Landlord. Such a relocation shall not terminate or
otherwise affect or modify this Lease except that from and after the date of such relocation,
"Premises" shall refer to the Relocation Space into which Tenant has been moved, rather than the
original Premises as herein defined and the Base Rent shall be adjusted so that immediately
following such relocation the Base Rent for the Relocation Space on a per square foot of rentable
area basis shall be the same as the Base Rent immediately prior to such relocation for the original
Premises on a per square foot of rentable area basis. Tenant's Pro Rata Share shall also be
adjusted in accordance with the formula set forth in this Lease.
23. Holding Over. If Tenant continues to occupy the Premises after the expiration or
other termination of this Lease or the termination of Tenant's right of possession, such
occupancy shall be that of a tenancy at sufferance. Tenant shall, throughout the entire holdover
period, be subject to all the terms and provisions of this Lease and shall pay for its use and
occupancy an amount (on a per month basis without reduction for any partial months during any
such holdover) equal to one hundred fifty percent (150%) of the Base Rent and Additional Rent
due under this Lease for the last full month of the term hereof during the first sixty (60) days of
such holdover, and two hundred percent (200%) of such Base Rent and Additional Rent
thereafter during such holdover. No holding over by Tenant or payments of money by Tenant to
Landlord after the expiration of the Lease Term shall be construed to extend the Lease Term or
prevent Landlord from recovery of immediate possession of the Premises by summary
proceedings or otherwise Tenant shall also be liable to Landlord for all damages, including
consequential damages, which Landlord may suffer by reason of any holding over by Tenant.
24. Subordination to Mortgage; Estoppel Certificate. Tenant accepts this Lease
subject and subordinate to any ground lease, mortgage, deed to secure debt, deed of trust or other
lien presently existing or hereafter arising upon the Premises, or upon the Building or the
Property and to any renewals, modifications, refinancings and extensions thereof, but Tenant
agrees that any such mortgagee shall have the right at any time to subordinate such mortgage,
deed to secure debt, deed of trust or other lien to this Lease on such terms and subject to such
conditions as such mortgagee may deem appropriate in its discretion. Tenant shall attorn to any
purchaser of the Property or to the holder of any such mortgage, deed to secure debt or deed of
trust in the event that any of the same succeed to Landlord's interest under this Lease. The
foregoing provisions of this Section shall be self operative and no further instrument of
subordination or attornment shall be required. However, Landlord is hereby irrevocably vested
with full power and authority to subordinate this Lease to any mortgage, deed to secure debt,
deed of trust or other lien now existing or hereafter placed upon the Premises, or the Building or
the Property and Tenant agrees within ten (10) business days after written demand to execute
such further instruments subordinating this Lease or attorning to the holder of any such liens as
Landlord may request. If Tenant fails to execute any subordination or other agreement or
certificate required by this Section promptly as requested, Tenant hereby irrevocably constitutes
Landlord as its attorney in fact to execute such instrument in Tenant's name, place and stead, it
being agreed that such power is coupled with an interest in Landlord and is accordingly
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irrevocable. Tenant agrees that it shall from time -to -time furnish within ten (10) business days
after so requested by Landlord, a certificate signed by Tenant certifying as to such matters as
may be reasonably requested by Landlord. Any such certificate may be relied upon by Landlord
and any ground lessor, prospective purchaser, secured party, mortgagee or any beneficiary under
any mortgage, deed to secure debt, deed of trust on the Building or the Property or any part
thereof or interest of Landlord therein. At Landlord's option, Tenant's failure to deliver such
certificate within such time shall be an Event of Default under this Lease or shall be conclusive
upon Tenant: (i) that this Lease is in full force and effect, without modification, except as may be
represented by Landlord; (ii) that there are no uncured defaults in Landlord's performance; and
(iii) that not more than one month's Rent has been paid in advance or such failure may be
considered by Landlord as a default by Tenant under this Lease.
25. Notice. Any notice required or permitted to be given under this Lease or by law
shall be deemed to have been given if it is written and delivered in person or mailed by
Registered or Certified mail, postage prepaid, or sent by a nationally recognized overnight
delivery service to the party who is to receive such notice at the address specified in Section 1 of
this Lease (and, if no address is listed for Tenant, notices to Tenant shall be delivered to the
Premises). When so mailed, the notice shall be deemed to have been given two (2) Business
Days after the date it was mailed. When sent by overnight delivery service, the notice shall be
deemed to have been given on the next Business Day after deposit with such overnight delivery
service. Each party may change its notice address specified in Section 1 of this Lease from time
to time by giving written notice thereof to the other party.
26. Surrender of Premises. Upon the termination of the Lease Term, or upon any
termination of Tenant's right to possession of the Premises, Tenant will at once surrender
possession of the Premises to Landlord in good condition and repair, ordinary wear and tear
excepted. Tenant shall surrender to Landlord all keys to the Premises and make known to
Landlord the combination of all combination locks which Tenant is required to leave on the
Premises.
27. Rights Reserved to Landlord. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to Tenant for damage
or injury to property, person or business and without affecting an eviction or disturbance of
Tenant's use or possession or giving rise to any claim for setoff or abatement of rent or affecting
any of Tenant's obligations under this Lease: (1) upon thirty (30) days' prior notice to change the
name or street address of the Building; (2) to install and maintain signs on the exterior and
interior of the Building; (3) to designate and approve window coverings to present a uniform
exterior appearance; (4) to retain at all times and to use in appropriate instances, pass keys to all
locks within and to the Premises; (5) to approve the weight, size, or location of heavy equipment
or articles within the Premises, including requiring the use and/or installation of alterations at
Tenant's cost required to support same and/or reinforce the floor areas affected thereby; (6) to
change the arrangement and location of entrances of passageways, doors and doorways,
corridors, elevators, stairs, toilets and public parts of the Building or Property; (7) to regulate
access to telephone, electrical and other utility closets in the Building and to require use of
designated contractors for any work involving access to the same; (8) if Tenant has vacated or
abandoned the Premises, to perform additions, alterations and improvements to the Premises in
connection with a reletting or anticipated reletting thereof without being responsible or liable for
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the value or preservation of any then existing improvements to the Premises and without
effectuating a surrender of the Premises or termination of this Lease unless Landlord elects to do
so by written notice to Tenant, and without entitling Tenant to any abatement of Rent; (9) to
grant to anyone the exclusive right to conduct any business or undertaking in the Building
provided Landlord's exercise of its rights under this clause (9), shall not be deemed to prohibit
Tenant from the operation of its business in the Premises; (10) to enter the Premises to inspect
the same or to show the Premises to prospective purchasers, mortgagees, tenants (during the last
twelve months of the Lease Term or at any time that an Event of Default by Tenant exists
hereunder) or insurers, or to clean or make repairs, alterations or additions thereto, provided that,
except for any entry in an emergency situation or to provide normal cleaning and janitorial
service, Landlord shall provide Tenant with reasonable prior notice of any entry into the
Premises; and (11) to temporarily close the Premises or the Building to perform repairs,
alterations or additions in the Premises or the Building. In exercising its rights under this Section
27, Landlord shall make commercially reasonable efforts to avoid unreasonably interfering with
Tenant's business operations in the Premises.
28. Lien For Rent. Tenant hereby grants to Landlord a lien and security interest on
all furnishings, equipment, fixtures, inventory, licenses and other personal property of any kind
of Tenant now or hereafter placed in or upon the Premises, and such property shall be and remain
subject to such lien and security interest of Landlord for payment of all Rent and other sums
agreed to be paid by Tenant herein. The provisions of this Section relating to such lien and
security interest shall constitute a security agreement under the Florida Uniform Commercial
Code and subject to the laws of the State in which the Building is located so that Landlord shall
have and may enforce a security interest on all property of Tenant now or hereafter placed in or
on the Premises, in addition to and cumulative of Landlord's liens and rights provided by law or
by the other Terms and provisions of this Lease. Tenant agrees to execute as debtor such
financing statement or statements and other documents as Landlord may now or hereafter
request. Landlord may at its election at any time file a copy of this Lease as a financing
statement or other legal application to perfect Landlord's security interest. Notwithstanding the
above, Landlord shall neither sell nor withhold from Tenant, Tenant's business records and
Landlord's lien rights shall not apply with respect to any property that is leased to Tenant.
29. Parking.
A. Landlord shall make available to Tenant at the commencement of the
Lease Term the use of three (3) of the Building's unreserved parking spaces (the
"Spaces"). All of such three (3) Spaces shall be unreserved Spaces in the parking garage
serving the Building (the "Parking Garage"). During the Lease Term, Tenant shall pay
to Landlord as Additional Rent, a parking charge for each Space made available to
Tenant equal to the prevailing monthly rate charged by Landlord from time to time for
unreserved and/or reserved parking spaces, as applicable, plus applicable taxes. Tenant
acknowledges and agrees that the parking charge is subject to adjustment from time to
time in Landlord's sole and absolute discretion. As of the date of this Lease, such
prevailing monthly rate charged by Landlord is $95.00 for each unreserved space in the
Parking Garage, $70.00 for each unreserved space in the surface parking lot serving the
Building (the "Lot") and $150.00 for each reserved space in the Parking Garage and City
of Miami surcharge. Tenant shall pay the replacement fee charged from time to time by
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Landlord for the loss of any magnetic parking card or parking sticker issued by Landlord.
Landlord expressly reserves the right to redesignate parking areas and to modify the
parking structure for other uses or to any extent.
B. It is hereby agreed and understood that Landlord's sole obligation
hereunder is to make the Spaces available to Tenant. Tenant's right to the use of such
Spaces shall be subject to compliance with the rules and regulations promulgated from
time -to -time by the manager of such Lot and/or Parking Garage, and shall be subject to
termination for violation of any such rules or regulations upon notice from such manager.
Landlord shall have no liability whatsoever for any property damage, loss or theft and/or
personal injury which might occur as a result of or in connection with the use of the
Spaces by Tenant, or its employees, agents, servants, customers, invitees and licensees.
Tenant expressly acknowledges and accepts its responsibility under applicable law and its
liability (including under a breach of contract claim by Landlord) for all loss, cost,
damage, liability and expense arising in connection with Tenant's use of the Spaces. This
is a statement of Tenant responsibility but is not to be construed or interpreted as hold
harmless, duty to defend, covenant not to sue, release, or indemnification by the Tenant
or the City of Miami to any third party, including Landlord. The Tenant expressly
reserves its sovereign immunity, and its privileges, defense, limitations to liability, and
claims relating to sovereign immunity. Tenant shall pay to Landlord within 5 business
days of written demand all costs and expenses incurred by Landlord in connection with
Tenant's use of the Spaces.
C. The failure, for any reason, of Landlord to provide or make available the
Spaces to Tenant or the inability of Tenant to utilize these Spaces shall under no
circumstances be deemed a default by Landlord pursuant to the terms of the Lease or give
rise to any claim or cause of action by Tenant against Landlord, the same being hereby
expressly waived by Tenant. Tenant's sole remedy for such failure shall be the equitable
abatement of Tenant's parking rental fee.
D. Landlord hereby reserves the right to enter into a management agreement
or lease with an entity for the Building's parking areas ("Operator"). In such event,
Tenant, upon request of Landlord, will enter into a parking agreement with the Operator
and pay to the Operator the monthly charge established hereunder, and Landlord will
have no liability for claims arising through acts or omissions of the Operator.
30. Statutory Radon Gas Notice Requirement. Tenant hereby acknowledges
receipt of the following notice as required by Chapter 88-285, Laws of Florida:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional information regarding radon and
radon testing may be obtained from your county public health unit.
31. WAIVER OF THE RIGHT TO TRIAL BY JURY. LANDLORD AND
TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO
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TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT LANDLORD OR
TENANT MAY HEREINAFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS LEASE OR
THE LEASED PREMISES WHETHER ARISING IN CONTRACT, TORT OR
OTHERWISE.
32. OFAC Representation. For purposes hereof, "List" shall mean the Specially
Designated Nationals and Blocked Persons List maintained by OFAC and/or on any other similar
list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and
"OFAC" shall mean the Office of Foreign Assets Control, Department of the Treasury. Each
party represents and warrants to the other that (i) each person owning a ten percent (10%) or
greater interest in such party is (A) not currently identified on the List, and (B) is not a person
with whom a citizen of the United States is prohibited to engage in transactions by any trade
embargo, economic sanction, or other prohibition of United States law, regulation, or Executive
Order of the President of the United States and (ii) each party has implemented procedures, and
will consistently apply those procedures, to ensure the foregoing representations and warranties
remain true and correct at all times. Each party shall comply with all requirements of law
relating to money laundering, anti -terrorism, trade embargos and economic sanctions, now or
hereafter in effect and shall use reasonable efforts to notify the other in writing if any of the
forgoing representations, warranties or covenants are no longer true or have been breached or if
such party has a reasonable basis to believe that they may no longer be true or have been
breached. In addition, at the request of a party, the other party shall provide such information as
may be requested by the requesting to determine the other party's compliance with the terms
hereof.
33. Governing Law. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the laws of the State of Florida.
Exclusive venue in any legal proceeding related to or arising out of this Lease shall be in Miami -
Dade County, Florida, and Tenant submits to personal jurisdiction and venue in such forum.
34. Miscellaneous.
A. If any term or provision of this Lease, or the application thereof, shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision, shall not be affected thereby, and each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
B. Tenant agrees not to record this Lease or any short form or memorandum
hereof.
C. The term "Force Majeure" shall mean strikes, riots, acts of God,
shortages of labor or materials, war, acts of terrorism, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of Landlord or Tenant, as
the case may be. Whenever a period of time is herein prescribed for the taking of any
action by Landlord or Tenant (other than the payment of Rent and all other such sums of
money as shall become due hereunder), such party shall not be liable or responsible for,
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there shall be excluded from the computation of such period of time, any delays due to
events of Force Majeure.
D. Except as expressly otherwise herein provided, with respect to all required
acts of Tenant, time is of the essence of this Lease.
E. Landlord shall have the right to transfer and assign, in whole or in part, all
of its rights and obligations hereunder and in the Building and Property referred to herein,
and in such event and upon such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to such successor in interest of
Landlord for the performance of such obligations.
F. Tenant hereby represents to Landlord that it has dealt directly with and
only with the Broker as a broker in connection with this Lease
G. If there is more than one Tenant, or if Tenant as such is comprised of more
than one person or entity, the obligations hereunder imposed upon Tenant shall be joint
and several obligations of all such parties. All notices, payments, and agreements given
or made by, with or to any one of such persons or entities shall be deemed to have been
given or made by, with or to all of them.
H. Tenant acknowledges that the financial capability of Tenant to perform its
obligations hereunder is material to Landlord and that Landlord would not enter into this
Lease but for its belief, based on its review of Tenant's financial statements, that Tenant
is capable of performing such financial obligations. Tenant hereby represents, warrants
and certifies to Landlord that its financial statements previously furnished to Landlord
were at the time given true and correct in all material respects and that there have been no
material subsequent changes thereto as of the date of this Lease. Tenant, within fifteen
(15) calendar days after request, shall provide Landlord with a current financial statement
and such other information as Landlord may reasonably request in order to create a
"business profile" of Tenant and determine Tenant's ability to fulfill its obligations under
this Lease. Landlord, however, shall not require Tenant to provide such information
unless Landlord requires the information in connection with a proposed financing or sale
of the Property, or if an Event of Default by Tenant exists hereunder.
I. Notwithstanding anything to the contrary contained in this Lease, the
expiration of the Lease Term, whether by lapse of time or otherwise, shall not relieve
Tenant from Tenant's obligations accruing prior to the expiration of the Lease Term, and
such obligations shall survive any such expiration or other termination of the Lease Term.
J. Landlord and Tenant understand, agree and acknowledge that (i) this
Lease has been freely negotiated by both parties; and (ii) in any controversy, dispute or
contest over the meaning, interpretation, validity, or enforceability of this Lease or any of
its terms or conditions, there shall be no inference, presumption, or conclusion drawn
whatsoever against either party by virtue of that party having drafted this Lease or any
portion thereof.
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K. The headings and titles to the articles, sections and paragraphs of this
Lease are for convenience only and shall have no affect upon the construction or
interpretation of any part hereof. The term "including" shall be deemed to mean
"including without limitation".
L. This Lease shall create the relationship of landlord and tenant between
Landlord and Tenant. No estate shall pass out of Landlord, and Tenant has only a
usufruct not subject to levy and sale.
M. Intentionally Omitted.
N. This Lease may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but such counterparts shall together
constitute one and the same instrument. For purposes of executing this Lease, a
document signed (physically or electronically) and transmitted by facsimile or by emailed
PDF scan shall be treated as an original document. The signature of either party on a
faxed or emailed PDF scanned version of this Lease shall be considered as an original
signature and the document transmitted shall be considered to have the same binding
legal effect as if it were originally signed. At the request of either party, any facsimile or
PDF scanned document shall be re -executed by both parties in original form. No Party to
this Lease may raise the use of facsimile, emailed PDF scan or the fact that any signature
was transmitted by facsimile or email as a defense to the enforcement of this Lease or any
amendment executed in compliance with this Section.
O. During the term of this Lease, should a real estate investment trust become
Landlord hereunder, all provisions of this Lease shall remain in full force and effect
except as modified by this paragraph. If Landlord in good faith determines that its status
is a real estate investment trust under the provisions of the Internal Revenue Code of
1986, as heretofore or hereafter amended, will be jeopardized because of any provision of
this Lease, Landlord may request reasonable amendments to this Lease and Tenant will
not unreasonably withhold, delay or defer its consent thereto, provided that such
amendments do not (a) increase the monetary obligations of Tenant or decrease the rights
of Tenant pursuant to this Lease or (b) in any other manner materially adversely affect
Tenant's interest in the Premises.
P. Landlord and Tenant agree that all rental payable by Tenant to Landlord,
which includes all sums, charges, or amounts of whatever nature to be paid by Tenant to
Landlord in accordance with the provisions of this Lease, shall qualify as "rents from real
property" within the meaning of both Sections 512(b)(3) and 856(d) of the Internal
Revenue Code of 1986, as amended (the "Code") and the U.S. Department of Treasury
Regulations promulgated thereunder (the "Regulations"). In the event that Landlord, in
its sole discretion, determines that there is any risk that all or part of any rent shall not
qualify as "rents from real property" for the purposes of Sections 512(b)(3) or 856(d) of
the Code and the Regulations promulgated thereunder, Tenant agrees (i) to cooperate
with Landlord by entering into such amendment or amendments as Landlord deems
reasonably necessary to qualify all rental as "rents from real property"; and (ii) to permit
an assignment of this Lease by Landlord; provided, however, that any adjustments
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required pursuant to this paragraph shall be made so as to produce the equivalent rental
(in economic terms) payable prior to such adjustment.
Q. Landlord shall have the right at any time and from time to time to
unilaterally amend the provisions of this Lease if Landlord is advised by its counsel that
all or any portion of the monies paid by Tenant to Landlord hereunder are, or may be
deemed to be, unrelated business income within the meaning of the Code or the
Regulations, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such amendment
shall result in Tenant having to pay in the aggregate more money on account of its
occupancy of the Premises under the terms of this Lease, as so amended, and provided
further that no such amendment shall result in Tenant having materially greater
obligations or receiving less services than it was previously obligated for or entitled to
receive under this Lease, or services of a lesser quality.
R. Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option, be furnished from time to time, in
whole or in part, by employees of Landlord or Landlord's managing agent or its
employees or by one or more third persons hired by Landlord or Landlord's managing
agent. Tenant agrees that upon Landlord's written request it will enter into direct
agreements with Landlord's managing agent or other parties designated by Landlord for
the furnishing of any such services required to be furnished by Landlord hereunder, in the
form and content approved by Landlord; provided, however, that no such contract shall
result in Tenant having to pay in the aggregate more money on account of its occupancy
of the Premises under the terms of this Lease, and provided further that no such contract
shall result in Tenant having materially greater obligations or receiving less services than
it is presently obligated for or entitled to receive under this Lease, or services of a lesser
quality.
S. Tenant shall fully comply with all present or future programs implemented
or required by any governmental or quasi -governmental entity or Landlord to manage
parking, transportation, air pollution, or traffic in and around the Property or the
metropolitan area in which the Property is located.
T. Tenant shall have the right to terminate this Lease by providing Landlord
with at least ninety (90) days' prior written notice of such termination date (the
"Termination Date") if there is a material reduction or discontinuance of funds allocated
and available to Tenant as a result of events beyond Tenant's control (as opposed to
fraud, mismanagement of funds, failure to budget appropriate funds for the payment of
Tenant's obligations hereunder etc.) or as a result of an other than temporary change in
laws, codes, rules, policies or regulations applicable to Tenant which change expressly
prohibits Tenant from entering into and/or performing under this Lease (each of the
foregoing events being a "Termination Triggering Event"). As a condition precedent to
Tenant exercising the termination right hereunder, Tenant shall provide with its
termination notice substantiation satisfactory to Landlord in its reasonable discretion that
a Termination Triggering Event occurred and is the sole basis for Tenant terminating this
Lease. Additionally, Tenant's right to terminate under this subsection 34T. is conditioned
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upon Tenant's payment to Landlord of the Termination Payment (defined below) and
Tenant's payment in full of all Rent through and including the Termination Date. The
Termination Payment is the unamortized cost (using an interest rate of 6%) of all out of
pocket tenant improvement costs and leasing commissions paid by Landlord in
connection with this Lease. The Termination Payment must be paid on or before the
Termination Date. Tenant shall remove Tenant's Property, all electronic, phone and data
cabling exclusively serving the Premises (whether such cabling is located within or
outside of the Premises), and all Required Removables prior to the Termination Date and
shall leave the Premises in the condition otherwise required by this Lease, whereupon,
neither party shall have further recourse against the other except under those provisions
of this Lease which expressly survive the termination of this Lease.
35. No Offer. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to Tenant or an option. This
Lease shall not be effective until an original of this Lease executed by both Landlord and Tenant
and an original Guaranty, if applicable, executed by each Guarantor is delivered to and accepted
by Landlord, and this Lease has been approved by Landlord's mortgagee, if required.
36. Entire Agreement. This Lease, including the Exhibits attached hereto,
constitutes the entire agreement between the parties hereto with respect to the subject matter of
this Lease and supersedes all prior agreements and understandings between the parties related to
the Premises, including all lease proposals, letters of intent and similar documents. Tenant
expressly acknowledges and agrees that Landlord has not made and is not making, and Tenant,
in executing and delivering this Lease, is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same are expressly set forth in this Lease.
This Lease may be modified only by a written agreement signed by Landlord and Tenant.
Landlord and Tenant expressly agree that there are and shall be no implied warranties of
merchantability, habitability, suitability, fitness for a particular purpose or of any other kind
arising out of this Lease, all of which are hereby waived by Tenant, and that there are no
warranties which extend beyond those expressly set forth in this Lease.
37. Sales Tax Exemption. Tenant represents and warrants to Landlord that it has a
valid, current sales tax exemption certificate ("Exemption Certificate") issued by the Florida
Department of Revenue exempting it from payment of sales tax. Tenant shall not be obligated to
pay to Landlord any sales tax on Rent for so long as it has a valid exemption. Tenant shall
promptly notify Landlord if Tenant loses its tax-exempt status and Tenant shall commence
paying sales tax on all Rent after losing its exemption. Tenant shall furnish Landlord with a
copy of the Exemption Certificate prior to the Commencement Date and shall furnish Landlord
with a copy of each renewal of the Exemption Certificate at least 30 calendar days prior to the
expiration of the then current Exemption Certificate.
38. Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
THE EXCLUSIVE REMEDY OF TENANT FOR FAILURE OF LANDLORD TO
PERFORM ANY OF ITS OBLIGATIONS UNDER THIS LEASE SHALL BE AN
ACTION FOR DAMAGES AGAINST LANDLORD. ANY LIABILITY OF LANDLORD
UNDER THIS LEASE SHALL BE LIMITED SOLELY TO ITS INTEREST IN THE
PROPERTY, AND IN NO EVENT SHALL ANY PERSONAL LIABILITY BE
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ASSERTED AGAINST LANDLORD, ITS MEMBERS, MANAGERS, OR THEIR
RESPECTIVE MEMBERS, MANAGERS, PARTNERS, SHAREHOLDERS, OFFICERS,
DIRECTORS, AGENTS OR EMPLOYEES, IN CONNECTION WITH THIS LEASE
NOR SHALL ANY RECOURSE BE HAD TO ANY OTHER PROPERTY OR ASSETS
OF LANDLORD, ITS MEMBERS, MANAGERS, OR THEIR RESPECTIVE
MEMBERS, MANAGERS, PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS,
AGENTS OR EMPLOYEES. IN NO EVENT SHALL LANDLORD OR TENANT BE
LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES AS A RESULT OF A
BREACH OR DEFAULT UNDER THIS LEASE, EXCEPT TENANT SHALL BE
LIABLE FOR CONSEQUENTIAL DAMAGES AND SPECIAL DAMAGES AS A
RESULT OF TENANT'S BREACH OR DEFAULT UNDER ANY OF THE PROVISIONS
OF SECTION 23 AND/OR 3B HEREOF.
[SIGNATURE PAGE FOLLOWS]
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Landlord and Tenant have executed this Lease as of the day and year first above written.
LANDLORD:
MM CONTINENTAL PLAZA, LLC, a Delaware
limited liability company
,—DocuSignedd by: ' � t
Vil&WA1 C6Stau t iln i
By:
92D8045DDO C4g8
Name: Vincent costanti ni
Its: chief Executive officer
Date executed: , 2023
7/26/2023
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
31
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
ATTEST:
odd B. Hann
City Clerk
[TENANT SIGNATURE PAGE]
TENANT:
COCONUT GROVE BUSINESS
IMPROVEMENT DISTRICT, a municipal
board of the Gitv-of Miami
By:
Cynthia Seymour
Acting Executive Di
Date Executed,
Tenant's Taxpayer
den
0
'ficatfo Number:
,5-40
Approved as to Legal Form and Correctness: Approved as to Insyrancequirements:
By`:.
Victoria ndez xfA
City Attorney o2 3 _ (141.6
32
By:
Ann -Marie Sharpe, Director
Department 4f Risk anagement
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1 F4DE9
Suite 3051 1,134 RSF
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
A-1-1
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
EXHIBIT A-1
LEGAL DESCRIPTION OF LAND
Parcel One:
Lot 5, less the West 100 feet and less the East 90 feet thereof, Block 10, of EDWARD PENT
HOMESTEAD, according to the plat thereof, recorded in Plat Book A, at page 45, of the Public Records
of Miatni.Dade County, Florida.
Parcel Two:
The East 90 feet of Lot S, Block 10, less that ration inning at the Southeast comer of said Lo4 5,
thence run North along the East boundary line of said Lot 5 a distance of 36.9 feet, more or less, to a point
of curvature; thence run Southwesterly along the are of a curve to the right having a central angle of 89
degrees 50 minutes 15 seconds and a radius of 37 feet. a distance of 58,01 feet, mon: or less, to a point of
tangency on the South boundary lint of the aforesaid Lot 5; thence run East along the said South
boundary line of Lot 5 a distance of 36.9 feet, mote ur less, to the POINT OF BEGINNING, of
EDWARD PENT HOMESTEAD, according to the plat thereof, recorded in Plat Book A, at page 45, of
the Public Records 4rMiami-Dade County, Florida.
Parcel Three:
Lot 4, less the North 60 feet of the West 100 feet thereof, Block 10, of EDWARD PENT
HOMESTEAD, according to the plat thereof, recorded in Plat Book A, at page 45, of the Public
Records of Minm i-Dado County, Florida.
Parcel Pour:
The East 0.25 feet, less the North 60 feet thereof, of Lot 7, Bloek 10, of EDWARD PENT
liONIEsTEAD, according to the plat thereof, recorded in Plat Book A, al page 45, of the Public
Records of Miami -Dade County, Florida.
A-1-2
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
EXHIBIT B
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the Premises, the Building,
the parking areas associated therewith (if any), the Property and the appurtenances thereto:
1. Tenant will refer to Landlord all contractors, contractor's representatives and installation
technicians rendering any service for Tenant for Landlord's supervision and/or written
approval before performance of any such contractual services. This shall apply to all
work performed in the Building, including: (a) installation of telephones, telegraph
equipment, facsimile, broadband equipment, electrical devises and attachments, and
installations of any and every nature affecting floors, walls, woodwork, trim, windows,
ceiling, equipment or any other physical portion of the building, (b) painting or drilling,
and (c) boring, cutting or stringing wires.
2. The work of the janitor or cleaning personnel shall not be hindered by Tenant after 5:30
p.m., but such work may be done at any time. The window, doors and fixtures may be
cleaned at any time. Tenant shall provide adequate waste and rubbish receptacles,
cabinets, book cases, map cases, etc. necessary to prevent unreasonable hardship to
Landlord in discharging its obligation regarding cleaning services.
3. Movement in or out of the Building of fixtures or office equipment, or dispatch or receipt
by Tenant of any merchandise or materials which requires movement through the
Building entrance or lobby, is restricted to the hours designated by Landlord and in a
manner to be approved by Landlord. The approval by Landlord shall include its
determination, decision, and control of the time, method and routing of equipment and
furniture, together with any limitations imposed by safety or other concerns which may
prohibit any article, equipment or any other item from being brought into the Building.
Any hand trucks, carryalls, or similar appliance used for the delivery or receipt of
merchandise or equipment shall be equipped with rubber tires, side guards, and such
other safeguards as Landlord shall require. Tenant expressly assumes all risk of damage
to the Property and to any and all articles so moved, as well as injury to any person or
persons or the public engaged or not engaged in the movement. Landlord is not liable for
the act or acts of any person or persons so engaged for any damage or loss to any
property of persons resulting directly or indirectly from any act in connection with
service performed by or for Tenant.
4. Tenant shall not place, install or operate on the Property any engine, stove or machinery,
or conduct mechanical operations or cook therein, or place or use in or about the
Premises any explosives, gasoline, kerosene, oil, acids, caustics, or any other flammable,
explosives, hazardous, or noxious odors without the prior written consent of Landlord. If
consent is granted, Tenant will be required to furnish approved fire extinguishers and
have them inspected and approved by the proper local authorities on an annual basis. No
portion of the Premises shall at any time be used for cooking, sleeping or lodging
quarters.
B-1
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1 F4DE9
5. Tenant will be solely responsible for any personal property, equipment, money, or
jewelry which is lost or stolen from, or damaged at, any portion of the Property or any
public areas regardless of whether the loss occurs when the area is locked against entry or
not.
6. Tenant or the employees, agents, servants, visitors, or licensees of Tenant shall not at any
time or place, leave or discard any rubbish, paper, articles, or objects of any kind
whatsoever outside the doors of the Premises or in the corridors or passageways of any
portion of the Property. No birds, animals, bicycles or vehicles shall be brought into or
kept in or about the Building.
7. Landlord may permit entrance to Tenant's offices by use of passkeys controlled by
Landlord's agents, employees, contractors or service personnel supervised or employed
by Landlord. No additional locks or similar devices shall be placed by Tenant on any
door in the Building unless written consent of Landlord shall have first been obtained.
One (1) pass key for each of Tenant's employees will be furnished by Landlord for the
Premises at commencement of the Lease and any additional keys required must be
obtained from Landlord for an additional fee. A charge will be made for each additional
key furnished. All keys shall be surrendered to Landlord upon termination of tenancy.
8. None of the entries, passages, doors, hallways, or stairways shall be blocked or
obstructed by Tenant.
9. Landlord shall have the right to determine and prescribe the weight and proper position of
any unusually heavy equipment, including all safes, large files, computers, etc. that are to
be placed in the Building, and only those which in the sole opinion of Landlord will not
damage the floors, structure, and/or elevators may be moved into said Building. Any
damage occasioned in connection with the moving or installation of the aforementioned
articles in said Building, or the existence of same in said Building shall be paid for by
Tenant.
10. All Holiday or other temporary or special decorations must be flame retardant, displayed
no sooner than fourteen days (14) prior to the designated occasion, and removed within
seven (7) days following the designated occasion.
11. Tenant shall provide Landlord, and shall regularly update as and when required, a list of
all people authorized entrance into the Building after Normal Business Hours.
12. After-hours air conditioning and heating, must be requested in writing by noon of a
regular work day prior to the day for which additional air conditioning is requested.
13. Any furniture or equipment removed from the Building after hours must be listed in
security officer's building register. Description and serial numbers must be included on
the stationery (letterhead) of Tenant.
14. Names to be placed on or removed from directories should be furnished to the Building
manager in writing on Tenant's letterhead.
B-2
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
15. All doors leading from public corridors to the Premises are to be kept closed.
16. Canvassing, soliciting or peddling on or about any portion of the Property is prohibited
and Tenant shall cooperate to prevent same.
17. Tenant shall give immediate notice to the Property manager in case of accidents in the
Premises or any portion of the Property or of defects therein or in any fixtures or
equipment, or of any other type of emergency on or about the Property.
18. Tenant shall not use the Premises or permit the Premises to be used for photographic or
multigraph reproductions, or any retail sales, except in connection with its own business
and then only with Landlord's prior written consent.
19. Any requirements of Tenant will be attended to only upon application at the office of the
Property manager. Employees of the Property shall not perform any work or do anything
outside or their regular duties, unless under special instructions from the office of the
Property manager.
20. Tenant shall not make or permit any loud or improper noises in or about the Property or
otherwise interfere in any way with other tenants or persons having business with them.
21. Tenant shall not install any floor covering in the Premises except with the prior approval
of Landlord. The use of cement or other similar adhesive material is expressly
prohibited.
22. The parking garage, parking lot, underground loading docks, motor court and driveways
are to be used only for the purposes intended by Landlord and shall not be obstructed or
misused in any way. Parking or standing in any unauthorized area is prohibited.
23. Tenant shall not place anything or allow anything to be placed on or near the glass of any
window, door, partition or wall which may appear unsightly from outside the Premises.
24. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any
purposes other than that for which they were constructed and no foreign substance of any
kind whatsoever shall be thrown therein and the expense of any breakage, stoppage or
damage resulting from the violation of this rule shall be borne by the tenant who, or
whose employees or invitees shall have caused it.
25. Landlord reserves the right to exclude or expel from the Property any person who, in the
judgment of Landlord is under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of these Rules and Regulations.
26. No vending machine or machines of any description except for Tenant's employees' use
shall be installed, maintained or operated upon the Premises without the written consent
of Landlord which shall not be unreasonably withheld.
B-3
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
27. Without the written consent of Landlord, Tenant shall not use the name of the Building in
connection with or in promoting or advertising the business of Tenant except as Tenant's
address.
28. Tenant at its sole election shall place or have placed solid pads under all rolling chairs
such as may be used at desks or tables; provided that in the event that Tenant does not
elect to place or have placed such pads, Landlord shall not be held in any way obligated,
liable, or responsible to repair or replace any damages caused in connection with the
same.
29. Landlord shall have the right to control and operate public portions of the Property, the
public facilities, and heating and air conditioning as well as facilities furnished for the
common use of the tenants, in such manner as it deems best for the benefit of the tenants
generally.
30. Landlord reserves the right at any time to rescind any of these Rules and Regulations of
the Building, and to make such other and further rules and regulations as in its sole
judgment shall from time to time be needful for the safety, protection, care and
cleanliness of the Building, the Premises and the parking garage and parking lot, the
operation thereof, the preservation of good order therein and the protection and comfort
of the other tenants in the Building and their agents, employees, and invitees, which
Rules and Regulations, when made and written notice thereof is given to Tenant, are be
binding upon Tenant in like manner as if originally herein prescribed.
31. Tenant shall fully cooperate and participate in all evacuation, life safety and related
emergency or security procedures established from time to time by Landlord.
[END OF EXHIBIT B]
B-4
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1 F4DE9
EXHIBIT C
INTENTIONALLY DELETED.
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1 F4DE9
EXHIBIT D
WORK LETTER
1. This Work Letter shall set forth the obligations of Landlord and Tenant with respect to the
preparation of the Premises for Tenant's occupancy. Landlord shall perform or cause to be
performed the work set forth in the work list below (the "Worklist"), so long as no default shall
occur under the Lease. The work to be performed by Landlord within the Worklist is hereinafter
referred to as the "Landlord's Work." It is agreed that Landlord's Work will be completed at
Landlord's sole cost and expense (subject to the terms of Section 2 below) using Building standard
methods, materials and fmishes. Notwithstanding anything to the contrary set forth herein, in no
event shall Landlord be required to perform any of the Landlord's Work during any period an Event
of Default by Tenant exists under the Lease. Tenant shall be responsible for the cost of any
additional improvements and the cost of its own furniture, telephone and data wiring and installation.
WORKLIST:
A. Paint the interior walls of the Premises; and
B. Replace the existing carpeting within the interior of the Premises.
2. Notwithstanding anything herein to the contrary, all revisions to the Worklist shall be subject to
the approval of Landlord, which may be withheld in its sole discretion. If such revisions result in
an increase in the cost of Landlord's Work, such increased costs shall be payable by Tenant upon
demand.
3. If Landlord shall be delayed in substantially completing the Landlord's Work as a result of the
occurrence of any of the following (a "Delay"):
(a) Tenant's failure to furnish information in accordance with the Work Letter or to
respond to any request by Landlord for any approval or information within any
time period prescribed, or if no time period is prescribed, then within two (2)
Business Days of such request; or
(b) Tenant's request for materials, finishes or installations that have long lead times
after having first been informed by Landlord that such materials, fmishes or
installations will cause a Delay; or
(c) Changes in the Worklist requested by Tenant, or any plans and specifications in
connection therewith; or
(d) The performance or nonperformance by a person or entity employed by or on
behalf of Tenant in the completion of any work in the Premises (all such work and
such persons or entities being subject to prior approval of Landlord); or
(e) Any request by Tenant that Landlord delay the completion of any component of
the Landlord's Work; or
D-1-1
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
(f)
Any breach or default by Tenant in the performance of Tenant's obligations under
this Lease; or
(g) Tenant's failure to pay any amounts as and when due under this Work Letter; or
(h) Any delay resulting from Tenant's having taken possession of the Premises for
any reason prior to substantial completion of the Landlord's Work; or
Any other delay chargeable to Tenant, its agents, employees or independent
contractors;
(i)
then, for purposes of determining the Commencement Date, the date of substantial completion
shall be deemed to be the day that Landlord's Work would have been substantially completed
absent any such Delay. Promptly after the determination of the Commencement Date, Landlord
and Tenant shall enter into the Commencement Letter. Tenant, within five (5) business days
after receipt thereof from Landlord, shall execute the Commencement Letter and return the same
to Landlord.
4. This Work Letter shall not be deemed applicable to any additional space added to the original
Premises at any time or from time to time, whether by any options under the Lease or otherwise,
or to any portion of the original Premises or any additions to the Premises in the event of a
renewal or extension of the original Lease Term, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any written amendment or supplement to
the Lease. All capitalized terms used in this Work Letter but not defined herein shall have the
same meanings ascribed to such terms in the Lease.
4. NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARE MADE
REGARDING THE CONDITION OR SUITABILITY OF THE PREMISES ON THE
COMMENCEMENT DATE AND TENANT HAS NOT RELIED ON ANY SUCH
REPRESENTATIONS OR WARRANTIES. FURTHER, TO THE EXTENT PERMITTED BY
LAW, TENANT WAIVES ANY IMPLIED WARRANTY OF SUITABILITY,
HABITABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
OF THE PREMISES OR OTHER IMPLIED WARRANTIES THAT LANDLORD WILL
MAINTAIN OR REPAIR THE PREMISES OR ITS APPURTENANCES EXCEPT AS MAY
BE CLEARLY AND EXPRESSLY PROVIDED IN THIS LEASE.
[END OF EXHIBIT D]
D-1-1
DocuSign Envelope ID: C3FA6F08-7E5D-462E-AE65-87700B1F4DE9
EXHIBIT E
COMMENCEMENT LETTER
Date
Attn:
Re: Commencement Letter with respect to that certain Lease dated , 2023, by and
between MM Continental Plaza, LLC, as Landlord, and COCONUT GROVE
BUSINESS IMPROVEMENT DISTRICT, a municipal board of the City of Miami, as
Tenant, for a Rentable Area in the Premises of 1,134 square feet on the 3rd floor of the
Building located at 3250 Mary Street, Miami, Florida
Dear
In accordance with the terms and conditions of the above referenced Lease, Tenant hereby
accepts possession of the Premises and agrees as follows:
The Commencement Date of the Lease is
The Expiration Date of the Lease is
Please acknowledge your acceptance of possession and agreement to the terms set forth above by
signing all three (3) copies of this Commencement Letter in the space provided and returning
two (2) fully executed copies of the same to my attention.
Sincerely,
Property Manager
Agreed and Accepted:
TENANT:
Coconut Grove Business Improvement District, a municipal board of the City of Miami
By:
Name: Cynthia Seymour
Title: Acting Executive Director
E-1
DocuSign Envelope ID: C3FA6F08,7E5D-462E=AE65-87700B1F4DE9
EXHIBIT E
COMMENCEMENT LETTER.
Date
MM Continental Plaza, LLC
3250 Mary Street Miami FL 33137
Attn: Cynthia Seymour
Re: Commencement Letter with respect to that certain Lease dated 7/26/2023 2023, by and
between MM :Continental :Plaza, LLC, as Landlord,`. and .COCONUT. GROVE
BUSINESS IMPROVEMENT DISTRICT, a municipal board of the City of Miami, as
Tenant, for a Rentable :Area in the. Premises: of 1,134 square feet on the 3n1 floor of. the
Building located at 3250 -Mary Street, Miami, Florida
Dear Cynthia Seymour
In accordance with the terns and conditions of the above referenced:. Lease, Tenant hereby
aeeeptspossession of the Premisesand agrees as follows:
The Commencement Date of the Lease is October 1st, 2023
The Expiration Date of the Lease is September 30th, 2028
Please acknowledge your acceptance of possession. and agreement to the terms set forth above by
signing all three:(3) .copies of this Commencement Letter in the space provided and returning
two (2) fully executed copies of the same to my attention.
Sincerely,
XXXX:3XXXX
Property Manager
Agreed and Accepted:
TENANT:
Coco
By:
Name:
Title: g
t G • vy:Business Improvement District, a municipal board of the City of Miami
-LI.. 1..
Cynthi •
. moue
Actin tive Director
E-1.