NOTE: This is a form lease which contains general terms and conditions required by the FIU BOT. This form is subject to change based upon negotiations and other terms and conditions which may be required by the FIU BOT in order to consummate a transaction. LEASE AGREEMENT THIS LEASE AGREEMENT (the Lease ) is made and entered into as of the Effective Date (as defined herein) by and between, a, (the Landlord ), and THE FLORIDA INTERNATIONAL UNIVERSITY BOARD OF TRUSTEES (the Tenant ). Landlord s Federal Identification Number (FEID or SS) is. WITNESSETH: I. DEMISE/PREMISES The Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, on the terms and conditions set forth below, that certain premises located at (the Premises ). The Premises shall contain an aggregate of square feet of net rentable space measured in accordance with the State of Florida Board of Governors Regulation 17.001(3) and which comprises approximately % square feet in the building at the rate of $ per square foot per year. [IF APPLICABLE: The Landlord shall also provide ( ) number of parking spaces for the exclusive use of the Tenant as part of this Lease.] II. TERM The initial term of this Lease shall be for a period of year(s), commencing on and ending on. [IF APPLICABLE: The Landlord hereby grants the Tenant option(s) to renew this Lease for a period of years [each] on the same terms and conditions provided herein, except with respect to the increase in the payment of rent, as provided in Article III below. If the Tenant desires to exercise [this/these] option(s), it shall so notify the Landlord no later than thirty (30) days prior to the date the original term or applicable renewal term expires.] For purposes hereof, the Term means the original term and all renewal terms, if applicable. III. RENTALS [IF APPLICABLE: & SECURITY DEPOSIT] Tenant agrees to pay to the Landlord the sum of $ per month, as rent, during the Term. The rent for any partial month shall be prorated on the basis of a thirty (30) day month. The rent shall be payable monthly, in arrears, on the first (1st) day of each month. The rent shall be paid to the Landlord at. Page 1 of 12 OGC October 2014
A late fee of 5.00% shall apply to any payment of rent not received by Landlord by midnight on the fifteenth (15 th ) day of each month. [IF APPLICABLE: If the Tenant exercises its option(s) to renew the original term, as provided under Article II above, the monthly rent shall increase by percent ( %) per annum, which shall equal a rental sum of $ per month effective as of the first month of the renewal term.] [IF APPLICABLE: Prior to occupying the Premises, Tenant shall deposit with Landlord a Security Deposit (herein so called) in the amount of $ to be held by Landlord as security for Tenant s performance under this Lease. Unless otherwise required by law, Tenant shall not be entitled to interest on such Security Deposit and Landlord may commingle such Security Deposit with any other funds of Landlord. Upon Tenant s default, subject to any notice or cure periods provided herein, Landlord may apply any applicable portion of the Security Deposit to: (a) an arrearage of rent, and/or (b) any actual and reasonable expenses incurred by Landlord due to such default. If the Security Deposit is not used for the aforementioned purposes, then, within ten (10) days following the expiration or earlier termination of the Lease, Landlord will return any remaining balance of the Security Deposit to Tenant. If Landlord transfers Landlord s interests in the Premises, subject to the terms and provisions hereunder, then Landlord shall assign the Security Deposit to the transferee.] IV. SALES TAXES Landlord shall pay any federal, state or local sales or other taxes upon the rents payable hereunder. V. HEATING, LIGHTING, AIR-CONDITIONING, JANITORIAL AND PEST CONTROL SERVICES The Landlord, at Landlord s expense, shall furnish the following equipment and services to Tenant s Premises throughout the Lease Term: (a) heating and air conditioning equipment, which shall be operated and maintained by Landlord in satisfactory operating condition; (b) light fixtures and services related to same, including responsibility for replacement of all bulbs, tubes, and starts used in such fixtures for the purpose of furnishing light; (c) janitorial services and all necessary janitorial supplies, including, but not limited to, the provision of trash disposal; and, (d) pest control services. All services required above shall be provided Monday through Friday, excluding state holidays. Page 2 of 12 OGC October 2014
VI. MAINTENANCE AND REPAIRS Landlord, at Landlord s expense, shall maintain the Premises in good condition and repair throughout the Lease Term. This shall include, but not be limited to, the requirement that Landlord maintain, repair, and replace, as necessary, all portions of the Premises, including, but not limited to, the roof, foundations, floor slabs, columns, exterior walls, imbedded utility lines, gutters, downspouts and subfloors, HVAC, parking lot, driveways, sidewalks, carpeting, paint, and other interior elements. VII. UTILITIES The Landlord shall provide and promptly pay for all utilities required by Tenant for its use and operation of the Premises, including, but not limited to, gas, heat, water, sewer, power and electricity. In the event any utility is disrupted to such an extent that Tenant cannot, in its reasonable discretion, operate for business for a period of more than twenty-four (24) hours, the rent payable under this Lease shall abate during the remaining period of disruption. If the Premises contain 5,000 net square feet or more, Landlord will provide Tenant, in a form and manner agreed upon, timely and accurate data on Tenant s monthly consumption or use of electricity, natural gas, LP gas, and/or fuel oil, as appropriate, pursuant to Section 255.257, Florida Statutes. VIII. SECURITY The Landlord, at Landlord s expense, shall be responsible for providing sufficient security for the Premises at all times during Tenant s use and operations. IX. TENANT S PROPERTY All equipment, inventory, trade fixtures, and other property owned by the Tenant and located in the Premises shall remain the personal property of the Tenant and shall be exempt from the claims of the Landlord or any mortgagee or lienholder of the Landlord without regard to the means by which they are installed or attached. The Landlord specifically waives any statutory or common law landlord s lien and any and all rights granted under present or future laws to levy or distrain for rent against the aforesaid property of Tenant on the Premises. X. COMPLIANCE WITH LAW The Landlord represents and warrants that the Premises is in compliance with all laws, rules and regulations applicable thereto, including, but not limited to, environmental compliance, fire safety, life safety, and disabled access standards applicable to Tenant owned or leased buildings. In addition, Landlord shall be responsible for causing the Premises to comply with all hereinafter enacted laws, rules, and regulations applicable thereto. The Landlord agrees that the Premises shall be available for inspection by the State Fire Marshall or other applicable authority, prior to occupancy by the Tenant, and at any reasonable time thereafter. Page 3 of 12 OGC October 2014
XI. ALTERATIONS The Tenant shall not make any structural alterations to the Premises without having first obtained Landlord s written consent, which consent will not be unreasonably withheld, qualified or delayed. XII. CASUALTY In the event the Premises are damaged or destroyed by fire, lightning, storm, or other casualty, the Landlord shall, within ninety (90) days following the casualty, repair or rebuild the Premises to their condition immediately prior to such casualty, at its own cost and expense. Notwithstanding anything herein to the contrary, in the following events, the Landlord shall have the right to terminate this Lease, effective as of the date of the casualty, with rent being prorated as of the date of such casualty, by written notice to the Tenant within sixty (60) days following such casualty: (i) the Premises are substantially damaged (i.e. repair costs exceed $100,000.00) within the last one hundred eighty (180) days of the Term and the Tenant does not exercise a renewal option, if applicable; or (ii) the Premises are substantially damaged (i.e. repair costs exceed $100,000.00) and the damage is not covered by the Landlord s insurance. Notwithstanding anything herein to the contrary, in any of the following events, the Tenant shall have the right to terminate this Lease, effective as of the date of the casualty, with rent being prorated as of the date of such casualty,: (i) the Premises are damaged to an extent that repair cannot be or is not completed within ninety (90) days following the casualty; (ii) the Premises are substantially damaged (i.e. repair costs exceed $100,000.00) within the last one hundred eighty (180) days of the Term; or (iii) the common areas, if any, are damaged resulting in a material interference with the operations of or access to the Tenant s business, and repair cannot be or is not completed within ninety (90) days following the casualty. In the event this Lease is not terminated, the rent shall be reduced during the period of repair or restoration to the extent the Premises are rendered unusable by the Tenant, in the Tenant s reasonable judgment, in the conduct of its business. Such abatement shall continue until the earlier to occur of (a) the date the Tenant reopens for business; or (b) thirty (30) calendar days after substantial completion of Landlord s repair or restoration work. The Landlord shall provide for fire protection during the Term in accordance with the fire safety standards of the authority having jurisdiction over this area, which may include, but not be limited to, the State Fire Marshal. The Landlord shall be responsible for maintenance and repair of all fire protection equipment necessary to conform to the requirements of the applicable Building and Fire Safety Codes and the authority having jurisdiction thereof. XIII. TAKING If by any lawful authority through condemnation or under the power of eminent domain: (a) the whole of the Premises shall be taken; (b) less than the entire Premises shall be taken, but the Page 4 of 12 OGC October 2014
remainder of the Premises are not, in the Tenant s sole judgment, fit for the Tenant to carry on its business therein; (c) the Tenant determines, in its reasonable judgment, that, after such taking, adequate parking spaces will not be available near the Premises; (d) there is any substantial impairment of ingress or egress from or to the Premises; or (e) all or any portion of the common areas, if any, shall be taken resulting in a material interference with the operations of the Tenant s business, then in any such event, the Tenant may terminate this Lease, effective as of the date of such taking, and the rent shall be prorated as of the date of such termination. Unless this Lease is canceled, as above provided, commencing with the date possession is acquired by the condemning authority, the rent shall be reduced in proportion to the ratio that the value of the Premises immediately following such taking bears to the value of the Premises immediately prior to such taking, and Landlord shall restore the Premises, at Landlord s cost and expense, to a complete architectural unit. During such restoration, the rent shall be abated to the extent the Premises are rendered by Tenant untenantable. All compensation awarded or paid in any such eminent domain proceeding shall belong to and be the property of the Landlord without any participation by the Tenant, except that nothing contained herein shall preclude the Tenant from prosecuting any claim directly against the condemning authority in such eminent domain proceeding for the value of its leasehold estate (if the Lease terminates), its relocation costs, its unamortized leasehold improvements and trade fixtures, loss of business, and the like. XIV. EXPIRATION OF TERM At the expiration of the Term, the Tenant will peaceably yield up to the Landlord the Premises in good order and condition, ordinary wear and tear, damage from casualty and condemnation excepted. It is understood and agreed between the parties that the Tenant shall have the right to remove from the Premises all fixtures, machinery, equipment, appurtenances, appliances and other personal property placed or installed on the Premises by Tenant. The Tenant shall repair any damage caused by such removal. XV. SUBLETTING AND ASSIGNMENT Tenant shall not assign or transfer its interest in this Lease or sublet the Premises without Landlord s consent, which shall not be unreasonably withheld, qualified or delayed. XVI. ESTOPPEL CERTIFICATES Within twenty (20) days after request by either party, but no more frequently than once per calendar year, the other party agrees to deliver a certificate certifying (a) the time periods through which rent has been paid; (b) that this Lease is in full force and effect; (c) that there are no defenses or offsets to its obligations hereunder (or stating those that are claimed); and (d) to such other matters as the first party may reasonably request. Tenant shall further, in the event of any foreclosure, attorn to the purchaser as a landlord under this Lease, provided that such purchaser shall agree in writing to assume all obligations of Landlord hereunder. Page 5 of 12 OGC October 2014
XVII. SUBORDINATION/NON-DISTURBANCE This Lease shall be subject and subordinate to any mortgages, leases, or other instruments, now or hereafter constituting a lien upon the Premises from time to time on the condition that the holder of such mortgage, lease, or other instrument shall agree in writing that in the event of foreclosure of such mortgage/instrument or termination of such lease/instrument, Tenant shall remain undisturbed under this Lease so long as Tenant complies with all of Tenant s obligations hereunder. No later than thirty (30) days prior to the commencement of the Lease Term, Landlord shall provide Tenant with a written list of any and all mortgages, leases, or other instruments, which constitute a lien on the Premises. [IF APPLICABLE: Landlord represents and warrants to Tenant that there is no existing financing secured by the Premises.] XVIII. USE OF PREMISES The Tenant is authorized to use the Premises for educational and administrative purposes, which shall include, but not be limited to, [INCLUDE WHAT THE USE IS; examples: the conduct of classes or operating offices to administer educational programs ]. The Landlord represents that the Premises may be used for Tenant s intended purposes. Tenant may also use the Premises for any other lawful purpose. Tenant reserves the right to set its own hours and days of operation so long as such hours and days of operation do not violate applicable municipal regulations and Landlord is properly advised in writing of any hours outside of normal business operating hours. XIX. HAZARDOUS MATERIAL Landlord represents and warrants to Tenant that, to the best of Landlord s knowledge, the Premises are free and clear of Hazardous Materials (as hereinafter defined). For the purposes of this Lease, Hazardous Materials means substances regulated under federal law or by the laws of the state or municipality, in which the Premises are located, and including, but not limited to, asbestos and petroleum-related products. Tenant shall not be responsible for any Hazardous Materials located on the Premises at the time Landlord delivers possession of the Premises to Tenant. XX. RIGHT OF LANDLORD TO INSPECT The Landlord, upon reasonable prior written notice to Tenant, may enter into and upon the Premises during regular business hours for the purposes of inspecting the same and making any repairs as it is required to make under this Lease. XXI. BREACH If the Tenant shall fail to perform or observe any covenant herein contained which is on the Tenant s part to be performed, and such failure shall continue for a period of thirty (30) days Page 6 of 12 OGC October 2014
after the receipt of written notice thereof from the Landlord to the Tenant, then the Landlord lawfully may seek and enforce any lawful remedies to which it may be entitled. If Landlord fails to perform any of its obligations under this Lease, within thirty (30) days after receipt of notice of such failure from Tenant (except in the event of an emergency, in which case only reasonable notice shall be required), then Tenant may, at Tenant s option: (1) cure such violation on Landlord s behalf and offset the cost thereof against the rent; or (2) seek and enforce any other lawful remedies to which it may be entitled. XXII. TAXES AND INSURANCE The Landlord shall pay all real estate taxes, public charges and assessments assessed or imposed upon the Premises. The Landlord shall carry property insurance on the Premises with Causes of Loss-Special Form coverage at full replacement value and commercial general liability insurance. Landlord s insurer shall be licensed to do business in the State of Florida and have a minimum A.M. Best s financial rating of A-/VII. Landlord shall provide Tenant with the appropriate insurance certificates confirming the existence of all required insurance coverage. The Landlord agrees to defend and indemnify the Tenant for losses that occur in the common area of the Premises owned/controlled by the Landlord. The Landlord hereby waives all rights to recover against the Tenant for any loss or damage arising from any cause that would be covered by the insurance required by this Lease or actually carried by the Landlord. The Landlord will cause its insurer to issue appropriate waiver of subrogation rights endorsements and supply the Tenant with appropriate information from its insurer confirming such waiver to be in effect. The Landlord will reimburse the Tenant, at replacement value, for damages to Tenant s property as a result of the Landlord s negligence. The Tenant is a self-insured entity with a general liability risk management program, including the administration of general liability claims, settlement of claims, a claims prevention program, and trust fund pursuant to Florida law. The Tenant agrees to secure and keep in full force and effect and throughout the term of this Lease, at Tenant s sole cost and expense, the insurance program pursuant to Florida law. Upon the request of the Landlord, Tenant will provide Landlord with proof of self-insurance. XXIII. AVAILABILITY OF FUNDS The obligations of the Tenant under this Lease are subject to the availability of funds lawfully appropriated annually for its purposes by the Legislature of the State of Florida and/or the allotment of funds through contractor or grant programs. XXIV. NOT CONSENT TO SUE The provisions, terms, or conditions of this Lease shall not be construed as a consent of the State of Florida to be sued because of said leasehold. Nothing in this Lease shall be construed as a waiver of any sovereign immunity of Tenant. Page 7 of 12 OGC October 2014
XXV. NO CONSTRUCTION AGAINST PREPARER This Lease has been prepared by Tenant and reviewed by Landlord. Tenant and Landlord believe that this Lease is the product of their efforts, that it expresses their agreement, and that it should not be interpreted in favor of either Tenant or Landlord or against either Tenant or Landlord merely because of their efforts in preparing it. XXVI. RIGHT TO TERMINATE The Tenant shall have the right to terminate, without penalty, this Lease in the event a Stateowned building becomes available to the Tenant for occupancy during the Term for the purposes for which this space is being leased, upon giving thirty (30) days prior written notice to the Landlord. XXVII. UNILATERAL CANCELLATION This Lease may be unilaterally cancelled at any time by Tenant for refusal by Landlord to allow public access to all documents, papers, letters or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by Landlord in conjunction with this Lease. XXVIII. NOTICES AND INVOICES All notices required to be served upon the Landlord shall be served by registered or certified mail, return receipt requested, or hand-delivery with evidence of receipt thereof at: Address: Telephone Number: E-mail Address: Attention: All notices required to be served on the Tenant shall be served by registered or certified mail, return receipt requested, or by hand-delivery with evidence of receipt thereof at: Florida International University 11200 S.W. 8 th Street, Miami, Florida 33199 Telephone Number: E-mail Address: Attention: Invoices, in triplicate, shall be submitted monthly to: Page 8 of 12 OGC October 2014
Florida International University 11200 S.W. 8 th Street, Miami, Florida 33199 Telephone Number: E-mail Address: Attention: XXIX. COVENANT OF QUIET ENJOYMENT Landlord warrants that if Tenant shall pay all rent as provided herein to be paid by Tenant and perform all the covenants of the Lease to be performed by Tenant, Tenant shall, during the Term hereof, freely, peaceably and quietly occupy and enjoy the full possession of the Premises, together with all appurtenances and all other rights and privileges herein granted, without hindrance or interruption by Landlord or any other person(s). Notwithstanding anything to the contrary contained herein, in the event Tenant s quiet enjoyment of the Premises is disturbed, then, in addition to any other remedies available to Tenant hereunder or at law or in equity, Tenant shall be entitled to an equitable proration of the rent Tenant is required to pay hereunder according to the duration of the disturbance. XXX. HOLDOVER If Tenant fails to surrender the possession of the Premises at the expiration or termination of this Lease, Tenant shall pay, as holdover rent, an amount equal to the rent payable during the last month of the Term, prorated for each day that Tenant fails to surrender possession of the Premises, and this Lease shall thereafter continue on a month-to-month basis, terminable by either party upon thirty (30) days notice. XXXI. MISCELLANEOUS PROVISIONS A. APPLICABLE LAWS Notwithstanding any provision in this Lease to the contrary, this Lease shall be subject to and must be in conformance with all applicable federal, state, local, Florida Board of Governor s and Tenant s regulations, policies and/or procedures, including, but not limited to, BOG Regulation 17.001. Each party shall comply with all applicable local, state and federal laws, rules and regulations, as well as any and all governing agencies, pertaining to this Lease. B. GOVERNING LAW/VENUE This Lease shall be construed according to the laws of the State of Florida and the venue of any action under this Lease shall be in Miami-Dade County, Florida. C. SHORT FORM LEASE Each party hereto agrees, on the request of the other party and at the expense of the requesting party, to execute a short form or memorandum of lease in recordable form. Page 9 of 12 OGC October 2014
D. EXHIBITS Any and all Exhibits and Attachments referenced in this Lease are incorporated into this Lease by such reference. E. THIRD PARTY BENEFICIARIES There are no third party beneficiaries to this Lease. F. SEVERABILITY If any term, provision, covenant or condition of this Lease is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remainder of the provisions of this Lease will remain in full force and effect. G. ENTIRE AGREEMENT This Lease and all exhibits and attachments attached hereto contain the entire and complete understanding and agreement between the parties pertaining to the subject matter herein, and supersedes any and all prior agreements or understandings, whether oral or written, relating to the subject matter hereof. H. AMENDMENTS This Lease may be amended or modified by mutual consent of the parties, provided any and all such amendments or modifications shall be in writing and signed by authorized representatives of both parties. I. WAIVER No waiver of any of the provisions of this Lease shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver of any provision of this Lease shall be effective, unless in writing and signed by the party to be charged. No delay in acting with regard to any breach of any provision of this Lease shall be construed to be a waiver of such breach. J. COUNTERPARTS This Lease may be executed in counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Lease. Page 10 of 12 OGC October 2014
K. INDEPENDENT CONTRACTOR STATUS It is mutually understood and agreed that the relationship between the parties shall be that of independent entities contracting with each other at arm s length towards an independent contractor relationship. This Lease does not and shall not be construed to create the relationship of agent, employee, partnership, joint venture or association between the parties. L. FORCE MAJUERE Neither party shall be liable to the other party for any interruption, failure, inability, or delay to perform hereunder, if such failure, inability, or delay is due to any cause beyond the reasonable control of the party so failing, including, without limitation, acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, or labor dispute, or inability to access necessary supplies, and due diligence is used in curing such cause and in resuming performance. M. BINDING LEASE This Lease shall be binding upon and shall inure to the benefit of, the parties and their respective representatives, successors and permitted assigns. N. RADON GAS DISCLOSURE 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 the Miami-Dade County, Florida public health unit. O. NO BROKERS Each party warrants and represents to the other that no brokers have been involved in this transaction, and that no conversations or prior negotiations were had with any broker regarding the leasing of the Premises, [IF APPLICABLE: except for (the Broker ). Landlord shall compensate said Broker pursuant to the terms and conditions set forth in a separate agreement between Landlord and Broker.] Landlord agrees to indemnify and hold the Tenant harmless against any and all such claims or demands for brokerage fees or agents' commission or other compensation asserted by any person, firm or corporation in connection with this Lease. P. EFFECTIVENESS OF LEASE. The "Effective Date" of this Lease shall be the date upon which the last party to execute this Lease has done so, as evidenced by the date noted below its signature. Page 11 of 12 OGC October 2014
IN WITNESS WHEREOF, the parties hereto have executed this instrument for the purpose herein expressed, the day and year below written. WITNESSES: LANDLORD: Name: Name: By: Name: Title: Date: TENANT: Name: THE FLORIDA INTERNATIONAL UNIVERSITY BOARD OF TRUSTEES Name: By: Name: Title: Date: APPROVED AS TO FORM AND LEGALITY, SUBJECT ONLY TO FULL AND PROPER EXECUTION BY THE PARTIES AND TO COMPLIANCE WITH APPLICABLE FIU REGULATIONS FOR LEASES. OFFICE OF THE GENERAL COUNSEL, FLORIDA INTERNATIONAL UNIVERSITY: By: University Attorney APPROVAL DATE: Page 12 of 12 OGC October 2014