SPACE LEASE AGREEMENT
THIS SPACE LEASE AGREEMENT (“Lease”) is entered into as of the effective date of the Customer Service Order (“CSO”) that this Lease is a part of between SMART CITY® SOLUTIONS II, LLC, a Florida limited liability company doing business Smart City Metro (“SMART CITY METRO”), and CUSTOMER who shall be more fully described in the CSO (“CUSTOMER”).
WHEREAS, Smart City Metro is lessee of certain space in a building located at 1101 No. Keller Road, Suite B, Orlando, Florida 32810 (the “Facility”); and
WHEREAS, CUSTOMER desires to obtain consent from SMART CITY METRO, and SMART CITY METRO hereby agrees to permit CUSTOMER to locate, operate, maintain, repair and replace certain personal property of CUSTOMER more particularly described in the CSO that this Lease is a part of (“CUSTOMER Property”) at the Facility subject to the terms and conditions set forth herein. Any changes to the CUSTOMER Property must be provided in advance in writing to SMART CITY METRO and revision of such will be considered the accepted and incorporated description of CUSTOMER Property located at the Facility.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, SMART CITY METRO and CUSTOMER agree as follows:
- RESTRICTED USE BY CUSTOMER. On and subject to the terms, provisions and conditions of this Lease, the CSO and MSA that this Lease is a part of, SMART CITY METRO hereby grants CUSTOMER the right to occupy and to place, install, operate, maintain, repair, and replace the CUSTOMER Property in that certain portion of Suite B of the Facility (the “Space”); provided, however, that nothing contained herein shall obligate SMART CITY METRO to provide any specific portion of, or additional space, within the Facility to CUSTOMER. SMART CITY METRO reserves the right to place CUSTOMER Property in any rack and/or cabinet of its choosing within the Space. The provision of the Space shall be on terms, provisions and conditions in the sole and exclusive discretion of SMART CITY METRO, and which may therefore vary from the terms, provisions and conditions set forth herein. The Space shall be accepted by CUSTOMER in the “AS-IS” condition. CUSTOMER may use the Space only for the purposes of installing, maintaining, operating, repairing and replacing the CUSTOMER Property in connection with the provision by CUSTOMER or its Affiliates (as hereinafter defined) of communications services.
- NO REAL PROPERTY INTEREST. CUSTOMER acknowledges that it has been granted only the right to occupy the Space subject to the terms and conditions set forth herein and that it has no real property interests in the Space or the Facility. Without limiting the generality of the foregoing, CUSTOMER acknowledges and agrees that it does not have any leasehold or other tenancy in the Space or the Facility or any right to occupy or use any part of the same other than for the limited purposes set forth in Section 1 of this Lease. Nothing contained in this Lease shall in any way be construed (i) to limit SMART CITY METRO’s right to maintain and operate its own facilities in the Facility as SMART CITY METRO shall determine in its sole discretion or (ii) to limit or restrict SMART CITY METRO in any way with respect to any agreement or arrangement which SMART CITY METRO has heretofore entered into, or may hereafter enter into, with any third party.
- ASSIGNMENT/SUBLETTING. CUSTOMER may not assign, encumber, sublease or otherwise transfer this Lease or the rights granted hereunder without the prior written consent of SMART CITY METRO. Notwithstanding the foregoing, CUSTOMER may permit use of the Space, as set forth in Section 1, by an Affiliate.
- TERM. The term of this Lease shall be reflected on the CSO which this Lease is a part of. The termination of this Agreement, with or without cause, shall not relieve either party of any obligations incurred prior to termination or those obligations which by their nature survive the termination of this Agreement including, but not limited to, those set forth in Section 5 below and other sections of this Agreement which specifically survive expiration or termination of this Agreement.
- RELOCATION OF CUSTOMER’S PROPERTY. SMART CITY METRO reserves the right in its sole discretion to require CUSTOMER Property to be relocated to another portion of the Facility. SMART CITY METRO shall provide 30 days prior written notice to CUSTOMER to relocate CUSTOMER Property. The notification of relocation provided by SMART CITY METRO shall provide CUSTOMER information regarding the new location within the Facility (the “Relocation Space”). CUSTOMER shall move all of the CUSTOMER Property to the Relocation Space at the sole cost and expense of CUSTOMER and shall repair any damage to the Facility resulting from the move from the Space to the Relocation Space. SMART CITY METRO reserves the right to move CUSTOMER Property from the Space to the Relocation Space if CUSTOMER has failed to comply with the relocation after the 30th day from CUSTOMER’s receipt of notification. SMART CITY METRO shall not be liable for any damages or inoperable network services that may occur during the relocation of CUSTOMER Property whether performed by SMART CITY METRO or CUSTOMER. If relocation is performed by SMART CITY METRO on behalf of CUSTOMER, then CUSTOMER shall be charged SMART CITY METRO’s then current applicable hourly rate for relocation performed during SMART CITY METRO’s business hours, and SMART CITY METRO’s then current applicable hourly rate for relocation performed during SMART CITY METRO’s non-business hours.
- REMOVAL OF CUSTOMER’S_PROPERTY.
(a) Upon expiration or termination of this Lease, CUSTOMER or the applicable vendor will have 30 days to remove the CUSTOMER Property at the sole cost and expense of CUSTOMER, provided that CUSTOMER is not in default in the performance or observance of any of the terms or conditions of this Lease beyond any applicable cure period at such time. CUSTOMER shall repair any damage to the Facility resulting from such removal.
- Any items of CUSTOMER Property which shall remain in the Facility more than 30 days after expiration or termination of this Lease may, at the option of SMART CITY METRO exercised at any time after not less than 10 days’ notice to CUSTOMER, be deemed to have been abandoned; and, subject to any third-party rights in such item, in such case may either be retained by SMART CITY METRO as its property or may be disposed of, without accountability, in such manner as SMART CITY METRO may see fit at CUSTOMER’s expense. CUSTOMER hereby waives any claims to such abandoned CUSTOMER Property.
- CUSTOMER agrees to indemnify and hold SMART CITY METRO harmless against all claims, liabilities, damages and expenses (including reasonable attorneys’ fees) asserted against or incurred by SMART CITY METRO in connection with or arising out of the removals set forth in Section 6(a) or 6(b) above. The provisions of this Section 6(c) shall survive the expiration or termination of this Lease.
- STANDARD SERVICES. SMART CITY METRO agrees to make available to CUSTOMER those services that are deemed by SMART CITY METRO to be essential for utilization of the Property such as power, UPS, heat, electricity and A/C (collectively, “Standard Services”) which are presently available at the Location; provided, however, that in no event shall SMART CITY METRO incur any liability to CUSTOMER whatsoever should any utility or service become unavailable from any public utility company, public authority or any other person, firm or corporation supplying, distributing or responsible for any Standard Services. SMART CITY METRO will not be responsible for any costs that CUSTOMER incurs to avail itself of the utilization of the Standard Services.
- PAYMENT BY CUSTOMER. CUSTOMER shall pay SMART CITY METRO the monthly recurring charge (“MRC”) for use of the Space as indicated on the CSO and in accordance with the MSA that this Lease is a part of.
- NO LIABILITY. SMART CITY METRO does not warrant that the integrity of the Facility will be free from any disruptions and SMART CITY METRO shall not be liable therefor, unless caused by or due to SMART CITY METRO’s gross negligence or willful misconduct. In case of such a disruption, no matter what the cause, SMART CITY METRO will not be liable for any lost profits, revenues or data for any consequential, incidental or indirect damages, even if SMART CITY METRO has been advised of the possibility of the same.
(a) CUSTOMER, at its sole cost and expense, shall be responsible for maintenance of the CUSTOMER Property and SMART CITY METRO, at its sole cost and expense, shall be responsible for maintenance of the Facility and the Space.
- CUSTOMER shall not make any alterations, changes, additions or improvements to either the Facility or the Space without SMART CITY METRO’s prior written consent, which consent shall be at the sole and absolute discretion of SMART CITY METRO. CUSTOMER shall have access to the Space on a 24/7 basis, subject to compliance with such security procedures as SMART CITY METRO may from time to time adopt. Except in the case of emergency repairs, in which case CUSTOMER shall notify SMART CITY METRO as promptly as reasonably possible, CUSTOMER shall provide notice to SMART CITY METRO prior to performing any repairs or maintenance of the CUSTOMER Property. SMART CITY METRO shall have the right to be present to observe any maintenance or repairs, and all repairs and maintenance shall be performed by CUSTOMER in a safe fashion and in such a manner as commercially reasonable as to avoid interference with or damage to any other property or equipment in the Facility.
- SMART CITY METRO may make periodic inspections of any CUSTOMER Property upon reasonable advance notice of such inspections; and CUSTOMER shall have the right to be present during such inspections; provided, however, if in the reasonable judgment of SMART CITY METRO, safety considerations require an inspection without the delay of providing notice, SMART CITY METRO may make such inspection immediately, but shall provide notice of the inspection to CUSTOMER. The making of periodic inspections or the failure to do so shall not operate or impose upon SMART CITY METRO any liability of any kind whatsoever nor relieve CUSTOMER of any responsibility, obligations or liability assumed under this Lease.
If any CUSTOMER Property is not placed and maintained substantially in accordance with the terms and conditions set forth in this Lease and CUSTOMER has not corrected such violation within 10 days after receipt of notice thereto from SMART CITY METRO, then SMART CITY METRO may, at its option terminate this Lease or correct said condition at CUSTOMER’s expense. Notwithstanding the foregoing, in the event such condition poses an immediate threat to the safety of SMART CITY METRO’s employees or the public, interferes with the performance of SMART CITY METRO’s service obligations, or imposes an immediate threat to the physical integrity of SMART CITY METRO’s facilities, SMART CITY METRO may perform such work and/or take such action that it deems necessary without first giving notice to CUSTOMER. As soon as practicable thereafter, SMART CITY METRO will advise CUSTOMER in writing of the work performed or the action taken. CUSTOMER shall be responsible for all reasonable expenses incurred by SMART CITY METRO associated with any such work or action that is performed by SMART CITY METRO which CUSTOMER refused to make and shall reimburse SMART CITY METRO within 30 days from its receipt of SMART CITY METRO’s invoice. CUSTOMER agrees to indemnify and hold SMART CITY METRO harmless from and against all claims, liabilities, damages and expenses (including reasonable attorneys fees) asserted against or incurred by SMART CITY METRO in connection with or arising out of such work or action. The provisions of this Section 10(d) shall survive the expiration or termination of this Lease.
- RISK OF LOSS; INDEMNIFICATION; INSURANCE.
(a) All CUSTOMER Property shall be located in the Space at the sole risk of CUSTOMER, and SMART CITY METRO shall have no liability for damage to or destruction of any CUSTOMER Property or loss or death of any employee, agent, vendor, consultant or contractor of CUSTOMER (each, a “CUSTOMER Representative”) at the Facility or Facility access point, unless such loss, damage, injury or death was caused by or due to SMART CITY METRO’s gross negligence or willful misconduct. CUSTOMER shall indemnify and hold SMART CITY METRO harmless from and against any claims, demands, losses, liabilities, expenses (including, but not limited to, reasonable attorneys fees and disbursements), costs or damages asserted against or incurred by SMART CITY METRO in connection with or arising out of: (i) the presence at the Facility access point of any CUSTOMER Representative; (ii) CUSTOMER’s use of the Space or the Facility (iii) any damage or destruction thereto or to the Facility or to any property therein (whether owned by SMART CITY METRO or others) directly caused by or due to (x) the negligence or willful misconduct of any CUSTOMER Representative or (y) any malfunction of any CUSTOMER Property.
- During the term of this Lease, CUSTOMER shall maintain in force and effect policies of insurance as follows:
1) Comprehensive General Liability insurance, including broad form contractual and automobile liability coverage with minimum limits of $2,000,000, respectively, combined single limit per occurrence, protecting it, Smart City Solutions II, LLC, and the owner of the Facility from claims for personal injury (including bodily injury and death) and property damage which may arise from or in connection with the performance by CUSTOMER hereunder or from or out of any act or omission of CUSTOMER, its officers, directors, agents, or employees; and
2) Workers Compensation Insurance with limits required by the laws of the state where the Facility or Space are located (and Employer’s Liability insurance with minimum limits of One Million Dollars ($1,000,000) per occurrence with respect to any employee not covered by Workers Compensation).
- The liability insurance shall name the owner of the Facility, Smart City Solutions II, LLC, its parent companies and Affiliates as additional insureds. CUSTOMER’s insurance shall be primary insurance and Smart City Solutions II, LLC’s insurance shall be non-contributory towards any such loss. CUSTOMER’s insurance shall provide for a waiver of subrogation against the owner of the Facility, Smart City Solutions II, LLC, its parent companies, the subsidiary, related and affiliated companies of each and the officers, directors, agents, employees and assigns of each. CUSTOMER’s insurer shall agree to provide Smart City Solutions II, LLC with at least 30 days prior written notice of cancellation, reduction or material change in coverage. All insurance required of CUSTOMER shall be evidenced by certificates of insurance provided to Smart City Solutions II, LLC within 10 days of execution of this Lease.
- In no event, however, shall the limits of the foregoing policies be considered as limiting the liability of CUSTOMER under this Lease. The provisions of this Section 11 in respect of CUSTOMER’s indemnity obligations shall survive the termination or expiration of this Lease.
- TELECOMMUNICATIONS ACT. CUSTOMER acknowledges and agrees that the rights granted hereunder are the result of a freely negotiated transaction. This Lease does not represent an “interconnection agreement” for purposes of Section 251 of the Telecommunications Act of 1996 (the “Act”).