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HomeMy WebLinkAboutR-97-0148F J-97-139 3/20/97 RESOLUTION NO. 97 "- 148 A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH FIREHOUSE FOUR, LLC, A FLORIDA FOR PROFIT CORPORATION, FOR THE LEASING, MANAGEMENT AND OPERATION OF A RESTAURANT ON CITY -OWNED PROPERTY, LOCATED AT 1000 SOUTH I MIAMI AVENUE, MIAMI, FLORIDA, FOR A PERIOD OF jj FIFTEEN (15) YEARS WITH AN OPTION TO EXTEND FOR TWO (2) ADDITIONAL FIVE (5) YEAR PERIODS; REQUIRING SAID LESSEE TO MAKE A TOTAL CAPITAL INVESTMENT IN SAID PROPERTY OF NOT LESS THAN $588,583 AND TO PAY THE CITY OF MIAMI A MINIMUM LEASE PAYMENT TOTALING $1,599,000 FOR YEARS ONE THROUGH FIFTEEN, PLUS SIX PERCENT (6%) OF GROSS REVENUES OVER AN ESTABLISHED BREAKPOINT (AS SET FORTH AND INCORPORATED HEREIN); AND FURTHER, SUBJECT TO SUCH ADDITIONAL TERMS AND CONDITIONS AS MORE PARTICULARLY SET FORTH IN SAID LEASE AGREEMENT. WHEREAS, pursuant to Resolution No. 96-528, adopted July 11, 1996, the City Commission authorized the City Manager to issue a Request for Proposals for the purpose of soliciting proposals from qualified individuals, corporations, or other legal associations interested in leasing, managing and operating a restaurant, for a term of fifteen years, with two five year renewal options, at City -owned property located at 1000 South Miami Avenue, Miami, Florida; and WHEREAS, in accordance with Resolution No. 96-528, the Request for Proposals was issued on July 25, 1996; and CITY COD94ISSION MEETING OF ATTACHMENT (S) MAR 2 0 1997 Resolution No. CONTAINED 97- 148 WHEREAS, the City Commission, adopted Resolution No. 96-764, on October 10, 1996, appointing members to a Review Committee to evaluate proposals received in response to the Request for Proposals; and WHEREAS, pursuant to Resolution No. 97-13, adopted January 16, 1997, the City Commission authorized the City Manager to negotiate a lease agreement with Firehouse Four, LLC, the highest ranked proposal recommended by the Review Committee; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Manager is hereby authorizedl-I to execute a lease agreement, in a substantially the attachedform, between the City of Miami and Firehouse Four, LLC, for the leasing, management and operation of a restaurant on City -owned property, located at 1000 South Miami Avenue, Miami, Florida, for a. term of fifteen (15) years, with the option to extend for l� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. - 2 - !i�3cliff A , � two (2) additional five (5) year periods, and requiring said lessee to make a total capital investment in said property of not less than $588,583, and to pay the City of Miami the following minimum annual lease payment totaling $1,599,000 for years one through fifteen, plus six percent (6%) of gross revenues over an established breakpoint (set forth and incorporated hereinbelow), and subject to such additional terms and conditions as more particularly set forth in said lease agreement: YEAR FIXED MINIMUM ANNUAL RENT PERCENTAGE RENT 1 $ 76,500 plus 6.00%- over $2,000,000 2 $ 76,500 plus 6.50t over $2,000,000 3 $ 76,500 plus 7.00t over $2,000,000 4 $100,000 plus 7.50%- over $1,667,000 5 $100,000 plus 7.50t over $1,667,000 6 $100,000 plus 7.50t over $1,667,000 7 $109,000 plus 7.50t over $1,817,000 8 $109,000 plus 7.50t over $1,817,000 9 $109,000 plus 7.50 over $1,817,000 10 $118,000 plus 7.50%- over $1,967,000 11 $118,000 plus 7.50t over $1,967,000 12 $118,000 plus 7.50% over $1,967,000 13 $129,500 plus 7.50% over $2,150,000 14 $129,500 plus 7.50% over $2,150,000 15 $129,500 plus 7.50 over $2,150,000 TOTAL $1,599,000 Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 20th day March 1997. ATT T• CAROLLO, MAYOR WALTER J. VMMAN, CITY CLERK 3 - 97- 148 PREPARED AND APPROVED BY: JULIE IETELIA BRU ASSISTANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: W1468:JOB:BSS 4 - 97- ,ae LEASE by and between CITY OF MIAMI (]Landlord) and FIREH®USE TOUR, LILC (Tenant)- 1 97- 148 A L TABLE OF CONTENTS ARTICLE 1. DEFINITIONS . Section 1.1 Definitions ARTICLE 2. LEASE OF PREMISES Section 11 Lease of Premises Section 2.2 Purpose of Use and Occupancy ARTICLE 3. TERM Section 3.1 Term of Lease Section 3.2 Right to Renew Section 3.3 Minimum Annual Rent Adjustment Section 3.4 Rent Abatement ARTICLE 4. RENT Section 4.1 Graded Minimum Annual Rent and Annual Percentage Rent Section 4.2 Payment of Minimum Annual Rent Section 4.3 Amount of Annual Percentage Rent Section 4.4 Payment of Annual Percentage Rent Installments Section 4.5 Security Deposit Section 4.6 Tenant's Records Section 4.7 Reports by Tenant Section 4.8 Right to Examine Books Section 4.9 Audit Section 4.10 Lien for Rent ARTICLE 5. LEASEHOLD IMPROVEMENTS Section 5.1 Tenant's Obligation to Provide and Fund Leasehold Improvements Section 5.2 Payment and Performance Bond. and Letter of Credit Section 5.3 Insurance Section 5.4 Conveyance by the Tenant to the Landlord Section 5.5 Landlord's Premises to Remain Free of Liens Section 5.6 Historic Preservation Requirements Section 5.7 Landlord Approval 1 3 4 6 12 97- 148 Iy ARTICLE 6. CONDUCT OF BUSINESS BY TENANT 16 Section 6.1 Use of Premises Section 6.2 Operation of Business Section 6.3 Signs ARTICLE 7. MAINTENANCE, REPAIR AND ALTERATION. OF PREMISES 18 Section 7.1 Tenant's Maintenance Obligations Section 7.2 Tenant's Repair Obligation Section 7.3 Changes/Alterations ARTICLE 8. INSURANCE AND INDEMNITY 19 Section 8.1 Insurance of the Premises Section 8.2 Other Insurance to be Carried Section 8.3 Delivery of Insurance Policies Section 8.4 Adjustment of Loss Section 8.5 Insurer to be Approved - Premium Receipts Section 8.6 Indemnification of Landlord Section 8.7 Waiver of Subrogation ARTICLE 9. SERVICES AND UTILITIES 23 Section 9.1 Tenant to Provide and Pay for Utilities Section 9.2 Landlord Not Liable for Failure of Utilities ARTICLE 10. LIEN FOR RENT AND OTHER CHARGES 24 Section 10.1 Lien for Rent ARTICLE 11. TRANSFERS AND SUBLETTING 25 Section 11.1 Prohibition on Subleases Section 11.2 Definitions Section 11.3 Transfer of Leasehold Interest Section 11.4 Notice of Transfer Section 11.5 Information as to Shareholders, etc. Section 11.6 Effectuation of Permitted Transfers Section 11.7 Criteria for Consent for Transfer Section 11.8 Liability of Tenant Section 11.9 Payment Upon Transfer Section.11.10 Acceptance of Rent from Transferee Section 11.11 Transfers of the City's Interest 97- 148 L- J ARTICLE 19. Section 19.1 Section 19.2 ARTICLE 20. Section 20.1 Section 20.2 Section 20.3 ARTICLE 21. Section 21.1 Section 21.2 Section 21.3 Section 21.4 Section 21.5 Section 21.6 Section 21.7 Section 21.8 Section 21.9 Section 2 1. 10 Section 21.11 Section 21.12 Section 21.13 Section 21.14 Section 21.15 Section 21.16 Section 21.17 X HOLDING OVER, SUCCESSORS 41 Holding Over Successors MINORITY AND WOMEN PARTICIPATION & EQUAL EMPLOYMENT OPPORTUNITIES 42 Minority and Women Participation Equal Employment Opportunities Affirmative Action MISCELLANEOUS 44 Accord and Satisfaction Entire Agreement No Partnership Notices Captions and Section Numbers Partial Invalidity Estoppel Certificate Recording Waiver Time is of the Essence No Discrimination Governing Law Waiver of Counterclaims Waiver of Jury Trial Quiet Enjoyment Surrender of Possession Attorney's Fees 97- 148 LEASE AGREEMENT This Lease is made as of the day of March 1997, by the CITY OF MIAMI, ("Landlord"), and FIREHOUSE FOUR, LLC ("Tenant"). THE PARTIES AGREE AS FOLLOWS: ARTICLE 1. DEFINITIONS. Section 1.1 Definitions. Any word contained in the text of this Lease shall be read as the singular or the plural and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for the purposes of this Lease the following words shall have the meanings attributed to them in this Section: (a) "Acceptable Operator" means an entity possessing a minimum of seven (7) years of direct restaurant experience during the last ten (10) years or five (5) years of experience directly involved in the ownership and day to day operation of a restaurant during the last ten (10) years, and in connection therewith, such entity shall have a good reputation in the business community; and such entity shall possess adequate financial resources and personnel necessary for the proper performance of all of Tenant's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Tenant's business at the Premises, including (without limitation) the obligation of payment of Rent payable by Tenant under this Lease. (b) "Lease Year" means 12 consecutive months. The first Lease Year shall begin on the Lease Date. Each succeeding Lease Year shall commence upon the anniversary date of the first Lease Year. (c) "Minimum Annual Rent Monthly Payment Commencement Date" means the first day of the 37th month of the Lease Term. L Tenant's Initials Landlord's Initials 97- 148 F (d) "Gross Sales" means the entire amount of the sales price, whether for cash, credit, credit cards or otherwise, of all sales of food, liquor, merchandise or services and all other receipts whatsoever of all retail and wholesale business conducted in or from the Premises by Tenant, including, without limitation, mail, catalogue or telephone orders received or filled at the Premises, or procured from the Premises by house -to -house or other canvassing, and all deposits not refunded to purchasers, and orders taken, although said orders may be filled elsewhere, including proceeds of all video games, vending machines and other items in or on the Premises. If a sale is by credit card no deduction shall be allowed for any conunission associated with such sale. A "sale" shall be deemed to have been consummated for the purpose of this Lease, and the entire amount of sales price shall be included in Gross Sales, at such time that (i) the transaction is initially reflected in the books or records of Tenant, or (ii) Tenant receives all or any portion of the sales price, or (iii) the applicable goods or services are delivered to the customer, whichever first occurs, irrespective of whether payment is made in installments, the sale is for cash or for credit, or otherwise, or all or any portion of the sale price has actually been paid at the time of inclusion in Gross Sales or at any other time. No deduction shall be allowed for direct or indirect discounts, rebates, or other reductions on sales to employees or others, unless generally offered to the public on a uniform basis. In addition, no deduction shall be allowed for uncollected or uncollectible credit accounts, or for trade-ins or other credits on sales to employees or others. The term "Gross Sales" shall not include, however, any sums collected and paid out by .Tenant - for any sales or excise tax imposed by and accounted for by Tenant to any duly constituted governmental authority, nor shall it include the exchange of merchandise between the stores of Tenant, if any, where such exchange of goods or merchandise is made solely for the convenient operation of the business of Tenant and not for the purpose of consummating a sale which has theretofore been made in or from the Premises and/or for the purpose of depriving Landlord of the benefit of a sale which otherwise would be made in or from the Premises, nor shall the term include the amount of returns to shippers or manufacturers, nor proceeds from the sale of trade fixtures nor shall the term include the sales price, if Tenant sells entire business. There shall be deductible from Gross Sales the amount of any cash or credit refund made upon any sale in or from the Premises, previously included in "Gross Sales" hereunder, not to exceed the sum -so previously included, where the merchandise sold is thereafter returned by the purchaser and 2 Tenant's Initials Landlord's Initials 97- 148 accepted by the Tenant. (e) "Restaurant Operations" means all services associated with the preparation, service and sale of food and beverages, including such ancillary sales related to the business conducted on the Premises. (f) "Lease Date" means the date the Landlord executes this Lease. (g) "Original Term" or "Lease Term" means the term fixed in Subsection 3.1. (h) "Leasehold Improvements" means all the items, whether furnishings, fixtures, or equipment or description of remodeling work to be done to the physical plant, which are listed in the Exhibits entitled "Schedule of Leasehold Improvements and Furniture, Fixtures & Equipment," which are attached as Exhibit "B", and Exhibit "C", and by this reference incorporated herein, and, which total value thereof must not be less than $588,583. (i) "Rent" means Minimum Annual Rent and Annual Percentage Rent, as such amounts are described and fixed in Subsection 4.1. 0) "Tenant" means Firehouse LLC., including any designated agent. ARTICLE 2. LEASE OF PREMISES. 2.1 Lease of Premises. In consideration of the Rent, covenants and agreements hereafter reserved and contained on the part of Tenant to be observed and performed, Landlord demises and leases to Tenant, and Tenant rents from Landlord, the building, located at 1000 South Miami Avenue, Miami, Florida, including all furniture, fixtures and equipment described in Exhibit "A" which is attached hereto and incorporated herein (the "Premises"). The Tenant accepts the Premises in it's "as is" condition. The Premises are legally described as follows: Miami (A.L. Knowlton) South, Block 74, North 100 feet of Lots 2 and 3. Folio No. 01-0207-040-1010 3 Tenant's Initials Landlord's Initials 97-- 148 2.2 Purpose of Use and Occupancy. The Tenant will use and occupy the Premises for Restaurant Operations and for no other purposes or uses of any kind. ARTICLE 3. TERM. 3.1 Term of Lease. The initial term of this Lease is for a period of fifteen (15) years, commencing on the Lease Date. 3.2 Right to Renew. The Tenant has the option of extending this Lease for two (2) five (5) year periods, as long as the Tenant is not in default of any of the Lease provisions (the "First Renewal Term" and the "Second Renewal Tenn"). To exercise the First Renewal Term, the Tenant must give Landlord written notice not less than one hundred and eighty (180) days before the expiration date of the Original Tenn, and to exercise the Second Renewal Term, the Tenant must give Landlord written notice not less than one hundred and eighty (180) days before the expiration date of the First Renewal Tenn. The First Renewal Tenn and the Second Renewal Tenn will be on the same teens and conditions as the Original Term, except that the rent will be adjusted as set forth in Subsection 3.3 below. 3.3 Minimum Annual Rent Adjustment. Prior to the date of the commencement of the First Renewal Term, and if the Tenant elects to exercise the Second Renewal Term, then also prior to the commencement of the Second Renewal Term, the Rent to be payable by Tenant to Landlord shall be determined by the following process: (a) Appraisals shall be made by two (2) independent business appraisers, each having not less than 10 years' experience in appraising restaurant operations. One appointed by the Tenant and one appointed by the Landlord. 4 Tenant's Initials /, Landlord's Initials 7 _ 1 n 8 (b) After appointment, the two appraisers, shall proceed promptly to prepare an appraisal of the Premises. The appraisers shall use the income approach to determine the fair rental value. The Rent determined by the higher result of the two appraisals shall be binding and conclusive on the Landlord and the Tenant, provided however, that if the results of the two (2) appraisals have a difference of more than (5%) five percent, then a third appraiser shall be appointed by the first two appraisers so appointed and the findings of the third appraiser so appointed shall be binding and conclusive on the Parties. (c) The cost of all appraisals made pursuant to this Article shall be equally borne by each Party. (d) If prior to the commencement of the First Renewal Term the adjusted Minimum Annual Rent has not been determined by the independent appraisals, the Tenant shall continue to pay Rent at the rate in effect for the Original Term.. When the Rent has been determined, the Rent will be adjusted as provided retroactively to the commencement of the First Renewal Term and the Tenant shall pay to the Landlord with the next installment of Rent due the amount, if any, by which the Rent and, as adjusted, exceeds the Rent that has been paid by the Tenant for the retroactive period. (e) If prior to the commencement of the Second Renewal Term the adjusted Rent has not been determined for any reason, the Tenant continue to pay Rent at the rate in effect for the First Renewal Term.. When the Rent has been determined, the Rent will be adjusted as provided retroactively to the commencement of the Second Renewal, and the Tenant shall pay to the Landlord with the next installment of Rent due the amount, if any, by which the Rent and, as adjusted, exceeds the Rent that has been paid by the Tenant for the retroactive period. Section 3.4 Rent Abatement. The parties hereto agree that in the event that the Tenant's use and or occupancy of the Premises are subject to discomfort, interruption of business, or otherwise as a result of the making of alterations, improvements or repairs to any building on the Premises, or by virtue, or 5 Tenant's Initials Landlord's Initials 97- 148 F because of any present or future governmental laws, ordinances, requirements, orders, directions, rules or regulations or as a result of Acts of God, the City Manager may consider and grant a diminution or reduction of Rent. ARTICLE 4. RENT. 4.1 Graded Minimum Annual Rent and Annual Percentage Rent. Subject to the provisions pertaining to the prepayment of Minimum Annual Rent as set forth in Subsection 4.2 below, the Tenant agrees to pay to the Landlord the following Rent for the Premises: TABLE NO. 1 LEASE YEAR (column 1) MIMINUM - - . ANNUAL RENT (column 2) ANNUAL PERCENTAGE RENT (column 3) BREAKPOINT (column 4) 1 $762500* plus 6.00% over $2,000,000 2 $76,500* plus 6.50% over $2,000,000 3 $76,500* plus 7.00% over $2,000,000 4 $100,000 plus 7.50% over $1,667,000 5 $100,000 plus 7.50% over $1,667,000 6 $100,000 plus 7.50% over $1.667,000 7 $109,000 plus 7.50% over $1,817,000 8 $109,000 plus 7.50% over $1,817,000 9 $109,000 plus 7.50% over $1,817,000 10 $118,000 plus 7.50% over $1,967,000 11 $118,000 plus 7.50% over $1,967,000 12 $118,000 plus 7.50% over $1,967,000 13 $129,500 plus 7.50% over $2,150,000 14 $129,500 plus 7.50% over $2,150,000 15 $129,500 plus 7.50% over $2,150,000 *"The payment of these amounts are subject to the provisions of Subsection 4.2 below. 4.2 Payment of Minimum Annual Rent. Upon the Tenant's receipt of possession of the Premises, and full execution of this Lease, the Tenant shall pay to Landlord the sum of $219,000 which sum represents JW1 prepa ment 6 Tenant's Initials Landlord's Initials 97- 148* of Minimum Annual Rent for the first 36 months of the Lease Term, (the "Prepaid Rent"), discounted to net present value at 7.00%. The Tenant acknowledges and understands that the Prepaid Rent is non refundable. Commencing on the Minimum Annual Rent Monthly Payment Commencement Date, the Minimum Annual Rent shall be payable by Tenant, during the Lease Term, in equal monthly installments for each Lease Year, together with all applicable sales taxes thereon, on the first day of each month, in advance, at Landlord's Address as provided in Subsection 21.4 of Article 21. of this Lease, or at such other place designated by Landlord, without any prior demand therefore and without any deduction, holdback, setoff or defense whatsoever. 4.3 Amount of Annual Percentage Rent. In addition to the payment of the Minimum Annual Rent as provided for in Subsection 4.1, Table No. 1, of this Article, Tenant shall pay to Landlord for each Lease Year of the Original Term, as Annual Percentage Rent, an amount equal to the Annual Percentage Rent for the Lease Year set forth in Subsection 4.1, Table No. 1, column three (3) thereof, multiplied by the Gross Sales during such Lease Year in excess of the Breakpoint for such Lease Year set forth in Subsection 4.1, Table No. 1, column four (4). Example: for Lease Year No. 1 0.06 x (Gross Sales - Breakpoint ) (of Year No.1 for Year No. 1) Example: Assume Gross Sales = $2.5 million 0.06 x ($2,500,000 - $2,000,000) = 0.06 (500,000) _ $30,000 (Lease Year 1) 4.4 Payment of Annual Percentage Rent Installments. Commencing on the first Lease Year, and every Lease Year thereafter during the Original Term, the Tenant shall pay the Annual Percentage Rent in semi-annual installments on or before the thirtieth (30`h) day following the close of each six (6) month. For the first fraintional 7 Tenant's Initials Landlord's Initials 441 97- 148 __j F calendar month of the Lease Year, if any, the Gross Sales, if any, will be added to the Gross Sales of the first full calendar month of the first Lease Year. The semi-annual payments of Annual Percentage Rent shall be calculated by multiplying the Annual Percentage Rent for that Lease Year as set forth in Subsection 4.1, Table No. 1, column three (3) thereof, multiplied by the semi-annual Gross Sales during the Lease Term in excess of the 1/2 amount of the corresponding yearly Breakpoint set forth in Subsection. 4.1, Table No. 1, column four (4). Example: Semi-annual Percentage Rent Installment for Lease Year No. 1 0.06 x (Semi-annual Gross Sales - Breakpoint Year No. 1) ( for Lease Year No. 1 2 ) The Tenant must deliver the semi:annual—statement for Gross Sales with each semi-annual installment of Annual Percentage Rent, together with all applicable sales taxes thereon to the Landlord's Address as provided in Subsection 21.4 of Article 21 of this Lease, or at such other place designated by Landlord, without any prior demand therefore and without any deduction, holdback, setoff or defense whatsoever. In the event that the total of the two installments of Annual Percentage Rent paid by the Tenant for any Lease Year shall not equal the Annual Percentage Rent computed on the total amount of Gross Sales for each Lease Year, the Tenant, at the time it submits the annual statement for Gross Sales required under this Section, shall pay Landlord any deficiency, or the Tenant will receive a credit equivalent to the excess on the next installment(s) of Rent due, as the case may be. 4.5 Security Deposit. In addition to the Rent as described in this Lease, prior to the commencement of the 4th Lease Year, the Tenant shall deposit with the Landlord Fifty Thousand and no/100 Dollars ($50,000.00) as a security deposit (the Security Deposit). The Security Deposit shall be placed by the Landlord in interest bearing account with all interest earned thereon being retained by Landlord for purposes of adjusting the amount of the Security Deposit as provided for in Section 4.1 so that at all times during the Lease Term the amount of the Security Deposit will be equal to one half (1/2) the applicable Minimum Annual Rent. Any deficiencies in the amount needed to so increase the Security Deposit shall be paid by the Tenant. Any excess over the 8 Tenant's Initials Landlord's Initials ` 7 - 148 amount needed to so increase the Security Deposit shall be paid to the Tenant. The Security Deposit shall be considered as security for the payment of all of the Tenant's obligations, covenants and agreements under this Lease. Within thirty (30) days after either this Lease expires or upon the earlier termination of this Lease (whichever applies), the Landlord shall (provided that the Tenant is not in material default under the terms of this Lease) return the Security Deposit to the Tenant less any portion that the Landlord shall have used to make good any default of Tenant. In the event of any such default by the Tenant, Landlord shall have the right, but shall not be obligated, to apply all or any portion of the Security Deposit to cure the default, in which event the Tenant shall be obligated to deposit with the Landlord the amount necessary to restore the Security Deposit to the amount in effect prior to the deduction. 4.6 Tenant's Records. Tenant shall prepare and keep full, complete and ' proper books and source documents in accordance with generally accepted accounting principles, of the Gross Sales, whether for cash, credit or otherwise, of each separate department at any time operated in the Premises. The books and source documents to be kept by Tenant shall include, without limitation, true copies of all federal, state and local tax returns and reports, records of inventories and receipts of merchandise, daily receipts from all sales and other pertinent original sales records and records of any other transactions conducted in or from the Premises by Tenant. Pertinent original sales records shall include, without limitation: (i) cash register tapes, including tapes from temporary registers, (ii) serially pre -numbered sales slips, (iii) the original records of all mail and telephone orders at and to the Premises, (iv) settlement report sheets of transactions with any person conducting business in the Premise, (v) original records indicating that merchandise returned by customers was purchased at the Premises by such customers, (vi) memorandum receipts or other records of merchandise taken out on approval, (vii) detailed original records of any exclusions or deductions from Gross Sales, (viii) sales tax records, and (ix) such other sales records, if any, which would normally be examined by an independent accountant pursuant to accepted auditing standards in performing an audit of Tenant's sales. 9 Tenant's Initials Landlord's Initials 97- 148 F* Tenant shall record at the time of each sale or other transaction, in the presence of the customer, all receipts from, such sale or other transaction, whether for cash, credit or otherwise, in a cash register or cash registers having a cumulative total which shall be sealed in a manner approved by Landlord and which shall possess such other features as shall be required by Landlord. Tenant shall be required to install pollable, point of sales cash register systems of a make and model mutually agreed to by the parties. 4.7. Reports by Tenant. Tenant shall furnish to Landlord within thirty (30) days after the expiration of each semi-annual period of each Lease Year a complete statement (the "Semi -Annual Report"), certified by Tenant's Chief Financial Officer or other appropriate officer of Tenant, of the amount of Gross Sales, as' defined in Subsection 1.1(d) of Article 1. hereof, made in, on or from the Premises during said period. Failure of Tenant to timely submit any Semi -Annual Report as aforesaid shall entitle Landlord to estimate Gross Sales based upon available data (with a reconciliation upon receipt of the Annual Report), and Tenant shall be obligated to pay Annual Percentage Rent, as set forth in Section 4.3, on such estimated Gross Sales. Tenant shall also furnish to Landlord a financial report by an independent certified public accountant (the "Annual Report"), showing in all reasonable detail the amount of such Gross Sales made by Tenant from the Premises during the preceding Lease 'Year. Tenant shall in all events furnish to Landlord within fifteen (15) days after the end of each month of the term of this Lease a written statement of Gross Sales covering the preceding month, the statement to be in such form and style and contain such details and breakdown as Landlord may reasonably require. Any intentional misstatement of Gross Sales will constitute an event of default. 4.8 Right to Examine Books. Notwithstanding the acceptance by Landlord of payments of Minimum Annual Rent and Annual Percentage Rent, Landlord shall have the right to all rents and other charges actually due hereunder, and the right to examine,. make extracts from and copy, at the Premises or Tenant's main accounting office, Tenant's books, source documents, accounts, records and sales 10 Tenant's Initials 4W Landlord's Initials 97 - 148 . . tax reports filed with applicable government agencies by Tenant in order to verify the amount of Gross Sales in and from the Premises. For a period of two (2) years after the expiration of each Lease Year, Tenant shall make all such documents and records available at the Premise or Tenant's main accounting office upon ten (10) days prior written notice from Landlord. 4.9 Audit. (a) At its option, Landlord may at any time, upon ten (10) days, prior written notice to Tenant, arrange for an auditor seleeted by Landlord to conduct a complete audit (including a physical inventory) of the entire records and operations of Tenant included in Gross Sales from the Premises during the period covered by any statement issued by Tenant. Tenant shall make available to the Landlord's auditor at the Premises or Tenant's main accounting office on the day set forth in Landlord's notice, requiring such audit, all of the books, source documents, accounts and records referred to in Subsection 4.8 hereof and any other materials which such auditor deems necessary or desirable for the purpose of making such audit. Tenant shall promptly pay to Landlord the amount of any deficiency in Annual Percentage Rent payments disclosed by any such audit. If such audit shall disclose that Tenant's statement of Gross Sales is at variance to the extent of one percent (5%) or more, Landlord may bill to Tenant the cost of such audit, which shall be paid by Tenant within thirty (30) days after Tenant's receipt of Landlord's invoice. If such audit shall disclose that Tenant's statement of Gross Sales is at variance to the extent of five percent (5%) or more, then Landlord, in addition to the foregoing remedy and other remedies available to Landlord, shall have the option, upon Tenant's failure to pay such additional sums within thirty (30) days after written notice to the Tenant, to declare this Lease terminated and the Lease Term ended, in which event this Lease shall cease and terminate on the date specified in such notice with the same force and effect as though the date set forth in such notice were the date originally set forth herein and fixed for the expiration of the Lease Term, and Tenant shall vacate and surrender the Premises but shall remain liable for all obligations arising during the balance of the original stated term as provided in this Lease. In addition to the foregoing, and in addition to all other remedies available to Landlord, in the event Tenant's auditor and Landlord's auditor shall schedule a date for an audit of Tenant's records in 11 Tenant's Initials Landlord's Initials 01 148 accordance with this Subsection 4.9, and Tenant shall fail to be available or shall otherwise fail to comply with the requirements for such audit, Tenant shall pay all costs and expenses associated with the canceled audit. (b) In addition to all other remedies available to Landlord, in the event that any such audit shall disclose that Tenant's records and other documents as referred to in Subsection 4.6, 4.7, 4.8 and 4.9 hereof and such other materials provided by Tenant to Landlord's auditor are inadequate, in the opinion of Landlord or Landlord's auditor, to disclose accurately Tenant's Gross Sales, then Landlord shall be entitled to collect as Additional Rent from Tenant an amount equal to fifty percent (50%) of the Fixed Minimum Annual Rent payable by Tenant for the period in question. Landlord's exercise of the foregoing remedy shall in no way limit or otherwise affect Landlord' s ability to exercise other remedies available to it, nor shall Tenant's obligations pursuant to the terms, covenants and conditions of this Lease. (including, without limitation, Tenant's obligation with respect to reporting Gross Sales and payment of Annual Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. 4.10 Lien for Rent. In consideration of the mutual benefits arising under this Lease, Tenant hereby grants to Landlord a lien on all Premises of Tenant now or hereafter placed in or upon the Premises, and such Premises shall be and remain subject to such lien of Landlord for payment of all rent and other sums agreed to be paid by Tenant herein. Said lien shall be in addition to and cumulative of Landlord's liens and other remedies provided by law. ARTICLE 5. LEASEHOLD IMPROVEMENTS. 5.1 Tenant's Obligation to Provide and Fund Leasehold Improvements. Within thirty (30) days of the Lease Date, Tenant, at its own cost and expense, shall submit to Landlord its plans for the commencement and completion of the construction, and the acquisition and installation of the Leasehold Improvements. Tenant, at its sole cost and expense, shall complete construction, acquisition and installation of all Leasehold Improvements 12 Tenant's Initials Landlord's Initials �0 -- ' 14 8 F within ninety (90) days of Landlord's approval of the plans. The plans shall include: a layout of the Premises, a lighting plan, a depiction of all fixtures to be added to Premises, interior finish and material samples, typical display technique, interior and exterior signage plan, store front and any work or equipment to be done or installed by Tenant affecting any structural, mechanical or electrical part of the Premises. In connection with Tenant's obligation to provide the Leasehold Improvements, Tenant shall spend no less than $409,000 for the construction of the Improvements (as described in Exhibit "B"), and no less than $283,450 for the furnishings, fixtures and equipment (as described in Exhibit "C"). 5.2 Payment and Performance Bond and Letter of Credit. Within ten (10) days after the Landlord approves the plans for commencement and completion of the construction, and the acquisition and installation of the permanent Leasehold Improvements by the Tenant ( as described in Exhibit `B" attached), but in any event prior to the commencement of any construction, the Tenant shall, at Tenant's sole cost and expense, furnish the Landlord with a Construction Payment and Performance Bond and Letter of Credit, as follows: (a) The Construction Payment and Performance Bond shall be issued by Cole Taylor Bank out of Illinois in an amount equal one million dollars ($1,000,000), naming the Landlord as the owner and the Tenant as the principal guaranteeing the payment and performance of Tenant's obligations with respect to any and all construction work pertaining to the Leasehold Improvements, free of mechanic's or other liens. The conditions of the payment and performance bond shall be to insure that the Tenant will: (i) promptly make payment to all claimants, as defined in §255.05 Florida Statutes, 1995, supplying the Tenant with labor, materials, or supplies, used directly or indirectly by the Tenant in the prosecution of the work related to the Leasehold Improvements under this Lease; and (ii) to pay the Landlord all losses, damages, expenses, costs, and attorneys fees, including appellate proceedings, that the Landlord sustains because of a default by the Tenant under this Lease; and 13 Tenant's Initials / Landlord's Initials 97- 148 F (iii) perform the guarantee of all obligations of the Tenant's under this Lease with respect to the construction, and the acquisition and installation of the Leasehold Improvements, as described in Exhibit "B". The payment and performance bond may be terminated at such time as the construction, and the acquisition and installation of the Leasehold Improvement are completed and satisfactory evidence thereof is provided by the Tenant to the City Manager, including certification by the Tenant's architect that all requirements of the payment and performance bond have been satisfactorily concluded, and by the issuance of a certificate of occupancy. The form of the payment and performance bond shall be approved by the City Manager. (b) The Letter of Credit in the amount of ($250,000) must be issued by state or federal banking institution having. its principal office in the State of Florida, and shall be in the form and content as approved by the City Attorney and the Finance Director of the Landlord. The Letter of Credit shall insure the faithful performance by the Tenant of all its obligations with respect to the acquisition and installation of the Leasehold Improvements (furnishing, fixtures and equipment, as described in Exhibit "C" attached), under this Lease, free of mechanic's or other liens. The Letter of Credit shall be maintained at the Landlord's department of Finance during the entire term of construction and until satisfactory evidence is provided by the Tenant to the City Manager that Tenant has performed all its obligations with respect to the acquisition and installation of the Leasehold Improvements (furnishing, fixtures and equipment). 5.3 Insurance. The Tenant shall require every contractor performing any work pertaining to the Leasehold Improvements to furnish Builder's Risk insurance protecting the Landlord and its respective commissioners, officers, agents, and employees, against any claim for per§onal injuries, death claims, and Premises damage that may be asserted because of the construction, and the acquisition and installation of the Leasehold Improvements. 5.4 Conveyance by the Tenant to the Landlord., The Tenant hereby, in consideration of the granting of this Lease: Tenant's Initials / Landlord's Initials 14 97- 148 (i) Upon termination of this Lease, whether by lapse of time or otherwise shall grant and convey unto the Landlord all Leasehold Improvements of a permanent character including fixtures installed or located within the Premises described in Exhibits "B" and "C", and (ii) grants to the Landlord the right to purchase from the Tenant, the Leasehold Improvements, consisting of furnishings, and equipment, added to or installed at the Premises by the Tenant during the Lease Term, or the renewal terms, if applicable, including all furnishings, and equipment described in Exhibit "B" at actual cost less actual "observed" depreciation as determined by an appraisal, provided that the Landlord by notice in writing to the Tenant of at least 45 days prior to the expiration, or earlier termination of the Lease Term, or the renewal terms, if applicable, notifies the Tenant of its election. 5.5 Landlord's Premises to Remain Free of Liens. The Tenant shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work, including subcontractors, or providing supplies and equipment in connection with the construction, reconstruction or operation of the Premises. The Tenant shall have no power or right to and shall not in any way encumber the Landlord's fee simple interest in the Premises. If any mechanics' liens shall at any time be filed against the Premises, the Tenant shall promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof and if unsuccessful in such contest, to have the same discharged. Upon the Tenant's failure to do so, the Landlord, in addition to any other right or remedy that it may have, may take such action as may' be reasonably necessary to protect its interest, and the Tenant shall be responsible for any and all costs incurred by the City in connection with such action, including all reasonable legal fees, costs and expenses. 15 Tenant's InitialsJ6 I Z/ Landlord's Initials 97- 148 L 5.6 Historic Preservation Requirements. Tenant acknowledges that the Premises have been designated by the. Miami City Commission as a historic site in accordance with Section 23.1-3 of the Code of the City of Miami, as amended. Accordingly, Tenant agrees that at all times during the Lease Term- (i) Tenant, at Tenant's sole cost and expense, shall ensure that all work done at the Premises shall conform in architectural style and aesthetic form with the overall historic pre 1920's theme or ambiance of the Premises; (ii) Tenant, at Tenant's sole cost and expense, shall ensure that all changes to the exterior of the Premises are approved by the City's Historic and Environmental Preservation Board (the "Board"); (iii) Tenant, at Tenant's sole cost and expense, shall ensure that the necessary work is undertaken in order to comply with the Board's requirement that the Premises be restored to its appearance prior to certain existing illegal alterations to the doors facing the courtyard on the northwest comer of the Premises. (iv) Tenant, at Tenant's sole cost and expense, shall ensure that any alterations to the exterior of the Premises must meet the Secretary of the Interior's "Standards for Rehabilitation". 5.7 Landlord Approval. All plans furnished under this Lease are expressly subject to Landlord's written approval, which the City Manager is hereby authorized to act on behalf of for purposes of such approval, and which approval he or she may not unreasonably withhold or delay. ARTICLE 6. CONDUCT OF BUSINESS BY TENANT. 6.1 Use of Premises. Tenant shall occupy the Premises without delay upon commencement of the Lease Term, and covenants to continuously conduct its permitted business therein. Tenaa shall 16 Tenant's Initials A-1 Landlord's Initials 97- 14.8 L use the Premises solely for Restaurant Operations. Tenant shall not use, permit or suffer the use of the Premises for any other business or purpose. Tenant agrees to conduct its business upon the Premises in accordance with the highest ethical and operating standards of the restaurant industry of which Tenant forms a part. 6.2 Operation of Business. At all times during the Lease Term, Tenant shall operate Restaurant Operations at the Premises with due diligence and efficiency, in Tenant's sole and absolute discretion, and in a manner prudent and in accord with the current business techniques within the locale for Tenant's business so as to maximize the amount of Gross Sales, subject to inability by reason of strikes, labor disputes, and Acts of God. Tenant shall carry at all times in the Premises a stock of merchandise of such quantity, character and quality as shall be in accord with advanced and highest quality business practices within the locale for Tenant's business. 6.3 Signs. Tenant will not place or permit to be placed or maintained on any exterior door, wall or window of the Premises, or within the interior of the Premises, any signage or advertising matter of any kind, without first obtaining Landlord's written approval and consent, which may not be unreasonably withheld. Tenant shall at its sole cost and expense, remove the existing "Firehouse Four Restaurant" sign, which was installed without a permit and does not conform with the architectural character of the Premises. Tenant shall erect an exterior sign of type, composition and design in conformance with the City of Miami Zoning Code and the Historic Preservation Board, which sign shall be subject to the prior written approval of Landlord. Tenant further agrees that such signs, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved shall be maintained in good condition and repair at all times and shall conform to the criteria established from time to time by Landlord. 17 Tenant's Initials (- Landlord's Initials 97-- 148 ARTICLE 7. MAINTENANCE, REPAIR AND ALTERATION OF PREMISES. 7.1 Tenant's Maintenance Obligations. Tenant, at its sole cost and expense, agrees to provide the necessary management and labor, to continuously maintain the Premises, including all operating equipment, utility services, and connections on the Premises. Tenant, at its sole cost and expense, agrees to provide, janitorial and custodian services, trash and garbage removal services, and any and all other related services necessary to have the Premises, and the Leasehold Improvements remain in good, safe, sanitary condition and repair throughout the Lease Term. Tenant shall be responsible for painting and decorating the interior of the Premises, maintaining its equipment, fixtures, furnishings, and other personal property in good condition and repair. All maintenance shall be at the Tenant's sole cost and expense and will be subject to general inspection by the Landlord to insure a continuing quality of maintenance and appearance and physical condition of the Premises commensurate with maintenance, health, and safety standards established by the Landlord. 7.2 Tenant's Repair Obligation. Tenant, at Tenant's sole cost and expense, at all times during the Lease Term, shall make all interior, exterior, structural repairs, including repairs to the roof, wires, pipes, co►,duitb and ott-ie, equipment of facilities for supplying heat, light, power, hot and cold water services, all drainage and waste pipes or facilities leading from the Premises, and to all heating, ventilating and air-conditioning equipment and any other repair or replacement to the Premises and to the Leasehold Improvements. 7.3 Changes/Alterations. Tenant shall not make any changes, alterations, including without limitation, installing or causing to be installed any trade fixtures, exterior signs, exterior machinery, floor covering, interior or exterior lighting, plumbing fixtures, shades, awnings in and to the Premises or any part thereof without the prior written consent of the Landlord, which consent the City Manager is hereby authorized to give, and may not unreasonably withhold or delay. 18 Tenant's Initials Li Landlord's Initials 97- 148 in ARTICLE 8. INSURANCE AND INDEMNITY. 8.1 Insurance on the Premises. Beginning on the Commencement Date and at all times during the Lease Term, Tenant shall, at the Tenant's sole cost and expense but for the benefit of the Landlord and the Tenants as their interests may appear, maintain the following insurance: (a) "All Risk" Premises insurance coverage against loss or damage by fire, windstorm, flood with such endorsement for extended coverage, vandalism, malicious mischief, sprinkler leakage and special coverage, including flammable materials used for cooking, insuring One Hundred Percent (100%) of the replacement cost of the Premises (exclusive of foundation and excavation costs), Tenants alterations, improvements, fixtures, equipment, furniture, trade fixtures and floor coverings, including the expense of the removal of debris as a result of damage by an insured peril (collectively "Insured Premises") on the Premises. The Landlord and Tenant shall be named as Loss Payees and insureds. Unless expressly waived in writing by the Landlord, the replacement cost of the Insured Premises shall be determined every three (3) years during the Lease Term by an insurance appraiser, selected and paid for by the Tenant, provided that the Tenant shall obtain the Landlord's approval (which approval shall not be unreasonably withheld) of the appraiser before commencement of the appraisal. The appraiser selected by the Tenant shall submit a written report of the appraised replacement cost to the Landlord and the Tenant. If the Landlord or the Tenant is not satisfied with this report, the dissatisfied party shall serve upon the other a notice of dissatisfaction within thirty (30) days after receipt of the report and the Landlord and Tenant shall in good faith attempt to resolve any disputes concerning the appraised replacement cost. During this period of the dispute, the Tenant shall continue to maintain insurance in an amount equal to the greater of: the amount determined by the appraiser or that maintained before the dispute arose. - Immediately upon receipt of the appraiser's report, the Tenant shall procure and deliver to the Landlord written confirmation from the insurer(s) evidenei the 19 Tenant's Initials Landlord's Initials 97- 14S L F increase in insurance which may be required to comply with the provisions above. During the construction of the Leasehold Improvements, Tenant shall carry or cause to be carried Worker's Compensation Insurance and Builders Risk Insurance in connection with the construction. (b) The replacement of any plate glass damaged or broken from any cause whatsoever in and about the Premises shall be Tenant's responsibility. Tenant shall, during the entire term hereof, keep in full force and effect a policy of plate glass insurance covering all the plate glass of the Premises, in amounts satisfactory to Landlord. The policy shall name Landlord and any person, firm or corporation designated by Landlord and Tenant, as insured and shall contain a clause that the insurer will not cancel or change the insurance without first giving Landlord thirty (30) days prior written notice. The insurance shall be written by an insurance company approved by Landlord and a copy of the policy together with the declarations page thereof shall be delivered to Landlord prior to the commencement of the term of this Lease. (e) Business Interruption insurance in the limits of which insurance, if available, shall not be less than the Minimum Annual Rent and the debt service payment (if any) for the Leasehold Improvements. Only the Landlord shall be named as a loss payee and insured. 8.2 Other Insurance To Be Carried. The Tenant shall also, at the Tenant's sole cost al,d expense but for the mutual benefit of the Landlord and the Tenant maintain the following insurance: (a) Commercial General Liability insurance on a comprehensive general liability coverage form, or its equivalent, including contractual liability, products and completed operations, personal injury, liquor legal liability, garage keepers liability, and premises and operations coverages against alclaims demands or actions, bodily injury, Personal injury, '�death or Premises damage occurring in the Premises, the limits of which shall not be less than Two Million Dollars ($2,000,000) per occurrence combined single limit -for bodily injury and Premises damage. No deductible will be carried under this coverage. Tenant shall further maintain an excess umbrella policy which limits shall not be less than a combined single limit of Five Million Dollars ($5,000,000). Said insured amounts as provided above shall be adv1sted at 20 Tenant's Initials Landlord's Initials 9'7 - 148 the beginning of the fifth Lease year and every five years thereafter by any increase/or decrease (which decrease shall not result in an amount less than the amounts initially required as set forth above) in the Consumer Price Index from the Commencement Date to the anniversary date in which the adjustment is to be made. In addition to the Tenant, the Landlord shall be named as additional insured on the policy or policies of insurance. (b) Automobile liability insurance covering all owned, non -owned and hired vehicles uaed in conjunction with operations covered by this Agreement. The policy or policies of insurance shall contain such limits as may be reasonable requested by the Landlord from time to time but not less than Five Hundred Thousand ($500,000) for bodily injury and Premises damage. Said insured amount as provided above shall be increased at the beginning of the -fifth Lease year and every five years thereafter by any increase in the Consumer Price Index from the Commencement Date to the anniversary date in which the adjustment is to be made. Only the Tenant shall be named as an insured. (c) Workers Compensation Insurance in the amounts and types required by State law. Only the Tenant shall be named as an insured. (d) The Landlord reserves the right to reasonably amend the herein insurance requirements by the issuance of a notice in writing to the Tenant. 8.3 Delivery of !nsurance Policies. All public liability, Workers Compensation and employers liability policies shall be retained by the Tenant. Except as otherwise specifically provided, all other policies of insurance required to be furnished shall be held by and be payable jointly to the Landlord and the Tenant with the proceeds to be distributed in accordance with the terms of this Lease. Insurance company certificates evidencing the existence of all of these policies of insurance shall, be delivered to the Landlord. All policies of insurance required to be provided and obtained shall provide that they shall not be amended or canceled on less than thirty (30) days prior written notice to the Landlord and all insured and beneficiaries of the policies shall contain waiver of subrogation rights endorsements, as required below. The Landlord shall have no obligation to pay premiums or make contributions to the insuring company or any other person or sa ' any 21 Tenant's Initials Landlord's Initials 97- 148 deductible. On or before the Lease Date and not less than thirty (30) days prior to the expiration date of any policy required to be carried pursuant to this Section, the Tenant shall deliver to the Landlord the applicable respective policies and insurance company certificates evidencing all policies of insurance and renewals required to be furnished. Receipt of any documentation of insurance by the Landlord or by any of its representatives which indicates less coverage than required does not constitute a waiver of the Tenant's obligation to fulfill the insurance requirements herein. 8.4 Adjustment of Loss. Insurance proceeds recovered on account of any damage or destruction by any i casualty shall be made available for the payment of the cost of the reconstruction, replacement or repairs. All of the insurance proceeds plus the amount of any deductible applicable to said damage or destruction shall be deposited by the insurance company or by the Tenant (in the case of the deductible) in escrow with instructions to the escrow holder that the escrow holder shall disburse the funds to the Tenant, with notice thereof to the Landlord, as the work of the reconstruction, replacement or repairs progresses upon certificates of the architect or engineer supervising the work that the disbursements then requested, plus all previous disbursements made from such insurance proceeds, plus the amount of any deductible, do not exceed the cost of the work already completed and paid for, and that the balance in the escrow fund is suf.icizrit to pay for the reasonably estimated cost of completing the required work. The escrow holder shall be any bank mutually agreeable to Landlord and Tenant. If the amount of the insurance proceeds is less than the cost of the required work, then Tenant shall pay the excess cost; and if the amount _ of the insurance proceeds is greater than the cost of the required work, then the excess shall be paid to and belong to the Tenant. 8.5 Insurer To Be Approved -Premium Receipts. All policies of insurance of the character described in Sections 8.1 and 8.2 shall be written by companies of recognized responsibility reasonably acceptable to the Landlord. On request by Landlord, Tenant shall provide photocopies of receipts showing the payment of 22 Tenant's Initials / Landlord's Initials 97- 148 F premium for all insurance policies required to be maintained by this Lease. 8.6 Indemnification of Landlord. Tenant shall indemnify, defend and save Landlord harmless from and against any and all claims actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to or destruction of Premises arising from or out of any occurrence in, upon or at the Premises, or the occupancy or use by Tenant of the Premises or any part thereof, or occasioned wholly or in part by any act of omission of Tenant, its agents, contractors, employees, servants, customers, invitees, licensees, Tenants or concessionaires. In case Landlord shall be made a party to any litigation commenced by or against Tenant, then Tenant shall protect and hold Landlord harmless and pay all costs and attorney's fees incurred by Landlord in connection with'such litigation, and any appeals thereof. Tenant shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by Landlord in enforcing the covenants and agreements in this Lease. 8.7 Waiver of Subrogation. Tenant waives all rights to recover against the Landlord for any damages arising from any cause covered by any insurance required to be carried by Tenant, or any insurance actually carried by Tenant. The Tenant shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Premises. ARTICLE 9. SERVICES AND UTILITIES. 9.1 Tenant to Provide and Pay for Utilities. The Tenant shall pay, or cause to be paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective and other communication services, and for 23 Tenant's Initials Landlord's Initials 97- 148 all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Premises and the Leasehold Improvements, or any part of it, at any time during the Lease Term, and the Tenant shall comply with all contracts relating to any services and will do all other things required for the maintenance and continuance of all services as are necessary for the proper maintenance and operation of the Premises and the Leasehold Improvements. The Tenant shall also at its sole expense procure any and all necessary permits, licenses or other authorization required for the lawful and proper installation and maintenance upon the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Premises. 9.2 Landlord Not Liable for Failure of Utilities. The Landlord shall 'not be liable for any failure of water supply, sewer, gas or electric current, or for any injury or damage to any person or. Premises caused by or resulting water, gas or electricity which may leak or flow from the water or gas mains on to any part of the Premises or the Leasehold Improvements. The Landlord shall not be required to make any alteration to any service or utility system of the Premises on behalf of Tenant. Landlord shall not be liable for temporary failure of services, and same shall not be deemed to constitute actual or constructive eviction, nor entitle Tenant to any abatement or diminution in rent payable under this Lease. ARTICLE 10. LIEN FOR RENT AND OTHER CHARGES. 10.1 Lien for Rent. The whole amount of the Rent, and each and every installment, and the amount of all taxes, assessments, water rates, insurance premiums and other charges and impositions paid by the Tenant under the provisions of this Lease, and all costs, attorneys fees and other expenses which may be incurred by the Landlord in enforcing the provisions of this Lease, or on account of any delinquency of the Tenant in carrying out any of the provisions of this Lease, shall be and they are deemed to constitute a valid lien upon the Leasehold Improvements, and upon the Tenant's leasehold estate, subject and subordinate, however, to any Leasehold Mortgage and to 24 Tenant's Initials L Landlord's Initials 97- 148 the rights of any Leasehold Mortgagee, and to the lien given by Tenant in the purchase of any Leasehold Improvement. ARTICLE 11. TRANSFERS AND SUBLETTING. 11.1 Prohibition on Subleases. The Tenant shall not sublet the Premises or any portion thereof. 11.2 Definitions. As used in this Article the term: (a) "Transfer" means: (i) any total or partial sale, or assignment (other than by a Leasehold Mortgage) or any contract or agreement to do any of the same; (ii) any transfer of more than fifty percent (50%) (in the aggregate)of the stock of Tenant or of any Owner whereby control of the Corporation is changed other than an Owner whose shares are publicly traded; (iii) any merger, consolidation or sale or lease of all or substantially all of the assets of the Tenant or of any Owner, other than an owner whose shares are publicly traded. (b) "Owner" means: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the stock of the Tenant, but shall not include any shareholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: , (i) who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest described 25 Tenant's Initials Landlord's Initials 9?- 148 L in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over the counter. 11.3 Transfer of Leasehold Interest. The Tenant recognizes that the operational experience of the Tenant was given special consideration by the Landlord in the public selection process undertaken by the Landlord for the award of this Lease. Therefore Tenant agrees that except as permitted pursuant to subparagraphs (a) and (b) below, no Transfer may be made, suffered or created by the Tenant or any Owner. The following Transfers shall be permitted hereunder: (a) Any Transfer directly resulting from the foreclosure of Tenant's Leasehold Interest or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage, provided that such purchaser or grantee is an Institutional Investor or an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional Investor, and that such purchaser or grantee within six (6) months after taking possession of the Premises, shall have entered into an agreement for the management and operation of the Premises with an Acceptable Operator. (b) any Transfer to an Acceptable Operator consented to by the City Manager and City Commission. The parties hereby acknowledge and agree that anything herein to the contrary notwithstanding, the "going public" by Tenant, including, but not limited to, the filing of a registration statement with the Securities & Exchange Commission, the creation of one or more classes of stock and the offering of shares of stock to the public for purchase, shall not constitute a Transfer hereunder and shall not require the consent of the Landlord. Any consent to a Transfer shall not waive any of the Landlord's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. L 26 Tenant's Initials A-� Landlord's Initials ---9 p 11.4 Notice of Transfer. With respect to any Transfer which must be approved by the Landlord, the Tenant shall give or cause to be given to the Landlord written notice (including all information necessary for the Landlord to make an evaluation of the proposed Acceptable Operator according to the requirements of this Lease) of any Transfer of which Tenant, or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed Transfer, and the Landlord shall within thirty (30) days of its receipt of such information, advise Tenant in writing if it shall consent to same. If the Landlord shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Tenant. If the Landlord is not required to consent to a Transfer pursuant to the terms hereof, the Tenant shall notify the Landlord in writing of same within thirty (30) days after the date of Transfer. 1.1.5 Information as to Shareholders, etc. Tenant shall from time to time throughout the Lease Term, as the Landlord shall reasonably request, furnish the Landlord with a complete statement, subscribed and sworn to by the President or vice-president and the Secretary or Assistant Secretary of the Tenant, setting forth the full names and addresses of holders of stock interests in Tenant, and the extent of their holdings, and in the event any other parties have a bener:cial interest in such stock, their full names and addresses and the extent of such interest as determined or indicated by the records of Tenant. Notwithstanding the foregoing, the information required by this subparagraph (11.5) shall not be required to be furnished with respect to the shareholders of any Owner whose shares are publicly traded. 0 11.6 Effectuation of Permitted Transfers. No Transfer of the nature described in Subsection 11.3(b) above shall be effective unless and until: L 27 Tenant's Initials —# Landlord's Initials 97- 148 (a) all Rents, taxes, assessments, impositions, insurance, permitting and other charges required to be paid by the Tenant under this Lease shall be paid by the Tenant up to the date of transfer, and all other covenants and agreements to be kept and performed by the Tenant shall be substantially complied with at the date of the Transfer; and (b) the entity to which such Transfer is made, by instrument in writing reasonably satisfactory to the City Manager and in form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the Landlord, expressly assume all of the obligations of Tenant under this Lease, and agree to be subject to all conditions and restrictions to which Tenant is subject; provided, however, that any Lender, Leasehold Mortgagee, transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such transferee's actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the Landlord for default by Tenant). 11.7 Criteria for Consent for Transfer. The Landlord may condition its consent to a permitted Transfer upon satisfaction of all or any of the following conditions: (i) The net assets of the Transferee immediately prior to the Transfer shall not be less than the greater of the net assets of Tenant immediately prior to the Transfer or the net assets of Tenant at the time of the execution of this Lease; (ii) Such Transfer shall not adversely affect the quality and type of business operation which the Tenant has conducted theretofore; (iii) Such Transferee shall possess qualifications for the Tenant's business substantially equivalent to those of Tenant and shall have demonstrated recognized experience in successfully operating such a business, including, without limitation, experience in successfully operating a similar quality business;. (iv) Such Transferee shall continue to operate the business conducted at the Premises in the same manner as Tenant, and pursuant to all the provisions of this Lease; 28 Tenant's Initials Landlord's Initials 9?_. 148 F (v) Such Transferee shall assume in writing, in a form acceptable to Landlord, all of Tenant's obligations hereunder, and Tenant shall provide Landlord, with a copy of all documents pertaining to such Transfer; (vi) Tenant shall pay to Landlord a Transfer fee of One Thousand Dollars ($1,000.00) prior to the effective date of the Transfer in order to reimburse Landlord for all of its internal costs and expenses incurred with respect to the Transfer, including, without limitation, costs incurred in connection with the review of financial materials, meetings with representatives of .Transferee, and preparation, review, approval and execution of the required documents. (vii) Tenant shall pay to the Landlord any due, but unpaid Rent. 11.8 Liability of Tenant. Tenant to which the Premises was initially leased, shall continue to remain liable under this Lease for the performance of all terms, including, but not limited to, payment of Rent due under this Lease. 11.9 Payment Upon Transfer. Tenant agrees to pay Landlord an amount equal to seven and three -fourths (7.3/4%) percent of any and all consideration paid or agreed to be paid, directly or indirectly, to Tenant in connection with any Transfer, or for the sale of Tenants' business in connection with any such Transfer, which amount shall be reduced by the unamortized portion amount of the cost of the Leasehold Improvements as described in Exhibit `B", as determined under Internal Revenue guidelines for depreciation (the "Transfer Percentage"). No Transfer, which requires Landlords consent shall be effective unless, upon execution of Landlord' s consent to such Transfer, the Tenant pays to the Landlord the Transfer Percentage. The Tenant shall pay to the Landlord the Transfer Percentage at the time the Transfer becomes effective. 29 Tenant's Initials Landlord's Initials 97-- 148 I_ J F 11.10 Acceptance of Rent from Transferee. The acceptance by Landlord of the payment of Rent following any Transfer prohibited by this Article shall not be deemed to be a consent by Landlord to any such, nor shall the saute be deemed to be a waiver of any right or remedy of Landlord hereunder. 11.11 Transfers of the City's Interest. At the Tenant's request, Landlord shall provide the Tenant copies of any and all agreements or contracts pertaining to the total or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the Landlord's reversionary or fee interest in the Premises, or any part thereof, or any interest therein, or any contract or agreement to do any of the same, to any purchaser, assignee, mortgagee, or trustee. Landlord hereby agrees to incorporate the terms and conditions set forth in this Lease, or in any agreement or contract with such purchaser, assignee, mortgagee, or trustee. ARTICLE 12. GOVERNMENTAL REGULATIONS. 12.1 Governmental Regulation. Tenant shall, at Tenant's sole cost and expense, comply with all regulations of all I county, municipal, state, federal and other applicable governmental authorities, now in force, or which may hereafter be in force, pertaining to Tenant or its use of the Premises, and shall faithfully observe in the use of the Premises or in the performance of any Alterations (including, without limitation, Tenant's work) all municipal and county ordinances, codes and regulations and state and federal statutes and regulations now in force or which may hereafter be in force. Tenant shall indemnify (and such indemnity will survive the termination or expiration of the Lease), defend and save Landlord harmless from penalties, fines, costs, expenses, suits, claims, or damages resulting from Tenant's failure to perform its obligations in this Section. 30 Tenant's Initials LG Landlord's Initials 97- 14.8 F 12.2 Hazardous Substances. Tenant shall not generate, store, keep, maintain or use or dispose of or deposit in or upon the Premises any "hazardous substance" or other toxic substance or matter, including, without limitation, any such substance defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 960I, as amended. ARTICLE 13. DESTRUCTION OF PREMISES. 13.1 Reconstruction, Repair and Replacement of the Leasehold Improvements or the Premises. (a) Nonstructural Elements. In the event of damage by fire or otherwise to the nonstructural elements of the Leasehold Improvements, the Tenant shall, within 3 months after the settlement of any applicable insurance claim, and Tenant's receipt of the insurance proceeds, at the Tenant's sole expense (but using along with the Tenant's own funds insurance proceeds if available for that purpose), either repair or replace the Leasehold Improvements. (b) Structural Elements. In the event of damage by fire or otherwise to the structural elements of the Leasehold Improvements and the Premises, the Tenant shall, within six (6) months after the settiement of all applicable insurance, at the Tenant's solo expense (but using along with the Tenant's own funds insurance proceeds if available for that purpose), reconstruct or repair the Leasehold Improvements and the Premises as completely as possible to the condition it was in immediately prior to the damage or, if the Tenant so elects, replace, within 12 months after the settlement of all applicable insurance, at Tenant's sole expense (but using along with the Tenant's own funds insurance proceeds if available for that purpose),, `the Premises, and the Leasehold Improvements with a new building, and new Leasehold Improvements of the same general size and character as the damaged building and Leasehold Improvements. In any event; all work done by Tenant in connection with the reconstruction, repair or replacement, of the Premises and/or the Leasehold Improvements shall be performed by Tenant in compliance with all requirements which may be imposed upon such the re ction, 31 Tenant's Initials Landlord's Initials 97- 148 replacement and or repair of the Premises or the Leasehold Improvements, by the Landlord with respect to design and guarantees as to the performance of such work and the payment of all materials and laborers, and in accordance with the provisions of Section 8.4 with respect to insurance proceeds, if any. 13.2 Payment for Construction After Damage or Destruction. All insurance proceeds recovered by any party on account of damage or destruction to the Premises and/or the Leasehold Improvements, less the actual costs, if any, to the applicable party relating to recovery shall be applied by the parties to the payment of the cost of the work (pursuant to this Article) to reconstruct, replace or repair the Premises or the Leasehold Improvements in accordance with disbursements certified by the architect or engineer supervising the work. 13.3 Collection of Insurance Proceeds. The Landlord shall in no event be responsible for the collection, or non -collection of any insurance proceeds under this Lease but only for insurance money that shall actually;come into its hands. ARTICLE 14. EMINENT D®MAIN. 14.1 Total Condemnation. If the whole of the Premises shall be acquired or condemned by eminent domain or under threat thereof, then the Lease Term shall cease and terminate as of the date of title vesting in the condemning governmental body or other authority pursuant to such proceeding and all Rent and other charges shall be paid up to that date and Tenant shall have no claim against Landlord or the condemning authority. (except as specifically set .forth in- Subsection 14.4) for the value of any unexpired term of this Lease. 32 Tenant's Initials Landlord's Initials 9 ? - 148 L 14.2 Partial Condemnation. If a part of the Premises shall be acquired or condemned by eminent domain or under threat thereof, and such partial taking or condemnation shall render the Premises unsuitable for the business of Tenant, then the Lease Term shall cease and terminate as of the date of title vesting in the condemning governmental body or other authority pursuant to such proceeding and Tenant shall have no claim against Landlord or the condemning authority (except as 'specifically set forth in Subsection 14.4) for the value of any unexpired term of this Lease. In the event of a partial taking or condemnation which is not extensive enough to render the Premises unsuitable for the business of Tenant, this Lease shall continue in full force and effect. 14.3 Landlord's Damages. In the event of any condemnation or taking as hereinbefore provided, whether whole or partial, Tenant shall not be entitled to any part of the'award, as damages or otherwise, for., such condemnation and Landlord is to receive the full amount of such award, Tenant hereby expressly waives any right or claim to any partthereof. Landlord shall not unreasonably refuse to allow Tenant to intervene in any condemnation proceeding for the purpose of protecting the value of Tenant's improvements which may have been made during the Lease Term. 14.4 Tenant's Damages. Although all damages in the event of any condemnation are to belong to Landlord whether such damages are awarded as compensation for diminution in value of the leasehold or the fee of the Premises, Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded- or recoverable by Tenant in Tenant's own right on account of any damage to Tenant's business by reason of the condemnation and for or on account of any cost or loss to which Tenant might be put in removing Tenant's merchandise, furniture, fixtures, leasehold improvements and equipment from the Premises.. 33 Tenant's Initials Landlord's Initials L 97- 148. 14.5 Sale Under Threat of Condemnation. A sale by Landlord to any authority having the power of eminent domain, either under threat of condemnation or while condemnation proceedings are pending, shall be deemed a taking under the power of eminent domain for all purposes under this Article. ARTICLE 15. PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS. 15.1 Payment of Ad Valorem Taxes. Tenant agrees that in the event the Premises or any interest thereon becomes subject to ad valorem taxation, Tenant shall enroll in the Dade County Ad Valorem Tax Payment Plan. In the event such Plan is discontinued, the City Manager and Tenant shall develop a method to insure the monthly or quarterly payment of such taxes. 15.2 Payment of Impositions. The Tenant agrees to pay or cause to be paid as additional Rent, before any fine, penalty or interest is added for nonpayment, all real estate taxes or other ad valorem' taxbs on tangible Premises, assessments, water rates and charges and other governmental charges, general and special, ordinary and extraordir_ary, unforeseen as well as foreseen, of any kind and nature whatsoever, including but not limited to assessments for public improvements or benefits, which are assessed, levied, confirmed, imposed or become a lien upon the Premises and all of the Leasehold Improvements and any or all of them during the term of this Agreement, (the "Impositions") except as otherwise provided for in this Section. 15.3 Proof of Payment. The Tenant shall furnish to Landlord, within 30 days after the date whenever any Imposition is payable by or in behalf of the Tenant, official receipts of the appropriate taxing authority, photocopies or other proof satisfactory to the Landlord, evidencing the payment. 34 Tenant's Initials Landlord's Initials L 97- 148 15.4 Tenant's Right to Contest Taxes. Anything herein to the contrary notwithstanding, Tenant shall have and retain the right to contest any real estate tax or other ad valorem tax on tangible Premises, assessments, water rates and charges and other governmental charges, general and special, ordinary and extraordinary, including but not limited to assessments for public improvements or benefits which are assessed, levied, confirmed, imposed or become a lien upon the Premises and/or the Leasehold Improvements, or any valuation in connection therewith, without the consent of Landlord, and even if the same ultimately results in the payment of any interest, costs or penalties. In the event Tenant appeals an ad valorem tax or the assessment value, Tenant shall immediately notify Landlord of its intention to appeal said tax and shall pay, under protest, the full amount of taxes alleged to be owed by Dade County or any other taxing authority. ARTICLE 16. DEFAULT OF TENANT. of Default": 16.1 Events of Default. The occurrence of any one or more of the following events is deemed an "Event (a) If the Tenant defaults in the due and punctual payment of any installment of Minimum Annual Rent, Annual Percentage Rent or any other sums required to be paid hereunder as Additional Rent, as and when due and payable in accordance with this Lease, and such default continues for more than (10) Ten days after the sum is due; (b) In the event Tenant shall cease to operate its business, unless permitted by Landlord in connection with alterations or renovations, for a period of fifteen (15) consecutive days; (c) In the event a petition in bankruptcy under any present or future bankruptcy laws (including but not- limited to reorganization proceedings or voluntary insolvency filing) be filed by or against Tenant or any Guarantor and such petition is not dismissed within thirty (30) days from the filing thereof, or in the event Tenant or any Guarantor is ad' ged'a 35 Tenant's Initials Landlord's Initials 97- 148 F bankrupt; (d) In the event an assignment for the benefit of creditors is made by Tenant; (e) In the event of an appointment by any court of a receiver or other court officer of Tenant's Premises and such receivership is not dismissed within thirty (30) days from the date of such appointment; (f) In the event Tenant removes, attempts to remove, or permits to be removed from the Premises, except in the usual course of trade, the Leasehold Improvements (furnishings, fixtures, and equipment) installed or placed upon the Premises by the Tenant during the Lease Term; (g) In the event Tenant, before the expiration of the term of this Lease, and without the written consent of Landlord, vacates the Premises or abandons the possession thereof, or uses the same for purposes other than the purposes for which the same are hereby leased, or ceases to use the Premises for the purposes herein contained; (h) In the event an execution or other legal process is levied upon the goods, furniture, effects or other Premises of Tenant brought on the Premises, or upon the interest of Tenant in this Lease, and the same is not satisfied or dismissed within ten (10) days from such levy; or (i) . In the event Tenant defaults in the due performance or observance of any lease covenant or condition or provision, other than the payment of Rent, and such default continues for more than (15) Fifteen days after written notice of the default from the Landlord to the Tenant. 16.2 Remedies of Landlord. (a) If any Event of Default occurs, Landlord shall have the right, at the option of Landlord, to terminate this Lease upon (15) Fifteen days written notice. Additionally, if any Event of Default occurs, Landlord may, at its option, from time to -time, without terminating this Lease, re-enter and re -let the Premises, or any part thereof, as the agent and for the account of Tenant upon such terms and conditions as Landlord may deem advisable or satisfactory, in which event the rents received on such re -letting shall be applied first to the expenses of such re etting 36 Tenant's Initials Landlord's Initials 97- 148 F and collection including but not limited to, necessary renovation and alterations of the Premises, reasonable, attorneys, fees, any real estate commissions paid, and thereafter toward payment of all sums due or to become due to Landlord hereunder, and if a sufficient sum shall not be thus realized or secured to pay such sums and other charges, at Landlord's option, Tenant shall pay Landlord any deficiency immediately upon demand therefor, notwithstanding that Landlord may have received periodic rental in excess of the periodic rental stipulated in this Lease in Previous or subsequent rental periods, and Landlord may bring an action therefore as such'deficiency shall arise. Nothing herein, however, shall be construed to required Landlord to re-enter and re -let the Premises in any event. Landlord shall not, in any event, be required to pay Tenant any surplus of any sums received by Landlord on a re -letting of said Premises in excess of the rent provided in this Lease. (b) If any Event of Default occurs, Landlord shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, against Tenant or any acts, conduct or omissions of Tenant, and to further obtain specific performance of any term, covenant or condition of this Lease. (c) If any Event of Default occurs, Landlord shall have the right, at its option, to declare all rent (or any portion thereof) for the entire remaining Lease Term, and other indebtedness owing by Tenant fo Landlord, if any, immediately due and payable without regard to whether possession of the Premises shall have been surrendered to or taken by Landlord, and may commence action immediately thereupon and recover judgment therefor. (d) If any Event of Default occurs, Landlord, in addition to other rights and remedies it may have, shall have the right to remove all or any part of Tenant's Premises from the Premises and any Premises removed may be stored in any public warehouse or elsewhere at the cost of, and for the account of Tenant and Landlord shall not be responsible for the card or safekeeping thereof whether in transport, storage or otherwise, and Tenant hereby waives any and all claim . against Landlord for loss, destruction and/or damage or injury which may be occasioned by any of the aforesaid acts. (e) No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written n ice -.of 37 Tenant's Initials Landlord's Initials 97- 148 F such intention is given to Tenant. Notwithstanding any such re -letting without termination, Landlord may at all times thereafter elect to terminate this Lease for such previous default. Any such re-entry shall be allowed by Tenant without hindrance, and Landlord shall not be liable in damages for any such re-entry, or guilty of trespass or forcible entry. (D Any Rent which may be due Landlord, whether by acceleration or otherwise as herein provided in this Article, shall include Minimum Annual Rent, Annual Percentage Rent and any other rents, costs and expenses denominated as Additional Rent in this Lease. (g) It is expressly agreed that the forbearance on the part of Landlord in the institution of any suit or entry of judgment for any part of the rent herein reserved to Landlord, shall not serve as a defense against nor prejudice a subsequent action for such Rent. Tenant hereby expressly waives Tenant's right to claim a merger or waiver of such subsequent action in any previous suit or in the judgment entered therein. Furthermore, it is expressly agreed that claims for liquidated Minimum Annual Rent and/or Annual Percentage Rent may be regarded by Landlord, if it so elects, as separate and independent claims capable of being separately assigned. (h) Any and all rights, remedies and options given in this Lease to Landlord shall be'cumulative and in addition to and without waiver of, or in derogation of, any right or remedy given to it under any laws now or hereafter in effect. 16.3 No Waiver by Landlord. The waiver (either expressed or implied by law) by Landlord of any default of any term, condition or covenant herein contained shall not be a waiver of any subsequent default of the same or any other term, condition or covenant herein contained. The consent or approval by Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not�be deemed to waive or render unnecessary Landlord' s consent to or approval of any subsequent similar act by Tenant. No re-entry hereunder shall bar the recovery of rents or damages for the default or delay on the part of Landlord to enforce any right hereunder and shall not be deemed a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, or a waiver of the right of Landlord to annul this Lease or to re-enter the Premises or to re -let same. 38 Tenant's Initials Landlord's Initials 97- 148 16.4 Late Payments. In the event any payment due Landlord under this Lease shall not be paid on the due date, Tenant agrees to pay, in addition to the payment then due, one-half percent (0.5%) of the amount due, for each day that the payment is late, (the "Late Fee"), and in the event that any check, bank draft, order for payment or negotiable instrument given to Landlord for any payment under Lease shall be -dishonored for any reason whatsoever not attributable to Landlord, Landlord in addition to the one-half percent (0.5%) Late Fee shall be entitled to make an administrative charge to Tenant of One Hundred and 00/100 Dollars ($100.00), or the actual charge, to Landlord by Landlord's bank for dealing with such dishonored tender, whichever is more. In the event that it shall be necessary for Landlord to give more than one (1) written notice to Tenant of any violation of this Lease, during the term hereof, Landlord shall be entitled to make an administrative charge to Tenant of twenty-five and 00/100 Dollars ($25.00) for each such subsequent notice after the first notice. Tenant recognizes and agrees that the charges which Landlord is entitled to make upon the conditions stated in this section represent, at the time this Lease is made, a fair and reasonable estimate and liquidation of the costs of Landlord in the administration of the Premises resulting from the events described which costs are not contemplated or included in any Rent, or other charges provided to be paid by Tenant to Landlord in this Lease. Any charges becoming due under this Section of this Lease shall be added to and become due with the late payment for which the charge was assessed and shall be collectible as a part thereof. 16.5 Legal Expenses. In the event that it shall become necessary for Landlord to employ the services of an attorney to enforce any of its rights under this Lease or to collect any sums due to it under' this Lease or to remedy the breach of any covenant of this Lease on the part of Tenant to be kept or performed, regardless of whether suit be brought or not, Tenant shall pay to Landlord such reasonable fees and costs as shall be charged by Landlord's attorney or paralegals for such services. Should suit be brought for the recovery of possession of the Premises, or for Rent or 39 Tenant's Initials Landlord's Initials 97- 148 L L1 1 l 3 I 1 L any other sum due Landlord under this Lease, or because of the default of any of Tenant's covenants under this Lease, Tenant shall pay to Landlord all expenses of such suit and any appeal thereof, including a reasonable attorneys' fee dt both the trial and appellate level. Notwithstanding the foregoing, in the event of any litigation between Landlord and Tenant hereunder, the Landlord shall be entitled to recover reasonable attorneys' fees. 16.6 Remedies Cumulative. No remedy conferred upon or reserved to the Landlord or the Tenant shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Lease or existing at law or in equity or by statute; and every power and remedy given by this Lease to the Landlord or the Tenant may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the Landlord or the Tenant. No delay or omission of Landlord or Tenant to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. 16.7 Arbitration. The Parties hereby agree that, subject to the consent of the City Manager, and the Tenant, which consent may be withheld by either party for any reason, any dispute, disagreement or controversy arising under this Lease, or with respect to the interpretation or enforcemdnt of this Lease may settled by arbitration in accordance with the rules of the American Arbritation Association. ARTICLE 17. ACCESS BY LANDLORD. 17.1 Right of Entry. Landlord and Landlord's agents shall have the right to enter the Premises at all reasonable times upon reasonable notice to the Tenant (except in the case of an emergency when 40 Tenant's Initials Landlord's Initials 97- 148 F no notice is required), to examine the same. If Tenant shall not be personally present to open and permit entry into the Premises at any time when for any reason an entry therein shall be necessary or permissible, Landlord or Landlord's agents may enter the same without in any manner affecting the obligations and covenants of this Lease. Nothing herein contained, however, shall be deemed or construed to impose upon Landlord any obligation, responsibility or liability whatsoever, for the care, maintenance or repair of the Premises or the Facility or any part thereof, except as otherwise herein specifically provided. ARTICLE 18. DAMAGE TO TENANT'S PROPERTY. 18.1 Loss and Damage. Unless caused by the Landlord or the Landlord's officers, employees, or agents, the Landlord shall not be responsible for any damage to any property of Tenant (including without limitation appliances, equipment, machinery, stock, inventory, fixtures, furniture, improvements, displays, decorations, carpeting and painting), or of others located on the Premises, ,,nor for the loss of or damage to any property of Tenant, or of others by theft or otherwise. Landlord shall not be liable for any injury or damage to persons or Premises resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any part of the Premises or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other place by dampness or by any other cause of whatsoever nature. Landlord shall not be liable for any latent defect in the Premises. All property of Tenant kept or stored on the Premises shall be so kept or stored at the risk of Tenant only and Tenant shall hold Landlord harmless from any and all claims arising out of damage to same, including subrogation r claims by Tenant's insurance carriers. ARTICLE 19. HOLDING OVER, SUCCESSORS. 19.1 Holding Over. 41 Tenant's Initials Landlord's Initials 97- 148 01 In the event Tenant remains in possession of the Premises after the expiration of the Lease Term, Tenant, at the option of Landlord, shall be deemed to be occupying the Premises as a tenant at sufferance at a monthly rental equal to two (2) times the Minimum Annual Rent and the Annual Percentage Rent of the preceding Lease Year, payable during the last month of the Lease Term hereof. In addition, Tenant agrees to pay monthly: (a) one -twelfth (1/12) of the taxes for the Premises based upon the total taxes payable for the Lease Year immediately prior to the Lease Year in which the -expiration* occurs; (b) cost of insurance for which Tenant would have been responsible if this Lease had been renewed on the same terms contained herein; (c) all sales taxes assessed against such increased rent, and (d) any and all Additional Rent otherwise payable by Tenant hereunder. Such tenancy shall be subject to all the other conditions, provisions and obligations of this Lease. Tenant's obligation to pay any rents or sums provided in this Lease shall survive the expiration or earlier termination of this Lease. 19.2 Successors. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and permitted assigns of the said parties; and if there shall be more than one Tenant, they shall be bound jointly and severally by 'the terms, covenants and agreements herein. Nothing contained in Us Lease shall in any manner restrict Landlord's right to assign or encumber this Lease and, in the event Landlord sells its interest in the Premises and the purchaser assumes Landlord's obligations and covenants, Landlord shall thereupon be relieved of all further obligations hereunder. ARTICLE 20. MINORITY AND WOMEN PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITIES. 20.1 Minority and Women Participation. The Tenant shall comply with the provisions set forth in The Minori and 42 Tenant's Initials Landlord's Initials 97- 148 In Women Business Affairs and Procurement Program Ordinance of the City of Miami and the First Source Hiring Agreement, as they currently exist and as they may be amended hereafter, both of which are attached hereto as Exhibit "D" and incorporated herein. In compliance therewith, Tenant agrees during construction and operation of the Premises; (a) it will take reasonable affirmative action in the recruitment and recruitment advertising to attract and retain qualified minority and female contractors and subcontractors; (b) provide a reasonable opportunity in the recruitment, recruitment advertising and hiring for contractors and subcontractors residing within the City of Miami; (c) will take reasonable affirmative action to retain employees regardless of race, color, place of birth, religion, national origin sex, age, marital status, veteran and disability status; (d) maintain equitable principles in the recruitment, recruitment advertising, hiring, upgrading transfer, layoff, termination, compensation and all other terms, conditions and privileges of employment; and (e) monitor and review personnel practices to guarantee that equal opportunities are being provided to all employees, regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veteran and disability status. 20.2 Equal Employment Opportunities. The. Tenant agrees that during construction of the Facility; (a) it will not discriminate against any employee or applicant for employment because of race, creed, color or national origin and will take affirmative action to assure that applicants are employed and that employees are treated during employment without regard to race, creed, color or national origin; (b) post in conspicuous places, available to employees and applicants for employment, notices the form of which is to be provided by the Landlord setting forth provisions for this nondiscrimination clause; (c) in all solicitations or advertisements for employees placed by or on behalf of the Tenant state that all qualified applicants will receive consideration for employpent :, without regard to race, creed color or national origin; and (d) to send to each labor union or representative of workers with which the construction contractor has a collective bargaining agreement or other contract or understanding a notice, the form of which is to be provided by the'' Landlord, advising the union or representative of the Tenant's commitment and posting copies of the notice in a conspicuous places available to employees and applicants for employm n 43 Tenant's Initials Landlord's Initials 97-- 148 L 20.3 Affirmative Action. Tenant shall have in place an Affirmative Action/Equal Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, the disabled and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, Tenant shall submit a Statement of Assurance indicating that their operation is in compliance with all relevant Civil Rights laws and regulations. ARTICLE 21. MISCELLANEOUS. 21.1 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated to be paid shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided herein or by law. 21.2 Entire Agreement. This Lease and the Exhibits attached hereto and forming a part thereof as if fully set forth herein constitute all of the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises and there are'no covenants, promises, conditions or understandings, either oral or written, between them "other than as are herein set forth. Neither Landlord nor Landlord's agents have made nor shall be bound to any representations with respect to the Premises except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Lease. No course of prior dealings between the parties or their officers employees, agents or affiliates shall be relevant or admissible to supplement, explain or vary any of the terms of this ase. 44 Tenant's Initials Landlord's Initials 7 r 148 I�� Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease. Except as herein otherwise provided, no subsequent alteration, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by all of them. This Agreement has been negotiated "at arm's length" by and between Landlord and Tenant, each having the opportunity to be represented by legal counsel of its choice and to negotiate the form and substance of this Lease, and therefore in construing the provisions of this Lease neither party will be deemed disproportionately responsible for draftsmanship. 21.3 No Partnership. Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant, nor does anything in this Lease confer any interest in Landlord in the conduct of Tenant's business. Nothing contained herein shall be deemed or construed by the parties hereto, or by any third part, as creating the relationship of principal and agent, or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship other than that of Landlord and Tenant. 21.4 Notices. Any notice by the Parties required to be given must be served by certified mail return receipt requested, addressed to Landlord or Tenant at: if to Landlord at: City Manager City of Miami P.O. Box 330708 Miami, Florida 33233-0708 45 Tenant's Initials Landlord's Initials Is 97- 148 with a copy to: City of Miami Community Planning and Revitalization Division of Asset Management 444 SW 2nd Avenue, Suite 325 Miami, Florida 33130 if to Tenant at: Ms. Kimberly Driscoll Firehouse Four, LLC 1480 Stillwater Drive Miami, Florida 33141 All notices given hereunder shall be effective and deemed to have been given upon receipt by the party to which notice is being given, said receipt being deemed to have occurred upon hand delivery or posting, or upon such date as the postal authorities shall show the notice to have been delivered, refused, or undeliverable, is evidenced by the return receipt or proof of deliver. Notwithstanding any other provision hereof, Landlord shall also have the right to give notice to Tenant in any other manner provided by law. If there shall be more than one Tenant, any notice required or permitted by the terms of this Lease may be given by or to any one thereof, and shall have the same force and effect as if given to all thereof. 21.5- Captions and Section Numbers. The captions, section numbers, and article numbers appearing in tt_us Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease nor in any way affect this Lease. 21.6 Partial Invalidity. If any term, covenant or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 46 Tenant's Initials Landlord's Initials 9 7 _ 148 in 21.7 Estoppel Certificate. Tenant agrees that it will, at any time and from time to time, within ten (10) days following written notice by Landlord specifying that it is given pursuant to this Section, execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect and stating the modifications), and the date to which the Minimum Annual Rent, Annual Percentage Rent and any other payments due hereunder from Tenant have been paid in advance, if any, and stating whether or not there are defenses or offsets claimed by Tenant and whether or not to the best knowledge of Tenant, Landlord is in default in performance of any, covenant, agreement or condition contained in this Lease, and if so, specifying each such default of which Tenant may have knowledge, and if requested, such financial information concerning Tenant and Tenant's business operations as may be reasonably requested by any mortgagee or prospective mortgagee or purchaser. The failure of Tenant to execute, acknowledge and deliver to Landlord a statement in accordance with the provisions of this Section within said ten (10) business day period shall constitute an Event of Default hereunder.and shall also constitute an acknowledgment by Tenant, which maybe relied on by any person holding or proposing to acquire an interest in the Premises or any party thereof or this Lease from or through the other party, that this Lease is unmodified and in full force and effect and that such rents have been duly and fully paid to and including the respective due dates immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice. It is agreed that nothing contained in the provisions of this Section shall constitute waiver by Landlord of any default in payment of rent or other charges existing as of the date of such notice and, unless expressly consented to in writing by Landlord and, Tenant shall still remain liable for the same. 21.8 Recording. Either party may record this Lease, or any memorandum or short form thereo . . 47 Tenant's Initials Landlord's Initials L F -I 21.9 Waiver. Failure on the part of either part of complain of any action or non -action on the part of the other, no matter how long the same may continue, shall never be deemed to be a waiver by such party of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions hereof, and that a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval to or of any action by either party requiring such consent or approval shall not be deemed to waive or render unnecessary such consent or approval to or of any subsequent similar act by such party. 21.10 Time is of the Essence. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. 21.11 No Discrimination. It Js intended that the Premises shall be developed so that all customers, employees, licensees and invitees of the Tenants shall have the opportunity to obtain all the goods, services, accommodations, advantages, facilities and privileges of the Premises without discrimination because of race, creed, color, sex, age, national origin, ancestry, handicap or disability of any kind. To that end, Tenant shall not discriminate in the conduct and operation of its business in the Premises against any person or group of persons because of the race, cried, color, sex, age, national origin, ancestry, handicap or disability of such person or group of persons. 21.12 Governing Law. It is the intent of the parties hereto that all questions with respect to the construction of the Lease and the rights and the liabilities of the parties hereto sh 1 be 48 Tenant's Initials Landlord's Initials 97- 148 L determined in accordance with the laws of Florida and that all disputes arising hereunder shall be heard and decided in Dade County, Florida. 21.13 Waiver of Counterclaims. Tenant shall not impose any counterclaim or counterclaims in a summary proceeding or other action based on termination or holdover, it being the intent of the parties hereto that Tenant be strictly limited in such instances to bringing a separate action in the court of appropriate jurisdiction. The foregoing waiver is a material inducement to Landlord making, executing and delivering this Lease and Tenant's waiver of its right to counterclaim in any summary proceeding or other action based on termination or holdover is done so knowingly, intelligently and voluntarily. 21.14 Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on, or in respect of, any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the Lease Premises and/or any claim of injury or.damage. 21.15 Quiet Enjoyment. If Tenant pays the rents and other amounts due under the lease, observes- and performs all the terms, covenants and conditions hereof, Tenant shall peaceably and quietly hold and enjoy the Premises for the Lease terms, without interruption by Landlord, subject to'..the terms and conditions of this Lease. 21.16 Surrender of Possession. Upon the expiration or earlier termination of the Lease pursuant to the provisions 49 Tenant's Initials Landlord's Initials 97- 148 L hereof, the Tenant shall deliver to the Landlord possession of the Premises in good repair and condition, reasonable wear and tear excepted. 21.17 Attorney's Fees. In the event that legal action is taken by either party to enforce any of the provisions of this Lease, the prevailing party shall be entitled to reasonable attorney's fees in connection with any such action. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, or have caused the same to be executed, as of the date and year first above written. ATTEST: By: WALTER J..FOEMAN City Clerk ATTEST: B . ` Q�A-sn�6 d0 ,� 0-IS CITY OF MIAMI, a municipal corporation of the State of Florida ME EDWARD MARQUEZ City Manager FIREHOUSE FOUR LLC, a Florida Limited Liability Company Controlling 50 Tenant's Initials/' -A Landlord's Initials 91- 148 --j APPROVED AS TO INSURANCE REQUIREMENTS: Risk Management Department L APPROVED AS TO FORM AND CORRECTNESS: A. QUINN JONES, III City Attorney 51 Tenant's Initials z Landlord's Initials 91- 148 EXHIBIT "A"• INVENTORY LIST 1000 SOUTH MIAMI AVENUE FIRST FLOOR EQUIPMENT LIST: QUANTITY DESCRIPTION 3 REMANCO CASH REGISTER SYSTEMS 1 BUNN THREE PLATE COFFEE MAKER 2 OLD TIME KETTLES 1 VICTORIA CAFE PILON - EXPRESSO MAKER 1 2 DOOR UNITED USF REFRIGERATION BOX 1 IMPERIAL GRILL 2 CECILWARE DEEP FRYER 1 HOOD SYSTEM 1 COOLER BOX - Approximately 41by 3' 1 COOLER BOX - Approximately 5'by 3' 2 DOUBLE DOOR BAR REFRIGERATION 1 BAR WATER AND RINSE SYSTEM 1 ICE BIN 2 DROP LIGHTS OVER BAR 5. CEILING FANS 2 AUDIO SPEAKERS 1 FIXED U SHAPED BAR 13 BAR STOOLS 1 BOOTH WITH 5 TWO-TuPS 5 HIGH BACK CHAIRS 3 BAR TOP TABLES 11 HIGH BACK BAR CHAIRS 8 FOUR -TOPS WITH CHAIRS 2 TWO -TOPS WITH CHAIRS 5 EXTRA CHAIRS 1 CHECK -IN PODIUM 2 WOOD BENCH 2 WOOD COFFEE TABLE 4 ETCHED GLASS PARTITIONS 2 BRASS FIRE POLES ( PAGE 1 OF 2 ) L 97- 148 EXHIBIT "A" INVENTORY LIST 1000 SOUTH MIAMI AVENUE SECOND FLOOR EQUIPMENT LIST: QUANTITY DESCRIPTION 10 FOUR -TOPS WITH CHAIRS 12 TWO -TOPS WITH CHAIRS a BOOTHS WITH CHAIRS 10 DROPLIGHTS 1 BUNN SINGLE BURNER COFFEEMAKER 2 PEPSI REFRIGERATION BOX 1 SINK SYSTEM 1 VICTORIA CAFE EXPRESSO MAKER 1 4-DOOR REFRIGERATION SYSTEM 1 7 BURNER GAS STOVE 1 PITCOFRIALATOR TRIPPLE STATION FRYER 1 CHAR -BROILER 1 GAS GRILL WITH GRIDDLE STATION 1 ECOLAB DISHWASHER SYSTEM (this is leased equipment) 1 SINK WITH DISPOSAL 1 WALK-IN FREEZER/COOLER COMBINATION 1 RGN ROBT COUPE FOOD PROCESSOR 2 STAINLESS STEEL KITCHEN TABLE 1` STAINLESS STEEL SINK SYSTEM 3 WEIGHT SCALES 1 4-SHELF STORAGE UNIT - approximately 4' 1 4-SHELF STORAGE UNIT - approximately 2' MISCELLANEOUS EQUIPMENT: POTS PANS DISHES GLASSES PITCHERS SILVER COOKING UTENCILS COOKING TRAYS BASKETS PLATECOVERS WINE BUCKETS FOOD STORAGE CONTAINERS SALT & PEPPER SHAKERS (PAGE 2 OF 2) 97- 148 7 EXHIBIT "B" SCHEDULE OF LEASEHOLD IMPROVEMENTS 34 Ton Air Conditioning Unit (2) 30,000 Awnings 6,000 Draft Beer Systems 12,000 Dumb Waiter 8,000 Electrical 40,000 Entertainment Room 30,000 Front Entrance Marble Etching 10,000 Landscaping and Plants 20,000 Light Fixtures 10,000 FWAC, Electrical & Plumbing Systems 15,000 Office Space 4,000 Paint (Interior and Exterior) 15,000 Plumbing 48,000 Rear Door Restoration 8,500 Restroom Renovations 30,000 Roof Replacement 30,000 Secudty.System 15,000 Signage Removal and New Sign 12,000 Upstairs Bar Construction & Equipment 12,000 Ventilation Equipment 4,800 Watar Purificatior, System, 1,500 Wine Cellar Construction 15,000 Built-in Stage 3,200 Stereo System 20,000 Canopy for Balcony 7,500 Fans for Upstairs Balcony (6) 1,500 Leasehold Improvements Total: $409,000 Furniture, Fixtures, & Equipment Total: $283,450 Total: $692,450 LESS: 15% $103,868 TOTAL IMPROVEMENTS $588,583 I L 07- 148 F EXHIBIT "C" SCHEDULE FOR FURNITURE, FIXTURES, & EQUIPMENT Renovations and Replacements 15,000 Utensils 5,000 80 quart Mixer 9,000 Bakery Oven 12,000 Blenders 400 Butcher Block Table 1,000 Double Convection Oven 7,500 Dough Sheeter 4,500 Dry Case 1,700 Miscellaneous 5,200 Racking 1,000 Refrigerated Case 3,500 Big Screen Television (2) 6,000 Cigar Case 800 Cigar Inventory 3,700 Decorations 2,500 Pool Table and Equipment 10,000 Refrigerated Dessert Cart (2) 1,400 Computerized Register 25,000 Decorations 70,000 Washer/Dryer 1,200 Water Softener 1,000 Wine Cellar 22,000 12-kilogram Roaster 26,500 Coffee Brewers (3) 1,500 Coffee Grinders (3) 1,000 Expresso Machines (2) 10,000 Roaster Afterburner 8,000 Wihole Bean Display Bins (5) 2,750 Office FF & E 3,000 Office Safe 3,500 Market Umbrellas 2,400 Outside Chairs (160) 10,400 Outside Tables (40) 5,000 Furniture, Fixtures & Equipment Total: 1 $283,450 Leasehold Improvements Total: 1 $409,000 Total: $692,460 LESS: 15% $103,868 TOTAL IMPROVEMENTS $588,683 I 97-- 148 § 18-58 ject to the provisions of law. (Ord. No. 9572, § 1, 2-10-83) Secs. 18-59-18-66. Reserved. EXHIBIT "D" FINANCE ARTICLE rV.5. MMITORMAND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM* Sec. 18-67. Short title. This article shall be known and may be cited as 'Me Minority and Women Business .Affairs and Procurement Program Ordinance of the City of Mami n (Ord. No. 10062, § 1, 12-19-85) Sec. 18-68. Definitions. For the purpose of this article, the following terms, phrases, words, and their derivations shall have the following meanings: AfJirrnative action ,plan shall include the pro- jected annual goals and the timetables which will be used to employ and/or procure with women and minorities a nondiscrimination policy statement and any other actions which will be used to ensure equity in employment and the utilization of minority and female -owned businesses. Business enterprise means any corporation, part- nership, individual, sole proprietorship, joint stock company, joint venture, professional association or any other legal entity that is properly licensed to do business with the city and/or county and/or the state. Contract means agreements for the procure- ment of goods, services, or construction of facili- ties for the city. *Editor's note —Ord. No.. 10062, § 8, adopted Dec. 19, 1985, repealed Ord. No. 9775, §§_1 0, adopted Jan. 19, 1984, codified as § 18-72, concerning the minority procurement program. At the discretion of the editor, §§ 1-7 of Ord. No. 10062 have been codified as art. IV.5, §§ 18-67-18-74. City code cross reference —Lease of city -owned property to require minority procurement clause, § 2-363. County code cross reference —Procedure to increase participation of Black vendors of commodities and services in county contracts, § 2-8.2. Supp. No. 51 L § 18-68 Facilities means all totally or partially publicly financed projects including, but without limita- tion, unified development projects, municipal pub- lic works. and municipal improvements to the extent they are financed with.city money, utilize city property, or require city services. Goal means the percentages of the annual dollar volume of procurement expenditures deter- mined by this article to be offered for minority and women business participation. Goods and services include, without limitation, public works, improvements, facilities, profes- sional services, commodities, supplies, materials and equipment. Joint venture shall mean an association of per- sons or legal entities with the intent to engage in and carry out a single business enterprise for profit. Minority and women -owned business enterprise means a business enterprise in which at least fifty-one (51) percent of said enterprise is owned by Blacks, Hispanics or women whose manage- ment and daily business operations are controlled by one (1) or more Blacks, Hispanics or women. Procurement expenditures shall mean a pur- chase, payment, distribution, loan or advance for the purpose of acquiring or providing goods and services. Set -aside is the term which will be used to designate a given purchase or contract or a por- tion of a given purchase or contract award for Black, Hispanic and/or women -owned b�isinesses. Set -asides may only be utilized where it is deter- mined, prior to the invitation to bid or request for proposals, that there are a sufficient number of certified Black, Hispanic and/or women -owned businesses to afford effective competition for the purchase. 1217 Vendor means any business entity providing goods, services or equipment to the city through a purchase, field or blanket order or contract. (Ord. No. 10062, § 2, 12-19-85; Ord. No. 10538, § 1, 1-12-89; Ord. No. 11272, § 2, 6-1-95) 9?- 148 § 18-69 Sec. 18-69. Established; components. h1IM1I CODE (a) A minority and women business affairs and procurement program for the city is hereby estab- lished. The city manager's office shall be held accountable for the full and forceful implementa- tion,of the minority and women business affairs and procurement program by providing appropri- ate recommendations for action by the city com- mission.: (b) For the purpose of assisting the city man- ager in the implementation of said program, a minority and women business affairs and procure- ment committee is hereby established, consisting of an appropriate number of members, to be appointed by the city manager, with full represen- tation of Hispanics, Blacks and women to be responsible for monitoring the implementation of the program and making recommendations for achieving the requirements of this article. The committee shall be responsible for generating yearly progress reports to the city commission and the community at large. (c) The city manager shall, utilizing existing resources, create` an office of minority and women business affairs and procurement; and shall pro- vide the appropriate staff and resources neces- sary for the performance of all such administra- tive duties; authorize and implement the administrative guidelines and procedures re- quired; and ensure compliance with the functions required to promote the achievement of the pro- gram's goals and objectives of increasing the volume of city procurement and contracts with Black, Hispanic and women -owned businesses. (Ord. No. 10062, § 3, 12-19-85) Cross reference —Department of general services admin- istration to contain office of minority and women business affairs and procurement, § 2-263. Sec. 18-70. Duration of program. The minority and women business affairs and procurement program established herein shall be in effect only until such time as the effects of prior unwarranted discrimination against Blacks, His- panics and women have been compensated for, at which time the goals and set -asides provided. for herein shall no longer be observed. Such need Supp. No. 51 L § 18-73 shall be reviewed every two (2) years by the city commission, upon the recommendation of the city manager. (Ord. No. 10062, § 7, 12-19-85) Sec. 18-71. Applicability. Except where federal. or state law or 'regula- tions mandate to the contrary, the provisions of this article will be applicable to all city pre -bid, bid, contract or other agreements negotiated by the city. (Ord. No. 10062, § 6, 12-19-85) Sec. 18-72. Objectives; use of set -asides. (a) The objective of the city is to achieve a goal of awarding a minimum of fifty-one (51) percent of the total annual dollar volume of all procurement expenditures to. Blacks, Hispanics and women - owned small business enterprises to be appor- tioned as follows: seventeen (17) percent to Blacks, seventeen (17) percent to Hispanics and seven- teen (17) percent to women; such goal shall be applied to all city bids and contracts. (b) Zb further the goal of increasing the total annual volume of all procurement expenditures to minority and women -owned business enterprises, authority for a minority and women -owned bmsi-. ness enterprise procurement set aside is hereby established for use by the city manager as he or she may deem advisable or necessary to increase the participation of Black, Hispanic and women - owned businesses in city procurement contracts. (Ord. No. 10062, § 4A,12-19-85; Ord. No.10538, § 2, 1-12-89) .Sec. 18-73. Required statements for solicitq tions or notices; required state ments on contracts and awards. 1218 (A) It shall be mandatory for all city solicita- tions or notices inviting bids, proposals, quotes, letters bf interest and/or qualifications, to contain the approved requirements for M/WBE participa- tion and to have these requirements incorporated by reference, along with the inclusion of the appropriate compliance forms, into the resulting contracts and/or bid award documents. The city 97.- 148 § 18-73 FINANCE office of minority/women business affairs is to be consulted prior to the issuance of any such adver- tisements or solicitations for the purpose of deter- nlining the recommended goals or set -asides to be included, and again prior to the signing of C"" "� 91 L § 18-73 97- 148 F § 18.73 FINANCE resulting contracts/bid awards for the purpose of verifying compliance thereto. (B) It shall be mandatory for all city contracts and/or procurement award documents to contain the following:. (1) A specific reference to the applicability of the minority -and women business affairs and pro- curement program established by this article. (2) A provision stating the right of the city to terminate and cancel any contract or contrac- tual agreement entered into, including elim- ination of the individual and/or business en- terprise from consideration and participation in future city contracts, on the basis of hav- ing submitted deliberate and willful, false or misleading information as to his, her or its status as a Black, Hispanic and/or women - owned business enterprise and/or the quan- tity and/or type of minority and women -owned business participation. (3) A requirement that each successful bidder or offeror agree to provide a sworn statement of compliance with the provisions of this article and -it's specific applicability to the purchase or contract award under consideration; such statement shall certify that the bidder or of- feror, during. the course of time involved in the performance of the .contract sought by such bidder or offeror, shall not discriminate against any business, employee or applicant for employment because of age, ethnicity, race, creed, color, religion, sex, national origin, handi- cap or marital status. (4) A statement of the extent to which the busi- ness enterprise las as one (1) or more of its partners or principals persons who are Black, Hispanic or women, or is a joint venture com- prised of a nonminority and minority busi- ness and/or women -owned enterprise. (5) A requirement that each bidder, proposer, or vendor submit along with the bid or proposal an affirmative action plan (AAP). Any signif- icant equity participants, joint venture par- ticipants, subcontractors, suppliers or other Supp. No. 32 § 18.74 parties to the bid or proposal shall also be required to submit such plans. The objective of the city is to require that bidders, propos- ers, and vendors doing business with the city take certain actions designed to assure equi- table participation of Blacks, Hispanics 'and women in their hiring and promotion activi- ties. In view of this objective: (a) All city vendors and contractors shall im- plement specific affirmative action plans as approved by the director of the office M/WBE affairs and shall demonstrate a good faith effort to ensure equal employ- ment opportunities for Blacks, Hispanics and women on each purchase or contract. Vendors and contractors shall document these efforts fully and shall provide re- ports as may be required by the city. (b) Vendors and contractors shall permit ac- cess to their books, records and accounts by the office of MIWBE affairs or her designee for the purpose of investigation to ascertain compliance with the forego- ing requirements. (c) In the event of vendors' or contractors' noncompliance with the affirmative ac- tion requirements of this- section, the city maneger may suepend in whole or Part, cancel or terminate the bid or contract award and/or impose other sanctions as may be determined to be appropriate. (6) A provision specifying the requirements, for continued bidder or offeror eligibility includ- ing minority and female involvement. (Ord. No. 10062, § 4B, 12-19-85; Ord. No. 10538, § 3, 1-12-89) Cross reference —Affirmative action division, § 2;236.1. Sec. 18-74. Good -faith effort required. Bidders or offerors shall be required to demon- strate a reasonable and good faith effort to solicit and obtain the participation of qualified minority and women -owned businesses in all bid and pro- posal documents. (Ord. No. 10062, § 5, 12-19-85) 1219 97— 148 14 § '18.75 M1AMl CODE Sec. 18-75. Contractor's certificate of compe- tency. (a) For the purpose of this section, the follow- ing terms, phrases, words, and their derivations shall have the following meanings: (1) Business enterprise means any corporation, partnership, individual, sole proprietorship; joint stock company, joint venture, professional association or any other legal entity. (2) Construction contract means agreements for the erection, alteration, demolition, or repair of any public building or any other kind of public work or improvement. (3) Minority and women -owned business enterprise means a business enterprise in which at least fifty-one,(51) percent of said enterprise is owned by Blacks, Hispanics or women whose man- agement and daily business operations are controlled by one (1) or more Blacks, Hispan- ics or women. (b) The owners of minority or women business enterprises submitting bids for construction con- tracts to be let by the city must be certified in the field for which the contract is to be let pursuant to chapter 489, Florida -Statutes or Chapter 10, Code of Metropolitan Dade County in order to qualify for the minority or women preference on such contract. (era. No. 10332, § § 1, 2, 10-22-87) Editor's note —Sections 1 and 2 of nonamendatory Ord. No. 10332, adopted Oct. 22, 1987, have been codified as § 18-75 at the editor's discretion. Section 6 of the ordinance provides an effective date of January 1, 1989. Sec. 18.76. Administrative procedures. The departments of finance, public works and general services administration are authorized to establish the required administrative procedures to insure compliance with the provisions as set forth herein. The finance department is mandated to insti- tute payment procedures which will insure, in those instances in which the M/WBE bid or con- tract requirements result in contracts, subcontracts or joint ventures for M/WBEs, that compensation provided pursuant thereto shall be in the form of Supp. No. 32 L § 18.78 a check made payable to the primary contractor, bidder or proposer, and (if appropriated jointly) to the minority/women business enterprise subcon- tractor or joint venture partner in an amount not to exceed the subcontracted or joint venture amount, based upon approved invoices submitted by the prime contractor, proposer or joint venture, to the city. In the event a dispute should arise as to the performance or payment of the primary contrac- tor or bidder/proposer or the M/WBE, under the terms and conditions of the city contract or pro- curement award document, compensation shall be withheld untilsuch time as the dispute is re- solved in accordance with the procedures set forth in this chapter for resolving such disputes. All administrative directors shall amend their existing policies and procedures or to create such new ones as may be required to insure and report on compliance with all aspects of this article. (Ord. No. 10538, § 4, 1-12-89) Sec. 18-77. Designation of director as respon- sible official for bid requirements, guidelines, etc. The director of the office of minority/women business affairs is designated as the official re- sponsible. for establishing M UE bid and con- tractlaward requirements, creating and implement- ing compliance guidelines, monitoring compliance, resolving disputes, and reporting on all of the above to the city manager. (Ord. No. 10538, § 5, 1-12-89) ARTICLE V. SALE OF REALTY* ' Sec. 18.78. Methods and procedures for sales and leases. Any sale, conveyance or disposition of any in- terest, including any leasehold in real property, owned by the city, the off-street parking depart- ment, or the downtown development authority shall be made in the manner set forth in this 1220 *Note --See the editor's note for Art. N of this chapter. City chatter references —Powers with respect to acquir-. ing and disposing of property, § 3(f% contracts for sales or lease of real property, §§ 29-A(d), 29-13. 97- 148 f , f t CITY OF MIAM1, FLORIDA - INTER -OFFICE MEMORANDUM 31 A j - Honorable Mayor and Members MPR 1 3 1997 TO of the City Commission DATE : FILE Resolution Authorizing the City SUBJECT: Manager to Execute a Lease Agreement With Firehouse Four, LLC REFERENCES: City Commission Agenda ----r ENCLOSURES : March 20, 1997 I RECOMMENDATION FROM : Ec Ci It is respectfully recommended that the City Commission adopt the attached Resolution authorizing the City Manager to execute a Lease Agreement, in substantially the attached form, with Firehouse Four, LLC, for the leasing, management and operation of a restaurant on the City -owned property located at 1000 South Miami Avenue, Miami, Florida, for a period of fifteen (15) years with two (2) five (5) year renewal options, requiring said lessee to make a total capital investment in said property of not less than $588,583, also requiring said lessee to pay to the City the sum of $219,000. which represents prepayment of the minimum annual rent for the first three years (36 months) of the lease term; and further paying to the City of Miami the following minimum annual lease payment plus a percentage of gross revenues, subject to such additional conditions as are provided in said lease. YEAR FIXED MINIMUM ANNUAL RENT PERCENTAGE RENT 1 $ 76,500 plus 6.00% over $2,000,000 2 $ 76,500 plus 6.00% over $2,000,000 3 $ 76,500 plus 6.00% over $2,000,000 4 $100,000 plus 6.00% over $1,667,000 5 $100,000 plus 6.00% over $1,667,000 6 $100,000 plus 6.00% over $1,667,000 7 $109,000 plus 6.00% over $1,817,000 8 $109,000 plus 6.00% over $1,817,000 9 $109,000 plus 6.00% over $1,817,000 10 $118,000 plus 6.00% over $1,967,000 11 $118,000 plus 6.00% over $1,967,000 12 $118,000 plus 6.00% over $1,967,000 13 $129,500 plus 6.00% over $2,150,000 14 $129,500 plus 6.00% over $2,150,000 15 $129,500 plus 6.00% over $2,150,000 TOTAL $1,599,000 97- 148 � L F Honorable Mayor and Members of the City Commission Page -2- BACKGROUND On July 11, 1996, the City Commission adopted Resolution 96-528, authorizing the City Manager to issue a Request for Proposals (RFP) for the purpose of soliciting proposals from qualified individuals, corporations, or other legal associations interested in leasing, managing and operating a restaurant, for a term of fifteen years, with renewal options, at the City owned property located at 1000 South Miami Avenue, Miami, Florida. In accordance with Resolution 96-528 the RFP was issued on July 25, 1996. The 'City Commission adopted Resolution No. 96-764, on October 10, '1996, appointing members to a Review Committee to evaluate proposals received in response to the RFP. On January 16, 1997, the City Commission adopted Resolution No. 97-13, authorizing the City Manager to negotiate a lease agreement with Firehouse Four, LLC, the highest ranked proposal recommended by the Review Committee and to incorporate the Commission's specific guidelines into said lease agreement, and further directing the City Manager to present the negotiated agreement to the City Commission for approval. 91- 148 F DATE: 3/17/97 FIREHOUSE FOUR, LLC MINIMUM % OF GROSS YEAR RENT - -B-R-- BREAKPOINT -E-,A- -K- -P-0--1 - 0- V -E- R- -B-R- E A - k p 6 1 N-T 2 - -- - ------ $ 76,500 $ 2,000,000 6.50 3 $ 76,600 $ 2,000,000 7.00 5 7.50 $ 100,000 $ 1,667,000 7 $ 109,000 $ 1,817,000 7.50 8 $ 109,000 $ 1,817,000 7.60 -7 -0 7.50 1 8,0 00 $ 11 -V- iii-6-06- I 1,967,000 .50 $--i-18000 $ 7.50 1-2-9-'5-00 2,150,000 7.50 2,15Q,000 7.50 TOTAL 1,599,000 __j