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HomeMy WebLinkAboutExhibitAMENDMENT NO. 4 TO LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND NEW SPANISH CONCEPTS, LLC This Amendment No. 4 to the Lease Agreement is entered into this day of , 2007 (the "Amendment") by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), and New Spanish Concepts LLC, a Delaware limited liability company ("Tenant"), for the purpose of amending that certain Lease Agreement between the City and Alamilla and Associates, Inc. dated March 3, 1998, as heretofore assigned and amended (the "Agreement"). RECITALS: WHEREAS, on May 23, 2002, the City Commission of the City of Miami adopted Resolution No. 02-582 authorizing (i) the assignment of the rights of "Tenant" under the Agreement to New Spanish Concepts, LLC for the leasing, management and operation of a restaurant on City -owned property located at 1000 South Miami Avenue, Miami, Florida (such property, together with the building and improvements located thereon, are hereinafter referred to as the "Premises"), and (ii) the amendment of certain terms of the Agreement; and WHEREAS, due to unforeseen circumstances relating to the Premises and surrounding area, (i) Tenant has requested the City to defer eighteen (18) months of Minimum Annual Rent and Annual Percentage Rent in order to implement a new concept in the Premises, (ii) the, parties have agreed that it is in the best interest of the City to allow such deferral of aforesaid Minimum Annual Rent and Annual Percentage Rent subject to certain conditions as hereinafter provided, and (iii) the parties have agreed to modify certain other provisions of the Agreement as hereinafter set forth. NOW, THEREFORE, in consideration of mutual covenants hereinafter set forth and in consideration of other valuable consideration the parties covenant and agree as follows: I. Incorporation of Recitalsi Definitions: The recitals and findings set forth above are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Amendment. All of the initial capitalized terms used in this Amendment shall, unless otherwise MIA 179498127v7 1/10/2007 b0 f ?" provided herein, have the same definitions and meanings as given to them in the Agreement. Amendment Effective Date: The effective date of this Amendment shall be the date upon which it is executed by the City Manager and Tenant, with the later of such execution dates being the controlling effective date (the "Amendment Effective Date"). Tenant shall execute this Amendment no later than ten (10) days following City Commission approval of this Amendment. 3. Minimum Annual Rent and Annual Percentage Rent Deferral: Notwithstanding anything in the Agreement to the contrary, Tenant is hereby granted an eighteen (18) month deferment of Minimum Annual Rent and Annual Percentage Rent (collectively, the "Deferred Rent") due and payable retroactive from June 1, 2006 to November 30, 2007 (the "Deferral , Period"). Nothing contained herein shall affect the payment of any Impositions, use tax, or any other amounts clue under the Agreement during the Deferral Period. The Deferred Rent, including Florida sales tax, shall be subject to interest calculated at a rate of seven percent (7%) per annum simple interest from the date each installment of Deferred Rent would have been due under the Agreement but for the deferment hereunder until paid. Such Deferred Rent including Florida sales tax, together with interest, shall be paid in full on or before February 28, 2013. Failure to pay such amount in full by said date shall. constitute a default under the Agreement and regardless that Tenant may have previously provided notice of exercising its first option to renew, this Agreement shall terminate on February 28, 2013, the original expiration date of the initial term. Notwithstanding the above, if Gross Sales for the calendar year commencing January 1, 2012 and ending December 3 ] , 2012 are in excess of $3,500,000.00, the Deferred Rent (inclusive of any interest for the Deferral Period) shall convert to and become a permanent abatement. Tenant shall remain liable for any Florida sales tax, if due. In the event the Premises or any portion thereof shall be closed for any period of time between January 1, 2012 and December 31, 2012 as a result of an act of God, strike, explosion, riot, or civil commotion, act of war or terrorism, fire or other casualty, then the Gross Sales amount of $3,500,000 shall be reduced on a proportionate basis to the number of days and portion of the Premises closed utilizing a 365-day calendar year. 4. Tenant shall complete implementation of the new concept for the Premises, including any MIA 179498127v7 1/10/2007 2 associated improvements, within six (6) months following the Amendment Effective Date (or such longer period of time as may be subsequently agreed to by the City Manager, in his sole discretion), subject to any period of delay which arises from or through Acts of God; strikes, explosion, riot, or civil commotion; act of war or terrorism; fire or other casualty, as evidenced by the Premises being open for business. Tenant shall have the right to close the Premises for business during the implementation of such new concept. Except as provided in paragraph 3 hereof, there shall be no abatement of Rent as a result of this closure. S. A new Section 7.4 is hereby added to read as follows: Section 7.4 Temporary Closure of Property for Alterations. Tenant shall have the right from time to time during the Lease Term to renovate, remodel and make alterations to the Premises in connection with the implementation of a new concept for the Premises or as otherwise deemed necessary by Tenant, in its reasonable business judgment. Tenant shall have the right to close the Premises for business for the implementation of a new concept and during any periods of renovations, remodeling and alterations; however, any renovations, remodeling or alterations requiring the Premises, or material portions thereof, to be closed for business for a period greater than two (2) month shall require the City Manager's prior written approval, which approval may be withheld or conditioned in his sole discretion. Notwithstanding the above, the City Manager's prior written approval shall not be unreasonably withheld if the request for closure for a period greater than two (2) months is made in connection with an approved assignment (or an assignment in which approval is not required) in order to allow such new assignee to make renovations and/or improvements in connection with implementation of a new concept or otherwise reasonably deemed necessary by such assignee. Except as provided in paragraph 3, there shall he no abatement of Rent for any temporary closure. The foregoing provisions shall not limit, modify or apply to Restoration Work that may be performed pursuant to Article XIII (entitled "Damage or Destruction of Premises"), 6. Tenant hereby releases the City from and against any and all presently accrued actions, claims, suits, judgments and demands whatsoever, in law or in equity, for (i) costs, lost profits and/or any other damages relating to construction in the area or in any manner to any delay in the opening of the Property for business, and (ii) costs and/or other damages during the construction period, through Amendment Effective Date. The City hereby releases Tenant from any and all MIA 179498127v7 1/10/2007 3 presently accrued claims, other than deferred rent and taxes due which Tenant is appealing, defenses, liabilities and demands whatsoever, under the Lease, in law or in equity, arising from or growing out of any actions or omissions by Tenant under the Lease through the Amendment Effective Date. This Amendment shall be construed and governed in accordance with the laws of the State of Florida. This Amendment may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. To the extent that any terms or provisions of this Amendment are inconsistent or conflict with the terms and conditions of the Agreement, the tenns and conditions of this Amendment shall control. Except as specifically provided herein, all of the terms and provisions of the Agreement shall remain in effect, Attest: New Spanish Concepts, LLC By: Signature Signature Print Name and Title Print Name and Title City of Miami, a municipal corporation Attest of the State of Florida By: By: Priscilla A. Thompson Pedro G. Hernandez City Clerk City Manager Approved As To Form And Correctness By: Jorge L. Fernandez City Attorney MIA 179488127v7 1/10/2007 4