HomeMy WebLinkAboutLease Agreement9
ARTICLE I
Section 1.1
ARTICLE II
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
ARTICLE HII
Section 3.1
Section, 3.2
ARTICLE IV
Section 4.1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 4.8
Section 4,9
Section 4.10
Section 4.11
ARTICLE V
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Section 5.5
Section 5.6
Section 5.7
ARTICLE VI
Section 6.1
Section 6.2
Section 6.3
TABLE OF CONTENTS
DEFINITIONS
Definitions
LEASE OF PREMISES
Lease of Premises
Purpose of Use and Occupancy
Suitability of Premises
Limited Representations by Landlord
Possession
Existing Liens and Encumbrances
TERM
Term of Lease
Right to Renew
RENT
Graded Minimum Annual Rent and Annual Percentage
Payment of Minimum Annual Rent
Amount of Annual Percentage Rent
Payment of Annual Percentage Rent Installments
Security Deposit
Rent Adjustment
Tenant's Records
Reports by Tenant
Right to Examine Books
Audit
Lien for Rent
LEASEHOLD IMPROVEMENTS
Tenant's Obligation to Provide and Fund Leasehold
Improvements
Payment and Performance Bond
Contractor's Insurance
Additional Consideration
Landlord's Premises to Remain Free of Liens
Historic Preservation Requirements
Landlord Approval
CONDUCT OF BUSINESS BY TENANT
Use of Premises
Operation of Tenant's Business
Signs
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Rent 11
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ARTICLE VII .
Section 7.1
Section 7.2
Section 7.3
ARTICLE VIII
Section 8.1
Section 8.2
Section 8.3
Section 8.4
Section 8.5
Section 8.6
Section 8.7
Section. 8.8
ARTICLE IX
Section 9.1
Section 9.2
ARTICLE X
Section 10.1
Section 10.2
Section 10.3
Section 10.4
Section 10.5
Section 10.6
Section 10.7
Section 10.8
Section 10.9
Section 10.10
Section 10.11
Section 10.12
Section 10.13
Section 10.14
MAINTENANCE, REPAIR AND ALTERATION OF
PREMISES
Tenant's Maintenance Obligations
Tenant's Repair Obligation
Changes/Alterations
INSURANCE AND INDEMNITY
Insurance on the Premises
Other Insurance to be Carried
Delivery of Insurance Policies
Adjustment of Loss
Insurer to be Approved - Premium Receipts
Indemnification of Landlord
Waiver of Subrogation
Release of Landlord
SERVICES AND UTILITIES
Tenant to Provide and Pay for Utilities
Landlord Not Liable for Failure of Utilities
TRANSFERS AND SUBLETTING
Subleasing
Definitions
Transfers
Notice of Transfer
Information as to Shareholders, etc.
Effectuation of Permitted Transfers
Criteria for Consent for Transfer
Liability of Tenant
Payment Upon Transfer or Sale of Tenant Stock
Acceptance of Rent from Transferee
Transfers of the City's Interest
Leasehold Mortgage
No Waiver of Tenant's Obligations or Landlord's Rights
Transfer to Firehouse IV of Miami, Inc.
ARTICLE XI COMPLIANCE WITH LAWS
Section 11.1 Compliance with Laws
ARTICLE XII
Section 12.1
Section 12.2
Section 12.3
Section 12.4
ENVIRONMENTAL LIABILITY
Definition of Terms
Tenant's Environmental Covenant
Representation by Landlord
Landlord's Indemnification
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Section 12.5
Section 12.6
Section 12.7
ARTICLE XIII
Section 13.1
Section 13.2
Section 13.3
Section 13.4
Section 13.5
Section 13.6
Section 13.7
Section 13.8
ARTICLE XIV
Section 14.1
Section 14.2
Section 14.3
Section 14.4
Section 14.5
Section 14.6
ARTICLE XV
Section 15.1
Section 15.2
Section 15.3
Section 15.4
ARTICLE XVI
Section 16.1
Section 16.2
Section 16.3
Section 16.4
Section 16.5
Section l o.6
Section 16.7
ARTICLE XVII
Section 17.1
ARTICLE XVIII
Section 18.1
Tenant's Indemnification
Asbestos
Survival of Tenant's and Landlord's Obligations
DAMAGE OR DESTRUCTION OF PREMISES
Definitions
Tenant's Duty to Repair, Restore or Replace the Premises
After Damage
Performance of Restoration Work
No Right to Terminate
Tenant's Right to Terminate
Payment for Constriction of the Restoration Work
Collection of Insurance Proceeds
Unused Insurance Proceeds and Deposits
EMINENT DOMAIN
Total Condemnation
Partial Condemnation
Adjustment of Rent Upon Partial Taking
Deposit of Condemnation Award With Escrow Agent
Rights of Leasehold Mortgagee
Temporary Taking
PAYMENT OF TAXES, ASSESSMENTS AND OTHER
IMPOSITIONS
Payment of Ad Valorem Taxes
Payment of Impositions
Proof of Payment
Tenant's Right to Contest Impositions
DEFAULT OF TENANT
Tenant Default
Remedies of Landlord
No Waiver by Landlord
Late Payments
Legal Expenses
Remedies Cumulative
Arbitration
ACCESS BY LANDLORD
Right of Entry
DAMAGE TO TENANT'S PROPERTY
Loss and Damage
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ARTICLE X.IX
Section 19.1
Section 19.2
ARTICLE XX
HOLDING OVER, SUCCESSORS
Holding Over
Successors
MINORITY AND WOMEN PARTICIPATION AND
EQUAL EMPLOYMENT OPPORTUNITIES
Section 20.1 Minority and Women Participation
Section 20.2 Equal Employment Opportunities
Section 20.3 Affirmative Action
ARTICLE XXI MISCELLANEOUS
Section 21.1 Accord and Satisfaction
Section 21.2 Entire Agreement
Section 21.3 Independent Parties
Section 21.4 Notices
Section .21.5 Captions and Section Numbers
Section 21.6 Partial Invalidity
Section 21.7 Estoppel Certificate
Section 21.8 Recording
Section 21.9 Waiver
Section 21.10 Time is of the Essence
Section 21.11 No Discrimination
Section 21.12 Governing Law
Section 21.13 Waiver of Counterclaims
Section 21.14 Waiver of Jury Trial
Section 21.15 Quiet Enjoyment
Section 21.16 Surrender of Possession
Section 21.17 Attorney's Fees
Section 21.18 Joint and Several Liability
Section 21.19 Third Party Beneficiary
Section 21.20 Radon
Section 21.21 No Liability for Act of Other Party
Section 21.22—Consents and Approvals
Section 21.23 Rights, Privileges and Immunities; Covenants
Section 21.24 Approval by the Oversight Board
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LEASE AGREEMENT
'idThis Lease (the "Lease" or "Lease Agreement") is made as of the _ day of
199 by the CITY OF MIAMI, ("Landlord"), and ALAMILLA AND
ASSOCIATES, INC. ("Tenant").
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
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) "Acce table O erator" 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) "Additional Rent" means the Minimum Aanua1 Rent, Annual Percentage
Rent and all additional sums, charges, or amounts of whatever nature to be paid by Tenant in
accordance with the provisions of this Lease, whether or not such sums, charges or amounts are
referred to as additional rent.
It
(c) "Applicable Law" means all laws, Florida Statutes, codes, City and
Miami -Dade County ordinances, orders, judgments, decrees and injunctions from courts having
jurisdiction over the Premises, rules, and requirements of State and local boards and agencies
with jurisdiction over the Premises, now existing or hereafter enacted, adopted, foreseen and
unforeseen, ordinary and extraordinary, which may be applicable to the Premises or any part of
it.
(d) "Business Days" means Monday through Friday excluding legal holidays.
(e) "Consumer Price Index" means the monthly indices for the applicable
month published by the bureau of Labor Statistics of the United States Department of Labor as
"The .Consumer Price Index for All Items, All Urban Consumers, Miami -Ft. Lauderdale, (Base
Year 1982-84=100".
In the event the CPI ceases to use 1982-84=100 as the basis of calculation, or if,
in Landlord's reasonable judgment, a substantial change is made in the method used by the
federal government to determine the CPI or the items used to calculate the CPI, then the CPI
shall be converted (the "Conversion") to the figure that would have been calculated at (or as
close to such figure as shall be practical) had the manner in calculating the CPI in effect on the
Lease Date not been altered.
For purposes of this definition, it shall not be deemed a substantial change in the
-manner- which the CPI Index- is --calculated if the federal government adjusts the method in which
the CPI Index is determined in an attempt to more accurately reflect changes in the cost -of -
I iving.
If, in Landlord's reasonable judgment, the Conversion is impossible or
impractical,then the revised CPI shall be deemed to reflect the original CPI for purposes of this
definition.
(f) "Date of Taking" means the earlier of (i) the date on whi.:h actual
possession of all or less than all of the Premises, as the case may be, is acquired by any lawful
power or authority pursuant to the provisions of Applicable Law or (ii) the date on which title to
all or Tess than all of the Premises, as the case may be, has vested in any lawful power or
authority pursuant to the provisions of Applicable Law.
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(g) "Fair Market Value of the Leasehold Estate" means the value that a similar
property being used -as set forth herein, with such additional uses as may be located on the
Premises as may be permitted by the Lease, would bring in a competitive and open market, the
buyer and seller each acting prudently, knowledgeably, and assuming the sales price is not
affected by undue stimulusimplicit in this definition is consummation of a sale of a specified
date under conditions whereby:
(i) Buyer and seller are typically motivated;
(ii) Both parties are well-informed or well-advised and acting in what
they consider,their own best interest;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of cash in U.S. dollars in terms of
financial arrangements comparable thereto; and
(v) The price represents the normal consideration for property being
sold under then current market conditions unaffected by special or creative financing or
concessions granted by anyone associated with sale.
(h) "Force Majeure" means any period of delay which arises from or through
Acts of God; strikes, lockouts, or labor difficulty; explosion, sabotage, accident, riot, or civil
commotion; act of war; fire or other casualty; legal requirements; delays caused by the other
party; and causes beyond the reasonable control of a party.
(i) "Gross Sales" means the entire amount, actually collected by Tenant and
Subtenants, of the sales price, whether for cash, credit, credit cards or otherwise, of all sales of
food, liquor, merchandise or services, advertising and sponsorships, delivery charges and all
other receipts whatsoever of all retail and wholesale business conducted in or from the Premises
by Tenant and Subtenants, including, without limitation, mail, catalogue, internet 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. Gross Sales shall further include any and all amounts received
by Tenant from a valet parking concession.
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If a sale is by credit card no deduction shall be allowed for any commission
associated with such -sale. A "sale" shall be deemed to have been consummated for the purposehbe
all
of this Lease, and the entire amount of sales price collected by Tenant and Subtenants,books
included in Gross Sales, at such time that (i) the transaction is initially reflected in the or
records of Tenant or Subtenant(s), or (ii) Tenant or Subtenant(s) receives all or any portion of the
sales price, or (iii) the applicable goods or services are delivered to the customer and payment is
made to Tenant or Subtenants, 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 po
rtion 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, unless generally offered to employees or the public on a uniform basis.
The term "Gross Sales" shall not include:
(i) direct or indirect discounts or other reductions on sales to employees;
(ii) any sums collected and paid out by Tenant for any sales or excise tax imposed
by and accounted for by Tenant and/or Subtenants to any duly constituted
governmental authority;
(iii) the exchange of merchandise between the stores of Tenant, a party controlled
by Tenant, or Subtenants, 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;
(iv) the amount of returns to shippers or manufacturers;
(v) proceeds from the sale of trade fixtures, operating equipment or similar assets
after use thereof in the conduct of Tenant's and Subtenants' business on the
Premises;
(vi) the sales price, if Tenant sells part or all of the entire business;
(vii) all sums and credits received in settlement of claims for loss or damage to
merchandise;
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(viii) funds collected with regard to the Premises which are not actually related to
the day-to-day business of the Premises such as but not limited to the
financing of the Tenant's interest in the Premises;
(ix) sale or assignment of Leasehold Estate;
(x) collection of insurance proceeds;
(xi) collection of eminent domain proceeds;
(xii) monies collected for events that are done for charities wherein the total
amounts collected are paid to the charitable sponsor or not -for -profit
organizations;
(xiii) all gratuities paid to employees;
(xiv) amounts received by Tenant as reimbursements of expenses and cost sharing
(for example, reimbursement of taxes, insurance or utility bills);
(xv) any grants, subsidies, rebates, credits or similar benefits received by Tenant
or Subtenant from any federal, state, regional or local body, agency, authority,
department or organization;
(xvi) interest earned on Tenant's deposit accounts, earnings or profits on Tenant's
investments;
(xvii) interest income from Loans or credit facilities granted by Tenant and similar
passive or investment income of Tenant related to Tenant's liquid assets,
investments or loans/credit facilities granted by Tenant.
(xviii) rents paid to Tenant by any Subtenants where the City is collecting rent
based on a percentage of Subtenant's Gross Sales as provided in Section 10.1.
(xix) amounts received by a valet parking concessionaire when Tenant is
remitting the respective percentage due to Landlord as provided above.
Gross Sales shall be reduced by the amount of any refund made upon any sale in or from
the Premises, provided said amounts had been previously included in "Gross Sales," not to
exceed the sum so previously included, where the merchandise sold is thereafter returned by the
purchaser and accepted by the Tenant or Subtenants, and if such refund is in the form of a credit
to customer, such credit shall be included in Gross Sales when used.
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(j) "Impositions" means all governmental assessments, including assessments
imposed by the City;franchise fees, fire fees, excises, license and permit fees, levies, charges and
taxes, including ad valorem real estate taxes on the Premises and the Leasehold Improvements,
general and special, ordinary and extraordinary properly levied against the Premises and the
Leasehold Improvements and/or the Tenant's Leasehold Estate which constitute a lien on the
Premises or the Leasehold Improvements.
(k) "Lease Date" means the date this Lease Agreement is fully executed and
legally binding upon the Parties, only after approval by the City of Miami Commission and the
Emergency Financial Oversight Board.
(1)
"Leasehold Estate" means all of Tenant's right, title and interest as Tenant
in, to and under this Lease, the Premises and the Leasehold Improvements.
(m) "Leasehold Improvements" means a description of remodeling work to be
done to the physical plant as described in Exhibit "B" entitled "Schedule of Leasehold
Improvements" and all furnishings, fixtures, or equipment to be installed in accordance with
Section 5.1, and all other items and improvements installed or constructed thereafter, from time
to time during the Lease Term that are hereafter located upon the Premises.
(n) "Leasehold Mortgage" means a mortgage, deed of trust, or other
instrument which constitutes, or any security interest given in connection therewith, which
together constitute an encumbrance or lien upon the Tenant's Leasehold Estate or any part of it,
or any related personal property, and Tenant's interest in the Leasehold Improvements as security
for any loan.
(o) "Leasehold Mortgagee" means any holder of the Leasehold Mortgage or note
or notes secured by it, or any person to whom title to the Tenant's Leasehold Estate has been
transferred pursuant to foreclosure proceedings or any action in lieu of foreclosure.
(p) "Lease Term" means the period of time fixes in Section 3.1 and shall be
deemed to include the additional period of time fixed in Section 3.2 if Tenant exercises Tenant's
right to renew the Lease.
(q) "Lease Year" means twelve (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.
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(r) "Minimum Annual Rent Monthly Payment Commencement Date" means
the First day of the seventh (7') month of the Lease Term.
(s) "Net Condemnation Award" means the actual amount of the award paid in
connection with or arising from the acquisition or other taking of all or less than all of the
Premises, as the case may be, less all reasonable out-of-pocket expenses incurred by Landlord,
Tenant or any Leasehold Mortgagee in connection with obtaining such award, including, without
limitation, all reasonable attorneys' fees and disbursements incurred in connection therewith.
(t) "Net Insurance Proceeds" means the actual amount of insurance proceeds
paid following, an insured casualty to the Leasehold Improvements less all costs and expenses
including reasonable attorneys' fees incurred by the Tenant and/or Landlord with respect to the
collection thereof..
(u) "Parties" means the Landlord and Tenant.
(v) "Premises" means the land, building and improvements located at 1000
South Miami Avenue, Miami, Florida, as more particularly described in Section 2.1 herein.
(w) "Proposal" means the document received by the Landlord from Alamilla
and Associates, Inc. dated October 24, 1996, in response to the RFP, as such term is hereinafter
defined in Subsection (z).
(x) "Rent" means Minimum Annual Rent and Annual Percentage Rent, as
such amounts are described and fixed in Section 4.1.
(y) "Restaurant Operations" means all services associated with the
preparation, service and sale of food and beverages including alcoholic beverages, entertainment
(excluding adult entertainment), private banquets, catering, parties, cigar smoking, art shows,
happy hour and such other activities ancillary to the sale of food and beverage including sales of
merchandise related to the business conducted on the Premises.
(z) "RFP" means the document entitled Request for Proposals Fur The
Leasing Of City Owned Property For Restaurant Use Located At 1000 South Miami Avenue,
Miami Florida, issued by the City of Miami on July 25, 1996, a copy of which is available at the
City Clerks Office.
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(aa) "Sublease" means any lease (excluding this Lease), sublease, license,
concession or other agreement by which Tenant or any person or other entity claiming under
Tenant (including, without limitation, an assignee, a subtenant or sublicensee) demises, leases,
subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity
of any part of the Premises and Leasehold Improvements.
(bb) "Subtenants" means any person, firm, corporation or other legal entity
using or occupying or entitled to use or occupy any part of the Premises or the Leasehold
Improvements under a Sublease.
(cc) - "Tenant" has the meaning ascribed to it in the opening paragraph of this
Lease Agreement as well as Tenant's successors and/or assigns.
(dd) "Transferor" means the Owner who is transferring in accordance with
Article X herein.
ARTICLE II
LEASE OF PREMISES
Section 2.1 Lease of Premises.
The Landlord, for and in consideration of the foregoing premises and of the
covenants and agreements hereinafter contained to be performed and observed by the Parties, and
in- consideration of ten dollars and other good and valuable consideration paid by Tenant to
Landlord, the receipt and adequacy of which are hereby acknowledged, does hereby lease, let and
demise to the Tenant, and the Tenant hereby leases from the Landlord the Premises, subject to
the following terms and conditions, to have and to hold the said lands, tenements and
hereditaments, with all of the rights, privileges and appurtenances, thereunto belonging or
pertaining unto Tenant for the term herein specified, unless this Lease shall be sooner terminated
in a m. nner hereinafter provided. 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
Section 2.2 Purpose of Use and Occupancy.
The Tenant will use and occupy the Premises for Restaurant Operations and for
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no other purposes or uses of any kind.
Section 2.3 " Suitability of Premises.
Tenant acknowledges that neither the Landlord nor any of Landlord's officers,
representatives, or employees has made any representation or warranty with respect to the
Premises or with respect to the suitability or 'fitness of the Premises for the conduct of Tenant's
Restaurant Operations or for any other purpose, except as set forth in this Lease or in the RFP.
The execution of this Lease by Tenant shall establish that the Tenant accepts the condition of the
Premises "AS IS", subject to the representations set forth in Section 2.4 herein, the RFP or
elsewhere in this Lease.
. Section 2.4 Limited Representations by Landlord.
Landlord makes the following representations, covenants and warranties which
shall survive the execution of this Lease and the taking of possession of the Premises by the
Tenant:
(a) That Landlord has taken all requisite actions to make this Lease binding
upon the Landlord, and the Landlord is indefeasibly seized of marketable, fee simple title to the
Premises, and is the sole owner of and has good right, title and authority to convey and transfer
all property, rights and benefits which are the subject matter of this Lease, free and clear of all
liens and encumbrances but subject to the terms of that certain Deed of Easement recorded in
Official Records Book I4606, Page 4093.
(b) That no party except Tenant shall, on the Lease Date, be in or have any
right to possession of the Premises.
(c) That_there is on the Lease Date legal and physical ingress and egress to the
Premises from a paved public street for vehicular traffic and perpetual Iegal and physical ingress
and egress for pedestrian traffic.
(d) The Premises may be used and operated for the purpose set forth and as
contemplated by the RFP and this Lease; and there are no Applicable Laws, private restrictions
or other conditions which restrict or prevent the Premises from being used and operated for
Restaurant Operations on the Lease Date. Nothing herein shall be construed to imply that
Landlord herein warrants or represents that Tenant can obtain a liquor license.
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(e) That as of the Lease Date, there are no ad valorem real or personal
property taxes or assessments due and owing for the Premises for the year 1997 and all prior
years;
(f) All of the representations and warranties of Landlord contained in this
Lease Agreement shall continue to be true as of the Lease Date and said representations and
warranties shall be deemed to be restated and affirmed by Landlord as of the Lease Date without
the necessity of Landlord's execution of any document with regard thereto, and the Landlord's
liability (except with respect to the environmental condition of the Premises which is expressly
addressed in Article XII of this Lease) therefor shall survive the signing of this Lease Agreement.
Should any of the representations and warranties prove to be incorrect, it shall be Landlord's.
obligation to cure those warranties and representations which are set forth herein forthwith at
Landlord's expense.
Section 2.5 Possession.
On the Lease Date, the Landlord shall deliver possession of the Premises to
Tenant, free and clear of all leases, claims of possession, licenses and parties in possession.
Section 2.6 Existin Liens and Encumbrances.
Landlord shall satisfy or cancel of record all existing liens and encumbrances
affecting the Premises as of the Lease Date except as otherwise set forth in this Lease.
ARTICLE III
TERM
Section 3,1 Term of Lease.
The initial term of this Lease is for a period of fifteen (15) years, commencing on
the Lease Date. The terra of this Lease shall be extended to include any fraction of a calendar
month between the Lease Date and the first day of the first full calendar month thereof.
Section 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
the Tenant must
Terra" and the "Second Renewal Term"). To exercise the First Renewal Tenn,
give Landlord written notice not Tess than one hundred and eighty (180) days before the
expiration date of the Lease Term, and to exercise the Second Renewal Term,
give Landlord written notice not less than one hundred and eighty (180)
expiration date of the First Renewal Term. The First Renewal Term and the
Term will be on the same terms and conditions as the Lease Term, except that
adjusted as set forth in Section 4.6 below.
the Tenant must
days before the
Second Renewal
the Rent will be
ARTICLE IV
RENT
Section 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 Section 4.2 below and the adjustment, as set forth in Section 4.6 below, in the
event that Tenant exercises its right to renew, the Tenant agrees to pay to the Landlord the
following Rent for the Premises:
TABLE NO. 1
LEASE
YEAR
(column 1)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
MIMINUM
ANNUAL RENT
(column 2)
$ 57,375
$ 76,500
$ 76,500
$ 83,385
$ 83,385
$ 83,385
$ 90,890
$ 90,890
$ 90,890
$ 99,896
$ 99,896
$ 99,896
$107,896
$107,896
$107,896
ANNUAL BREAKPOINT
PERCENTAGE RENT
(column 3) (column 4)
plus 1 l% over $2,200,000
$2,200,000
plus 11% over $2,200,000
plus 11% over $2,400,000
plus 11% over $2,400,000
plus 11% over $2,400,000
$2,600,000
plus 11% over $2,600,000
plus 11% over $2,600,000
plus 11% over $2,850,000
plus 11% over $2,850,000
plus 11% over $2,850,000
plus 11% over $3,100,000
plus 11% over $3,100,000
plus 11% over $3,100,000
plus 11% over
plus 1113/0 over
* After adjustment in accordance with Section 4.2 below.
11
r G
Section 4.2 Payment of Minimum Annual Rent.
Landlord hereby acknowledges that in accordance with the provisions of the RFP,
the amount of the Minimum Annual Rent for the first six (6) months of the Lease Term, thirty-
eight thousand two hundred and fifty dollars ($38,250) shall be discounted by a fifty percent
(50%) reduction for the sole purpose of providing assistance to the Tenant for the initial
marketing plan and grand opening. Accordingly, simultaneously with the execution of this Lease
on the Lease Date, Tenant shall pay to Landlord the sum of nineteen thousand one hundred and
twenty-five dollars ($19,125), in the form of cash or its equivalent, which sum represents
prepayment of .the Minimum Annual Rent for the first six (6) months of the Lease Term (the
"Prepaid Rent"). 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 Section 21.4 of Article
XXI 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.
Section 4.3 Amount of Annual Percentage Rent.
In addition to the payment of the Minimum Annual Rent as provided for in
Section 4.1, Table No. 1, of this Article, Tenant shall pay to Landlord for each Lease Year of the
Lease Term, as Annual Percentage Rent, an amount equal to eleven percent (11%) multiplied by
the amount of Gross Sales during such Lease Year in excess of the Breakpoint for such Lease
Year as specifically set forth in Section 4.1, Table No. 1, column four (4).
Example: for Lease Year No. 1
0.11 x (Gross Sales - Breakpoint )
(of Year No.1 for Year No.1)
Example: Assume Gross Sales = $2,500,000
0.11 x ($2,500,000 - $2,200,000) =
0.11 (300,000) = $33,000 (Lease Year 1)
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Section 4.4 " Payment of Annual Percentage Rent Installments,
Commencing on the first Lease Year, and every Lease Year thereafter during the
Lease Term, the Tenant shall pay the Annual Percentage Rent in semi-annual installments on or
before the thirtieth (30t) day following the close of each six (6) month period. For the first
fractional 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 eleven percent (11 %) by the amount
of Gross Sales collected by Tenant during the preceding six (6) month period of the Lease Term
in excess of 50% of the dollar amount of the corresponding year Breakpoint as specifically set
forth in Section 4.1, Table No. 1, column four (4).
Example: Semi-annual Percentage Rent Installment for Lease Year No. 1
0.11 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 Section 21.4 of Article XXI 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 instIllment(s) of Rent due, as the case may be.
Section 4.5 Security Deposit.
Simultaneously with the execution of this Lease on the Lease Date Tenant shall
deposit with the Landlord, the sum of thirty eight thousand two hundred fifty dollars ($38,250)
(Security Deposit") in the form of cash or its equivalent which funds may be commingled by
13
Landlord with its other funds. No interest shall be paid on the Security Deposit. For so long as
the Security Deposit' has not been repaid by Landlord, it shall constitute an account payable by
Landlord to Tenant within thirty (30) days following termination of this Lease to the extent, if
any, that the Security Deposit has not been applied by Landlord as hereunder provided. If Tenant
shall default with respect to any covenant duty, or obligation of Tenant under this Lease, then the
Security Deposit or any part thereof may be applied by Landlord (but Landlord shall not be
obligated to do so) to the damages sustained by Landlord by reason of any such default or to
indebtedness owing by reason of any failure of Tenant to make any required monetary payment
under this Lease. No such application shall be construed as an agreement to limit the amount of
Landlord's claim or as a waiver of any damage or release of any indebtedness, and any claims of
Landlord under this Lease not recovered in full from the Security Deposit shall remain in full
force and effect. At any time or times when Landlord has made any such application of all or
any part of the Security Deposit, Landlord shall have the right (but not the obligation) at any time
thereafter to request in writing that Tenant pay to Landlord a sum or sums equal to the amounts
so applied by Landlord so that Landlord will always be in possession of a sum equal to the
amount of the Security Deposit stated above. Tenant shall make each such requested remittance
within ten (10) days following such request from Landlord and each such remittance received by
Landlord shall thereupon constitute a part of the Security Deposit subject to the terms and
provisions thereof. Failure to make any such requested remittance within such ten (10) day
period may be treated by Landlord as a failure by Tenant to make timely payment of rent and as
an Event of Default. In the event of any conveyance or other transfer of the Premises by the
Landlord, Landlord's remittance of the Security Deposit or any remaining portion thereof to the
purchaser of the Premises shall release and relieve Landlord of any further obligation or liability
to Tenant with respect to the Security Deposit.
Section 4.6 Rent Adjustrrent.
Prior to the date of the commencement of the First Renewal Terrn, 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:
14
(a) Appraisals shall be made by two (2) independent business appraisers, each
having not less than ten (10) years experience in appraising Restaurant Operations. One to be
appointed by the Tenant and one to be appointed by the Landlord,
(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 to review the two appraisals and the findings
of the third appraiser so appointed shall be binding and conclusive on the Parties.
(c) . Each party shall be responsible for payment of the fees associated with the
appraiser appointed by it. In the event a third appraiser is required, the fee shall be paid 50/50 by
the Parties.
(d) If prior to the commencement of the First Renewal Term, the adjusted
Rent has not been determined by the independent appraisals, the Tenant shall continue to pay
Rent at the rate in effect for the last year of the Lease Term. When the Rent has been
determined, the Rent will be adjusted as provided retroactively to the commencement of the Firsta
Renewal Term and the Tenant shall pay to the Landlord with the next installment of Rent
t
the amount, if any, by which the Rent, 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 Tenn,
the adjusted
Rent has not been determined for any reason, the Tenant shall continue to pay Rent at the rate in
the Rent will be
effect for the First Renewal Term. When the Rent has been determined, and the Tenant
adjusted as provided retroactively to the commencement of the Second Renewal
, the
shall pay to the Landlord with the next installment of Rent due the amount, if by which
Rent, as adjusted, exceeds the Rent that has been paid by the Tenant for the retroactive by period.
Section 4.7 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,
15
4
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) sales reports off back office
systems fed from point of sale terminals, (ii) cash register tapes, including tapes from temporary
registers, if any, (iii) serially pre -numbered sales slips, (iv) the original records of all mail,
internet and telephone orders at and to the Premises, if any, (v) settlement report sheets of
transactions with any person conducting business in the Premise, if any, (vi) original records
indicating that merchandise returned by customers was purchased at the Premises by such
customers, (vii) memorandum receipts or other records of merchandise taken out on approval,
(viii) detailed original records of any exclusions or deductions from Gross Sales, (ix) sales tax
records, and (x) 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, 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 point of sale terminals, pollable, point of sales cash
register systems or such other point of sale equipment of a make and model mutually agreed to
by the Parties.
Section 4.8 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 Saks, as defined in Section l .1(d) of Article l 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
16
Sn
Rent, as set forth in Section 4.3, on such estimated Gross Sales. Within ninety (90) days after the
end of each Lease ' Year, Tenant shall also furnish to Landlord a financial report by an
independent certified public accountant (the "Annual Report"), showing in all reasonable detail
of 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 Lease Term 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 a default under
this Lease.
Section 4.9 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
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 Premises or
Tenant's main accounting office upon ten (10) days prior written notice from Landlord.
Section 4.I0 Audit.
(a) At its option, Landlord may at any time, upon ten (10) days, prior written
notice to Tenant, arrange for an auditor selected by Landlord to conduct a complete audit
(including a physical inventory) of the entire records and operations of Tenant and Subtenants
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 Section 4.9 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
17
11
Gross Sales is.at variance to the extent of five 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 ten percent (10%) 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. If
such audit shall disclose an overpayment, Landlord shall credit such overpayment towards the
next payment of Rent due. 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 accordance with this Section 4.10, 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 Section
4.7, 4.8, 4.9 and 4.10 hereof and such other materials provided by Tenant to Landlord's auditor
are inadequate, in the opinion of an independent CPA serving as 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 Minimum Annual Rent payable by
Tenant for the period in question. Landlord's exercise of the foregoing remedy shall in no way
limit or otherwis- 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.
IS
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Section 4.11 Lien for Rent.
The virhote amount of the Rent, Additional 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 t4 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 the rights of any Leasehold Mortgagee, and to the lien given by
Tenant in the purchase of any Leasehold Improvement or for the leasing or financing of personal
property, fixtures and equipment used by Tenant in the Premises during the Lease Term;
provided such Leasehold Mortgage has been obtained in compliance with the provisions of
Section 10.12 of this Lease.
ARTICLE V
LEASEHOLD IMPROVEMENTS
Section 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. 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 orequipment to be done or installed by Tenant affecting any structural, mechanical or
electrical part of the Premises (the "Plans"). Within ten (10) Business Days of receipt of the
Plans, the Landlord shall give Tenant written notice of either, Landlord's approval or Landlord's
disapproval setting forth the reasons therefor. In the event that Landlord disapproves the Plans,
the Tenant shall within ten (10) Business Days of receipt of the notice modify the Plans in
accordance with the reasons set forth in Landlord's disapproval notice. The modified Plans shall
be resubmitted to Landlord for Landlord's final review and approval.
19
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Tenant, at its sole cost and expense, shall complete construction, acquisition and
Leasehold Improvements as more fully described in Exhibit "B"
installation of the intit►a!
and
hereto and made a part hereof, and acquire and install the furnishings, lessf fixtures approval
attached g0 da s of Land p
equipment required for operation of the Premises within ninety (90)
than two hundred eighty
of the plans. Tenant hereby covenants that Tenant shall expend nocomplete the initial Leasehold
dollars ($283,560) to
three thousand five hundred sixty .nd
Improve
ments as described in Exhibit B, and shall expend no less than eighty three
three merit. thousand
U
seven
hundred twenty five dollars ($83,725) for the furnishings, fixtures andequipment.
on
completion of the construction, acquisition and installation of the Leasehold Improvements, and
merit, Tenant shall furnish to
acquisition and installation of the furnishings, fixtures and equip
Landlord copies of all receipts, releases and bill of sales in connection therewith.
Section 5.2 Pa merit and performance Bond. roves the plans for commencement
Within ten (10) days after the Landlord approves manent
and complet
ion of the canstruction, and the acquisition and installation of the per
event
Im rovements by the Tenant ( as described in Exhibit "B"attached), bu
Leasehold p
prior to the commencement of any construction, the Tenant shall, at Tenant's sole cost and
ond.
expens
e furnish the Landlord with a Construction Payment and Perfom'ance. Bond b a bonding
,
The Construction Payment and Performance Bond shall be
company be -approved -by
Landlord, in an amount equal to
one hundred percent
whieh-shall be -app
ois to construct the Leasehold Improvements described in Exhibit "B" naming
(100 /o) of the costs
eneral contractor, as the
the Landlord as the owner, and the Tenant or Tenant's with respect to any and all
guaranteeing the payment and performance of Tenant's obligations
construction work perta inin to the Leasehold Improvements, free of mechanic's or other liens.
S
The conditions of the Construction Payment and Performance Bond shall be to insure that t e
Tenant or Tenant's general contractor will:
ke payment to all claimants, as defined in §255.05
(i) promptly maor su lies, used directly or
Florida Statutes, 1995, supplying the Tenant with labor, materials, pp Improvements
indirectly by the Tenant in the prosecution of the work related to the Leasehold Imp
under this Lease; and
20
(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
(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 Construction 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 Construction
Payment and Performance Bond have been satisfactorily concluded, and by the issuance of a
certificate of occupancy. The form of the Construction Payment and Performance Bond shall be
approved by the City Manager.
Section 5.3 Contractor's 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 personal
injuries, death and property damage that may be asserted because of the construction, or the
acquisition or installation of the -Leasehold Improvements.
Section 5.4 Additional Consideration.
(a) The Landlord hereby, in consideration for the promises and covenants
contained in this Lease to be kept and performed by the Tenant, shall simultaneously with the
execution of this Lease on the Lease Date grant and convey unto the Tenant all furnishings,
fixtures and equipment listed in Exhibit "A", in its "as is" and "where is" condition.
(b) The Tenant hereby, in consideration of the granting of this Lease shall
upon termination or expiration of this Lease:
(i) grant and convey unto the Landlord, free and clear of all liens, title
to all Leasehold Improvements of a permanent character including but not limited to,
21
zK
refrigerators, stoves, freezers, hood systems, grills, dishwashers, sinks, kitchen work stations and
light fixtures, and
(ii) In addition to the Leasehold Improvements to be conveyed to
Landlord as referenced above, Tenant shall further grant to the Landlord the right to purchase
from the Tenant, all of Tenant's personal property added to or installed at the Premises by the
Tenant during the Lease Term, including all furnishings, and equipment 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 forty five (45) days prior to the expiration, or earlier termination
of the Lease Term, notifies the Tenant of its election.
. Section 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.
Section 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
22
4 I.
changes to the exterior of the Premises are approved by the City's Historic and Environmental
Preservation Board (fhe "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 corner of the Premises, or shall obtain the Board's waiver of such
requirement;
(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".
Section 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.
No approval by the City Manager of any Plans furnished under this Lease
pursuant to this Section shall relieve Tenant of any obligation it may have at law to file such
Plans with any department of the City or any other governmental authority having jurisdiction
over the issues; or to obtain any building or other permit or approval required by law. Tenant
acknowledges that any approval given by the City Manager pursuant to this Section shall not
constitute an opinion or agreement by the City that the Plans are structurally sufficient or in
compliance with any laws, codes or other applicable regulations.
ARTICLE VI
CONDUCT OF BUSINESS BY TENANT
Section 6.1 Use of Premises.
Upon completion of the Leasehold Improvements as provided in Section 5.1
hereof, Tenant shall occupy the Premises without delay, and covenants to continuously conduct
its permitted business therein throughout the Lease Term. Tenant shall use the Premises solely
for Restaurant Operations. Tenant shall not use, permit or suffer the use of the Premises for any
23
11
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.
Section 6.2 Operation of Tenant's Business.
At all times during the Lease Term, Tenant shall manage the 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 Force
Majeure. 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.
Section 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..
ARTICLE VII
MAINTENANCE, REPAIR AND ALTERATION OF PREMISES
Section 7. l 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
24
TV
provide, janitorial and custodian services, trash and garbage removal services, and any and all
other related servicei 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 the interior and exterior of the Premises 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 ingure a continuing quality of maintenance and appearance
and physical condition of the Premises commensurate with maintenance, health, and safety
standards established by the Landlord and Applicable Law.
• Section 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,
conduits and other equipment or facilities for supplying heat, light, power, hot and cold water
services, all drainage and waste pipes or facilities Ieading 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.
Section 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.
No approval by the City Manager of any changes or alterations shall relieve
Tenant of any obligation it may have at law to file the required documents with any department
of the City or any other governmental authority having jurisdict;on over the issues; or to obtain
any building or other permit or approval required by law. Tenant acknowledges that any
approval given by the City Manager pursuant to this Section shall not constitute an opinion or
agreement by the City that the changes or alterations are in compliance with any laws, codes or
other applicable regulations.
25
Z4
ARTICLE VIII
INSURANCE AND INDEMNITY
Section 8.1 Insurance on the Premises.
Beginning on the Lease 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 Tenant's as their
interests may appear, maintain the following insurance:
(a) "A11 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 (1 00%) 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. Deductibles for such insurance coverage shall not exceed ten thousand dollars
($ 10,000) for all perils and three percent (3%) of the insured value for wind, storm and hail. 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 five (5) years during the Lease Tenn 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 theappraised 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 as:d 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
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procure and deliver to the Landlord written confirmation from the insurer(s) evidencing the
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.
(c) 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 and any other mortgages which include the pledging of the
Leasehold Estate. The Landlord shall be named as a Toss payee.
Section 8.2 Other Insurance To Be Carried.
The Tenant shall also, at the Tenant's sole cost and 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 all claims, demands or actions, bodily injury, personal
injury, death or Premises damage occurring on the Premises, the limits of which shall not be less
than two million dollars (S2,000,000) per occurrence combined single limit for bodily injury and
Premises damage, with a maximum deductible of ten thousand dollars ($10,000). Tenant shall
further maintain an excess umbrella policy which limits shall not be less than a combined single
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limit of five million dollars ($5,000,000). Said insured amounts as provided above shall be
adjusted at 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 used 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 or decrease in the Consumer
Price Index from the Lease Date to the anniversary date in which the adjustment is to be made.
Only the Tenant shall be named as an insured. In no event shall the insurance limit ever be less
than five hundred thousand dollars ($500,000).
(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, which amended
insurance requirements shall be subject to the reasonable approval by Tenant, which approval
shall not be unreasonably withheld.
Section 8.3 Delivery of Insurance 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 Tess than thirty (30) days prior written
notice to the Landlord and all insured and beneficiaries of the policies shall contain waiver of
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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 satisfy any
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.
Section 8.4 Adjustment of Loss.
Subject to the requirements of any Leasehold Mortgagee, Net Insurance Proceeds
recovered on account of any damage or destruction by any casualty shall be made available for
the payment of the cost of the reconstruction, replacement or repairs. All of the Net 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) with an
escrow agent acceptable to the City Manager, 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 Net 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 sufficient 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 Net Insurance Proceeds is less than the cost of the required work, then Tenant shall
pay the excess cost; and if the amount of the Net Insurance Proceeds is greater than the cost of
the required work, then the excess shall be paid to and belong to the Tenant.
Section 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
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request by Landlord, Tenant shall provide photocopies of receipts showing the payment of
premium for all insurance policies required to be maintained by this Lease.
Section 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, Subtenants or concessionaires. In case Landlord shall be
made a party to any litigation commenced by or against Tenant covered by this indemnity
provision, 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.
Section 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.
Section 8.8 Release of Landlord.
The Tenant, and its Leasehold Mortgagees and assignees for and in consideration
of the leasing and the demise of the Premises to the Tenant hereby release, remise and discharge
the Landlord, its officers and employees, of and from all claims, demands, actions, whether in
law or in equity which may be filed or asserted by the Tenant, or its Leasehold Mortgagees, or its
assignees for or on account of improvements made and furniture, fixtures and equipment
installed in the Premises, and from any and all costs and expenses, of Tenant, its Leasehold
Mortgagees or its assignees in connection with this Lease, including, but not limited to the
development of the Premises and acquisition of the Leasehold Improvements, which may result
from a third party challenging the validity or legality of this transaction under the City Charter or
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Code or the laws of the State of Florida, or arising out of the award of this Lease Agreement, or
any subsequent assignment of this Lease by the Tenant or its assignees (the "Claim"). It is the
intent of the Parties that this provision shall control over any other provision in this Lease
Agreement and that notwithstanding any limited representations provided by Landlord under
Section 2.4 of this Lease Agreement, neither the Tenant, nor its Leasehold Mortgagees or
assignees shall seek to recover from the Landlord compensation for, or reimbursement of any
costs, losses, fees or expenses incurred by the Tenant, its Leasehold Mortgagees or its assignees,
including expenses incurred in connection with the acquisition of this Lease or the financing,
and/or installation of the Leasehold Improvements, or otherwise, as a result of any adverse
judgment'which may be entered or relief granted in connection with the Claim. The terms of this
provision shall expressly be made a part of any future assignment or mortgage of the Leasehold
Interest.
In the event a Claim is filed or asserted within forty (40) days of the Lease Date,
either party shall have the right to terminate this Lease and except as otherwise hereafter
provided in this paragraph, the Parties shall thereupon be relieved of any and all further
responsibility hereunder and neither Party shall have any further obligation under this Lease. In
the event of such termination, Landlord shall return the Security Deposit to the Tenant, without
interest. Landlord shall further prorate the Minimum Annual Rent due, without a discount, from
the Lease Date to the date of termination and shall refund to the Tenant the difference between
the pre -paid rent and the amount of rent due.
In the event a Claim is filed or asserted after the forty (40) day period has expired,
or in the event the Parties agree not to terminate this Lease as provided above, Landlord agrees
that it will defend against the Claim in good faith and with reasonable diligence. Tenant agrees
that it shall continue to comply with the terms and conditions of this Lease including the timely
performance of all construction obligations under this Lease, and the Claim shall not constaute
an Event of Force Majeure under this Lease.
Notwithstanding anything to the contrary in this Lease, in the event this Lease is
terminated as a result of a Claim within the first two years of the Lease Term, Tenant shall be
permitted to remove such movable trade fixtures installed as part of the initial Leasehold
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Improvements so long as same does not damage the Premises. Tenant shall not be permitted to
remove the equipment outlined in Exhibit "A" attached hereto and made a part hereof even if
same was reconditioned by Tenant.
ARTICLE IX
SERVICES AND UTILITIES
Section 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
ail 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 such
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.
Section 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 the Premises caused by or resulting
water, gas or electricity which may Ieak 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.
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ARTICLE X
TRANSFERS AND SUBLETTING
Section 10.1 Subleasing
(a) Tenant shall not, at any time during the term of this Lease, enter into any
Sublease, license, concession or permit agreement with respect to the Premises or any portion
thereof, nor permit any third party or parties other than Tenant, its authorized agents, employees,
invitees and visitors to occupy or use the Premises or any portion thereof, without first procuring
the prior written consent of Landlord's City Manager. Any such attempted Subleasing of the
Premises, without the Landlord's prior written consent, shall be void and of no force or effect
and shall not confer any interest or estate in the purported Subtenant, and shall constitute a
default under this Lease and the Landlord, at its election, may terminate this Lease. Under no
circumstances is Tenant allowed to Sublease more than twenty-five (25%) of the total square
footage of the buildings situated on the Premises.
The provisions of Subsection 10.1(b) constitute the sole means by which Tenant
may request Landlord's consent to a Sublease. The consent of Landlord shall not be
unreasonably withheld or delayed.
It is agreed that all terms and conditions of this Lease shall extend to and be binding
on all Subtenants as may be approved by Landlord and shall be for a period of time equal to or
less than the Lease Term. Tenant shall be liable for acts and omissions by any Subtenant
affecting this Lease. Landlord reserves the right to directly terminate the rights and interests of
any Subtenant under any Sublease for any cause for which Tenant's Leasehold Interest may be
terminated.
Tenant shall reimburse to Landlord, as Additional Rent, all costs and expenses,
including attorneys' fees, whcch Landlord incurs by reason of or in connection with a Sublease,
and all negotiations and actions with respect thereto, such Additional Rent to be due and payable
within thirty (30) days of receipt of a statement of such costs and expenses from Landlord.
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(b) Procedure for Sublease.
Should Tenant desire to enter into a Sublease, Tenant shall, in each instance, give
written notice of its intention to do so to Landlord's City Manager at least thirty (30) days prior
to the effective date of any such proposed Sublease, specifying in such notice the nature of such
proposed Sublease and the proposed date thereof and specifically identifying the proposed
Subtenant. Such notice shall be accompanied by a copy of the proposed Sublease, license,
concession or permit agreement and any other documents or financial information Landlord may
reasonably require in order to make a determination as to the 'suitability of the Subtenant. If
requested by Landlord, Tenant shall provide to Landlord copies of all Subleases and amendments
thereto Landlord shall, within twenty (20) days after its receipt of such notice of a proposed
Sublease from Tenant, by mailing written notice to Tenant of its intent to do so, either (i)
withhold consent to the Sublease, or (ii) consent to such Sublease upon the terms and subject to
the conditions provided for in this Article. Tenant acknowledges and agrees that the imposition
of the conditions described in this Article X as a condition of Landlord's consent is reasonable.
(c) Additional Consideration Payable to Landlord.
Except as provided below with respect to a valet concession, if Landlord gives
its consent to any Sublease, Tenant shall in consideration therefor include in Tenant's Gross
Sales the amount of Subtenant's Gross Sales which shall be listed separately on Tenant's Semi -
Annual Report. Subtenant's records shall be kept in accordance with Section 4.7. Additionally,
Landlord reserves the right to examine Subtenant's books and audit Subtenant's entire records in
accordance with Sections 4.9 and 4.10 of this Lease.
With respect to a valet concession, Tenant shall exercise its good faith effort to
collect a fee from the valet concessionaire. In the event Tenant is able to obtain such a fee,
Tenant shall include any and all amounts Tenant -eceives from the valet concessionaire in
Tenant's Gross Sales and Landlord shall receive Percentage Rent from Tenant pursuant to Article
IV.
The acceptance by Landlord of the payment of rent following any Sublease
prohibited by this Article shall not be deemed to be a consent by Landlord to any such Sublease
nor shall the same be deemed to be a waiver of any right or remedy of Landlord hereunder.
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or
Section 10.2 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) of Tenant's business or Leasehold Estate or any contract or agreement to do any of
the same;
(ii) any transfer of more than fifteen percent (15%) of the stock of
Tenant or of the stock of any Owner, other than an Owner whose shares are publicly traded, if
the transfer results in a transfer of more than fifteen percent (15%) of the beneficial ownership of
Tenant;
(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 fifteen percent (15%) 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
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.
Section 10.3 Transfers.
The Tenant recognizes that the operational experience of the Tenant as set forth in
the Proposal 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
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permitted pursuant to subparagraphs (a), (b) and (c) below, or as specifically approved pursuant
Section 10,14 below; no Transfer may be made, suffered or created by the Tenant, or any Owner
without the prior written consent of the City Manager which consent shall not be unreasonably
withheld or delayed. The City Manager, in his sole discretion, may, but shall- not be obligated to,
present any request for Transfer to the City Commission for its final approval. The following
Transfers shall be permitted hereunder:
(a) Any Transfer directly resulting from the foreclosure of Tenant's
Leasehold Estate 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 or is itself an Acceptable Operator;
(b) any Transfer to an Acceptable Operator consented to by the City
(c) the issuance of stock or stock options to Tenant's directors,
officers, or employees, provided the stock or stock options issued constitute, in the aggregate,
less than fifteen percent (15%) of the issued and outstanding stock of Tenant;
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 and 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.
Section 10.4 Notice of Transfer.
With respect to any Transfer which must be approved by the City Manager, 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
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to the requirements of this Lease) of any Transfer of which Tenant, or its officers shall have
knowledge, not less than thirty (30) 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 alter the date of Transfer. In the event the City Manager elects to exercise
his right under Section 10.3 to present any request for Transfer to the City Commission for its
approval, the City Manager shall use due diligence to present the request for Transfer to the City
Commission as soon as practicable and the time for performance by Landlord shall be reasonably
extended to provide sufficient time for presentation to the City Commission.
Section 10.5 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 beneficial 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 Section 10.5 shall not
be required to be furnished with respect to the shareholders of any Owner whose shares are
publicly traded.
Section 10.6 Effectuation of Permitted Transfers.
No Transfer of the nature described in Subsection 10.3(b) above shall be effective
unless and until:
(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
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(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 Leasehold
Mortgagee or 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). Nothing herein shall be
construed to relive or release the Tenant from liability for the performance of all of the
obligations of Tenant under this Lease, unless the Landlord in writing expressly provides for
such a release.
Section 10.7 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: (a) the net assets of the Transferor whose interest is being transferred
immediately prior to the Transfer; (b) the net assets of said Transferor on the Lease Date adjusted
for inflation; or (c) an amount reasonably necessary to discharge Tenant's remaining obligations
hereunder;
(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 an Acceptable Operator, or shall engage an Acceptable
Operator and shall have demonstrated recognized experience in successfully operating such a
business, including, without limitation, experience in successfully operating a similar quality
bus iness;
(iv) Such Transferee shall continue to operate the business conducted at
the Premises pursuant to all the provisions of this Lease;
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(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) 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 Iimitation,
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.
Section 10.8 Liability of Tenant.
If a Transferee does not meet all of the criteria set forth in Section 10.7, LandIord,'
at its sole option, may require Tenant or Owner transferring such interest to remain liable under
this Lease for the performance of all terms, including, but not limited to, payment of Rent due
under this Lease.
Section 10.9 Payment Upon Transfer or Sale of Tenant Business or Stock.
Tenant agrees to pay Landlord an amount equal to the greater of seven percent
(7%) of Net Sale Proceeds, as hereinafter defined, or four and one-half percent (4.5%) 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, or in
connection with the sale of fifteen percent (15%) or more of Tenant's stock (the "Transfer Fee")
No Transfer, which requires Landlord's consent shall be effective unless, upon execution of
Landlord' s consent to such Transfer, the Tenant pays to the Landlord the Transfer Fee. The
Tenant shall, pay to the Landlord the Transfer Fee at the time the Transfer becomes effective, or
in the case of the sale of Tenant's stock at the time the shares of stock are sold.
For purposes hereof, "Net Sale Proceeds" shall mean the net proceeds to Tenant,
or Owner transferring such interest, remaining after payment of (i) any Leasehold Mortgage or
other debt relating to the Premises as prorated proportionately to the interest being transferred;
and (ii) all reasonable costs and expenses of the sale or Transfer, including commissions, fees,
and closing costs.
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Section 10.10 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 same be deemed to be a waiver of any right or remedy of Landlord hereunder.
Section 10.11 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.
Section 10,12 Leasehold Mortgage.
(a) Notwithstanding the provisions set forth in Article X hereof regarding any
Transfers ( as defined in Section 10.2), but subject to the provisions of this Article X, (provided
that Landlord has not notified Tenant in writing that an Event of Default has occurred and has
not been cured); Tenant shall have the right during the Lease Term, to encumber the Tenant's
Leasehold Estate by Leasehold Mortgage, for the sole purpose of securing the financing of part
or the total construction, acquisition and installation costs of the Leasehold Improvements and/or
for the short-term or long-term financing or refinancing of any such Leasehold Improvements.
Notwithstanding anything to the contrary in this Section or in this Lease, it is
expressly agreed by and between the Landlord and the Tenant, and (by acceptance of a Leasehold
Mortgage) any Leasehold Mortgagee that the Tenant's right to place a Leasehold Mortgage
against the Tenant's Leasehold Estate is subject to the following:
(1) Review and approval by the City Manager of the mortgage
documents to ensure compliance with the conditions for mortgaging as set forth in Section 10.12
of this Lease. Tenant shall provide copies of all mortgage documents required for the City
Manager's review;
(ii) At the time the Leasehold Mortgage is made, the Tenant has not
been notified of any Event of Default under this Lease which remains uncured;
40
(iii) No Leasehold Mortgagee or anyone claiming by, through or under
the Leasehold Mortgage, shall , by virtue of it, acquire any greater rights in the Premises than the
Tenant has under this Lease;
(iv) The Leasehold Mortgage shall be expressly subject and
subordinate to all conditions and covenants of this Lease and to the rights of the Landlord;
(v) The Leasehold Mortgage shall expressly provide that the
Leasehold Mortgagee shall notify Landlord of default by Tenant under the Leasehold Mortgage
prior to commencing foreclosure proceedings;
(vi) The Landlord and any mortgagee of Landlord shall execute and
deliver to any Leasehold Mortgagee a non -disturbance agreement in form and substance
reasonably satisfactory to such Leasehold Mortgagee and Landlord;
(vii) That unless expressly prohibited by the provisions of this Article
X, any Leasehold Mortgage may be upon such terms and conditions as the Tenant and Leasehold
Mortgagee may agree.
(b) In no event may the amount of such financing or refinancing exceed eighty
percent (80%) of the total construction, acquisition and installation costs of the Leasehold
Improvements or eighty percent (80%) of the Fair Market Value of the Leasehold Estate,
whichever is greater. Tenant shall deliver to Landlord promptly after execution by Tenant a true
and verified copy of any Leasehold Mortgage, and/or any amendment, modification or extension
thereof, together with the name and address of the owner and holder thereof. Tenant may not
encumber Tenant's Leasehold Estate as security for any indebtedness of Tenant with respect to
any other business owned by the Tenant or any other property leased by the Tenant.
(c) During the continuance of any Leasehold Mortgage until such time as the
lien of any Leasehold Mortgage has been satisfied, provided that a true and verified copy of such
Leasehold Mortgage shall have been d' livered to the City Manager together with a written notice
of the name and address of the owner and holder thereof as provided in this Section 10.12:
(i) The City shall not agree to any mutual termination nor accept any
surrender of this Lease (except upon the expiration of the Lease Term), nor shall the City consent
to any material amendment or modification of this Lease, or waive any rights or consents it may
41
66
be entitled to pursuant to the terms hereof, without the prior written consent of Leasehold
Mortgagee, which consent shall not be unreasonably delayed or withheld.
(ii) Notwithstanding any default by Tenant in the performance or
observance of any covenant, condition or agreement of this Lease on the part of Tenant to be
performed or observed, -the City shall have no right to terminate this Lease even though an Event
of Default under this Lease shall have occurred and be continuing, unless and until the City
Manager shall have given Leasehold Mortgagee written notice of such Event of Default; and
Leasehold Mortgagee shall have failed to remedy such default or to acquire Tenant's Leasehold
Estate created hereby or to commence foreclosure or other appropriate proceedings in the nature
thereof, all as set forth in, and within the time specified by, this Article X.
(iii) Subject to the provisions of subparagraph (iv) immediately below,
Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination
of this Lease, to pay all of the Rent due hereunder, to provide any insurance, to pay any taxes and
make any other payments, to make any repairs and improvements, to continue to construct and
complete the Leasehold Improvements, and do any other act or thing required of Tenant
hereunder, and to do any act or thing which may be necessary and proper to be done in the
performance and observance of the covenants, conditions and agreements hereof to prevent the
termination of this Lease. All payments so made and all things so done and performed by
Leasehold Mortgagee shall be as effective to prevent a termination of this Lease as the same
would have been if made, done and performed by Tenant instead of by Leasehold Mortgagee.
(iv) If an Event of Default under this Lease occurs with respect to
payment of monies, Rent or Additional Rent, Leasehold Mortgagee shall have thirty (30) days
after receipt of notice from the City Manager setting forth the nature of such Event of Default, to
remedy same. If any Event of Default under this Lease occurs with respect to a non -monetary
issue, Leasehold Mortgagee shall have sixty (60) days after receipt of notice from the City
Manager setting forth the nature of such Event of Default, to remedy same and if the default is
such that possession of the Premises may be reasonably necessary to remedy the default,
Leasehold Mortgagee shall, within such sixty (60) day period, continence and diligently
prosecute a foreclosure action or such other proceeding as may be necessary to enable Leasehold
Mortgagee to obtain such possession; provided that (aa) Leasehold Mortgagee shall have fully
as
5!i
cured any default in the payment of any monetary obligations of Tenant under this Lease
including Rent and Additional Rent within such thirty (30) day period provided above, and shall
continue to pay currently such monetary obligations as and when the same are due; (bb)
Leasehold Mortgagee shall within six (6) months of the date that it takes possession of the
Premises employ an Acceptable Operator subject to approval by the City Manager, which
approval shall not be unreasonably withheld or delayed, for the continued management of the
Restaurant Operations, under the terms and conditions of this Lease; and (cc) Leasehold
Mortgagee shall have acquired Tenant's Leasehold Estate created hereby or commenced
foreclosure or other appropriate proceedings in the nature thereof within such sixty (60) day
period or prior thereto, and shall be diligently and continuously prosecuting any such
proceedings to completion. All rights of the City Manager to terminate this Lease as the result of
the occurrence of any such Event of Default shall be subject to and conditioned upon the City
Manager having first given Leasehold Mortgagee written notice of such Event of Default and
Leasehold Mortgagee having failed to remedy such default or acquire Tenant's Leasehold Estate
created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as
set forth in and within the time period specified by this subparagraph (iv).
(v) An Event of Default under this Lease which in the nature thereof
cannot be remedied by Leasehold Mortgagee shall be deemed to be remedied if: (aa) within sixty
(60) days after receiving written notice from the City Manager setting forth the nature of such
Event of Default, Leasehold Mortgagee shall have acquired Tenant's Leasehold Estate or
commenced foreclosure or other appropriate proceedings in the nature thereof; (bb) Leasehold
Mortgagee shall diligently and continuously prosecute any such proceedings to completion; (cc)
Leasehold Mortgagee, within such sixty (60) day period, shall have fully cured any default which
does not require possession of the Premises, and shall thereafter continue to faithfully perform all
such obligations which do not require possession of the Premises; (dd) Leasehold Mortgagee,
within thirty (30) days after receipt of the written notice from the City Manager, shall cure any
default in the payment of any monetary obligations of Tenant under this Lease and shall continue
to pay currently such monetary obligations as and when the same are due; and (ee) within six (6)
months after Leasehold Mortgagee shall have gained possession of the Premises, Leasehold
43
61
Mortgagee shall have employed an Acceptable Operator and shall continue to employ an
Acceptable Operator' throughout the Lease Term. process, or
(vi) If the Leasehold Mortgagee is prohibited by any P
injunction issued by any court, or by reason of any
action by any court having jurisdiction of any
bankruptcy, debtor re
habilitation or insolvency proceedings involving Tenant from commencing,
foreclosure or other appropriate proceedings in the nature thereof, the times
or prosecuting rosecuting such foreclosure or
specified in subparagraphs (iv) and (v) above for commencing or p
other proceeding shall be extended for the period of such prohibition; provided that Leasehold
ll have fully cured any default including a default in the payment of any monetary
Mortgagee sha
o
obligations of
Tenant under this Lease including Rent and Additional Rent, and shall continue td
tl such obligations as and when the same fall due, and provided that L
perform Curren y easeh
such prohibition.
shall dill ently attempt to remove any p sale thereunder,
whether by judicial proceedings or by
MortgageeS Mortgage or any
(vii) Foreclosure of a Leasehold sale contained in the Leasehold
virtue of any power of MBBvirtue or
ort a e, or any conveyance of the Leasehold Estate to Leasehold Mortgagee byin
lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the
or constitute a breach of any provision of, or a default under this Lease.
consent of the City Mortgagee, or
Upon such
foreclosure, sale or conveyance, the City shall recognize Leasehold Mortgagee
any other foreclosure sale purchaser, as Tenant hereunder, provided, that Leaseholdle oOperator
or any suc
h foreclosure sale purchaser shall employ or shall constitute an Accepts
of the date of such foreclosure, sale or conveyance, and shall continu be
within Six (6) monthsOperator shall
Acceptable Operator throughout the Lease Term. Said ceptable Op
employ an p withheld or
approval by the City Manager, which approval shall not be unreasonably
subject to app Mortgages or
er provided, that in the event there are two or more Leasehold or
delayed, Further,
sale purchasers (whether the same or different Leasehold Mortgages), the City Leaseholdl
foreclosure
or obligation whatsoever to determine the relative priorities of such rs
have no duty g
the rights of the different holders thereof and/or foreclosure sale purchasers.
Landlord
Mortgages or
(viii) Subject to the restrictions and limitations imposed on d and Tenant
Land/
the Charter of the City of Miami and the provisions of Section 10.13, to time any provision
by in this Lease by suitable amendment from time
shall cooperate in including
44
AV
which may be requested by any proposed Leasehold Mortgagee, or may otherwise be reasonably
necessary, to implement the provisions of this Section 10.12; provided, however, that any such
amendment shall not in any way affect the Lease Term.
Section 10.13 No Waiver of Tenant's Obligations or Landlord's Rights.
Nothing contained herein or in any Leasehold Mortgage shall be deemed or
construed to relieve Tenant from the full and faithful observance and performance of its
covenants, conditions and agreements contained herein, or from any liability for the non-
observance or non-performance thereof; or to require or provide for the subordination to the lien
of such Leasehold Mortgage of any estate, right, title or interest of the Landlord in or to this
Lease or Landlord's fee simple interest in the Premises. Nothing in this Lease Agreement shall
be deemed or construed as an agreement on the part of the Landlord to subordinate its fee simple
interest in the Premises to the lien of any Leasehold Mortgage placed on the Tenant's Leasehold
Estate.
Section 10.14 Transfer to Firehouse IV of Miami, Inc.
Notwithstanding anything to the contrary in this Article, no further consent or
approval by the Landlord is required in connection with the Transfer from Tenant to Firehouse
IV of Miami, Inc., nor is Tenant required to pay to Landlord the Transfer Fee as a condition of
such Transfer.
ARTICLE XI
COMPLIANCE WITH LAWS
Section 11.1 Compliance With Laws.
Tenant shall, at Tenant's sole cost and expense, comply with all regulations of all
Applicable Laws 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 Applicable Laws 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 for a period of three (3) years), defend and save Landlord
harmless from penalties, fines, costs, expenses, suits, claims, or damages resulting from Tenant's
45
co
failure to perform its obligations in this Section.
ARTICLE XII
ENVIRONMENTAL LIABILITY
Section 12.1 Definition of Terms. For purposes of this Article XII th
terms shall have the meaning attributed to them herein: the following
12.1.1 "Hazardous Materials" means any toxic or hazardous substance, or waste, and any other contaminant, pollutant or constituent thereof, whetheruidso material,
solid, sludge. and/or gaseous, including without limitation, chemicals compounds,
o o liquid, solid, semi -
petroleum products including crude oil and any fraction thereof, asbestos containing
matepestrials
or
other similar substances or materials which are regulated or controlled ng materials o
any federal, state or Local statutes, Iaws, ordinances, codes, rules, regulations,bY, under or pursuant to'
including, but not limited to, all Applicable Laws. orders or decrees
12.1.2 "Environmental Laws" shall include, but shall not be limited t
Comprehensive Environmental Response, °' theP s�, Compensation and Liability Act of 1980, as amended
by the Superfund Amendment and Reauthorization Act of 1986 "
seq. (hereinafter collectively "CERCLA (Sara ), 42 U.S.C. §9601, et
'�)► the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequentq Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 2 U.us and
§9601, et seq.; the Hazardous Material Transportation Act, 49 U.S.C, ,etse 42 U.S.C.
Water Act, as amended, 33 U.S.C. §1311, et seq.; the Clean§ I801, et seq., the Clean
q Air Act, as amended, 15 U.S.C.
§2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act ("FIF
U.S.C. § I36-I36y; the EmergencyPlanning enc and CoRA„), as amended, 7
Community Ri ht-to-Know 8 Act of I986
("EPCRTKA" or EPCRA"
), as amended, 42 U.S.C. §11001, et seq. (Title III of Sara); the
Occupational Safety and Health Act of 1970 ("OSHA"), as amended, 29 U,S.
any similar state statute, including without limitation Chapters 252,255 37 U.S.C.
,442, et seq.;
Statutes, as amended; and the regulations promulgated thereunder, and a 6'oy ther local
lFlawsa
regulations, including, but not limited to Chapter 24, Environmental Protection, oft local
Miami -Dade County, Florida, as all of the foregoing may be amended, modified, the Code of
superseded or replaced at anytime supplemented,
during the Term, that govern or relate to:
46
40
(i) The existence, cleanup and/or remedy of contamination of property;
(ii) - The protection of the environment from spilled, deposited or otherwise
emplaced contamination;
(iii) The control of hazardous or toxic substances or wastes; or
(iv) The use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Materials,
"Costs" shall mean all costs incurred in co �ene2r�.
12.1.3 0-n�.
any violations of any Environmental Laws and/or in connection'
contamination on the' Premises. - -'`� ,,✓` .� �'_ .
12.1.4 "Underground Storage Tanks" shall mean
petroleum underground storage tanks which may be located on the Premises as identified and
described in that certain Phase I environmental audit prepared by Clayton Environmental
Consultants, Clayton Project Number 23-98016.00.000 dated January 12, 1998 (hereinafter
referred to as the "USTs").
12.1.5 "Clean Up" shall mean any remediation and/or disposal of
Hazardous Materials at or from the Premises which is ordered by any federal, state, or local
environmental regulatory agency.
Section 12.2 Tenant's Environmental Covenant.
The Tenant shall not cause or permit any Hazardous Materials to be brought upon,
treated, stored, disposed of, discharged, released, produced, manufactured, generated, refined, or
used upon, about or beneath the Premises or any portion thereof by the Tenant, its agents,
employees, contractors, licensees, or invitees except as may be customarily used and required to
conduct Restaurant Operations.
Tenant shall not permit any activities on the Premises that would violate
Environmental Laws. If Tenant should breach this covenant, Tenant shall take all actions
necessary to comply with all Environmental Laws and shall, at Tenant's sole cost and expense,
perform any Clean Up. Tenant's obligation under this section shall survive the expiration or
earlier termination of this Lease for a period of one (1) year.
47
b1
Section 12.3 Representation by Landlord.
The Landlord represents and warrants that no lawsuits, claims, legal or
administrative, have been brought against Landlord, in connection with the environmental
condition of the Premises or the USTs as a result of the Landlord's or any prior tenant's use or
occupancy of the Premises, nor is Landlord aware of the existence of any Hazardous Materials
thereon, except as may be present in connection with the USTs and/or the asbestos containing
materials as expressly provided for herein.
Section 12.4 Landlord's Indemnification.
The Landlord hereby releases, discharges and agrees to hold harmless and defend the
Tenant and its assignees, from any and all liability which may result from the presence of the
USTs at the Premises. In the event that Tenant is required, as a result of enforcement action by a
local, state or federal agency, to remove, dispose of or abandon the USTs, then the Parties agree
that: (a) the Landlord shall undertake, at Landlord's sole cost and expense, the removal,
disposal of or abandonment of the USTs and shall restore the area to the same condition as
existed prior to such work taking place; or (b) the Tenant shall undertake the removal, disposal or
abandonment of the USTs including the restoration of the area provided that, subject to such
work being approved by the Landlord, and Landlord shall reimburse Tenant for all Costs
incurred by Tenant in connection with such work in the form of a Rent credit to Tenant rather
than actual cash contributions.
The indemnity provided in this Section 12.4 is subject to and limited by the
provisions of Section 768.28, Florida Statutes, and notwithstanding anything herein to the
contrary, nothing herein shall be deemed to constitute an obligation on the part of the Landlord to
hold harmless, defend or release Tenant from any liability arising out of a negligent act or
omission of the Tenant, its employees, contractors, agents or assignees.
Section 12.5 Tenant's Indemnification.
Tenant shall indemnify, protect, defend and hold Landlord free and harmless from
and against any and all suits, actions, claims, regulatory actions, liabilities, penalties, losses,
injuries, and expenses, including attorney's fees, resulting from the death or injury to any person,
destruction or damage to property, arising from or caused by the presence, in or about the
Premises, of any Hazardous Materials placed on or about the Premises by Tenant, or its agents,
as
i2
employees or assignees, or at Tenant's direction, or by Tenant's failure to comply with all
applicable Environmental Laws,
Section 12.6 Asbestos.
The Tenant acknowledges that prior to the Lease Date, the Tenant has undertaken
an environmental site assessment of the Premises and accordingly, the Tenant knows that there
may be asbestos containing materials ("ACM") in the form of ceiling tiles, plaster walls and
roofing material. The Tenant shall, at Tenant's sole cost and expense, Clean Up any such ACM
in the event that as a result of building renovations or modifications such ACM becomes friable.
Section 12.7 . Survival of Tenant's and Landlord's Obligations.
The respective rights and obligations of Landlord and Tenant under this Article
XII shall survive the expiration or termination of this Lease for a period of one (1) year.
ARTICLE XIII
DAMAGE OR DESTRUCTION OF PREMISES
Section 13.1 Definitions. For the purposes of this Article XIII, the following words
shall have the meanings attributed to them in this Section 13,1:
(a)
(b)
Section 13.2
In the
"Completely Destroyed" means the destruction of the safe, tenantable use
or occupancy of a substantial portion of the Premises under this Lease
which damage cannot reasonably be repaired, restored or replaced within
one hundred and eighty (180) calendar days from the date on which the
damage occurred.
"Partial Destruction" means any damage to the Premises which damage
can reasonably be repaired, restored or replaced within one hundred eighty
(180) calendar days from the date on which the damage occurred.
Tenant's Duty to Repair, Restore or Replace the Premises After Damage.
event of damage by fire or otherwise of the Premises including any
machinery, fixtures or equipment which are a part of the Premises, the Parties agree as follows:
(i) In the event of Partial Destruction, within sixty (60) calendar days
of the damage (subject to reasonable delay and/or Force Majeure), the Tenant shall use the Net
49
(r3
Insurance Proceeds available for that purpose, together with Tenants own funds (if the Net
within one
Insurance Proceeds are insufficient) to commence and diligently pursueb'to completion (subject to reasonable
hundred eighty (180) calendar days from the date the damage occurred (suJ
extension and/or Force Majeure), the repair, restoration or replacement of the damaged or
Y destroyed portion of the Premises (the "Restoration Work"), and this Lease shall remain in full
force and effect, with no abatement in Rent. time
(ii) In the event the Premises are Completely Destroyed at any
during Lease Years one (1) through eighteen (18) of the Lease Term, and in Lease Years
nineteen (19). through twenty-two (22), if the second option has been exercised, within sixty y (b'
0)
days of the damage, the Tenant, in its sole discretion, shall have the option (a) at the Tenants
sole cost and expense, (together with Net Insurance Proceeds available for that purpose),
commence and diligently pursue to completion the Restoration Work, in accordance with the
provisions of Section 13.3 below, and Tenant shall complete the Restoration Work within twelve
and
effect
(12) months from the date the damage occurred and this Lease shall remain in full fore with no abatement in Rent, or (b) to elect not to undertake the Restoration Work b y
,
providingwritten notice to Landlord and in which event this Lease shall terminate, and the
o
Tenant shall, at the Tenant's sole cost and expense, (but using along with the Tenant's ises o
purpose) deliver possession of the
funds, Net Insurance Proceeds available for that Pw'p ) shall each be released thereby from
Landlord free and clear of all debris and Landlord and Tenant date of such termination, except
any further obligations hereunder accruing after the effective
that such release shall not apply (aa) to any Rent or Additional Rent or other sums accrued or due
(bb) Tenant's obligations regarding surrender of the Premises including the removal of debris,
and (cc) environmental liability as provided for in Article XII.
(iii) In the event the Premises are Completely Destroyed at any
time
n Lease Years nineteen ;19) or twenty (20), if the second option has not been exercised, and
during either
twenty-three (23 ), twenty-four (24) and twenty-five (25),
at any time during- Lease Years loin
Party, in its sole discretion, shall have the right to terminate this Lease Agreement bye In
g
written notice to the other Party within ninety (90) days from the date the damage o t s sole cost
the Tenant shall, at the T
the event this Lease is terminated as provided above, Net Insurance Proceeds available for
and expense, (but using along with the Tenant's own funds,
50
that purpose) deliver possession of the Premises to Landlord free and clear of all debris and
Landlord and Tenant shall each be released thereby from any further obligations hereunder
accruing after the effective date of such termination, except that such release shall not apply (aa)
to any Rent or Additional Rent or other sums accrued or due (bb) Tenant's obligations regarding
surrender of the Premises including the removal of debris, and (cc) environmental liability as
provided for in Article XII.
Section 13.3 Performance of Restoration Work.
In the event Tenant undertakes any Restoration Work in accordance with the
provisions of this Article, such Restoration Work by Tenant shall be substantially as possible to
the condition that existed immediately prior to the damage, and shall be performed in accordance
with the provisions of Article V applicable to the construction of the initial Leasehold
Improvements. Landlord hereby acknowledges and agrees that Tenant's obligations hereunder
and the time periods set forth above are subject to Force Majeure, and reasonable extensions
based on the severity of the damage.
Section 13.4 No Right to Terminate.
Except for the Tenant's right to terminate this Lease Agreement in accordance
with the provisions of Subsections 13.2(ii)(b) and (iii), Tenant waives the provisions of any
statute, code or judicial decision which grants Tenant the right to terminate this Lease in the
event of damage or destruction of the Premises.
Section 13.5 Tenant's Right to Terminate.
If Tenant or Landlord elect to exercise the option given under Subsections 13.2(ii)
or (iii), respectively, to terminate this Lease, then any and all Net Insurance Proceeds paid for
damage or destruction of the Premises shall be applied as follows:
(i) First toward the reduction of the unpaid principal balance of any and all
obligations secured by a Leasehold Mortgage;
(ii) Second toward cost for debris removal; and
(iii) The balance of the proceeds, if any, after payment of any Rent and/or
Additional Rent due, shall be paid to the Parties as their respective interests may then appear.
5I
G4
Section 13.6 Payment for Construction of the Restoration Work.
Subject to any requirements of a Leasehold Mortgagee, all Net Insurance
Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work
(pursuant to this Article and Section 8.4) to restore the Premises. The Net Insurance Proceeds
shall be paid out, the Restoration Work shall be performed, and the Tenant shall make additional
deposits with an escrow agent, if any are required, all in accordance with Section 8.4, as may be
applicable.
Section 13.7 Collection of Insurance Proceeds.
, The Landlord shall in no event be responsible for the non -collection of any
insurance proceeds under this Lease Agreement but only for insurance money that shall come
into its hands.
Section 13.8 Unused Insurance Proceeds and Deposits.
In the event any Net Insurance Proceeds or sums deposited with an escrow agent
or Landlord in connection with the Restoration Work shall remain in the hands of an escrow
agent or the Landlord, if the Parties have agreed to allow the Landlord to hold the insurance
proceeds until completion of the Restoration Work, and if the Tenant shall not then be in default
under this Lease Agreement in respect of any matter or thing of which notice of default has been
served on the Tenant, then the remaining funds shall be applied first towards any unpaid Rent,
and the balance paid to the Tenant.
ARTICLE XIV
EMINENT DOMAIN
Section 14.1 Total Condemnation.
[n the event that all of the Premises (or such portion thereof as shall, in the good
faith opinion of Landlord or Tenant, render it economically unfeasible to effect restoration
thereof for its intended purpose) shall be taken for any public purpose by the right of
condemnation, the exercise of the power of eminent domain or shall be conveyed by the
Landlord and Tenant acting jointly to avoid proceedings of such taking, the Rent and money to
be treated as Additional Rent pursuant to this Lease shall be prorated and paid by the Tenant to
the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate and become null
52
Li
and void as of the Date of Taking or such conveyance; and the amount of damages resulting to
Landlord and Tenant, respectively, and to their respective interests in and to the Premises, the
Leasehold Improvements, and in connection with this Lease, shall be separately determined and
computed by the court having jurisdiction and separate awards and judgments with respect to
damages to Landlord and Tenant, respectively, and to each of their respective interests, shall be
made and entered.
In the event that a court shall make a single Net Condemnation Award without
separately determining the respective interests of Landlord and Tenant,and if Landlord and
Tenant. shall not agree in writing as to their respective portions of an award within twenty (20)
days .after the date of the final determination by the court of the amount of it, Landlord and
Tenant agree to submit the matter to the court on stipulation for the purpose of a judgment
determinative of their respective shares. In the event for any reason the trial judge refuses to
permit a determination by judgment, then the respective interests of Landlord and Tenant shall be
determined by arbitration under the provisions set forth in Section 16.7 of this Lease. In any
event, the Landlord shall be entitled to receive its reversionary interest in the Premises and
Leasehold Improvements and Landlord's present value of Rent and Additional Rent due under
the terms of the Lease Agreement. Tenant shall be entitled to the then value of its Leasehold
Estate and the Leasehold Improvements which a buyer willing but not obligated to buy, would
pay therefore in an arms length transaction. In no event shall Tenant be entitled to compensation
for any fee simple ownership interest in the Premises at the time of condemnation.
Section 14.2 Partial Condemnation.
(a) In the event less than all of the Premises shall be taken for any public use
or purpose by the right or the exercise of the power of eminent domain, or shall be conveyed by
the Landlord and Tenant acting jointly to avoid proceedings of such taking, and Tenant shall be
of the good faith opinion that it is economically feasible to effect restoration thereof, then this
Lease and all the covenants, conditions and provisions hereunder shall be and remain in full force
and effect as to all of the Premises not so taken or conveyed (except as provided. in Section 14.3).
Tenant shall to the extent the proceeds of the Net Condemnation Award are made available to it,
pursuant to the terms hereof, remodel, repair and restore the Premises so that it shall be
53
comparable to the Premises prior to the condemnation, taking into consideration the fact of the
condemnation; provided, however, that in so doing, Tenant shall not be required to expend more
than the amount of any Net Condemnation Award actually received by Tenant.
(b) The Net Condemnation Award allowed to Landlord and Tenant shall be
paid to and received by the Parties as follows:
(i) There shall be paid to the Landlord the value of the portion of the
land so taken and Landlord's reversionary interest in the improvements so taken , which land and
reversionary improvements shall be valued as if unencumbered. Landlord shall further be paid
an amount by which Landlord's Rent and Additional Rent have been reduced by the taking;
(ii) There shall be paid to the Tenant any amount by which Tenant's
profits and value of Tenant's interest in the Lease Agreement and the Premises have been
reduced by the taking after any payment required by the Lease Agreement;
(iii) There shall be paid to the Tenant the amount required to complete
the remodeling and repairs to the Premises pursuant to (a) above;
(iv) The Landlord and Tenant shall be paid portions of the balance of
the Net Condemnation Award or awards, if any, which are allocable to and represented by the
value of their respective interest in the Premises as found by the court in its condemnation award.
In the event that a court shall make a single Net Condemnation Award without separately
determining the respective interests of Landlord and Tenant, and if Landlord and Tenant shall not
agree in writing as to their respective portions of such award within twenty (20) days after the
date of the final determination by the court of the arnount of it, Landlord and Tenant agree to
submit the matter to the court on stipulation for the purpose of a judgment determinative of their
respective shares. In the event for any reason the trial judge refuses to permit a determination by
judgment, then the respective interests of Landlord and Tenant shall be determined by the
arbitration provisions set forth under Section 16.7 of this Lease.
Section 14.3. Adjustment of Rent Upon Partial Taking.
In the event a part of the Premises shall be taken for any public use or purpose by
the exercise of the power of eminent domain, or shall be conveyed by Landlord and Tenant
acting jointly to avoid proceedings of such taking, then Rent, and money to be treated as
Additional Rent pursuant to this Lease Agreement shall be paid by Tenant to the Date of Taking
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or conveyance in lieu thereof, and after such date the Rent for the remainder of the Premises shall
be reduced in the same proportion that Gross Sales have been reduced due to such taking
compared to the Gross Sales immediately prior to the taking.
Section 14.4. Deposit of Condemnation Award with Escrow Agent.
Unless the effect of a condemnation proceeding shall be to terminate this Lease
Agreement by operation of law or as provided in Section 14.2 above, and except as may be
provided in any Leasehold Mortgage to, or agreement with, any Leasehold Mortgagee described
in Article X above, any Net Condemnation Award made in respect to the Premises in a
condemnation proceeding shall be deposited with the Leasehold Mortgagee as escrow agent
(unless Leasehold Mortgagee refuses to act as such, in which ease the Landlord and Tenant shall
select a bank to serve as escrow agent) to be disbursed for the cost of restoring the Premises and
for other related purposes.
Section 14.5. Rights of Leasehold Mortgagee.
Landlord and Tenant shall not settle or compromise the amount or division of any
Net Condemnation Award in any condemnation proceeding without any Leasehold Mortgagee's
reasonable consent. Any Leasehold Mortgagee of Tenant shall be entitled to appear in any
condemnation proceedings and make claim for the share of any award to which Tenant is entitled
by the terms of this Article.
Section 14.6. Temporary Taking.
In the event that all or any portion of the Premises shall be taken by the right of
condemnation or the exercise of the power of eminent domain for governmental use or
occupancy for a temporary period, this Lease Agreement shall not terminate and Tenant shall
continue to perform and observe all of its obligations (including the obligation to pay Rent as
provided throughout this Lease Agreement) as though the temporary taking had not occurred
except only to the extent that it *nay be prevented from so doing by the terms of the order of the
authority which make the temporary taking or by the conditions resulting from the taking,
including the loss of its possession of all or any part of the Premises. In the event the taking for
governmental occupancy is for a period entirely within the term of this Lease Agreement, then
Tenant shall be entitled to receive the entire amount of any Net Condemnation Award made for
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the taking, whether paid by way of damages, Rent or otherwise. If the period of governmental
occupancy extends beyond the termination of the Lease Term, the Landlord shall only be entitled
to receive that portion of the Net Condemnation Award allocable to the period beyond the
termination of the Lease Term. The amount of any Net Condemnation Award payable to Tenant,
on account of a temporary taking of all or any part of the Leasehold Improvements, shall be
deemed a part of the Tenant's Leasehold Estate for all purposes in this Lease Agreement. If the
Net Condemnation Award does not separately determine the amount applicable to the taking of
the interest of the Landlord in this Lease Agreement and in the Leasehold Improvements and if
Landlord and Tenant.shall not agree in writing as to the proportion of the award so applicable to
the respective Parties, then Landlord and Tenant shall submit the matter to the court on
stipulation for the purpose of a judgment determinative of the interest of the Parties in
accordance with the terms of this Section 14.6. In the event for any reason the trial judge refuses
to permit a determination by judgment, then the respective interests of Landlord and Tenant shall
be determined by the arbitration provisions set forth under Section 16.7 of this Lease.
ARTICLE XV
PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
Section 15.1 Payment of Ad Valorem Taxes.
Tenant agrees that to the extent the Premises or any interest thereon is subject to
ad valorem taxation, Tenant, at its option, may enroll in the Dade County Ad Valorem Tax
Payment Plan.
Section 15.2 Payment of Impositions.
The Tenant agrees to pay or cause to be paid, as Additional Rent, all Impositions
before any fine, penalty or interest is added for nonpayment.
If by law any Imposition is payable or may, in the case of taxes, at the option of
the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of
the Imposition), the Tenant may pay the same (and any accrued interest on the unpaid balance of
the Imposition), in installments before any fine, penalty, interest or cost is added for the
nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the
taxing authority, a part of which period is included before the Lease Date and part of which is
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included after the Lease Date shall be adjusted as between the Landlord and the Tenant as of the
commencement of the Lease Term, so that the Tenant shall pay that portion of the Imposition
attributable to that part of the fiscal period included in the Lease Term, and the Landlord shall
pay the remainder, if applicable. Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is included within the Lease Term and a part of which is
included in a period of time after Lease Term shall be adjusted as between the Landlord and the
Tenant as of the termination of the Lease Term, so that the Tenant shall pay that proportion of
the Imposition attributable to that part of the fiscal period included in the term of this Lease, and
the Landlordshall pay the remainder, if applicable.
• Section 15.3 Proof of Payment.
The Tenant shall furnish to Landlord, within thirty (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.
Section 15.4 Tenant's Right to Contest Impositions.
Anything herein to the contrary notwithstanding, Tenant shall have and retain the
right to contest by legal proceedings, or in such other manner as it may deem suitable, any
Imposition, (including ad valorem tax on the Premises and the Leasehold Improvements), or any
valuation in connection therewith, without the consent of Landlord, even if the same ultimately
results in the payment of any interest, costs or penalties. Notwithstanding the above, if at any
time during the last Three (3) years of the Lease Term, Tenant shall contest an Imposition
(including ad valorem tax on the Premises and the Leasehold Improvements), Tenant may defer
payment of a contested item upon the condition that, before instituting any such proceedings,
Tenant shall furnish to Landlord, or to any mortgagee Landlord may designate, a surety company
bond, a cash deposit, or other security satisfactory to Landlord and such mortgagee, sufficient to
cover the amount of the contested item or items, securing payment of such contested items.
The legal proceedings herein referred to shall include appropriate proceedings to
review tax assessments and appeals from an order issued therein and appeals from any
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judgments, decrees or orders. Any such contest shall delay the time periods set forth in Section
15.2 above.
ARTICLE XVI
DEFAULT OF TENANT
Section 16.1 Tenant Default.
The occurrence of any one or more of the following events is deemed a "Tenant
Default":
(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) Except with respect to an event of Force Majeure, 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 and such petition is not dismissed within Thirty (30) days
from the fling thereof, or in the event Tenant is adjudged a 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
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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 personal property of Tenant brought on the Premises, or upon
the interest of Tenant in this Lease, and the same is not satisfied or dismissed within thirty (30)
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, or such longer period as is reasonably necessary to diligently cure such default.
Section 16.2 Remedies of Landlord.
(a) If any Tenant Default occurs, Landlord shall have the right after the
expiration of the applicable cure period, at the option of Landlord, to terminate this Lease upon
providing fifteen (15) days written notice if the default has not been cured by the expiration of
such fifteen (15) day period. An Event of Default shall be deemed to have occurred at the
expiration of such fifteen (15) day period if the default has not been cured by the expiration of
such fifteen (15) day period. 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 -letting 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 require Landlord to re-enter and re -let the Premises in any event. Landlord shall
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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 to 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 personal property
from the Premises and any personal property 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 care 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 notice of
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.
(f) 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,
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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.
'Section 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.
Section 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 dollars ($100), 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
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administrative charge to Tenant of twenty-five dollars ($25) 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.
-Section 16.5 Legal Expenses.
In the event that it shall become necessary for either Tenant or Landlord to
employ the services of an attorney to enforce any of their respective rights under this Lease or to
collect any sums due to them under this Lease or to remedy the breach of any covenant of this
Lease on the part of either party to be kept or performed, regardless of whether suit be brought or
not, either party shall pay to other such reasonable fees and costs as shall be charged by the
damaged parry's for such services. Should suit be brought for the recovery of possession of the
Premises, or for Rent or 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 at both the trial and appellate
level.
Section 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 aria' 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.
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Section 16.7 Arbitration.
(a) Request to Arbitrate. 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 enforcement of this Lease may be settled by arbitration. Either Party may
request to arbitrate by providing written notice to the other Party setting forth the nature of the
request to arbitrate. Within fifteen (15) days of receipt of such request to arbitrate, the other
Party shall respond as to its agreement or disagreement to arbitrate. Failure of the other Party to
respond shall be deemed denial of a request to arbitrate.
(b) . Procedures. In the event arbitration is agreed to, the following procedures
will govern any arbitration according to this Lease.
(i) Within ten (10) days of the Parties agreeing to arbitrate, each party
shall designate an arbitrator.
(ii) Within ten (10) days after the appointment of the two arbitrators,
the two arbitrators shall meet and appoint a third arbitrator which shall constitute the Arbitration
Panel.
(iii) Every member of the Arbitration Panel must be a member of the
American Arbitration Association (hereinafter referred to as a "Member"). In addition to the
foregoing criterion, each Member shall satisfy the following conditions: (i) no Member shall be
a person who is or has been an employee of either the Landlord or Tenant during the five (5) year
period immediately preceding his or her appointment; (ii) each Member shall be neutral and
independent of the Parties to this Lease; (iii) no Member shall be affiliated with either Parties'
auditors; and (iv) no Member shall have a conflict of interest with (including, without limitation,
any bias towards or against) a Party hereto.
(iv) If either party shall fail to designate a Member within ten (10) days
after receipt of the written notice from the other party, then such other party may request the
President of the Florida Chapter of the American Arbitration Association to designate a Member,
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who, when so designated, shall act in the same manner as if he had been the Member designated
by the party so failing to designate an arbitrator. 8
(v) If the two Members appointed by the. Parties are unable to agree
upon the third Member within ten (10) days from the Last date of designation, then upon the
request of either of the two (2) Members, or either Party, such third Member shall be designated
by the President of the Florida Chapter of the American Arbitration Association, who shall
appoint such third Member within ten (10) days of the request.
(vi) A hearing shall be commenced within thirty (30) days following
the selection of the 'Arbitration Panel. The Parties shall each make a good faith effort to
cooperate with each other in all respects in connection with the exchange of documents relevant
to the subject dispute. A court reporter shall make a transcript of the hearing. The Parties
the Arbitration Panel shall use their best efforts to conclude the hearing within ten (10)days. and
The Parties shall be entitled to such pre-trial discovery as they may agree, or as determinedby
the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses he
hearing, but not to call witnesses. The Arbitration Panel may t the
agreement of both Parties. The Arbitration Panel mayready �� continuances only by the
render a decision at the close of the
hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs,
shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no
Iaer than forty-five (45) days following the commencement of the hearing. The Arbitration
Panel shall render a determination within thirty (30) days from the conclusion of the hearing, and
in the event briefs are submitted, within thirty (30) days after receipt of said briefs. If no
determination is rendered within such time, unless the Parties agree otherwise, a new Arbitration
Panel shallbe selected as described above, but the new Arbitration Panel shall render a
determination solely upon review of the record of the hearing without a further hearing.
(vii) All actions, hearings and decisions of the Arbitration Panel shall be
conducted, based upon and in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. In determining any matter before them, the Arbitration Panel
shall apply the terms of this Lease Agreement, and shall not have the power to vary, modify or
reform any terms or provisions of the Lease Agreement in any respect. No Arbitrator is
authorized to make an award of punitive or exemplary damages. The Arbitration Panel shall
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afford a hearing to the Landlord and to the Tenant who shall each have the right to be represented
by counsel at such hearing and to call witnesses, and the right to submit evidence with the
privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a
place designated by the Arbitration Panel in Miami -Dade County, Florida.
(viii) The Arbitration Panel selected hereunder shall agree to observe the
Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration
Association and the American Bar Association, or any successor code. The decision of a
majority with respect to any matter referred to it under this Lease shall be final, binding and
conclusive on the Landlord and Tenant and enforceable in any court of competent jurisdiction.
Together with the determination, the Arbitration Panel shall provide a written explanation of the
basis for the determination. Each party shall pay the fees and expenses of the Member of the
Arbitration Panel designated by such party, such parry's counsel and witness fees, and one-half
(%A) of all expenses of the third Member of the Arbitration Panel. The decision of the Arbitration
Panel will be final, and may be enforced according to the laws of the State of Florida and
judgment upon the award rendered by the Arbitration Panel shall be entered in any Court having
jurisdiction thereof.
ARTICLE XVII
ACCESS BY LANDLORD
Section 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
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 any part thereof,
except as otherwise herein specifically provided.
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ARTICLE XVIII
DAMAGE TO TENANT'S PROPERTY
Section 18.1 Loss and Damage.
Unless caused by a negligent act or omission of 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 claims by Tenant's insurance carriers.
ARTICLE XIX
HOLDING OVER, SUCCESSORS
Section 19.1 Holding Over.
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 Percei„age 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
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payable by Tenant hereunder. Such tenancy shall be subject to al! 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.
Section 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
this 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 XX
MINORITY AND WOMEN PARTICIPATION AND EQUAL EMPLOYMENT
OPPORTUNITIES
Section 20.1 Minority and Women Participation.
The Tenant shall comply with the provisions set forth in The Minority and
Women Business Affairs and Procurement Program Ordinance of the City of Miami, as
amended, 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 "C" 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
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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
gender, race, color, place of birth, religion, national origin, sex, age, marital status, veteran and
disability status.
Section 20.2 Equal Employment Opportunities.
The Tenant agrees that during the Lease Term; (a) it will not discriminate against
any employee or applicant for employment because of race, creed, color, place of birth, religion,
national origin, sex, age, marital status, veteran and disability status and will take affirmative
action to assure .that applicants are employed and that employees are treated during employment
without regard to race, creed, color, place of birth, religion, national origin, sex, age, marital
status, veteran and disability status; (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 shall state that all qualified applicants will
receive consideration for employment 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 employment.
Section 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.
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ARTICLE XXI
MISCELLANEOUS
Section 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.
Section 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 Lease.
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 the Parties. This Lease 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.
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Section 21.3 Independent Parties
It is understood and agreed by the Parties hereto that this Lease does not create a
fiduciary or other relationship between Landlord and Tenant, other than Landlord and Tenant or
contracting parties, as applicable. Landlord and Tenant are and shall be independent contracting
parties and nothing in this Lease is intended to make either Party a general or special agent, joint
venturer, partner or employee of the other for any purpose.
Section 21.4 Notices.
Any notice by the Parties required to be given must be served by certified mail
return receipt. requested, or by hand delivery, addressed to Landlord or Tenant at:
. If to Landlord at:
City Manager
City of Miami
444 SW 2 Avenue, 10th Floor
Miami, Florida 33130
With a copy to:
City of Miami
Asset Management
444 SW 2 Avenue, Suite 325
Miami, Florida 33130
If to Tenant at:
Alamilla and Associates, Inc.
Carlos Alarnilla, President
c/o Carol and Associates, PA
201 S. Biscayne Boulevard, #2400
Miami, FL 33131
With a copy to:
Rasco, Reininger and Perez, PA
5700 Blue Lagoon Drive, Suite 700
Miami, FL 33126
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.
Section 21.5 Captions and Section Numbers.
The captions, section numbers, and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit, construe, or describe the
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scope or intent of such sections or articles of this Lease nor in any way affect this Lease.
Section 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.
Section 21.7 Estoppel Certificate.
Tenant agrees that it will, at any time and from time to time, within ten (10)
Business days following written notice by Landlord specifying that it is given pursuant to this'
Section, execute, acknowledge and deliver to Landlord a statement hi 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. 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 may be 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
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the date of such notice and, unless expressly consented to in writing by Landlord and, Tenant
shall still remain liable for the same.
Section 21.8 Recording.
Either party may record this Lease, or any memorandum or short form thereof.
Section 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
waivercat 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.
Section 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.
Section 21.11 No Discrimination.
It is 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, creed,
color, sex, age, national origin, ancestry, handicap ore disability of such person or group of
persons.
Section 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 shall be
determined in accordance with the laws of Florida and that all disputes arising hereunder shall be
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heard and decided in Miami -Dade County, Florida.
Section 21.13- Waiver of Counterclaims.
Tenant shalt not impose any counterclaim or counterclaims for damages 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.
• Section 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.
Section 21.15 Quiet Enjoyment.
Subject to the terms of this Lease, upon the observance by the Tenant hereunder
of all the terms, provisions, covenants and conditions impose dupon the Tenant, the Landlord
covenants to the Tenant that the Tenant shall peaceably and quietly hold, occupy and enjoy the
Premises for the Lease Term without any interruption, disturbance or hindrance by the Landlord,
its successors and assigns, or by persons claiming by, through or under the Landlord for the
Premises leased herein, or by persons with title superior to the Landlord, its successors and
assigns.
Section 21.16 Surrender of Possession.
Upon the expiration or earlier termination of the Lease pursuant .o the provisions
hereof, the Tenant shall deliver to the Landlord possession of the Premises in good repair and
condition, reasonable wear and tear excepted.
Section 21.17 Attomey's Fees.
In the event that legal action is taken by either party to enforce any of the
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provisions of this Lease, the prevailing party shall be entitled to reasonable attorne ' connection with any 'such action. ys fees in
Section 21.18 Joint and Several Liabili .
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sin this Lease
virtue of a Transfer assume the rights and obligations of the Tenant hereunder, Tenant, or by
each such individuals, corporations, the liability of
, partnerships or other business associations (or any
combination of two or more thereof) to pay Rent and perform all other obligations h shall be deemed to be joint and several, and all notices,paymentsB ereunder
and agreements given or made
by, with or to any one of such individuals, corporations, partnerships or
other business
associations (or any combination of two or more thereof) shall be deemed tob
have e
made by, with or all of them, been given or
Section 21.19 Third Party Beneficiary.
Nothing contained in this Lease shall be construed so as to confer upon an other
Ply the rights of third party benefci y
my except rights contained herein for the benefit of a
Leasehold Mortgagee.
Section 21.20 Radon.
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed
it
time. Levels of Radon that exceed Federal and State guidelines have been found in i n over
bur Florida, Additional information regarding Radon and Radon testing may be obtainedfrom ys r
county public health unit_ your
Section 21.21 No Liabili for Act of other P
Tenant shall not sign any contract, application for any license or permit or do
anything that may result in liability to the Landlord for any indebtedness or obligation of Te unless expressly provided herein or approved in writingWant'
by the Landlord. Except as expressly
authorized in writing, neither Landlord nor Tenant shall make any express or implied agreement,
warranties, guarantees or representations or incur any debt, or represent that their relatio other than Landlord and Tenant, unless otherwise agreed to herein for the mana a nsand
g meritt and
74
operation of the Premises and neither Landlord nor Tenant shall be obligated by or have any
liability under any agreements or representations made by the other that are not expressly
authorized as aforesaid. Landlord reserves the right, at its sole option, to refuse an agreement for
any Federal, State or local grants and loans when the acceptance of same by either Landlord or
Tenant may impose a hardship upon Landlord or include obligations which extend beyond the
Lease Term.
Section 21.22 Consents and Approvals.
Except as otherwise provided in Sections 16.7, I3.2(iii) and 21.21, the Landlord
agrees that whenever in this Lease the Landlord's consent or approval or act is required or
permitted, such consent, approval or act shall not be unreasonably withheld or delayed; and that
whenever in this Lease, the Landlord may request or require some act or thing of Tenant, such
request or requirement shall not be unreasonably withheld, conditioned or delayed. At all times
during the Lease Term, each Party shall conduct itself in a commercially reasonable manner
subject to the Landlord's obligations to protect its proprietary interests and carry out its
regulatory powers which shall be effected in a not unjustly discriminatory manner.
Section 21.23 Rights, Pdiviljes and Immunities; Covenants.
The Tenant shall have, and the Landlord shall fully cooperate in providing to the
tenant, for its use and enjoyment, all rights, privileges and immunities as shall from time to time
be granted or afforded by Federal, State or local law to restaurant operators or proprietors.
The Parties agree that each of the terms, covenants and conditions hereof agreed
to be observed or performed by each party shall constitute concurrent conditions of exchange.
Section 21.24 Approval by the Oversight Board. The State of Florida has appointed an
Emergency Financial Oversight Board (the "Oversight Board") 'Which is empowered to review
and approve all pending City of Miami contracts. As a result, contracts shall not be binding on
the Landlord until such time as they have been approved by the Oversight Board. Execution of
this Lease Agreement by the City Manager shall constitute evidence of its approval by the
Oversight Board.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, o
caused the same to be executed, as of the date and year, first above written. r have
ATTEST:
By:
Walter J. Foe
City Clerk
ATTEST:
By:
i t Name and
APPROVED AS TO INSURANCE
REQUIREMENTS:
By:
Mario Soldevilla
Risk Management Department
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LANDLORD:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
ose G="cia-Pedrosa
City Manager
TENANT:
Alamilla and Associates, Inc.
Print Name aid Title
APPROVED AS TO FORM AND
CORRECTNESS:
By:
dL
I C
J. el Edward Maxwell
terim City Attorne