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HomeMy WebLinkAboutCRA-R-13-0036 ExhibitLEASE AGREEMENT BETWEEN OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY AND 1401Group, LLC. FOR THE USE OF A CERTAIN PORTION OF THE PROPERTY LOCATED AT 1401 North Miami Avenue LEASE AGREEMENT This LEASE AGREEMENT ("Lease") is made as of the day of , 2013, ("Effective Date"), by and between the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY ("Lessor" or "CRA"), and 1401 Group, LLC., a Florida limited liability corporation ("Lessee"). The Lessor and Lessee, together 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: 1.1.1 "Additional Rent" means all additional sums, charges, or amounts of whatever nature to be paid by Lessee, not defined as Minimum Base Rent or monthly Percentage Rent, in accordance with the provisions of this Lease, whether or not such sums, charges or amounts are referred to as additional rent. 1.1.2 "Applicable Law" means all laws of the United States, Florida Statutes, City of Miami and Miami -Dade County ordinances, codes, rules, regulations, resolutions, orders, judgments, decrees and injunctions from courts having jurisdiction over the Property, rules, and requirements of State and local boards and agencies with jurisdiction over the Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Property or any part of it. 1.1.3 "Assignment" means the complete transfer of the rights and obligations of the Lessee under the Lease to a third party, whereupon the third party Assignee becomes the Lessee under the Lease and takes over all of the Property and the rent and other obligations associated with the Lease, thereby substituting the old tenant's rights and obligations. 1.1.4 "Assignee" means the third -party entity taking over the rights and obligations of the Lessee or assignor or owner of the Leasehold Estate. 1.1.5 "Minimum Base Rent" means the annual Minimum Base Rent due and payable by the Lessee on a monthly basis for the use of the subject Property and which commences at $80,000 per annum. 1.1.6 "Business Days" means Monday through Friday excluding legal holidays. 1.1.7 "Date of Taking" means the earlier of (i) the date on which actual possession of all or less than all of the Property, 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 less than all of the Property, as the case may be, has vested in any lawful power or authority pursuant to the provisions of Applicable Law. 1.1.8 "DEP" means the State of Florida Department of Environmental Protection. 1.1.9 "Effective Date" means the date this Lease is fully executed and legally binding upon the Parties. 1.1.10 "Executive Director" means the administrative head of the CRA, who is authorized to execute this Agreement and other documents included notices hereunder. 1.1.11 "Fair Market Rent" means the rent that a similar property being used as set forth herein, with such additional uses as may be located on the Property, would bring in a competitive and open market under all conditions requisite to an arm's length transaction, the parties each acting prudently, knowledgeably, and assuming the rent is not affected by undue stimulus. Implicit in this definition is consummation of an agreement as of a specified date under conditions whereby: (i) Both parties 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 2 (v) The rent represents the normal consideration for property leased, under the current market conditions unaffected by special or creative financing or concessions granted by anyone associated with the Lease. 1.1.12 "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. 1.1.13 "Gross Revenues" shall have the meaning described in Section 4.1.3 of the Lease. 1.1.14 "Impositions" means all governmental assessments, including assessments imposed by the City and the State of Florida, franchise fees, fire fees, excises, license and permit fees, submerged land fees, levies, charges, and taxes, including ad valorem real estate taxes on the Property and the Leasehold Estate, general and special, ordinary and extraordinary properly levied against the Property and the Leasehold Improvements and/or the Lessee's Leasehold Estate which constitute a lien on the Property or the Leasehold Improvements, due as a result of the Lessee use of the leasehold and/or due to the Lessee's operation of a commercial business on the Property. 1.1.15 "Leasehold Estate" means all of Lessee's right, title and interest as Lessee in, to and under this Lease, the Property and the Leasehold Improvements. 1.1.16 "Leasehold Improvements" means a description of the work to be done to the Property as described in Exhibit "A" entitled "Schedule of Leasehold Improvements" and all furnishings, fixtures, or equipment to be installed in accordance with Section 6.1, and all other items and improvements installed or constructed thereafter, from time to time during the Lease Term that are hereafter located upon the Property. 1.1.17 "Lease Term" means the period of time fixed in Section 3.1 and shall be deemed to include the additional period of time fixed in Section 3.2 if Lessee exercises Lessee's right to renew the Lease. 1.1.18 "Lease Year" means twelve (12) consecutive months commencing on the Effective Date. The first Lease Year shall begin on the Effective Date. Each succeeding Lease Year shall commence upon the anniversary date of the Effective Date. 1.1.19 "Lessee" has the meaning ascribed to it in the opening paragraph of this Lease as well as Lessee's successors and assigns. 1.1.20 "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 Property, as the case may be, less all reasonable out-of-pocket expenses incurred by Lessor or Lessee in connection with obtaining such award, including, without limitation, all reasonable attorneys' fees and disbursements incurred in connection therewith. 1.1.21 "Gross Insurance Proceeds" means the actual amount of insurance proceeds paid following an insured casualty to the Leasehold Improvements, without any deductions for the collection thereof. 1.1.22 "Net Sale Proceeds" shall mean the net proceeds to Lessee, or owner transferring such interest, (pursuant to Article XI herein), remaining after payment of (i) any other debt relating to the Property 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. 1.1.23 "Parties" means the Lessor and Lessee. 1.1.24 "Percentage Rent" means a percentage of Gross Revenues from Lessee's operations, which includes revenues from those operations, services or activities furnished by the Lessee and Sub- lessees that enter into agreements with Lessee to provide the activities or vending machines on the Property and collect payment directly from patrons or invitees to the site. 1.1.25 "Possession Date" means the date on which Lessee is entitled to possession of the Property. 1.1.26 "Project" means to the plan, design, renovate or redevelop, lease, manage and operate a restaurant facility. 1.1.27 "Property" means certain portions of the land, buildings and improvements located at 1401 North Miami Avenue, Miami, Florida, as more particularly described in Exhibit "B" attached herewith and incorporated herein by reference. 1.1.28 "Proposal" means the document received by the Lessor dated 1.1.29 "Rent" means Minimum Base Rent or Percentage Rent, as such amounts are described and 3 fixed in Section 4.1.1 and 4.1.3, and adjusted pursuant to the terms of Section 4.1.2 herein. 1.1.30 "Sublease" means any lease (excluding this Lease), sublease, license, concession, permit agreement, or other agreement by which Lessee or any person or other entity claiming under Lessee, demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Property and Leasehold Improvements. 1.1.31 "Subleasehold Estate Transfer" means any direct or indirect, voluntary or involuntary, sale, transfer, or assignment of any right, title or interest in and to any Sublease or any Subleasehold Estate. 1.1.32 "Sub -lessee" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Property or the Leasehold Improvements under a Sublease. 1.1.33 "Transferee" means the receiving entity of a transfer in accordance with Article XI herein. 1.1.34 "Transfer of Control" means any interest assignment which results in a change in voting and operational control of Lessee. 1.1.35 "Transferor" means the owner who is transferring in accordance with Article XI herein. ARTICLE 11 LEASE OF PROPERTY Section 2.1 Lease of Property. The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases from the Lessor the Property, subject to the terms and conditions in this Lease, to have and to hold the Property, with all of the rights, privileges and appurtenances, thereunto belonging or pertaining unto Lessee for the term herein specified, unless this Lease shall be sooner terminated in a manner hereinafter provided. Section 2.2 Purpose of Use and Occupancy. The Lessee will use and occupy the Property as a restaurant, and for no other purpose or use of any kind without first obtaining the permission of the Executive Director, which permission may be withheld or conditioned at the Executive Director's sole discretion. Section 2.3 Suitability of Property. Lessee acknowledges that neither the Lessor nor any of Lessor's officers, representatives, or employees has made any representation or warranty with respect to the Property or with respect to the suitability or fitness of the Property for the conduct of Lessee's restaurant operations or for any other purpose, except as set forth in this Lease. The execution of this Lease by Lessee shall establish that the Lessee accepts the condition of the Property "AS IS". Section 2.4 Limited Representations by Lessor. Lessor makes the following representations, covenants and warranties which shall survive the execution of this Lease and Lessee's taking of possession of the Property: (a) That Lessor has taken all requisite actions to make this Lease binding upon the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title to the Property, 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. (b) That no party except Lessee shall, on the Effective Date, be in or have any right to possession of the Property. (c) That there is on the Effective Date legal and physical ingress and egress to the Property from a paved public street for vehicular traffic and perpetual legal and physical ingress and egress for pedestrian traffic. (d) The Property may be used and operated only for the purpose set forth and as contemplated by this Lease; and there are no Applicable Laws, private restrictions or other conditions which restrict or prevent the Property from being used and operated for restaurant operations on the Effective Date. (e) All of the representations and warranties of Lessor contained in this Lease shall continue to be true as of the Effective Date and said representations and warranties shall be deemed to be restated and affirmed by Lessor as of the Effective Date without the necessity of Lessor's execution of any document with regard thereto, and the Lessor's liability (except with respect to the environmental condition of the Property which is expressly addressed in Article XII of this Lease) therefore, shall survive the signing of this Lease. Should any of the representations and warranties prove to be incorrect, it shall be Lessor's obligation to cure those warranties and representations which are set forth herein forthwith at Lessor's expense. 4 Section 2.5 Lease Execution. Lessee shall execute this Lease thirty (30) days after final CRA Board approval. ARTICLE 111 TERM Section 3.1 Term of Lease. This Lease shall commence on the Effective Date and expire on September 30, 2030, unless earlier terminated as provided in this Lease. ARTICLE IV RENT, FEES AND PAYMENTS Section 4.1 Amount of Rent. The Lessee covenants that, it shall pay to the Lessor as Rent for the Property, from eighteen (18) months after the Effective Date of the Lease forward continuously for the duration of the Lease Term, an amount equal to the greater of the Minimum Base Rent (as defined in Section 4.1.1) or Percentage Rent to the Lessor. 4.1.1 Minimum Base Rent. From and after eighteen months following the Effective Date, the Lessee shall pay to the Lessor, Minimum Base Rent payable in advance on the first day of each month in equal monthly installments. The Minimum Base Rent shall initially be $80,000 per annum. In Lease Years 5, 10 and 15, the Minimum Base Rent shall be adjusted according to minimum guaranteed rent established by an independent appraisal. The Lessee shall pay for the appraisal. Lessor shall select the appraisal company. In no event shall an appraisal result in a reduction in rent. 4.1.2 Consumer Price Index (CPI) Escalation. Lessee agrees that, except as provided in 4.1.1 above, the Minimum Base Rent shall be increased every year from the Lease Effective Date by any increase during the prior year in the consumer price index ("CPI"), which is 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 Tndex for All items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100. The CPI adjustment shall be hereinafter referred to as the "CPI Escalation". The CPI Escalation shall be capped at Ten (10%) Percent each time the CPI Escalation is made. The first CPI Escalation shall be at Lease Year 5, beginning on the first date of Lease Year 5 ("CPI Escalation Date"). The CPI Escalation of the Minimum Base Rent shall be equal to Minimum Base Rent in effect for the immediately preceding Lease Year plus the product of that Minimum Base Rent multiplied by the "CPI Percentage" (as defined below). The CPI Percentage shall equal the fraction (i) whose numerator equals the total of (a) the monthly Index published immediately prior to the anniversary date (or the nearest reported previous month), minus (b) the monthly Index published immediately prior to the anniversary date (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index as (b) above. If the Index is discontinued with no successor Index, Lessor shall select a comparable index. Lessor shall compute the CPI Escalations and send a notice, with calculations, to Lessee setting forth the adjusted Minimum Base Rent within sixty (60) days of the commencement of each CPT Escalation Date or as soon as such Index is available. In the event the Minimum Base Rent increases, Lessee shall pay to Lessor within thirty (30) days of receiving such notice, the Additional Rent owed for the months, which have elapsed in the current Lease Year. 4.1.3 Percentage Rent. Commencing eighteen months after the Effective Date and continuing throughout the Lease Term, the Percentage Rent shall be due and payable to the Lessor. Percentage Rent shall be equal to the combined Gross Revenues of the Lessee and any and all sub-lessee(s) for any preceding calendar month as follows: The Percentage Rent shall be an amount equal to 7% percent of the Gross Revenues from the restaurant. Commencing thirty six (36) months after the first payment of percentage rent, the percentage rent shall increase to 8'/2%. if there is any underpayment of Percentage Rent, Lessee shall pay the Lessor the amount of the deficiency within thirty (30) days of the Lessor receipt of the Percentage Rent payment. if the Percentage Rent is not paid after thirty (30) days, Lessee shall be charged a late payment fee in accordance with Section 16.4 until the amount of underpayment is paid in full. 4.1.4 Gross Revenues. 5 Gross Revenues shall include the entire amount of all revenues and percentages of revenues actually collected and received by the Lessee and its Sub -lessees or its Assignees and derived from the following sales sources, including without limitation: (i) all revenue from the commercial business and services Lessee and its Sub- lessees and/or Assignees) conduct on or from the Property; (ii) all revenue from sale of food, beverage, wine, beer, merchandise or services from the Property; (iii) all revenue derived from advertising and sponsorships conducted on the Property, including but not limited to, movie, television commercials, etc.; (iv) all amounts received from any catering food operations in any way conducted at or from the Property; (v) all amounts received from valet concession sales or parking valet services (not reported in (i) above); (vi) delivery charges; (vii) sales made or performed by means of mechanical or other vending sales and services devices or machines on the Property, including without limitation, pay telephones, vending machines, and entertainment devices both for cash and on credit, rendered in or upon the Property; (viii) all revenue received by Lessee in connection with the special events uses of the Property, any facility thereon, or any portion thereof for any period of time, including without limitation, banquets, parties, receptions held on or initiated from the Property; (ix) internet or telephone food/beverage orders received or filled at the Property, or procured from the Property by house -to -house or other canvassing, all deposits not refunded to purchasers, and orders taken, although said orders may be filled elsewhere, including proceeds of all video games; (x) all grants, subsidies, rebates, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are unrestricted or are to be used for general operating expenses; (xi) all donations and contributions received, the revenues of which are unrestricted or are to be used for general operating expenses; and (xii) and all other receipts whatsoever derived from other commercial operations conducted in or from the Property by the Lessee and its Sub -lessees (if any). Gross Revenues shall not include the following: (i) any sums collected and paid out by Lessee for any sales, use or excise tax imposed by any federal, state or governmental authority directly on sales and collected from customers and accounted for by Lessee and/or Sub -lessees, provided that the amount is added to the selling price therein and paid by the Lessee to such governmental authority; (ii) the exchange of merchandise between the stores of Lessee, a party controlled by Lessee, or Sub -lessees, if any, where such exchange of goods or merchandise is made solely for the convenient operation of the business of Lessee and not for the purpose of consummating a sale which has theretofore been made in or from the Property and/or for the purpose of depriving Lessor of the benefit of a sale which otherwise would be made in or from the Property; (iii) the amount of returns to shippers or manufacturers; (iv) proceeds from the sale of trade fixtures, operating equipment or similar assets after use thereof in the conduct of Lessee's and Sub -lessees' business on the Property; (v) all sums and credits received in settlement of claims for loss or damage to merchandise; (vi) funds collected with regard to the Property which are not actually related to the day-to-day business of the Property such as, but not limited to the financing of the Lessee's interest in the Property; (vii) collection of insurance proceeds; 6 (viii) collection of eminent domain proceeds; (ix) 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; (x) all gratuities paid to employees; (xi) amounts received by Lessee as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, insurance or utility bills); (xii) any grants, subsidies, rebates, credits or similar benefits received by Lessee or Sub -lessee from any federal, state, regional or local body, agency, authority, department or organization; (xiii) interest earned on Lessee's deposit accounts, earnings or profits on Lessee's investments; (xiv) interest income from loans or credit facilities granted by Lessee and similar passive or investment income of Lessee related to Lessee's liquid assets, investments or loans/credit facilities granted by Lessee; (xv) rents or percentage rents and commissions paid to Lessee by any Sub -lessees where the Lessor is collecting rent based on a percentage of Sub -lessee's Gross Revenues as provided in Section 10.1. (xvi) Amounts received by a valet parking concessionaire when Lessee is remitting the respective percentage due to Lessor as provided above. (xvii) Any restricted donations or contributions whose revenues are earmarked for capital expenditures, as approved by the Lessor, to the Property. 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 purpose of this Lease, and the entire amount of sales price collected by Lessee and Sub -lessees, shall be included in Gross Revenues, at such time that (i) the transaction is initially reflected in the books or records of Lessee or Sub-lessee(s); or (ii) Lessee or Sub-lessee(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 Lessee or Sub-lessee(s), whichever first occurs, irrespective of whether payment is made in installments, the sale is for cash or for credit, or otherwise, or all or any portion of the sale price has actually been paid at the time of inclusion in Gross Revenues 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. Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in the period the service was provided or sale took place. Payments received in advance are deferred and are recognized as revenue in the period the service is rendered or sale takes place. Grants shall be recorded as income during the period designated by the grants or when the Lessee has incurred expenditures in compliance with the restrictions of the grantor. If a sale is by credit card, no deduction shall be allowed for any commission associated with such sale. Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from the Property, provided said amounts had been previously included in "Gross Revenues," not to exceed the sum so previously included, where the merchandise sold is thereafter returned by the purchaser and accepted by the Lessee or Sub -lessees, and if such refund is in the form of a credit to customer, such credit shall be included in Gross Revenues when used. 4.1.5 Sales Tax. The Lessee shall be liable for the prevailing State of Florida Use Tax imposed on the amount of rent paid to Lessor under this Agreement, in the absence of an exemption or other reduction by the State of Florida. This Sales and Use Tax shall be payable to the Lessor when rent is due, and in turn, Lessor will remit the same, less any authorized handling deductions, if any, to the State. Said tax is applicable to the Minimum Base Rent payments, unless otherwise determined by the State of Florida. 4.1.6 Manner of Payment. Every 15th day of the calendar month, Lessee shall pay the Lessor the monthly Minimum Base Rent and the difference between the Minimum Base Rent and Percentage Rent, as applicable, along with the corresponding Gross Revenue Report for the preceding calendar month to the Lessor at the address noted below: Omni CRA 1401 North Miami Avenue Miami, Florida 33136 7 Lessee shall use a Gross Revenue Report, a sample of which is attached herewith and incorporated herein as Exhibit "D" to itemize any and all reportable Gross Revenues as described in Section 1.1.14 herein. Section 4.2 Security Deposit. Simultaneously with the execution of this Lease on the Effective Date, Lessee shall initially deposit with the Lessor, the sum of Forty Thousand Dollars ($40,000) ("Security Deposit"). The Security Deposit shall be adjusted in the manner described in Section 4.3.1 herein. No interest shall be paid on the Security Deposit. For so long as the Security Deposit has not been repaid by Lessor, it shall constitute an account payable by Lessor to Lessee within thirty (30) days following termination of this Lease to the extent, if any, that the Security Deposit has not been applied by Lessor as hereunder provided. If Lessee shall default with respect to any covenant duty, or obligation of Lessee under this Lease, then the Security Deposit or any part thereof may be applied by Lessor (but Lessor shall not be obligated to do so) to the damages sustained by Lessor by reason of any such default or to indebtedness owing by reason of any failure of Lessee to make any required monetary payment under this Lease. No such application shall be construed as an agreement to limit the amount of Lessor's claim or as a waiver of any damage or release of any indebtedness, and any claims of Lessor under this Lease not recovered in full from the Security Deposit shall remain in full force and effect. At any time or times when Lessor has made any such application of all or any part of the Security Deposit, Lessor shall have the right (but not the obligation) at any time thereafter to request in writing that Lessee pay to Lessor a sum or sums equal to the amounts so applied by Lessor so that Lessor will always be in possession of a sum equal to 50% of the annual Minimum Base Rent. Lessee shall make each such requested remittance within ten (10) days following such request from Lessor and each such remittance received by Lessor 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 Lessor as a failure by Lessee to make timely payment of rent and as an Event of Default. In the event of any conveyance or other transfer of the Property by the Lessor, Lessor's remittance of the Security Deposit or any remaining portion thereof to the purchaser of the Property shall release and relieve Lessor of any further obligation or liability to Lessee with respect to the Security Deposit. Section 4.3 Adjustments to Rent. 4.3.1 Adjustment to Security Deposit. The Security Deposit shall be adjusted according to the CPI Escalation on the CPI Escalation Dates, simultaneously with the CPI escalation of Minimum Base Rent ("Adjusted Security Deposit"). In the instance where the Lessor deducts any amount of the Security Deposit, the Security Deposit shall be replenished by the Lessee by the adjusted amount of the Security Deposit within fifteen (15) days of the drawdown of the Security Deposit. The Security Deposit must at all times be equal to the Adjusted Security Deposit for the Lease Year. 4.3.2 Appraisal Rent Adjustment. 4.3.2.1 Determination of Fair Market Rent. The Minimum Base Rent and Percentage Rent shall be evaluated no later than 90 days (90) days prior to Lease Years 5, and each successive year after that by an independent appraiser ("Scheduled Appraisal") to determine the current fair market values for Minimum Base Rent and Percentage Rent and the required adjustments to these values. 4.3.2.2 Appraisers. The Scheduled Appraisal shall be conducted by one (1) independent business appraiser who is a member of the American Institute of Real Estate Appraisers and who has not less than ten (10) years experience in appraising restaurant, cafe or food establishments. The Lessee shall pay for the appraisal. Lessor shall select the appraisal company. In no event shall an appraisal result in a reduction in the minimum rent. 4.3.2.3 Method. The appraiser shall proceed promptly to prepare an appraisal of the Property. The appraiser shall use the income and comparable approach to determine the fair market rental value. The appraiser, in his discretion, may dispense with formal hearings, it being agreed that his task will be solely that of appraisal. 4.3.2.4 Effect of Appraisal. 8 The fair market rent determined by the appraiser shall be binding and conclusive on the Lessor and the Lessee, except that in no event shall the fair market rent be adjusted below the Minimum Base Rent and the Percentage Rent from the current Lease Year. 4.3.2.5 Appraisal Fee. The Lessee shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the appraiser. 4.3.2.6 Delayed Appraisal. If the adjusted Rent has not been determined by independent appraisal, the Lessee shall continue to pay all Rent(s) and their respective increase(s), subject to the CPI Escalation as provided in Section 4.1.2 above. Following the determination of the Rent by independent appraisal, the Rent will be adjusted as provided retroactively to the commencement of the respective review Term and the Lessee shall pay to the Lessor with the next installment of Rent due, the amount, if any, by which the Rent, as adjusted, exceeds the Rent that has been paid by the Lessee for the retroactive period. 4.3.2.7 Appraisal Dispute. If the adjusted Rent has been determined by the independent appraisal but is disputed by Lessee and Lessee is unwilling to pay the adjusted Rent, then Lessee shall be deemed to be in default under Section 16.1(h) of the Lease. Section 4.4 Lessee's Records. Lessee shall prepare and keep full, complete and proper books and source documents in accordance with generally accepted accounting principles, of the Gross Revenues, whether for cash, credit or otherwise, of each separate department at any time operated in the Property. The books and source documents to be kept by Lessee 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 Property by Lessee. Pertinent original sales records shall include, without limitation: (i) sales reports of 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 Property, 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 Property 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 Revenues, (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 Lessee's sales. Lessee 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 Lessor and which shall possess such other features as shall be required by Lessor. Lessee 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 4.5 Reports by Lessee. Within ninety (90) days after the end of each Lease Year, Lessee shall also furnish to Lessor a financial report by an independent certified public accountant (the "Annual Report"), showing in all reasonable detail of the amount of such Gross Revenues made by Lessee from the Property during the preceding Lease Year. Lessee shall in all events furnish to Lessor within fifteen (15) days after the end of each month of the Lease Term a written statement of Gross Revenues covering the preceding month, the statement to be in such form and style and contain such details and breakdown as Lessor may reasonably require. Any intentional misstatement of Gross Revenues will constitute a default under this Lease. Section 4.6 Right to Examine Books. Notwithstanding the acceptance by Lessor of payments of Minimum Base Rent and Percentage Rent, Lessor 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 Property or Lessee's main accounting office, Lessee's books, source documents, accounts, records and sales tax reports filed with applicable government agencies by Lessee in order to verify the amount of Gross Revenues in and from the Property. For a period of three (3) 9 years after the expiration of each Lease Year, Lessee shall make all such documents and records available at the Property or Lessee's main accounting office upon ten (10) days prior written notice from Lessor. Section 4.7 Audit. (a) At its option, Lessor may at any time, upon ten (10) days, prior written notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit (including a physical inventory) of the entire records and operations of Lessee and Sub -lessee included in Gross Revenues from the Property during the period covered by any statement issued by Lessee. Lessee shall make available to the Lessor's auditor at the Property or Lessee's main accounting office on the day set forth in Lessor's notice, requiring such audit, all of the books, source documents, accounts and records referred to in this Lease and any other materials which such auditor deems necessary or desirable for the purpose of making such audit. Lessee shall promptly pay to Lessor the amount of any deficiency in Percentage Rent payments disclosed by any such audit. If such audit shall disclose that Lessee's statement of Gross Revenues is at variance to the extent of five percent (5%) or more, Lessor may bill to Lessee the cost of such audit, which shall be paid by Lessee within thirty (30) days after Lessee's receipt of Lessor's invoice. If such audit shall disclose that Lessee's statement of Gross Revenues is at variance to the extent of ten percent (10%) or more, then Lessor, in addition to the foregoing remedy and other remedies available to Lessor, shall have the option, upon Lessee's failure to pay such additional sums within thirty (30) days after written notice to the Lessee, 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 Lessee shall vacate and surrender the Property 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, Lessor shall credit such overpayment towards the next payment of Minimum Base Rent due. In addition to the foregoing, and in addition to all other remedies available to Lessor, in the event Lessee's auditor and Lessor's auditor shall schedule a date for an audit of Lessee's records in accordance with this Section 4.7, and Lessee shall fail to be available or shall otherwise fail to comply with the requirements for such audit, Lessee shall pay all costs and expenses associated with the canceled audit. (b) In addition to all other remedies available to Lessor, in the event that any such audit shall disclose that Lessee's records and other documents as referred to in Section 4.4, 4.5 and 4.6 hereof and such other materials provided by Lessee to Lessor's auditor are inadequate, in the opinion of an independent CPA serving as Lessor's auditor, to disclose accurately Lessee's Gross Revenues, then Lessee shall have thirty (30) days to cure any deficiencies raised by Lessor's auditor and shall then notify Lessor so that Lessor's auditor can continue its audit. If the audit findings show a greater than two percent (2%) or greater variance, said audit costs will be charged to the Lessee. Lessor's exercise of the foregoing remedy shall in no way limit or otherwise affect Lessor's ability to exercise other remedies available to it, nor shall Lessee's obligations pursuant to the terms, covenants and conditions of this Lease (including, without limitation, Lessee's obligation with respect to reporting Gross Revenues and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. Section 4.8 Lien for Rent. The whole 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 Lessee under the provisions of this Lease, and all costs, attorneys fees and other expenses which may be incurred by the Lessor in enforcing the provisions of this Lease, or on account of any delinquency of the Lessee in carrying out any of the provisions of this Lease, shall be and they are deemed to constitute a valid lien upon the Leasehold Improvements, and upon the Lessee's Leasehold Estate. ARTICLE V PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS Section 5.1 Payment of Taxes and Impositions Lessee shall pay before any fine, penalty, interest or costs is added for non-payment, any and all Impositions levied against the Property or against personal property of any kind, owned by or placed in, upon or about the Property by Lessee. Section 5.2 Installment Payments of Ad Valorem Taxes and Impositions 10 Lessee agrees that to the extent the Property or any interest thereon is subject to ad valorem taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad Valorem Tax Payment Plan. If by law, any taxes, assessments or other Impositions are 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 Lessee 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 Effective Date and part of which is included after the Effective Date shall be adjusted as between the Lessor and the Lessee as of the Effective Date of the Lease Term, so that the Lessee shall pay that portion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor 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 Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the term of this Lease, and the Lessor shall pay the remainder, if applicable. Section 5.3 Proof of Payment. The Lessee shall furnish to Lessor, within thirty (30) days after the date whenever any Imposition is payable by or in behalf of the Lessee, official receipts of the appropriate taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment. Section 5.4 Lessee's Right to Contest Impositions Anything herein to the contrary notwithstanding, Lessee shall have and retain the right to appeal or contest by legal proceedings, or in such other manner as it may deem suitable, any Imposition, or any valuation in connection therewith, without the consent of Lessor, even if the same ultimately results in the payment of any interest, costs or penalties. In the event that Lessee contests any Imposition, Lessee shall immediately notify the Executive Director or his/her authorized designee of its intention to appeal said Imposition. If at any time during the last three (3) years of the Lease Term, Lessee shall contest an Imposition, Lessee may defer payment of a contested item upon the condition that, before instituting any such proceedings, Lessee shall furnish and keep in effect a surety bond, cash deposit or other security satisfactory to the Executive Director or his/her designee in an amount sufficient to pay one hundred percent (100%) of the contested Imposition or assessment, with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. 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 judgments, decrees or orders. Any such contest shall delay the time periods set forth in Section 5.2 above. Lessor agrees to pay such Impositions in a lump sum payment or on an installment basis. Failure of the Lessee to pay such Impositions or assessments or any installment payment thereof shall constitute a default under this Agreement. ARTICLE VI LEASEHOLD IMPROVEMENTS Section 6.1 Lessee's Obligation to Provide and Fund Leasehold Improvements. Within ninety days (90) days of the Effective Date, Lessee, at its own cost and expense, shall submit to Lessor 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 Property, a depiction of all fixtures to be added to Property, interior and exterior finishes and material samples, typical display technique, interior and exterior signage plan, store front and any work or equipment to be done or installed by Lessee affecting any structural, mechanical or electrical part of the Property ("Plans"). Within ten (10) Business Days of receipt of the Plans, the Lessor shall give Lessee written notice of either, Lessor's approval or Lessor's disapproval setting forth the reasons therefore. in the event that Lessor disapproves the Plans, the Lessee shall within ten (10) Business Days of receipt of the notice modify the Plans in accordance with the reasons set forth in Lessor's disapproval notice. The modified Plans shall be resubmitted to Lessor for Lessor's final review and approval. The Leasehold Improvements shall be in substantially the same manner as initially proposed to Lessor, with an approximate value of $1,800,000. Lessee, at its sole cost and expense, shall complete construction and installation of the initial 11 Leasehold Improvements as more fully described in Exhibit "A" attached hereto and made a part hereof, and acquire and install the furnishings, fixtures and equipment required for operation of the Property within three hundred and sixty five (365) days from the receipt of all required permits for construction of the approved plans. Section 6.2 Payment and Performance Bond. Within ten (10) days after the Lessor approves the plans for commencement and completion of the construction, and the acquisition and installation of the permanent Leasehold Improvements by the Lessee (as described in Exhibit "A" attached), but in any event prior to the commencement of any construction, the Lessee shall, at Lessee's sole cost and expense, furnish the Lessor with a Payment and Performance Bond. The Payment and Performance Bond shall be issued by a bonding company which shall be approved by Lessor, in an amount equal to one hundred percent (100%) of the costs to construct the Leasehold Improvements, plus professional design fees, related to the preparation of the construction documents for the Leasehold Improvements described in Exhibit "A" naming the Lessor as the owner/obligee, and the Lessee or Lessee's general contractor, as the principal guaranteeing the payment and performance of Lessee's obligations with respect to any and all construction work pertaining to the Leasehold Improvements, free of construction or other liens. The conditions of the Payment and Performance Bond shall be to insure that the Lessee or Lessee's general contractor will: (i) promptly make payment to all claimants, as defined in Section 255.05, Florida Statutes (2012), as amended, supplying the Lessee with labor, materials, or supplies, used directly or indirectly by the Lessee in the prosecution of the work related to the Leasehold Improvements under this Lease; and (ii) to pay the Lessor all losses, damages, expenses, costs, and attorneys fees, including appellate proceedings, that the Lessor sustains because of the Lessee under this Lease pursuant to claims made under Section 255.05, Florida Statutes (2012), as amended; and (iii) perform the guarantee of all obligations of the Lessee's under this Lease with respect to the construction, and the acquisition and installation of the Leasehold Improvements, as described in Exhibit "A". The Payment and Performance Bond may be terminated at such time as the construction, and the acquisition and installation of the Leasehold Improvements are completed as evidenced by issuance of a certificate of occupancy and reasonably satisfactory evidence thereof is provided by the Lessee to the Executive Director, including certification by the Lessee's architect that all requirements of the Payment and Performance Bond have been satisfactorily concluded, and by the issuance of a certificate of occupancy. The form of the Payment and Performance Bond, a sample of which is attached herewith by reference as "E," shall be approved by the Executive Director, which approval shall not be unreasonably be withheld. The Lessor agrees that in the event the Lessee cannot obtain the above Payment and Performance Bond, the Payment and Performance Bond may be provided by the General Contractor(s) (in an amount acceptable to the Lessor with respect to the work to be performed by the General Contractor(s), together with such Payment and Performance Bonds of the subcontractors as shall be required by the Lessor, in lieu of the Lessee providing the same as Principal of the Project. Said Payment and Performance Bond(s) shall comply with all the requirements listed under in subsections (i) through (iii) above. Section 6.3 Contractor's Insurance. The Lessee shall require every contractor performing any work pertaining to the Leasehold Improvements to furnish certificates of insurance including Builder's Risk Insurance, if applicable, to the satisfaction of the CRA protecting the Lessor 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 6.4 Additional Consideration. (a) The Lessor hereby, in consideration for the promises and covenants contained in this Lease to be kept and performed by the Lessee, shall simultaneously with the execution of this Lease on the Effective Date, grant and convey unto the Lessee all existing Improvements (including improvements, furnishings, fixtures and equipment) listed in Exhibit "C", in its "as is" and "where is" condition. (b) The Lessee hereby, in consideration of the granting of this Lease shall upon termination or expiration of this Lease: 12 (i) grant and convey unto the Lessor, free and clear of all liens, title to all Leasehold Improvements of a permanent character including but not limited to, dry racks, 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 Lessor as referenced above, Lessee shall further grant to the Lessor the right to purchase from the Lessee, all of Lessee's personal property added to or installed at the Property by the Lessee during the Lease Term, including all furnishings, and equipment at actual cost less actual "observed" depreciation as determined by an appraisal, provided that the Lessor by notice in writing to the Lessee of at least forty five (45) days prior to the expiration, or earlier termination of the Lease Term, notifies the Lessee of its election. Section 6.5 Lessor's Property to Remain Free of Liens. The Lessee 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 Property. The Lessee shall have no power or right to and shall not in any way encumber the Lessor's fee simple interest in the Property. If any lien shall at any time be filed against the Property, the Lessee 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 Lessee's failure to do so, the Lessor, 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 Lessee shall be responsible for any and all costs incurred by the Lessor in connection with such action, including all reasonable legal fees, costs and expenses. Section 6.6 Lessor Approval. All Plans furnished under this Lease are expressly subject to Lessor's written approval, which the Executive Director 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 Executive Director of any Plans furnished under this Lease pursuant to this Section shall relieve Lessee of any obligation it may have at law to file such Plans with any department of the City of Miami or any other governmental authority having jurisdiction over the issues; or to obtain any building or other permit or approval required by law. Lessee acknowledges that any approval given by the Executive Director pursuant to this Section shall not constitute an opinion or agreement by the CRA that the Plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations. Section 6.7 Lessor's Contribution to Leasehold Improvements. Lessor, at its sole cost and expense, shall deliver the Property with a grease trap and hood system for Lessee's use. Lessee shall be required by Article VIII herein, to provide adequate maintenance to the grease trap and hood system. ARTICLE VII CONDUCT OF BUSINESS BY LESSEE Section 7.1 Use of Property. The Lessee shall occupy the Property on the Effective Date. Upon possession of the Property, Lessee shall occupy the Property without delay, and covenants to continuously conduct its permitted business therein throughout the Lease Term. Lessee shall use the Property solely for restaurant operations. Lessee shall not use, permit or suffer the use of the Property for any other business or purpose. Lessee agrees to conduct its business upon the Property in accordance with the highest ethical and operating standards of the restaurant industry of which Lessee forms a part. Section 7.2 Operation of Lessee's Business. At all times during the Lease Term, Lessee shall manage the restaurant operations at the Property with due diligence and efficiency, in Lessee's sole and absolute discretion, and in a manner prudent and in accord with the current business techniques within the locale for Lessee's business so as to maximize the amount of Gross Revenues, subject to Force Majeure. Lessee shall carry at all times in the Property 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 Lessee's business. Section 7.3 Signs. Lessee will not place or permit to be placed or maintained on any exterior door, wall or window of the Property, or within the interior of the Property, any signage or advertising matter of any kind, without 13 first obtaining Lessor's written approval and consent, which may not be unreasonably withheld. Lessee shall erect an exterior sign of type, composition and design in conformance with the Miami 21 Zoning Code. Lessee 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 Lessor. ARTICLE VIII MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY Section 8.1 Lessee's Maintenance Obligations. Lessee, at its sole cost and expense, agrees to provide the necessary management and labor, to continuously maintain the Property, including all operating equipment, utility services, and connections on the Property. Lessee, at its sole cost and expense, agrees to provide, janitorial and custodian services, trash and garbage removal services, security and any and all other related services necessary to have the Property, and the Leasehold Improvements remain in good, safe, sanitary condition and repair throughout the Lease Term. Lessee shall be responsible for painting the interior and exterior of the Property and decorating the interior of the Property, maintaining its equipment, fixtures, furnishings, and other personal property in good condition and repair. All maintenance shall be at the Lessee's sole cost and expense and will be subject to general inspection by the Lessor to insure a continuing quality of maintenance and appearance and physical condition of the Property commensurate with maintenance, health, and safety standards established by the Lessor and Applicable Law. In addition, Lessee shall be required to pay a proportionate share of CRA incurred maintenance expenses, as may be determined by the Executive Director, including, but not limited to, security and janitorial and custodian services. Section 8.2 Lessee's Repair Obligation. Lessee, at Lessee's sole cost and expense, at all times during the Lease Tenn, 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 leading from the Property, and to all heating, ventilating and air-conditioning equipment and any other repair or replacement to the Property and to the Leasehold Improvements. Section 8.3 Preventative Maintenance and Services. Lessee shall, at its sole cost and expense, provide the following preventive maintenance and services: a. Daily cleaning and janitorial services for the Property; b. Interior and exterior window cleaning to be performed as needed but no less than once every one hundred and twenty days; c. Vermin control as necessary, but no less than once every thirty (30) days; d. Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable, but no less than once every thirty (30) days; and e. Painting of interior and exterior of building including caulking of all windows and door frames painting of signs, if applicable. In addition to the above, commencing on the fifth year of the Effective Date, and once every five years thereafter, the Lessee, at its sole cost and expense shall have a qualified engineer perform a physical inspection of the Property including, but not limited to all structural components, plumbing, life safety, electrical, heating and air conditioning systems and mechanical equipment as well as any and all structural trade fixtures on the Property, as part of a preventive maintenance program. The Lessee shall submit the engineer's report along with a proposed plan for the funding and implementation of the recommendations contained in the engineer's to the Lessor by the end of the Lease Year in which such report is due for the Lessor's review. If the Lessee refuses, neglects or fails to provide the services required herein or does not provide adequate services within thirty (30) days after written demand from the Lessor, the Lessor may take corrective measures or cause the Property to be cleaned or repaired without waiving its right based upon any default of the Lessee and without releasing the Lessee from any obligations hereunder. The Lessee shall pay the Lessor the full cost of such work within fifteen (15) days of receipt of an invoice indicated the cost of such corrective measures or cleanup. Failure to pay such invoice shall constitute a default of this Lease. Notwithstanding the above, the Lessee's failure to perform the corrective measures or cleanup to the Property as directed shall constitute a default of this Lease. Nothing herein shall imply that maintenance, repair and inspections should be performed by the 14 Lessee only at the suggested intervals. The Lessee shall, at all times, be responsible for the condition of the Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to Property. Section 8.4 Changes/Alterations. Lessee shall not make any major 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 Property or any part thereof, without the prior written consent of the Lessor, which consent the Executive Director is hereby authorized to give, and may be withheld in his or her sole discretion. No approval by the Executive Director of any changes or alterations shall relieve Lessee of any obligation it may have at law to file the required documents with any department of the City of Miami or any other governmental authority having jurisdiction over the issues; or to obtain any building or other permit or approval required by law. Lessee acknowledges that any approval given by the Executive Director pursuant to this Section shall not constitute an opinion or agreement by the CRA that the changes or alterations are in compliance with any laws, codes or other applicable regulations. ARTICLE IX INSURANCE AND INDEMNITY Section 9.1 Insurance on the Property. In connection herewith, Lessee shall obtain and maintain or cause to be obtained and maintained in full force and effect throughout the period of this Agreement, the types and amounts of insurance coverage set forth in Exhibit "F" attached hereto and incorporated herein by reference. If required by state, county, or city laws from time to time for work conducted on or use of municipal properties, Lessee shall obtain and maintain or cause to the obtained and maintained throughout or during the term of this Agreement, as applicable, such types and amounts of payment, performance, maintenance, or restoration bond(s) as shall be required to be reviewed and approved by the City of Miami's Risk Management Department in coordination with Lessee's Risk Management or other appropriate Depai ttuent. Tn addition, Lessee shall be required to pay a proportionate share of CRA incurred insurance expenses, as may be determined by the Executive Director. The Lessor reserves the right to reasonably amend the herein insurance requirements by the issuance of a notice in writing to the Lessee, which amended insurance requirements shall be subject to the reasonable approval by Lessee, which approval shall not be unreasonably withheld. Section 9.2 Delivery of Insurance Policies. All public liability, workers compensation and employer's liability policies shall be retained by the Lessee. Except as otherwise specifically provided, all other policies of insurance required to be furnished shall be held by and be payable jointly to the Lessor and the Lessee 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 Lessor. All policies of insurance required to be provided and obtained shall provide that they shall not be amended or canceled on less than thirty (30) days prior written notice to the Lessor and all insured and beneficiaries of the policies shall contain waiver of subrogation rights endorsements, as required below. The Lessor 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 Effective 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 Lessee shall deliver to the Lessor 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 Lessor or by any of its representatives which indicates less coverage than required does not constitute a waiver of the Lessee's obligation to fulfill the insurance requirements herein. Section 9.3 Adjustment of Loss. Subject to the requirements of any 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 Lessee (in the case of the deductible) with an escrow agent acceptable to the Executive Director, with instructions to the escrow holder that the escrow holder shall disburse the funds to the Lessee, with notice thereof to the Lessor, as the work of the reconstruction, replacement or repairs progresses upon certificates of the architect or engineer 15 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 Lessor and Lessee. If the amount of the Net Insurance Proceeds is less than the cost of the required work, then Lessee 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 Lessee. Section 9.4 Insurer to Be Approved -Premium Receipts. All policies of insurance of the character described in Exhibit "F" shall be written by companies of recognized responsibility reasonably acceptable to the Lessor. On request by Lessor, Lessee shall provide photocopies of receipts showing the payment of premium for all insurance policies required to be maintained by this Lease. Section 9.5 Indemnification of Lessor. Lessee shall indemnify, defend and save Lessor 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 Property arising from or out of any occurrence in, upon or at the Property, or the occupancy or use by Lessee of the Property, or any part thereof, or occasioned wholly or in part by any act of omission of Lessee, its agents, contractors, employees, servants, customers, invitees, Lessees, Sub -lessees or concessionaires. In case Lessor shall be made a party to any litigation commenced by or against Lessee covered by this indemnity provision, then Lessee shall protect and hold Lessor harmless and pay all costs and attorney's fees incurred by Lessor in connection with such litigation, and any appeals thereof. Lessee shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by Lessor in enforcing the covenants and agreements in this Lease. Section 9.6 Waiver of Subrogation. Lessee waives all rights to recover against the Lessor for any damages arising from any cause covered by any insurance required to be carried by Lessee, or any insurance actually carried by Lessee. The Lessee shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Property. Section 9.7 Release of Lessor. The Lessee for and in consideration of the leasing and the demise of the Property to the Lessee hereby release, remise and discharge the Lessor, 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 Lessee or its Assignees for or on account of improvements made and furniture, fixtures and equipment installed in the Property, and from any and all costs and expenses, of Lessee or its Assignees in connection with this Lease, including, but not limited to the development of the Property and acquisition of the Leasehold Improvements, which may result from a third party challenging the validity or legality of this transaction under the City of Miami Charter or Code or the laws of the State of Florida, or arising out of the award of this Lease, or any subsequent Assignment of this Lease by the Lessee or its Assignees ("Claim"). It is the intent of the Parties that this provision shall control over any other provision in this Lease and that notwithstanding any limited representations provided by Lessor under Section 2.5 of this Lease, neither the Lessee, nor its Assignees shall seek to recover from the Lessor compensation for, or reimbursement of any costs, losses, fees or expenses incurred by the Lessee 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 Effective 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, Lessor shall return the Security Deposit to the Lessee, without interest. Lessor shall further prorate the Minimum Base Rent due, without a discount, from the Effective Date to the date of termination and shall refund to the Lessee 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, Lessor agrees that it will defend against the Claim in good faith and with reasonable diligence. Lessee agrees that it shall continue to comply with the 16 terms and conditions of this Lease including the timely performance of all construction obligations under this Lease, and the Claim shall not constitute 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, Lessee shall be permitted to remove such movable trade fixtures installed as part of the initial Leasehold Improvements so long as same does not damage the Property. Lessee shall not be permitted to remove any equipment outlined in Exhibit "C" attached hereto and made a part hereof even if same was reconditioned by Lessee. ARTICLE X SERVICES AND UTILITIES Section 10.1 Lessee to Provide and Pay for Utilities. The Lessee 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 all other public or private utility services, which shall be used, rendered or supplied upon or in connection with its use of the Property and the Leasehold Improvements, or any part of it, at any time during the Lease Term, and the Lessee 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 Property and the Leasehold Improvements. The Lessee 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 Property of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Property. Lessee, at its sole expense, shall cause a separate water meter to be installed on the Property for its use and the benefit of the Leasehold Improvements. Section 10.2 Lessor Not Liable for Failure of Utilities. The Lessor 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 Property caused by or resulting water, gas or electricity which may leak or flow from the water or gas mains on to any part of the Property or the Leasehold Improvements. The Lessor shall not be required to make any alteration to any service or utility system of the Property on behalf of Lessee. Lessor shall not be liable for temporary failure of services, and same shall not be deemed to constitute actual or constructive eviction, nor entitle Lessee to any abatement or diminution in rent payable under this Lease. ARTICLE XI TRANSFERS AND SUBLETTING Section 11.1 Subleasing and Assignments (a) Lessee shall not, at any time during the term of this Lease, enter into any Sublease with respect to the Property or any portion thereof, nor assign this Lease to any third party or parties other than Lessee, its authorized agents, employees, invitees and visitors to occupy or use the Property or any portion thereof, without first obtaining the prior written consent of the Executive Director. Any such attempted subleasing of the Property or Assignment of the Lease, without the Lessor's prior written consent, shall be void and of no force or effect and shall not confer any interest or estate in the purported Sub -lessee or Assignee, and shall constitute a default under this Lease and the Lessor, at its election, may terminate this Lease. It is agreed that all terms and conditions of this Lease shall extend to and be binding on all Sub- lessees as may be approved by Lessor and shall be for a period of time equal to or less than the Lease Term. Lessee shall be liable for acts and omissions by any Sub -lessee affecting this Lease. Lessor reserves the right to directly terminate the rights and interests of any Sub -lessee under any sub -lease for any cause for which Lessee's Leasehold Interest may be terminated. Lessee shall reimburse to Lessor, as Additional Rent, all costs and expenses, including attorneys' fees, which Lessor incurs by reason of or in connection with a sub -lease, 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 Lessor. (b) Procedure for Sub -lease or Assignment. Should Lessee desire to enter into a sub -lease or assign its interest in this Lease, Lessee shall, in each instance, give written notice of its intention to do so to the Executive Director at least sixty (60) days prior to the effective date of any such proposed sub -lease or assignment, specifying in such notice the 17 nature of such proposed sub -lease or assignment and the proposed date thereof and specifically identifying the proposed Sub -lessee or Assignee. Such notice shall be accompanied by a copy of the proposed sub- lease, license, concession or permit agreement and any other documents or financial information Lessor may reasonably require in order to make a determination as to the suitability of the Sub -lessee or Assignee. Lessee shall provide to Lessor copies of relevant agreements and Lessor shall, within forty (40) days after its receipt of such notice of a proposed sub -lease or assignment from Lessee, by mailing written notice to Lessee of its intent to do so, either (i) withhold consent to the sub -lease or assignment, or (ii) consent to such sub -lease or assignment upon the terms and subject to the conditions provided for in this Article. Lessee acknowledges and agrees that the Imposition of the conditions described herein as a condition of Lessor's consent is reasonable. (c) Additional Consideration Payable to Lessor. Except as provided below with respect to a valet concession, if Lessor gives its consent to any sub -lease, Lessee shall, in consideration therefore, include in Lessee's Gross Revenues the amount of Sub - lessee's Gross Revenues which shall be listed separately on Lessee's Semi -Annual Report. Sub -lessee's records shall be kept in accordance with Section 4.4. Additionally, Lessor reserves the right to examine Sub -lessee's books and audit Sub -lessee's entire records in accordance with Sections 4.6 and 4.7 of this Lease. Unless otherwise authorized by the Executive Director in writting, or if Lessor provides a valet concessionaire, Lessee shall collect a fee from all valet concessionaires allowed on the Property. Lessee shall include any and all amounts Lessee receives from the valet concessionaire in Lessee's Gross Revenues and Lessor shall receive Percentage Rent from Lessee pursuant to Article IV. The acceptance by Lessor of the payment of Rent following any sub -lease prohibited by this Article shall not be deemed to be a consent by Lessor to any such sub -lease nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder. Section 11.2 Definitions. As used in this Article the term: (a) "Transfer" means: (i) any total or partial sale, or Assignment of Lessee's business or Leasehold Estate or any contract or agreement to do any of the same; (ii) any transfer of the stock of Lessee if the transfer results in the beneficial ownership of being less than 51% of the Lessee; (iii) any merger, consolidation or sale or lease of all or substantially all of the assets of the Lessee 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 Lessee, 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 11.3 Transfers. The Lessee recognizes that the operational experience of the Lessee as set forth in the Proposal was given special consideration by the Lessor in the public selection process undertaken by the Lessor for the award of this Lease. Therefore, Lessee agrees that except as permitted pursuant to subparagraphs (a), (b) and (c) below, or as specifically approved pursuant Section 11.7 below, no transfer may be made, suffered or created by the Lessee, or any Owner without the prior written consent of the Executive Director which consent shall not be unreasonably withheld or delayed. The Executive Director, 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 Lessee's Leasehold Estate, provided that such purchaser or grantee is an institutional investor or an agent, designee or nominee of an 18 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 Property, shall have entered into an agreement for the management and operation of the Property with an acceptable operator or is itself an acceptable operator; (b) any transfer to an acceptable operator consented to by the Executive Director; (c) the issuance of stock or stock options to Lessee'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 Lessee; The Parties hereby acknowledge and agree that anything herein to the contrary notwithstanding, the "going public" by Lessee, 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 Lessor. Any consent to a transfer shall not waive any of the Lessor'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 11.4 Notice of Transfer. With respect to any transfer which must be approved by the Executive Director, the Lessee shall give or cause to be given to the Lessor written notice (including all information necessary for the Lessor to make an evaluation of the proposed acceptable operator according to the requirements of this Lease) of any transfer of which Lessee, or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed transfer, and the Lessor shall within thirty (30) days of its receipt of such information, advise Lessee in writing if it shall consent to same. If the Lessor shall not consent to a transfer, the Executive Director shall state the reasons for such disapproval in his notice to Lessee. If the Lessor is not required to consent to a transfer pursuant to the terms hereof, the Lessee shall notify the Lessor in writing of same within thirty (30) days after the date of transfer. In the event the Executive Director elects to exercise his right under Section 1 1.3 to present any request for transfer to the City Commission for its approval, the Executive Director shall use due diligence to present the request for transfer to the City Commission as soon as practicable and the time for performance by Lessor shall be reasonably extended to provide sufficient time for presentation to the City Commission. Section 11.5 Information as to Shareholders, etc. Lessee shall from time to time throughout the Lease Term, as the Lessor shall reasonably request, furnish the Lessor with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary of the Lessee, setting forth the full names and addresses of holders of stock interests in Lessee, 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 Lessee. Notwithstanding the foregoing, the information required by this Section 11.5 shall not be required to be furnished with respect to the shareholders of any owner whose shares are publicly traded. Section 1 1.6 Effectuation of Permitted Transfers. No transfer of the nature described in Subsection 11.3(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 Lessee under this Lease shall be paid by the Lessee up to the date of transfer, and all other covenants and agreements to be kept and performed by the Lessee shall be substantially complied with at the date of transfer; and (b) the entity to which such transfer is made, by instrument in writing reasonably satisfactory to the Executive Director and in a form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the Lessor expressly assume all of the obligations of Lessee under this Lease, and agree to be subject to all conditions and restrictions to which Lessee is subject; provided, however, that any 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 Lessor for default by Lessee). Nothing herein shall be construed to relive or release the Lessee from liability for the performance of all of the obligations of Lessee under this Lease, unless the Lessor in writing expressly provides for such a release. 19 Section 11.7 Criteria for Consent for Transfer. The Lessor 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 Effective Date adjusted for inflation; or (c) an amount reasonably necessary to discharge Lessee's remaining obligations hereunder; (ii) Such transfer shall not adversely affect the quality and type of business operation which the Lessee has conducted theretofore; (iii) Such Transferee, shall possess qualifications for the Lessee'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 business; (iv) Such Transferee shall continue to operate the business conducted at the Property pursuant to all the provisions of this Lease; (v) Such Transferee shall assume in writing, in a form acceptable to Lessor, all of Lessee's obligations hereunder, and Lessee shall provide Lessor with a copy of all documents pertaining to such transfer; (vi) Lessee shall pay to Lessor a Transfer Fee of Five Thousand dollars ($5,000) prior to the effective date of the transfer in order to reimburse Lessor for all of its internal costs and expenses incurred with respect to the transfer, including, without limitation, costs incurred in connection with the review of financial materials, meetings with representatives of Transferee, and preparation, review, approval and execution of the required documents; (vii) Lessee shall pay to the Lessor any due, but unpaid Rent. Section 11.8 Liability of Lessee. if a Transferee does not meet all of the criteria set forth in Section 11.7, Lessor, at its sole option, may require Lessee 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 11.9 Payment Upon Transfer or Sale of Lessee Business or Stock. Lessee recognizes and agrees that: (i) the experience of Lessee was given special consideration by Lessor in the selection process which resulted in the award of this Lease; (ii) the qualifications and identity of Lessee are of particular concern to the community and Lessor; and (iii) it is partially because of such qualifications and identity that Lessor is entering into this Lease. Accordingly, at all times prior to the date of transfer: (A) the Lessee's Equity Contribution shall be maintained; (B) Lessee shall retain voting and operational control of Lessee; (C) Lessee shall retain voting and operational control of each subtenant then in existence; and (D) Lessee shall own more than Fifty Percent (50%) of the ownership interests in each subtenant then in existence. Furthermore, at all times prior to the Lessee's date of transfer, there shall be no Leasehold Estate transfer, Lessee transfer of Control or Sub -leasehold Estate transfer. Any waiver of the foregoing requirement shall require the Executive Director's prior written consent, which may be granted or withheld in his or her sole and absolute discretion. During the initial five (5) years of the Term, the Transfer Fee shall be 2.5% of the Gross Sales Amount; between Years 5 to 10 of the Term, the Transfer Fee shall be 1.5% of the Gross Sales Amount; between Years 10-15 of the Tenn, the Transfer Fee shall be 1% of the Gross Sales Amount; and after Year 15 of the Term, the Transfer Fee shall be 75% of the Gross Sale Amount. The Lessee shall pay to the Lessor the Transfer Fee at the time the transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the shares of stock are sold. Section 11.10 Acceptance of Rent from Transferee. The acceptance by Lessor of the payment of Rent following any Transfer prohibited by this Article shall not be deemed to be a consent by Lessor to any such, nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder. Section 11.11 Transfers of the CRA's Interest. At the Lessee's request, Lessor shall provide the Lessee 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 Lessor's reversionary or fee interest in the Property, or any part thereof, or any interest therein, or any contract or agreement to do any of the same, to any 20 purchaser, assignee, mortgagee, or trustee. Lessor hereby agrees to incorporate the terms and conditions set forth in this Lease or in any agreement or contract with such purchaser, assignee, mortgagee, or trustee. ARTICLE XII COMPLIANCE WITH LAWS Section 12.1 Compliance with Laws. Lessee shall, at Lessee'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 Lessee or its use of the Property, and shall faithfully observe in the use of the Property or in the performance of any alterations (including, without limitation, Lessee's work) all Applicable Laws now in force or which may hereafter be in force. Lessee shall indemnify (and such indemnity will survive the termination or expiration of the Lease for a period of five (5) years), defend and save Lessor harmless from penalties, fines, costs, expenses, suits, claims, or damages resulting from Lessee's failure to perform its obligations in this Lease. ARTICLE XIII ENVIRONMENTAL LIABILITY Section 13.1 Definition of Terms. For purposes of this Article X111 the following terms shall have the meaning attributed to them herein: 13.1.1 "Hazardous Materials" means any toxic or hazardous substance, material, or waste, and any other contaminant, pollutant or constituent thereof whether liquid, solid, semi -solid, sludge and/or gaseous, including without limitation, chemicals, compounds, pesticides, petroleum products including crude oil and any fraction thereof, asbestos containing materials or other similar substances or materials which are regulated or controlled by, under or pursuant to any federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or decrees including, but not limited to, all Applicable Laws. 13.1.2 "Environmental Laws" shall include, but shall not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986 ("Sara"), 42 U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardous and Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S.C. §9601, et seq.; the Hazardous Material Transportation Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as amended, 33 U.S.C. §1311, et seq.; the Clean Air Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the Emergency Planning and Community Right -to -Know Act of 1986 ("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.C. §651, et seq.; any similar state statute, including without limitation Chapters 252,255,376,403,442, Florida Statutes, as amended; and the regulations promulgated thereunder, and any other local laws regulations, including, but not limited to Chapter 24, Environmental Protection, of the Code of Miami -Dade County, Florida, as all of the foregoing may be amended, modified, supplemented, superseded or replaced at any time during the Term, that govern or relate to: (i) The existence, cleanup and/or remedy of contamination of the 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. 13.1.3 "Costs" shall mean all costs incurred in connection with correcting any violations of any Environmental Laws and/or in connection with the clean-up of contamination on the Property. 13.1.4 "Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at or from the Property which is ordered by any federal, state, or local environmental regulatory agency. 13.1.5 "Underground Storage Tanks" shall mean any fuel oil, petroleum or gas underground storage tanks which may be located on the Property ("USTs"). Section 13.2 Lessee's Environmental Covenants. The Lessee 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 21 beneath the Property or any portion thereof by the Lessee, its agents, employees, contractors, Lessees, or invitees except as may be customarily used and required to conduct marina and restaurant operations. Lessee shall not permit any activities on the Property that would violate Environmental Laws. If Lessee should breach this covenant, Lessee shall take all actions necessary to comply with all Environmental Laws and shall, at Lessee's sole cost and expense, perform any Clean Up. Lessee's obligation under this section shall survive the expiration or earlier termination of this Lease for a period of one (1) year. 13.2.1 Environmental Testing Obligations Lessee shall conduct a Phase Two Environmental Assessment and soil analysis of the Property before and after the Lease Term to determine if it has left any contaminants on the Property. If contamination is found to be left on the Property, Lessee shall, at its sole cost and expense, pay to clean up the contamination, subject to the limitations within Section 13.4 herein. Additionally, upon request by the City, Lessee shall conduct such soil analysis tests the City may require from time to time during the Lease Term. Section 13.3 Representation by Lessor. The Lessor represents and warrants that no lawsuits, claims, legal or administrative, have been brought against Lessor, in connection with the environmental condition of the Property or the USTs as a result of the Lessor's or any prior Lessee's use or occupancy of the Property, nor is Lessor 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 13.4 Lessee's Indemnification. Lessee shall indemnify, protect, defend and hold Lessor 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 Property, of any Hazardous Materials placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable Environmental Laws. Section 13.5 Asbestos. The Lessee acknowledges that prior to the Effective Date, the Lessee has undertaken an environmental site assessment of the Property and accordingly, the Lessee knows that there may be asbestos containing materials ("ACM") in the form of ceiling tiles, plaster walls and roofing material. The Lessee shall, at Lessee'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 13.6 Survival of Lessee's and Lessor's Obligations. The respective rights and obligations of Lessor and Lessee under this Article XIII shall survive the expiration or termination of this Lease for a period of one (1) year. ARTICLE XIV DAMAGE OR DESTRUCTION OF PROPERTY Section 14.1 Detinitions. For the purposes of this Article XIV, the following words shall have the meanings attributed to them in this Section 14.1: (a) "Completely Destroyed" means the destruction of the safe, leasable use or occupancy of a substantial portion of the Property, including the offices of the CRA, 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. (b) "Partial Destruction" means any damage to the Property, including the offices of the CRA, which damage can reasonably be repaired, restored or replaced within one hundred eighty (180) calendar days from the date on which the damage occurred. Section 14.2 Lessee's Duty to Repair, Restore or Replace the Property After Damage. Tn the event of damage by fire or otherwise of the Property including any machinery, fixtures or equipment which is a part of the Property, and, including the offices of the CRA, 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 Lessee shall use the Gross Insurance Proceeds available for that purpose, together with Lessee's own funds (if the Gross Insurance Proceeds are insufficient) to commence and diligently pursue to completion within one hundred 22 eighty (180) calendar days from the date the damage occurred (subject to reasonable extension and/or Force Majeure), the repair, restoration or replacement of the damaged or destroyed portion of the Property ("Restoration Work"), and this Lease shall remain in full force and effect, with no abatement in Rent. (ii) In the event the Property is Completely Destroyed at any time during Lease, Lessee, in its sole discretion, shall have the option (a) at the Lessee's sole cost and expense, (together with Gross Insurance Proceeds available for that purpose), to commence and diligently pursue to completion the Restoration Work, in accordance with the provisions of Section 14.3 below, and Lessee shall complete the Restoration Work within twelve (12) months from the date the damage occurred and this Lease shall remain in full force and effect, with no abatement in Rent, or (b) to elect not to undertake the Restoration Work by providing written notice to Lessor and in which event this Lease shall terminate, and the Lessee shall, at the Lessee's sole cost and expense, (but using along with the Lessee's own funds, Gross Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free and clear of all debris and Lessor and Lessee 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) Lessee's obligations regarding surrender of the Property including the removal of debris, and (cc) environmental liability as provided for in Article XIII. If Lessee chooses to undertake the restoration work, but does not complete it within twelve (12) months as required above, Lessee shall be subject to a surcharge of minimum rent for any period in excess of the twelve (12) months. Section 14.3 Performance of Restoration Work. In the event Lessee undertakes any Restoration Work in accordance with the provisions of this Article, such Restoration Work by Lessee 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 VI applicable to the construction of the initial Leasehold Improvements. Lessor hereby acknowledges and agrees that Lessee'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 14.4 No Right to Terminate. Except for the Lessee's right to terminate this Lease in accordance with the provisions of Subsections 14.2(ii)(b) and (iii), Lessee waives the provisions of any statute, code or judicial decision which grants Lessee the right to terminate this Lease in the event of damage or destruction of the Property. Section 14.5 Lessee's Right to Terminate. If Lessee or Lessor elects to exercise the option given under Subsection 14.2(ii) to terminate this Lease, then any and all Gross Insurance Proceeds paid for damage or destruction of the Property shall be applied as follows: (i) First toward debris removal; and (ii) Second, toward 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. Section 14.6 Payment for Construction of the Restoration Work. All Gross Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work (pursuant to this Article and Section 9.3) to restore the Property. The Gross Insurance Proceeds shall be paid out, the Restoration Work shall be performed, and the Lessee shall make additional deposits with an escrow agent, if any are required, all in accordance with Section 9.3, as may be applicable. Section 14.7 Collection of Insurance Proceeds. The Lessor shall in no event be responsible for the non -collection of any insurance proceeds under this Lease but only for insurance money that shall come into its hands. Section 14.8 Unused Insurance Proceeds and Deposits. in the event any Gross Insurance Proceeds or sums deposited with an escrow agent or Lessor in connection with the Restoration Work shall remain in the hands of an escrow agent or the Lessor, if the Parties have agreed to allow the Lessor to hold the insurance proceeds until completion of the Restoration Work, and if the Lessee shall not then be in default under this Lease in respect of any matter or thing of which notice of default has been served on the Lessee, then the remaining funds shall be applied first towards any unpaid Rent, and the balance paid to the Lessee. 23 ARTICLE XV EMINENT DOMAIN Section 15.1 Total Condemnation. In the event that all of the Property (or such portion thereof as shall, in the good faith opinion of Lessor or Lessee, 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 Lessor and Lessee 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 Lessee to the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the Date of Taking or such conveyance; and the amount of damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Property, 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 Lessor and Lessee, 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 Lessor and Lessee, and if Lessor and Lessee 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, Lessor and Lessee 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 Lessor and Lessee shall be determined by arbitration under the provisions set forth in Section 16.6 of this Lease. In any event, the Lessor shall be entitled to receive its reversionary interest in the Property and Leasehold Improvements and Lessor's present value of Rent and Additional Rent due under the terms of the Lease. Lessee 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 arm's length transaction. In no event shall Lessee be entitled to compensation for any fee simple ownership interest in the Property at the time of condemnation. Section 15.2 Partial Condemnation. (a) In the event less than all of the Property 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 Lessor and Lessee acting jointly to avoid proceedings of such taking, and Lessee 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 Property not so taken or conveyed (except as provided in Section 15.5). Lessee 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 Property so that it shall be comparable to the Property prior to the condemnation, taking into consideration the fact of the condemnation; provided, however, that in so doing, Lessee shall not be required to expend more than the amount of any Net Condemnation Award actually received by Lessee. (b) The Net Condemnation Award allowed to Lessor and Lessee shall be paid to and received by the Parties as follows: (i) There shall be paid to the Lessor the value of the portion of the land so taken and Lessor's reversionary interest in the improvements so taken, which land and reversionary improvements shall be valued as if unencumbered. Lessor shall further be paid an amount by which Lessor's Rent and Additional Rent have been reduced by the taking; (ii) There shall be paid to the Lessee any amount by which Lessee's profits and value of Lessee's interest in the Lease and the Property have been reduced by the taking after any payment required by the Lease; (iii) There shall be paid to the Lessee the amount required to complete the remodeling and repairs to the Property pursuant to Section 14.2 above; (iv) The Lessor and Lessee 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 Property 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 Lessor and Lessee, and if Lessor and Lessee 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 amount of it, Lessor and Lessee agree to submit the matter to the 24 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 Lessor and Lessee shall be determined by the arbitration provisions set forth under Section 16.6 of this Lease. Section 15.3. Adjustment of Rent Upon Partial Taking. In the event a part of the Property shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by Lessor and Lessee acting jointly to avoid proceedings of such taking, then Rent, and money to be treated as Additional Rent pursuant to this Lease shall be paid by Lessee to the Date of Taking or conveyance in lieu thereof, and after such date the Rent for the remainder of the Property shall be reduced in the same proportion that Gross Revenues have been reduced due to such taking compared to the Gross Revenues immediately prior to the taking. Section 15.4. Deposit of Condemnation Award with Escrow Agent. Unless the effect of a condemnation proceeding shall be to terminate this Lease by operation of law or as provided in Section 14.2 above, any Net Condemnation Award made in respect to the Property in a condemnation proceeding shall be deposited with an escrow agent selected by the Lessor and Lessee escrow agent) to be disbursed for the cost of restoring the Property and for other related purposes. Section 15.5. Temporary Taking. In the event that all or any portion of the Property 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 shall not terminate and Lessee shall continue to perform and observe all of its obligations (including the obligation to pay Rent as provided throughout this Lease) as though the temporary taking had not occurred except only to the extent that it may 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 Property. In the event the taking for governmental occupancy is for a period entirely within the term of this Lease, then Lessee shall be entitled to receive the entire amount of any Net Condemnation Award made for 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 Lessor 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 Lessee, on account of a temporary taking of all or any part of the Leasehold Improvements, shall be deemed a part of the Lessee's Leasehold Estate for all purposes in this Lease. If the Net Condemnation Award does not separately determine the amount applicable to the taking of the interest of the Lessor in this Lease and in the Leasehold Improvements and if Lessor and Lessee shall not agree in writing as to the proportion of the award so applicable to the respective Parties, then Lessor and Lessee 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 15.5. In the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by the arbitration provisions set forth under Section 16.6 of this Lease. ARTICLE XVI LESSEE DEFAULTS & LESSOR REMEDIES FOR DEFAULT Section 16.1 Lessee Default. The occurrence of any one or more of the following events is deemed a "Lessee Default:" (a) If the Lessee defaults in the due and punctual payment of any installment of Minimum Base Rent, 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 Lessee shall cease to operate its business, unless permitted by Lessor 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 Lessee and such petition is not dismissed within Thirty (30) days from the filing thereof, or in the event Lessee is adjudged a bankrupt; 25 (d) In the event an Assignment for the benefit of creditors is made by Lessee; (e) In the event of an appointment by any court of a receiver or other court officer of Lessee's Property and such receivership is not dismissed within thirty (30) days from the date of such appointment; (f) In the event Lessee removes, attempts to remove, or permits to be removed from the Property, except in the usual course of trade, the Leasehold Improvements (furnishings, fixtures, and equipment) installed or placed upon the Property by the Lessee during the Lease Term; (g) In the event Lessee, before the expiration of the term of this Lease, and without the written consent of Lessor, vacates the Property or abandons the possession thereof, or uses the same for purposes other than the purposes for which the same are hereby leased, or ceases to use the Property for the purposes herein contained; (h) In the event Lessee does not accept the adjusted Minimum Base Rent and Percentage Rent rates determined by the independent appraiser. (i) In the event an execution or other legal process is levied upon the goods, furniture, effects or other personal property of Lessee brought on the Property, or upon the interest of Lessee in this Lease, and the same is not satisfied, dismissed or bonded within thirty (30) days from such levy; or (j) In the event Lessee defaults in the due performance or observance of any lease covenant or condition or provision, and such default continues for more than for more than sixty (60) days ("Cure Period") after written notice of the default from the Lessor to the Lessee, unless such default be one which cannot be cured within sixty (60) days and the Lessee within such sixty (60) day period shall have commenced and thereafter shall continue to diligently prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of Lessee's Default." Section 16.2 Remedies of Lessor. (a) If any Lessee Default occurs, Lessor shall have the right after the expiration of the applicable Cure Period, at the option of Lessor, 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 the Cure Period if the default has not been cured by the expiration of such fifteen (15) day period. Additionally, if any Event of Default occurs, Lessor may, at its option, from time to time, without terminating this Lease, re-enter and re -let the Property, or any part thereof, as the agent and for the account of Lessee upon such terms and conditions as Lessor 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 Property, reasonable attorneys fees, any real estate commissions paid, and thereafter toward payment of all sums due or to become due to Lessor hereunder, and if a sufficient sum shall not be thus realized or secured to pay such sums and other charges, at Lessor's option, Lessee shall pay Lessor any deficiency immediately upon demand therefore, notwithstanding that Lessor may have received periodic rental in excess of the periodic rental stipulated in this Lease in previous or subsequent rental periods, and Lessor may bring an action therefore as such deficiency shall arise. Nothing herein, however, shall be construed to require Lessor to re-enter and re -let the Property in any event. Lessor shall not, in any event, be required to pay Lessee any surplus of any sums received by Lessor on a re -letting of said Property in excess of the Rent provided in this Lease. (b) If any Event of Default occurs, Lessor shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, against Lessee or any acts, conduct or omissions of Lessee, and to further obtain specific performance of any term, covenant or condition of this Lease. (c) If any Event of Default occurs, Lessor 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 Lessee to Lessor, if any, immediately due and payable without regard to whether possession of the Property shall have been surrendered to or taken by Lessor, and may commence action immediately thereupon and recover judgment therefore. (d) If any Event of Default occurs, Lessor, in addition to other rights and remedies it may have, shall have the right to remove all or any part of Lessee's personal property from the Property and any personal property removed may be stored in any public warehouse or elsewhere at the cost of, and for the account of Lessee, and Lessor shall not be responsible for the care or safekeeping thereof whether in transport, storage or otherwise, and Lessee hereby waives any and all claim against Lessor 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 Property by Lessor shall be construed as an 26 election on Lessor's part to terminate this Lease unless a written notice of such intention is given to Lessee. Notwithstanding any such re -letting without termination, Lessor may at all times thereafter elect to terminate this Lease for such previous default. Any such re-entry shall be allowed by Lessee without hindrance, and Lessor 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 Lessor, whether by acceleration or otherwise as herein provided in this Article, shall include Minimum Base Rent, 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 Lessor in the institution of any suit or entry of judgment for any part of the Rent herein reserved to Lessor, shall not serve as a defense against nor prejudice a subsequent action for such Rent. Lessee hereby expressly waives Lessee'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 Base Rent and/or Percentage Rent may be regarded by Lessor, 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 Lessor 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 Lessor. The waiver (either expressed or implied by law) by Lessor 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 Lessor to or of any act by Lessee requiring Lessor's consent or approval shall not be deemed to waive or render unnecessary Lessor's consent to or approval of any subsequent similar act by Lessee. No re-entry hereunder shall bar the recovery of rents or damages for the default or delay on the part of Lessor to enforce any right hereunder and shall not be deemed a waiver of any preceding default by Lessee of any term, covenant or condition of this Lease, or a waiver of the right of Lessor to annul this Lease or to re-enter the Property or to re -let same. Section 16.4 Late Payments. In the event any payment due Lessor under this Lease shall not be paid on the due date, Lessee agrees to pay, in addition to the payment then due, one-half (0.5%) percent of the amount due or the sum of Two Hundred and 0/100 Dollars ($200.00), whichever is greater, for each day that the payment is late, ("Late Fee"), and in the event that any check, bank draft, order for payment or negotiable instrument given to Lessor for any payment under Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor, in addition to the Late Fee, shall be entitled to make an administrative charge to Lessee of One Hundred and 0/100 Dollars ($100.00), or the actual charge, to Lessor by Lessor's bank for dealing with such dishonored tender, whichever is greater. In the event that it shall be necessary for Lessor to give more than one (1) written notice to Lessee of any violation of this Lease, during the term hereof, Lessor shall be entitled to make an administrative charge to Lessee of One Hundred and 0/100 Dollars ($100.00) for each such subsequent notice after the first notice. Lessee recognizes and agrees that the charges which Lessor 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 Lessor in the administration of the Property resulting from the events described which costs are not contemplated or included in any Rent, or other charges provided to be paid by Lessee to Lessor 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 Remedies Cumulative. No remedy conferred upon or reserved to the Lessor or the Lessee 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 Lessor or the Lessee may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee 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. Section 16.6 Disputes. In the event of a dispute between the Lessor and Lessee as to the terms and conditions of this Lease, the Executive Director of the CRA and Lessee shall proceed in good faith to resolve the dispute. If 27 the parties are not able to resolve the dispute within thirty (30) days of written notice to the other, the dispute shall be submitted to the CRA Board of Commissioners for resolution within ninety (90) days of the expiration of such thirty (30) day period or such other period as the parties may agree. The B oard's decision shall be deemed final and binding on the parties. ARTICLE XVII ACCESS BY LESSOR Section 17.1 Right of Entry. Lessor and Lessor's agents shall have the right to enter the Property at all reasonable times upon reasonable notice to the Lessee (except in the case of an emergency when no notice is required), to examine the same. If Lessee shall not be personally present to open and permit entry into the Property at any time when for any reason an entry therein shall be necessary or permissible, Lessor or Lessor'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 Lessor any obligation, responsibility or liability whatsoever, for the care, maintenance or repair of the Property or any part thereof, except as otherwise herein specifically provided. ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY Section 18.1 Loss and Damage. Lessor shall not be responsible for any damage to any property of Lessee (including without limitation appliances, equipment, machinery, stock, inventory, fixtures, furniture, improvements, displays, decorations, carpeting and painting), or of others located on the Property, nor for the loss of or damage to any property of Lessee, or of others by theft or otherwise. Lessor shall not be liable for any injury or damage to persons or Property resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any part of the Property 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. -Lessor shall not be liable for any latent defect in the Property. A II property of Lessee kept or stored on the Property shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor harmless from any and all claims arising out of damage to same, including subrogation claims by Lessee's insurance carriers. ARTICLE XIX HOLDING OVER, SUCCESSORS Section 19.1 Holding Over. In the event Lessee remains in possession of the Property after the expiration of the Lease Term, Lessee, at the option of Lessor, shall be deemed to be occupying the Property as a Lessee at sufferance at a monthly rental equal to two (2) times the Minimum Base Rent and the Percentage Rent of the preceding Lease Year, payable during the last month of the Lease Term hereof. In addition, Lessee agrees to pay monthly: (a) one -twelfth (1/12) of the ad valorem taxes for the Property based upon the total ad valorem taxes payable for the Lease Year immediately prior to the Lease Year in which the expiration occurs; (b) cost of insurance for which Lessee would have been responsible if this Lease had been renewed on the same terms contained herein; (c) all sales taxes assessed against such increased rent, and (d) any and all Additional Rent otherwise payable by Lessee hereunder. Such tenancy shall be subject to all the other conditions, provisions and obligations of this Lease. Lessee'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 the assigns of the said Parties; and if there shall be more than one Lessee, they shall be bound jointly and severally by the terms, covenants and agreements herein. Nothing contained in this Lease shall in any manner restrict Lessor's right to assign or encumber this Lease and, in the event Lessor sells its interest in the Property and the purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved of all further obligations hereunder. ARTICLE XX EQUAL OPPORTUNITY & NON-DISCRIMINATION 28 Section 20.1 Equal Employment Opportunities. The Lessee 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 Lessor, setting forth provisions for this nondiscrimination clause; and (c) in all solicitations or advertisements for employees placed by or on behalf of the Lessee shall state that all qualified applicants will receive consideration for employment without regard to race, creed color or national origin. Section 20.2 Non -Discrimination. Lessee represents and warrants to the Lessor that it will comply with §18-188, §18-189 and §18- 190 of the City of Miami Code incorporated herein. Lessee hereby represents and warrants that it does not and will not engage in discriminatory practices and shall not discriminate in connection with Lessee's use of the Property on account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Furthermore, should the Lessee have existing or introduce membership rules for patrons at the Property, that it will comply with the non-discrimination provisions incorporated within Sections 18-188 - 18-190 of the Code of the City of Miami, as amended and incorporated herein by reference. ARTICLE XXI MISCELLANEOUS Section 21.1 Accord and Satisfaction. No payment by Lessee or receipt by Lessor 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 Lessor may accept such check or payment without prejudice to Lessor's right to recover the balance of such Rent or pursue any other remedy provided herein or by law. Section 21.2 Entire Agreement and Amendments. 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 Lessor and Lessee concerning the Property and there are no covenants, promises, conditions or understandings, either oral or written, between them other than as are herein set forth. Neither Lessor nor Lessor's agents have made nor shall be bound to any representations with respect to the Property 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 or future 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 Lessor or Lessee unless reduced to writing and signed by the Parties. This Lease has been negotiated "at arm's length" by and between Lessor and Lessee, 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. The Executive Director shall have the authority to enter into amendments to this Lease without further approval from the CRA Board. 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 Lessor and Lessee, other than Lessor and Lessee or contracting parties, as applicable. Lessor and Lessee are and shall be independent contracting parties and nothing in this Lease are 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 Lessor or Lessee at: 29 If to Lessor at: Executive Director Omni CRA 1401 N. Miami Avenue, 2"d Floor Miami, Florida 33136 With a copy to: City Attorney Office of City Attorney 444 SW 2nd Avenue, 9`i' Floor Miami, Florida 33130 If to Lessee at: With a copy to: 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, Lessor shall also have the right to give notice to Lessee in any other manner provided by law. If there shall be more than one Lessee, 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 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. Lessee agrees that it will, at any time and from time to time, within ten (10) Business days following written notice by Lessor specifying that it is given pursuant to this Section, execute, acknowledge and deliver to Lessor a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect and stating the modifications), and the date to which the Minimum Base Rent, Percentage Rent and any other payments due hereunder from Lessee have been paid in advance, if any, and stating whether or not there are defenses or offsets claimed by Lessee and whether or not to the best knowledge of Lessee, Lessor is in default in performance of any, covenant, agreement or condition contained in this Lease, and if so, specifying each such default of which Lessee may have knowledge. The failure of Lessee to execute, acknowledge and deliver to Lessor 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 Lessee, which may be relied on by any person holding or proposing to acquire an interest in the Property 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 Lessor of any default in payment of Rent or other charges existing as of the date of such notice and, unless expressly consented to in writing by Lessor and, Lessee shall still remain liable for the same. Section 21.9 Waiver. Failure on the part of either part of complain of any action or non -action on the part of the 30 other, no matter how long the same may continue, shall never be deemed to be a waiver by such party of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions hereof, and that a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval to or of any action by either party requiring such consent or approval shall not be deemed to waive or render unnecessary such consent or approval to or of any subsequent similar act by such party. 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 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 heard and decided in Miami -Dade County, Florida. Section 21.12 Waiver of Counterclaims. Lessee shall 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 Lessee is strictly limited in such instances to bringing a separate action in the court of appropriate jurisdiction. The foregoing waiver is a material inducement to Lessor making, executing and delivering this Lease and Lessee'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 21.13 Waiver of Jury Trial. Lessor and Lessee 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 Lessor and Lessee hereunder, Lessee's use or occupancy of the Lease Property and/or any claim of injury or damage. Section 21.14 Quiet Enjoyment. Subject to the terms of this Lease, upon the observance by the Lessee hereunder of all the terms, provisions, covenants and conditions imposed upon the Lessee, the Lessor covenants to the Lessee that the Lessee shall peaceably and quietly hold, occupy and enjoy the Property for the Lease Term without any interruption, disturbance or hindrance by the Lessor, its successors and assigns, or by persons claiming by, through or under the Lessor for the Property leased herein, or by persons with title superior to the Lessor, its successors and assigns. Section 21.15 Surrender of Possession. Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof, the Lessee shall deliver to the Lessor possession of the Property in good repair and condition, reasonable wear and tear excepted. Section 21.16 Joint and Several Liability. if two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereot) shall sign this Lease as Lessee, or by virtue of a Transfer assume the rights and obligations of the Lessee hereunder, the liability of each such individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) to pay Rent and perform all other obligations hereunder shall be deemed to be joint and several, and all notices, payments 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 to have been given or made by, with or all of them. Section 21.17 Third Party Beneficiary. Nothing contained in this Lease shall be construed so as to confer upon any other party the rights of third party beneficiary. Section 21.18 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 to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your county public health unit. Section 21.19 No Liability for Act of other Party 31 Lessee shall not sign any contract, application for any license or permit or do anything that may result in liability to the Lessor for any indebtedness or obligation of Lessee, unless expressly provided herein or approved in writing by the Lessor. Except as expressly authorized in writing, neither Lessor nor Lessee shall make any express or implied agreement, warranties, guarantees or representations or incur any debt, or represent that their relationship is other than Lessor and Lessee, unless otherwise agreed to herein for the management and operation of the Property and neither Lessor nor Lessee shall be obligated by or have any liability under any agreements or representations made by the other that are not expressly authorized as aforesaid. Lessor 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 Lessor or Lessee may impose a hardship upon Lessor or include obligations which extend beyond the Lease Term. Section 21.20 Rights, Privileges and Immunities; Covenants. The Lessee shall have, and the Lessor shall fully cooperate in providing to the Lessee, 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 terns, covenants and conditions hereof agreed to be observed or performed by each party shall constitute concurrent conditions of exchange. IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease, or have caused the same to be executed, as of the date and year first above written. THIS SPACE LEFT INTENTIONALLY BLANK 32 ATTEST: LESSOR: Omni Redevelopment District Community Redevelopment Agency By: By: Todd Hannon Pieter Bockweg Clerk of the Board Executive Director APPROVED AS TO FORM AND CORRECTNESS: By: Julie O. Bru General Counsel LESSEE: By: Print Name Title ATTESTED BY: By: CORPORATE SEAL Name Title Company Name By: Name Title Company Name 33 EXHIBIT "A" SCHEDULE OF LEASEHOLD IMPROVEMENTS Please see attached proposal dated 34 EXHIBIT "B" PROPERTY LEGAL DESCRIPTION [to be inserted prior to execution] 35 EXHIBIT "C" EXISTING IMPROVEMENTS [to be inserted prior to execution] 36 EXHIBIT "D" GROSS REVENUE REPORT ITO BE INSERTED PRIOR TO EXECUTION] 37 EXHIBIT "E" PAYMENT AND PERFORMANCE BOND 38 PERFORMANCE AND PAYMENT BOND BY THIS BOND, We , as Principal, hereinafter called CONTRACTOR, and , as Surety, are bound to the Omni Community Redevelopment Agency of the City of Miami, Florida, hereinafter called CRA, hereinafter referred to as OBLIGEE, in the amount of Dollars ($ for the payment whereof, CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, CONTRACTOR has by written agreement entered into a Contract, Bid/Contract No.: , awarded this day of , 20 with which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified and for the purposes of this Bond are hereafter referred to as the "Contract." THE CONDITION OF THIS BOND is that if CONTRACTOR: 1. Performs the Contract between CONTRACTOR and for construction of , the Contract being made a part of this Bond by reference, at the times and in the manner prescribed in the Contract; and 2. Pays CRA all losses, liquidated damages, expenses, costs and attorney's fees, including appellate proceedings, that CRA sustains as a result of default by CONTRACTOR under the Contract; and 3. Promptly makes payments to all claimants, as defined by Florida Statutes 255.05(1) for all labor, materials and supplies used directly or indirectly by CONTRACTOR in the performance of the Contract; THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS: 3.1 A claimant except a laborer, who is not in privity with CONTRACTOR, and who has not received payment for its labor, materials or supplies, shall, within forty-five (45) days after beginning to furnish labor, materials or supplies for the prosecution of the work, furnish to CONTRACTOR, a notice that he intends to look to the bond for protection. 3.2 A claimant who is not in privity with CONTRACTOR and who has not received payment for its labor, materials or supplies, shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to CONTRACTOR and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. 3.3 No action for the labor, materials or supplies may be instituted against CONTRACTOR or the Surety unless the notices stated under the preceding conditions (2.1) and (2.2) have been given. 3.4 Any action under this Bond must be instituted in accordance with the longer of the applicable Notice and Time Limitations provisions prescribed in Section 255.05(2) or Section 95.11, Florida Statutes. 39 4 Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract; then THIS BOND IS VOID. OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT. Whenever, CONTRACTOR shall be, and is declared by CRA to be, in default under the Contract, having performed CRA obligations there under, the Surety may promptly remedy the default or shall promptly: 4.1 Complete the Project in accordance with the terms and conditions of the Contract Documents; or 4.2 Obtain a bid or bids for completing the Project in accordance with the terms and conditions of the Contract Documents, and upon determination by Surety of the lowest responsible Bidder, or if elects, upon determination by and Surety, jointly of the lowest responsible Bidder, arrange for a contract between such Bidder and and make available as work progresses (even though there should be a default or a succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by CRA to CONTRACTOR under the Contract and any amendments thereto, less the amount properly paid by to CONTRACTOR. No right of action shall accrue on this bond to or for the use of any person or corporation other than CRA named herein. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect Surety's obligation under this Bond. Signed and sealed this day of , 20 WITNESSES/ATTEST: CONTRACTOR: By: (Name of Contractor) Secretary (Signature) (CORPORATE SEAL) IN THE PRESENCE OF: (Print Name and Title) INSURANCE COMPANY By: (Agent and Attorney -in -Fact) Address: 40 (Street) (City/State/Zip Code) Telephone No.: 41 EXHIBIT "F" INSURANCE REQUIREMENTS [TO BE APPROVED BY RISK MANAGEMENT DEPARTMENT PRIOR TO LEASE EXECUTION] Lessee, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the following insurance coverage: I. Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Endorsements Required CRA included as an Additional Insured Employees included as insured Contingent Liability (Independent Contractor's $1,000,000 Coverage) Premises/Operations $1,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required CRA included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation $1,000,000 IV. Employer's Liability Limits of Liability Bodily injury caused by an accident, each accident $1,000,000 Bodily injury caused by disease, each employee $1,000,000 Bodily injury caused by disease, policy limit $1,000,000 V. Liquor Liability A. Limits of Liability Each Occurrence $1,000,000 Aggregate $1,000,000 VI. Excess Liability/Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence 42 $1,000,000 Aggregate $1,000,000 VII. "All Risk" Causes of Loss: special form coverage, including theft, windstorm and flood coverage, and equipment breakdown coverage. Valuation: 100% replacement cost on building and Lessee's business personal property, including improvements, all its equipment, fixtures and furniture. The Lessee must furnish a Certificate of Insurance for affording coverage for the building or premises Business Income and Extra Expense should be included preferably issued on an Actual Loss Sustained Basis. The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Lessee. The Lessee shall provide any other insurance or security reasonably required by the CRA. The policy or policies of insurance required shall provide for notice of cancellation or material changes in accordance to policy provisions. Said notice should be delivered to the Executive Director of the CRA. A current evidence and policy of insurance evidencing the aforesaid required insurance coverage shall be supplied to CRA at the commencement of this Agreement and a new evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State, with the following qualifications as to management and financial strength: the company or companies should be rated "A-" as to management, and no less than class "V" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide. or the company or companies holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required, does not constitute a waiver of Lessee's obligation to fulfill the insurance requirements herein. In the event Lessee shall fail to procure and place such insurance, the CRA may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Lessee to the CRA as an additional fee upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the CRA. Lessee's failure to procure insurance shall in no way release Lessee from its obligations and responsibilities as provided herein. 43 INSURANCE REQUIREMENTS CONSTRUCTION PORTION Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 Endorsements Required CRA included as an Additional Insured Employees included as insured Independent Contractors Coverage Contractual Liability Premises/Operations Explosion, Collapse and Underground Hazard Loading and Unloading II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required CRA included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation $1,000,000 IV. Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Owner's & Contractor's Protective A. Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 VI. Excess Liability/Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $2,000,000 Aggregate $2,000,000 CRA listed as an additional insured 44 VII. Payment and Performance Bond $ TBD CRA Listed as Obligee 45