HomeMy WebLinkAboutCRA-R-15-0038 ExhibitLOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is entered into this day of September,
2015 ("Effective Date"), by and between SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and
body corporate created pursuant to Section 163.356, Florida Statutes (hereinafter referred to as
"CRA"), and VSMD FOOD CORP., Florida corporation (hereinafter referred to as
"Borrower").
RECITALS
A. WHEREAS, the CRA is responsible for ea yirig out community redevelopment
activities and projects within its Redevelopment Areain_-accordance with the 2009 Southeast
Overtown/Park West Community Redevelopment Plan, as amended>and restated ("Plan"); and
B. WHEREAS, Section 2, Goal 4,tpage 11, of the Plan iWs the "creati[on of] jobs
within the community", as a stated redevelopineri goal, and
C. WHEREAS, Section 2,_ Goal 6, at page 11 v ie Plan lists "nnliroving quality of
life for residents", as a stated redevalop ent goal; and
D. WHEREAS, the Plan,, -at pages- 62-63, identifies the N.W. 3 Avenue
Neighborhood Center as becoming a thriving mixed rise area, which requires the CRA to "attach
new businesses to N.W. 3 .A ?enue in anticipation cif Durrounilifig residential development]"
and allows for a loan.aprogram to assist cominercial%usinesses; and
E. WHEREAS; the CR1 owns the Overtown Shopping Center located at 1490 N.W.
3rd Avenue, Mia i, Floriand said Property is located within the N.W. 314
Avenue Neighborhoodl Centeff ar
authorized`
("Premises"
therein; and
WHEREAS]
e execution of
at the Property
e Bo reC _of Commissioners, by Resolution No. CRA-R-14-0028,
a commercial lease agreement with Borrower for Unit 101
There B-oi ower seeks to operate "Top Value Supermarket",
G. WHEREAS, on 'April 10, 2014, Borrower executed a lease agreement for the
Premises, as amended on April 10, 2014 and , attached hereto as Exhibit "A"
("Lease"), which provided funds to assist with the build -out of commercial space at the Premises
("Tenant Improvement Allowance"); and
H. WHEREAS, Borrower has requested a loan from the CRA in order to finance a
portion of the costs associated with the build -out of commercial space at the Premises due to an
increase in construction cost since Borrower submitted its proposal for the Premises in 2013
("Construction Costs"); and
I. WHEREAS, the Board of Commissioners, by Resolution No. CRA-R-15-
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, attached hereto as Exhibit "B," passed and adopted on , authorized a loan, in
an amount not to exceed Four Hundred Thousand Dollars and No Cents ($400,000.00) to
Borrower to finance Construction Costs; and
FOR VALUABLE CONSIDERATIONS, the receipt and sufficiency of which are
acknowledged, the CRA and the Borrower agree as follows:
1. RECITALS. The Recitals to this Agreement are incorporated herein by reference and made
a part hereof.
2. DEFINITIONS: The CRA and the Borrower hereby agree that the capitalized terrns used
herein shall have the meanings set forth below unless the, context requires otherwise:
a. "Construction Costs" has the meaning ascribed tact ch term in Recital H.
b. "Lease" has the meaning aseribed to such term in Recital
c. "Loan"has the meaning ascribed to=such tenn:i :Section 3a.
d. "Loan Documents" Wmeans the Loan al c aal other documents that may now or
hereafter evidence or secure the Loan',,,,, 4ther with other-„ documents executed in connection
herewith or presented by the Borrower to the CR=A,in connection therewith or herewith, and all
amendments, extensions and renewals to any of the foregoing.
teint -Section 3b.
f. "Premises" means 1490 N.W. 31 w venue, Suite 101, Miami, Florida.
vertdwn Si Aping Center located at 1490 N.W. 3rd
h, mm "Tenant Iinpri`einentowance" has the meaning ascribed to such term in
Recital G.
i. "Term' -'°means tl °-period commencing on the Effective Date and ending 175
months later as define d= -Sect T1Y3c.
3. THE LOAN:
a. LOAN. The CRA promises to loan to Borrower Four Hundred Thousand
Dollars and No Cents ($400,000.00) subject to the terms, covenants, and conditions set forth
herein ("Loan"). The proceeds of this Loan shall be used solely to pay Construction Costs,
excluding equipment costs, as displayed in Exhibit "C," which by this reference is incorporated
into this Agreement.
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b. NOTE. Borrower's obligations to the CRA to pay the Loan will be
evidenced by the Borrower's Promissory Note dated even date herewith ("Note"), in form and
content satisfactory to the CRA.
c. REPAYMENT. The Loan will be amortized at the fixed rate of four percent
(4%) for a period of one hundred and seventy-five (175) months with a monthly payment of
Three Thousand One Hundred Fifty Eight Dollars and Thirty -One Cents ($3,158.31) beginning
on September 1, 2016. If Borrower provides written notice to the CRA that it does not intend to
exercise the option to extend the term of the Lease (See Exhibit "A"), then the entire unpaid
principal sum shall be immediately due and payable.
d. DISBURSEMENT. Provided that Borroer;s not in default under the Lease or
this Agreement, the Loan will be disbursed in a series of draws_ (each, a "Loan Draw") within
twenty (20) business days after CRA's receipt ofta:draw request from the Borrower or its
contractor (on an AIA form or such other formdreasonably approval by CRA) accompanied by
the notarized partial lien waivers from all a®® icable contractors, subcontractors, material men
and suppliers and a certification from Borro 's_architect (on an AIA form or such other form
reasonably approved by CRA) that the improvements and materials subject to:the draw request
have been completed and/or delivered to the Premise=°as applicable. Borrower- shall not make a
draw request more than once a month Proceeds froi this Loan shall not be used to purchase
equipment. The final disbursement of t1.ic Loan shall be inade when Borrower provides to CRA:
(i) final lien waivers from all applicable contractors,, subcontractors, material men, architects, and
engineers; (ii) certificates of completion ar'e provided by ea h ,of Borrower's architect and
general contractor; and (n) a dal certificate of occupatacy for the Premises.
e. PREPAYiVIENT. ==The Loan .rna4 be prepaid' in whole or in part at any time
without a premium or penalty. Loa:repayments<a�d prepayments may not be reborrowed.
amount- of -ten percent
The CRA shall assess a late charge in the
that is five (5) business days or more past due.
4. CONDITIONS OF DISBURSEMENT. The CRA shall not be obligated to disburse
the Loan unlessIand until the CA. has received the following:
a. CORPORATE DOCUMENTS.
i. Theeertifioak'of incorporation or partnership agreement, or their equivalent,
as appropriate, and a good standing certificate for the Borrower, certified by
the appropriate governmental authority.
ii. Bylaws, resolutions, and incumbency certificates, or, in the case of a
partnership, their equivalent, for the Borrower, certified by the Corporate
Secretary or other authorized signer, authorizing the consummation of the
transactions contemplated hereby, all satisfactory to the CRA.
b. INSURANCE POLICIES. The Borrower shall obtain and furnish evidence of
any insurance coverage the CRA may require, including but not limited to that described on
Exhibit "D" which by this reference is incorporated into this Agreement. All such policies shall
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provide the CRA with mandatory written notice of cancellation or material change from the
insurer not less than thirty (30) days prior to any such cancellation or material change, and all
such policies shall be written by insurance companies satisfactory to the CRA and shall insure
the CRA and the City of Miami as additional insureds, with a loss payable clause in favor of the
CRA and the City of Miami.
c. OPERATIVE DOCUMENTS. This Agreement, the Note and all other Loan
Documents, duly and lawfully executed by the Borrower and in recordable form as appropriate.
5. REPRESENTATIONS AND WARRANTIES OF THE. BORROWER.
a. ORGANIZATION AND EXISTENCE. The Borrower is a Florida for -profit
corporation, duly organized, validly existing and in good standing under the laws of the State of
Florida, and has full power and authority to conduct its business as presently conducted.
The Borrower has full power and authority to perform thes`provisions hereof and of its
agreements and undertakings with the City aidto perform the transactions contemplated hereby,
and such execution and performance have been: duly authorized by all necessary corporate or
other approvals and actions.
b. CORRECTNESS OR DOCUMENTS The cost estimates, budget,
schedules, and all other documents furnished::to the CRA:regarding this Agreement, and/or the
other Loan Documents, are true and correct material respects and accurately set forth the
facts contained therein and neither misstate any material fact nor, -separately or in the aggregate,
fail to state any material fact -necessary to make the statements made: therein not misleading.
c. ABSENCE OF PROCEEDINGS, ACTIONS, AND JUDGMENTS. There
are no conditions, circumstances, = events, agreements, documents, instruments, restrictions,
ned against or affecting the Borrower, which
could adversety affect tithe Borrower's aflity to comply with the Agreement, perform its
obligations hereunder, or which wetuteld consti=an Event of Default hereunder or under the
other document regardless of the giving of notice or the passage of time or both. There are no
outstanding or. unpaid judgments or arbitration awards against the Borrower.
d. VALID OBLIGATIONS. This Agreement and all of the other Loan
Documents, when executed and delivered, shall constitute the duly authorized, legal, valid and
binding obligations of :the Borrower and will be enforceable in accordance with their respective
terms.
e. LEASE AGREEMENT. The Borrower is not in default of the Lease.
6. FINANCIAL ACCOUNTABILITY. The CRA reserves the right to audit the records of
the Borrower at any time during the performance of this Agreement and for a period of five (5)
years after its expiration/termination. The Borrower agrees to provide all financial and other
applicable records and documentation of services to the CRA. Any payment made shall be
subject to reduction for amounts included in the related invoices, which are found by the CRA,
on the basis of such audit and at its sole discretion, not to constitute reasonable and necessary
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expenditures. Any payments made on behalf of the Borrower are subject to reduction for
overpayments on previously submitted invoices.
7. RECAPTURE OF FUNDS. The CRA reserves the right to recapture funds in the event
the Borrower shall fail to comply with the terms of this Agreement.
8. PUBLIC RECORDS MAINTENANCE OF RECORDS. This Agreement shall be
subject to Florida's Public Records Laws, Chapter 119, Florida Statutes. The parties understand
the broad nature of these laws and agree to comply with Florida's Public Records Laws, and
laws relating to records retention. Moreover, the Borrower acknowledges and accepts the CRA's
right to access the Borrower's records, legal representatives'. and contractors' records, and the
obligation of the Borrowers to retain and to make those; :records available upon request, and in
accordance with all applicable laws. The Borrower swl Jeep sand maintain records to show its
compliance with this Agreement. In addition, the $orrower's contractors and subcontractors
must make available, upon the CRA's request, any -hooks, documents papers, and records which
are directly pertinent to this specific Agreeinent for the purpose of snaking audit, examination,
excerpts, and transcriptions. The Borrower, its contractors and subcontractors shall retain
records related to this Agreement for a period of five (5)-,years after the expiration, early
termination or cancellation of this Agreement.
9. DEFAULT. If the Borrower fails to comply with any term or condition of this
Agreement, or fails to perform any of sae Borrower obligations hereunder, and the Borrower
,s
does not cure such failure within thirty 00) days following receipt of written notice from the
CRA that such failure has occurred, then the-Borrower=shall.be in default. Upon the occurrence
of such default 1aer tinder the CRA, in addition to all remed es available to it by law, may
immediately, upon wrten notice to the Borrower, terminate this Agreement whereupon all
payments, advances, or other compensation pad., by the CRA directly to the Borrower and
utilized by the Borrower �nrolalon of this Agreement shall be immediately returned to the
CRA. Fher, upon the occurrerce of an Ocnt ofDefault as defined in Section 10 herein, the
CRA nay=without no-ticea or demand, declare tlhe entire principal sun then unpaid immediately
due and payable. At that time, ''the interest rate on the outstanding Loan amount may be
increased by three percent (3%) above the rate otherwise in effect. The Borrower understands
and agrees that termination of tl is Agreement under this section shall not release the Borrower
from any obligat of . accruing pact': to the effective date of termination.
10. EVENTS OF DEFA
shall constitute an Even
dun:
The happening of anyone or more of the following events
a. If any term, condition or representation contained in this Agreement or any of the
other Loan Documents is untrue, substantially inaccurate or incomplete, or, if there is a material
misrepresentation of fact or fraud contained in any document(s) submitted in support of this
Agreement.
b. The substantial discontinuance of the performance of the construction at the
Premises for a period of fourteen (14) days which discontinuance is, in the sole determination of
the CRA, without satisfactory cause.
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c. The sale, assignment, pledge, transfer, hypothecation or other disposition of any
proprietary or beneficial interest in "Top Value Supermarket", or any change in operating control
of Top Value Supermarket, without prior written approval from the CRA.
d. In the event that the CRA determines, in its sole and absolute discretion, that the
Borrower has failed to comply promptly with any requirement or notice of violation of law
issued by or filed by the City of Miami or any department of any governmental authority having
jurisdiction over the Borrower.
e. Failure by the Borrower to materially comply witfi any term or provision of this
Agreement.
f. In the event that the CRA detennines,ih its sole and absolute discretion, that there
exists an event of default under and pursuant to the terms of any other agreement or obligation of
any kind or nature whatsoever of the Borrower to the CRA, direct of contingent, whether now or
hereafter due, existing, created or arising.`"`
g. hi the event that the CRA determines, in its solo'and absolute discretion, that there
exists an event of default under anti pursuant to the terms of any of the other Loan Documents
and the continuance of such event beyond the applicable cure period, if any.
11. SUSPENSION. In the event_ the CIA;, _determines, in its sole and absolute
discretion, that the Borrower_has. failed to rnaterially comply with any term or provision of this
Agreement, any of the other Loairpocuments, after the expiration of any applicable cure period
the CRA may take one or more ofte following actions:
a. Temporarily withhold payments pending corrective action by the Borrower,
isallow all or parr of the activity or action not in compliance,
olly'or partially uspend or terminate this Agreement, and/or
Take such other rerxedies as may be legally available.
The determinations and actions described above may be applied to all or any part of the
activities funded pursuant to thus Agreement. The CRA will notify the Borrower in writing of
the type of action taken pursuant to this Section, pursuant to the terms of Section 14 herein. The
notification will include the reason(s) for such action any conditions relating to the action, and
the necessary corrective actions)
12. TERMINATION. The CRA reserves the right to terminate this Agreement, at any
time for any reason upon giving (5) days written notice of termination to the Borrower. If this
Agreement should be terminated by the CRA, the CRA will be relieved of all obligations under
this Agreement. In no way shall be CRA be subject to any liability or exposure for the
termination of this Agreement under this Section.
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b. TERMINATION FOR BREACH. The CRA may terminate this Agreement, in
whole or in part upon the occurrence of an Event of Default, and the continuance of such Event
of Default beyond the applicable cure period, if any.
i. Upon the occurrence of an Event of Default and the expiration of any cure
period (in those circumstances for which a cure period is otherwise provided in this Agreement),
and unless the Borrower's breach is waived by the CRA in writing, the CRA may, by written
notice to the Borrower, terminate this Loam upon not less than twenty-four (24) hours prior
written notice. Said notice shall be delivered pursuant to the terms of Section 14 herein. Waiver
of breach of any provision of this Agreement shall not be deemed to be a waiver of any other
breach and shall not be construed to be a modification of :the'terms of this Agreement. The
provisions hereof are not intended to be, and shall not be, construed to limit the CRA's right to
legal or equitable remedies,
13. INDEMNIFICATION. The Borrower agrees to indemnify, defend, protect and
hold harmless the CRA and the City of Mranu £coin and against allloss, costs, penalties, fines,
damages, claims, expenses (including attorney_'s fees) or liabilities (collectively referred to as
"liabilities") for reason of any injury to or death of any person or damage to or. destruction or loss
of any property arising out of, resulting from or in connection. With: (i) the perfor nance or non-
performance of the services, supplies, materials and equipment contemplated by this Agreement,
whether directly or indirectly caused, in whole or in part, by any act, omission, default,
professional errors or omissions, or negligence (whether active or passive) of the Borrower or its
employees, agents or subcontractors (collectively referred to as. `Borrowers"), regardless of
whether it is, or is alleged_ to be, caused-_ in whole oxT:part (whether joint, concurrent or
contributing) by any act,'ornissron,Tdefault, breach, or negligence (whether active or passive) of
the CRA; or (ii) the failures of the Borrower to comply with any of the paragraphs provisions
herein; or (iii) the failure'Of the Borrower, to co 7fo in to statutes, ordinances, or other regulations
or requirements of any governmental authority, federal, state, county, or city in connection with
the perforr .anee of this-Agreerneht, or any, endment to this Agreement. Borrower expressly
agrees to indernnify and 1iold harixiless the CR , ,from and against all liabilities which may be
assertedWan employee or forineremloyee of Borrower, which would otherwise be limited to
payments .under state Workers Compensation or similar laws.
14. NOTICES :All notices and other communications which shall or may be given pursuant
to this Agreement shall be in sting and given by (a) hand delivery, (b) recognized express
overnight delivery seryace,,,(OY certified or registered mail, return receipt requested, or (d)
electronic mail and shall==e deeined to have been delivered upon (i) receipt, if hand -delivered,
(ii) the next Business Dayf delivered by express overnight delivery service, (iii) if sent by
certified or registered mail, return receipt requested the day evidenced by the return receipt or the
day delivery is refused; or (iv) transmittal, if sent on a business day by electronic mail and if sent
by electronic mail on a day other than a business day, on the first business day following
transmittal. Notices shall be provided to the parties and addresses specified below:
a) VSMD Food Corp.
1490 N.W. 3'd Avenue, Suite 101
Miami, FL 33136
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Attention: Melanio Diaz, President
Email: rnelaniodiaz@aol.com
b) Southeast Overtown/Park West Community Redevelopment Agency
819 N.W. 2nd Avenue, 3rd Floor
Miami, FL 33136
Attention: Clarence Woods, Executive Director
Email: cwoods@miamigov.com
With copy to:
Renee A. Jadusingh, Esq., Staff Counse
Email: rj adusingh@mialnigov. cow
15. ATTORNEY'S FEES, EXPENSES, AND COSTS. The prevailing party in any action to
enforce this Agreement, shall recover from the inn -prevailing party all and singular the costs,
charges and expenses, including but not limited o`reasonable attorneys; fees, including but not
limited to all trial, appellate, and bankruptcy litigation, including litigation for the amount as well
as entitlement to such, costs, charges, and expenses, because of the failure on the part of the non -
prevailing party to perform, comply with, and abide by, each and every of the stipulations,
agreements, conditions and covenats bf this Promissory Note, whether or not suit is brought,
and the fees and costs shall bear interest from the date thereof at the maximum rate permitted by
law. In the event of default, the Borrower agrees to pay all -'arid singular the costs, charges, and
expenses incurred by the CRA in the enforcement of its rights hereunder, including, but not
limited to reasonable attorneys' fees and costs, including the attorneys' fees and costs for
appellate proceeding
16. ASSIGNMENT.
The Borrower may not assign its rights or obligations hereunder
without prior written consent of the CRA,;such consent not to be unreasonably withheld.
17. 1d ADINGS. Headings ale added for the purpose of reference and convenience only and
shall not be.;referred to in construing the provisions of this Agreement.
18. DISPUTES. The parties appoint=the Executive Director of the CRA to serve as a
neutral xnediatorfor resolution d W f disputes concerning this Agreement, which do not create a
breach of this Agre@ent. If tla parties do not resolve their dispute through mediation by the
Executive Director, iIL rnethud of binding dispute resolution shall consist of the Executive
Director bringing the dlsp te'-'to the attention of the CRA's Board of Commissioners for
resolution. Any breach(es)--ofthis Agreement will be resolved in accordance with Section 19.
All actions to enforce or which otherwise concern this Agreement, not addressed in Section 18,
shall be litigated exclusively in the courts located in Miami -Dade County, Florida, and the
parties consent to the exclusive jurisdiction of such courts.
19. FORUM FOR DISPUTES. All actions to enforce or which otherwise concerns this
Agreement shall be litigated exclusively in the courts located in Miami -Dade County, Florida,
and the Parties consent to the exclusive jurisdiction of such courts.
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20. BUSINESS CERTIFICATION, The Borrower certifies that it possess the legal
authority to enter into this Agreement pursuant to authority that has been duly adopted or passed
as an official act of the Borrower's governing body, authorizing the execution of the Agreement,
including all understandings and assurances contained herein, and directing and authorizing the
person identified as the official representative of the Borrower to act in connection with this
Agreement and to provide such information as may be required.
[BALANCE OF PAGE INTENTIONALLY. BLANK.]
[SIGNATURE PAGE TO FOLLOW.]
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IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other
good and valuable consideration, and intending to be legally bound, the CRA and the Borrower
have executed this Agreement.
ATTEST:
By:
Todd B. Hannon
Clerk of the Board
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
Renee A. Jadusir
Staff Counsel
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT
AGENCY, of the City of Miami, a public
agency and body corporate created
pursuance to Section 163.356, Florida
Statutes
ClarerfceE. Woods, III
Executive -Director
PPROVED AS TO INSURANCE
REQUIREMENTS:
sup Ma ie Sharpe
Interim Director
WIT4 SSES: VSMD FOOD CORP., a Florida corporation
("Borrower"):
By: By:
Melanio Diaz
Print: President
By:
Print:
Page 10 of 10
EXHIBIT A
Lease Agreement
LEASE AGREEMENT
BETWEEN
VSMD FOOD CORP., a Florida corporation
as Tenant
AND
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY
as Landlord
SHOPPING CENTER LEASE
DATE: As of April 10, 2014 ("Effective Date" of this Lease)
LANDLORD: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY
TENANT: VSMD FOOD CORP., a Florida corporation
TABLE OF CONTENTS
Page
1. INTRODUCTORY PROVISIONS. 1
1.1 FUNDAMENTAL LEASE PROVISIONS 1
1.2 AGREEMENT 2
2. PREMISES. 2
2.1 PREMISES DEFINED 2
2.2 PRO RATA SHARE 2
3. TERM. 2
3,1 COMMENCEMENT AND EXPIRATION DATES OF TERM 2
3.2 LEASE YEAR DEFINED 3
3.3 FAILURE OF TENANT TO OPEN 3
3.4 FAILURE TO REMAIN OPEN 4
3.5 QUIET ENJOYMENT 4
4. RENT. ,. 4
4.1 MINIMUM RENT 4
4.2 ANNUAL RENT INCREASE 4
4.3 LATE CHARGE 4
4.4 RETURNED CHECK 4
4.5 ADDITIONAL RENT 4
4.6 PAYMENT OF ESTIMATED ADDITIONAL RENT 6
4.7 PAYMENT OF ADDITIONAL RENT 6
4.8 VERIFICATION 7
4.9 PRORATION 7
i
4.10 SECURITY DEPOSIT 7
5. COMMON AREAS. 8
5.1 USE OF COMMON AREAS 8
5.2 LICENSE 8
5.3 COST OF MAINTENANCE 8
6. USE OF PREMISES. 8
6.1 USE AND POSSESSION 8
6.2 SIONAGE 9
7. ALTERATIONS, REPAIRS, AND MAINTENANCE. 9
7.1 ALTERATIONS 9
7.2 REPAIRS BY LANDLORD 9
7.3 REPAIRS BY TENANT 10
7.4 CONDITION OF PREMISES 10
7.5 RUBBISH REMOVAL 11
7.6 SIDEWALKS 11
8. UTILITIES 11
9. TENANT'S PROPERTY 11
9.1 TAXES ON LEASEHOLD 11
9.2 INDEMNITY 11
9.3 NOTICE BY TENANT 12
10. INSURANCE 12
10.1 COMMERCIAL GENERAL LIABILITY 12
10.2 BUSINESS AUTOMOBILE (IF APPLICABLE) 13
10.3 WORKERS' COMPENSATION 13
10.4 PROPERTY INSURANCE 13
10.5 TENANT PERSONAL PROPERTY 13
10.6 BUILDERS RISK 14
10.7 INSURANCE COMPANIES .... 14
10.8 EVIDENCE OF INSURANCE 13
10.9 PLATE GLASS 14
10.10 FAILURE TO MAINTAIN INSURANCE 14
11, DESTRUCTION. 14
12. CONDEMNATION. 15
ii
13. ASSIGNMENT AND SUBLETTING. 16
14. SUBORDINATION 17
15. ESTOPPEL STATEMENT. 17
16. ATTORNMENT, 18
17. DEFAULT, BANKRUPTCY. 18
17.1 DEFAULT 18
17.2 RIGHTS AND REMEDIES 19
18. ACCESS OF PREMISES. 19
19. SALE BY LANDLORD. 20
20, END OF TERM, 20
21. NOTICES 20
22. INABILITY TO PERFORM. 21
23. WAIVERS OF SUBROGATION 21
24. RULES AND REGULATIONS/ADVERTISEMENT 21
25. RELOCATION. 22
26. MECHANIC'S LIEN 22
27. SECURITY INTEREST. 22
28. ENVIRONMENTAL MATTERS. 22
28.1 HAZARDOUS MATERIALS 22
28.2 INDEMNITY 23
28.3 SURVIVAL 23
29. LANDLORD'S RESERVATION. 23
30. MISCELLANEOUS. 23
30.1 ArIoRNEYS' FEES 24
30.2 TIME IS OF THE ESSENCE 24
30.3 IIOLDING OVER 24
30.4 PARTIAL INVALIDITY 24
30.5 BROKERS 24
30.6 WAIVER 24
30.7 PROVISIONS BINDING, ETC 25
30.8 HEADINGS, LANDLORD, AND TENANT 25
30.9 NO ESTATE DY TENANT.... 25
30.10 ENTIRE AGREEMENT 25
111
30.11 GOVERNING LAW 25
30.12 No PARTNERSHIP 25
30.13 RECORDING 26
30.14 WARRANTIES AND REPRESENTATIONS OF TENANT 26
30.15 CONCESSIONAIRES 26
30,16 RADON DISCLOSURE, AND OFAC STATEMENT AND DISCLAIMERS 26
30.17 WAIVER OF TRIAL BY JURY 28
30.18 WAIVER OF THE RIGHT TO FILE PERMISSIVE COUNTERCLAIMS 28
EXHIBITS, ADDENDA
First Addendum - General Addendum
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E" -
Exhibit "F"
- Address of the Shopping Center
- Site Plan for Overtown Shopping Center
- Rules and Regulations
- Work Letter Agreement
Guaranty
Acknowledgement Form.
[Balance of this page intentionally left blank]
iv
SHOPPING CENTER LEASE
THIS LEASE is made as of the loth day of April, 2014, by and between Southeast
Overtown/Park West Community Redevelopment Agency (Landlord"), having an address of
1490 NW 3'i Avenue, Suite 105, Miami, FL 33136, and VSMD FOOD CORP., a Florida
corporation ("Tenant"), having an address 1490 NW 3rd Avenue, Suite 101, Miami, Florida
33136.
1. INTRODUCTORY PROVISIONS.
1.1 Fundamental Lease Provisions. Certain fundamental provisions are presented in this
Section in summary form to facilitate convenient reference by the parties.
(a) Tenant's Trade Name: Top Value
(b) Commencement Date: earlier of 210 days after completion of Landlord's Work or date Tenant is
open to the public for business (See Section 3.1)
(c) Term: Initial - Ten (10) years from the Commencement Date (See Section 3.1)
Renewal - Two (2) options for ten (10) years each (see First Addendum) (See Section 3,1)
(d) Initial Expiration Date: Ten (10) years following Commencement Date (See Section 3.1)
(e) Tenant Suite Number: 101 (See Exhibit "B")
(I) Size of Premises: 17,715 square feet of gross leasable area (See Section 2.1)
(g) Initial Payment: $13,142.17 (See Section 3.1)
(h) Minimum Rent: (See Section 4,1 and 4.2)
Year *Annual Monthly4'
1-5 $70,860.00 $5,905.00 *Subject to adjustment in subsequent years pursuant to the
6-10 $77,946.00 $6,495.50 First Addendum, including as provided. in Section 4.2
(i) Additional Rent: Tenant's Pro Rata Share of taxes, insurance,
Shopping Center operating costs and any other charges required
to be paid by Tenant under the terms of this Lease. (See Section 4,5)
(j) Security Deposit: $13,142.17
(See Section 4.10)
(k) Use: A first class grocery store for the sale at retail of food products and associated
merchandise to the public at retail pricing with a cafeteria selling food by the pound and for no
other purposes (See Section 6.1)
(1) Tenant Pro Rata Share: 54.39% (See Section 2.2 and 4.5)
(m) Guarantor(s): Melanio A, Diaz (See Exhibit E)
(n) Recap of 1st Year Rent:
Estimated Expenses for Lease Year 1
Taxes $37,455.87 x 54.39% 20,372.25
Insurance $48,854.57 x 54.39% 26,572.50
Common Area
Maintenance $65,140.65 x 54.39% 35,430.00
Total Estimated Expenses Lease Year 1 $82,374.75
Total Estimated Expenses per rentable feet:
S82,374.75/17,715 = $4.65 per square foot
1
Base Rent: $ 5,905.00
Expenses: $ 6,864.56
Subtotal: $12,769.56
Sales Tax: $ 893.87
Advertising Fee: $ N/A
Total Rent: $13,663.41
(o) Percentage Rent Factor: One percent (1%)
Sales BrealkPoint $10,000,000.00
1.2 Agreement. In consideration of the rent and other sums payable to Landlord hereunder
and the covenants and agreements to be observed and performed by Tenant, Landlord hereby
leases to Tenant, and Tenant hereby rents from Landlord, the Premises for the Tei ri, at the rental
and upon the condition and agreements hereinafter set forth.
2. PREMISES.
2.1 Premises Defined. The term "Premises" means that portion of the real property
designated as a portion of Overtown Shopping Center located at 1490 NW 3rd Avenue,
Miami, FL 33136, as also described in Exhibit A (the "Shopping Center"). The Premises is
stipulated to contain 17,715 square feet of space and is crosshatched on a diagram attached
hereto as Exhibit B. Exhibit B sets forth the general layout of the Shopping Center and shall
not be deemed to be a warranty, representation or agreement on the part of Landlord that the
Shopping Center will be exactly as indicated on the site diagram, Landlord may increase,
reduce, or change the number, dimensions, or location of the walks, buildings, Common Areas,
and parking areas in any manner whatsoever that Landlord shall deem proper, and reserves the
right to make alterations or additions to the building in which the Premises are contained and to
add buildings adjoining the same or elsewhere in the Shopping Center. Nothing herein contained
shall be construed as a grant or rental by Landlord to Tenant of the roof and exterior walls of the
building or buildings of which the Premises form a part of, or of the walks and other Common
Areas beyond the Premises, or of the Land upon which the Premises are located.
2.2 Pro Rata Share. Tenant's Pro Rata Share is as set forth in Section 1.1 and was
determined by dividing the stipulated square footage of the Premises by the square footage of the
total indoor leasable area herein described. By the execution. of this Lease, Tenant
acknowledged that the Pro Rata Share stated in Section 1.1 has been accurately established.
Tenant's Pro Rata Share is subject to adjustment by Landlord based on the foregoing formula if
the leasable area of the Shopping Center is diminished by casualty, condemnation or similar
takings, or other events reducing the leasable area or if the leasable area is increased by additions
to the Shopping Center.
3, TERM.
3,1 Commencement and Expiration Dates of Term. This Lease shall be effective and binding
upon the parties upon execution by Landlord and Tenant. Landlord shall promptly commence
completion of the work to be performed by Landlord which is more particularly described on
Exhibit D attached hereto ("Landlord's Work"). Upon completion of Landlord's Work, Landlord
shall notify Tenant in writing that Landlord's Work has been completed. The term of this Lease
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and Tenant's obligation to pay rent shall commence upon the earlier to occur of: (a) two hinadred
ten (210) days after Tenant's receipt of notice from Landlord that Landlord's Work is completed
or (b) the date Tenant is first open to the public for business. Tenant shall promptly commence
construction of Tenant's improvements to the Premises in accordance with the plans and
specifications described on Exhibit D attached hereto and made a part hereof ("Tenant's Work")
in compliance with all applicable laws upon completion of Landlord's Work. To the extent
feasible, as determined by Landlord, in Landlord's sole discretion, Tenant may commence certain
aspects of Tenant's Work prior to the completion of Landlord's Work subject to such rules and
regulations that Landlord may impose during construction. Prior to the performance of any of
Tenant's Work, Tenant shall provide Landlord evidence of insurance as required by this Lease.
Upon completion of Landlord's Work and the commencement of the Tenn, , Tenant shall
execute an acknowledgement foiui, or letter prepared by Landlord, in substantially the form
attached hereto as Exhibit F confirming the date the term of this Lease commenced and this
Lease shall continue for the number of Lease Year(s) set forth in Section 1.1, and shall end,
unless extended or sooner terminated in accordance with the provisions herein contained, on the
last day of the last Lease Year (as hereinafter defined). Upon the commencement date, Tenant
shall have the right to occupy the Premises in accordance with and subject to the provisions of
this Lease and to use the Premises in preparation for the opening of its business or the conduct of
its business as permitted hereunder, upon the payment to Landlord of an amount equal to the
Initial Payment. Landlord shall apply the Initial Payment to the Ivlinimum Rent Payment due on
the Commencement Date, unless prior to the Commencement Date Tenant has failed to comply
with any provision of this Lease. In the event any extension or renewal option terin(s) have been
negotiated, same are more particularly set out on the First Addendum. hereto.
So long as Tenant is not in default of this Lease Agreement beyond the applicable grace
period., the Minimum Rent and any Additional Rent for the Premises shall be abated for
the first seven (7) months from the Commencement Date.
Additionally, if any such event of default has occurred which is not cured within the
applicable grace period, Landlord may declare Tenant to be in default hereunder and may
terminate this Lease and Tenant's right of occupancy of the Premises prior to the
Commencement Date.
3.2 Lease Year Defined. The term "Lease Year" shall mean a period of twelve (12)
consecutive full calendar months. If the Commencement Date is not the first day of a calendar
month, then the first Lease Year shall consist of twelve (12) consecutive full calendar months
plus the partial month beginning on the Conunencement Date and ending on the last day of that
partial month. Each succeeding Lease Year shall commence upon the first day of the calendar
month coinciding with or following the anniversary date of the Commencement Date. The first
Lease Year and each succeeding Lease Year may be referred to numerically and consecutively,
for example, "First Lease Year", "Second Lease Year", "Third Lease Year", etc.
3.3 Failure of Tenant to Open. In the event Tenant fails to diligently pursue completion of
the Tenant Work and, once completed, Tenant fails to open for business to the public, fully
fixtured., stocked, and staffed within thirty (30) days after completion of the Tenant Work, then
Landlord shall have, in addition to any and all remedies herein provided, the right to immediately
cancel and terminate this Lease.
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3.4 Failure to Remain Open. After Tenant initially opens for business at the Premises,
Tenant covenants and agrees to be open for business to the public from 9:00 a.m. to 6:00 p.rn.
Monday through Saturday, each week, fully fixture, stocked and staffed. The failure of Tenant
to be open for business shall be a default under this Lease unless caused by a casualty.
3.5 Quiet Enjoyment. Upon Tenant's paying the rent reserved hereunder and observing and
performing all of the covenants, conditions, and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for the entire term
hereof, subject to the provisions of this Lease, Lease Exhibits and Addenda. .
4. RENT.
Tenant shall pay to Landlord at the office of Landlord, or at such other place designated by
Landlord, without notice, demand, deduction., or set-off whatsoever, the following rentals
collectively, the "Rent"):
4.1 Minimum Rent. Subject to the seven (7) month rent abatement from the Commencement
Date, the Minimum Rent, as set forth in Section 1.1 (subject to adjustment in accordance with
Section 4.2), in monthly installments in advance on or before the first day of each calendar
month during the Tenn, plus any sales, use or other taxes assessed from time to time on the
Minimum Rent or on the use and occupancy of the Premises, payable without notice, demand,
deduction, or set-off whatsoever. If the Commencement Date is other than the first day of a
calendar month, the rent for the period from. the Commencement Date to the first day of the next
succeeding month shall be prorated on a per diem basis and shall be payable with and in addition
to the first monthly installment of Minimum Rent of the Commencement Date.
4.2 Annual Rent Increase in Minimum Rent. INTENTIONALLY DELETED.
4.3 Late Charge. Any installment of Rent, including Minimum Rent, Additional Rent, or
expenses due pursuant to this Lease, which is not paid when it becomes due, shall be subject to a
late charge of five percent (5.00%) of that installment that has not been timely paid.
4.4 Returned Checks. In the event any check utilized provided by Tenant to pay rent is
returned for insufficient funds or not honored for any reason, in addition to the late charge
contemplated by Section 4,3 above, Tenant shall pay Landlord Two Hundred Fifty and No/100
Dollars ($250.00) as a returned check charge.
4.5 Additional Rent. The following sruns are included as Additional Rent:
(a) Taxes. Tenant shall pay Tenant's Pro Rata Share of the amount of all real and
personal property taxes and assessments (including without limitation, extraordinary or special
assessments, and all costs and fees, including reasonable attorneys' fees, incurred by Landlord in
contesting or negotiating the same with public authorities) levied, unposed, or assessed upon the
Shopping Center during each Lease Year, plus the applicable sales or use tax thereon. Any tax or
assessment relating to any part of a fiscal period which is not included within the Term of this
Lease shall be prorated so that Tenant shall pay with respect to only that portion thereof which
relates to the tax period included within the Tenn of this Lease. Notwithstanding the
foregoing, Tenant's pro-rata share for Lease Year 1 shall not exceed S20,372.25, plus the
4
applicable sales or use tax thereon. In addition, should the Shopping Center be treated as
exempt from real estate taxes and assessments in whole or in part as a result of Landlord being a
government entity, Tenant's pro rata shall be deemed to be $20,372,25, plus the applicable sales
use tax thereon, notwithstanding such exemption.
(b) Insurance. Tenant shall pay Tenant's Pro Rata Share of the total cost to Landlord
of all property, general liability, and other insurance coverage carried by Landlord pursuant to
the Lease with respect to the Shopping Center plus the applicable sales or use tax thereon. If
Tenant's use or occupancy of the Premises shall cause any increase in the premiums for the
insurance coverage of the Shopping Center as carried from time to time by Landlord, then
Tenant shall pay to Landlord as Additional Rent the entire increase in said premiums, or that
portion thereof allocable to Tenant if more than one tenant's use causes such an increase, with
the next due monthly Minimum Rent payment following Landlord's written notice specifying the
amount of such increase. Notwithstanding the foregoing, Tenant's pro-rata share for Lease
Year 1 shall not exceed $26,572.50, plus the applicable sales or use fax thereon.
(e) Common Area Maintenance. Tenant shall pay to Landlord for the maintenance of
the Common Areas, an amount equal to Tenant's Pro Rata Share of the Shopping Center
Operating Costs, as that term is defined in Section 5.3. Landlord shall establish the fiscal period
for the determination of the Shopping Center Operating Costs plus the applicable sales or use tax
thereon, If the Commencement Date is ether than the first day of such fiscal period, the Shopping
Center Operating Costs for that fiscal period shall be prorated so that Tenant shall pay with
respect only to that portion thereof that relates to the fiscal period included with the Team of this
Lease. Increases on Common Area Maintenance charges shall not exceed five (5%) over the
previous lease year. Notwithstanding the foregoing, Tenant's pro-rata share for Lease Year
1 shall not exceed $35,430.00, plus the applicable sales or use tax thereon.
(d) Percent Rent. If Tenant has Gross Sales, as herein below defined, in the premises
in excess of $10,000,000,00 per Lease Year, the Tenant shall pay as additional rent, within forty
five (45) days of the end of the applicable Lease Year, to Landlord one percent (1%) of the Gross
Sales in excess of $10,000,000.00 plus Florida Sales tax.
The term "Gross Sales" as used herein is defined as the total amount of all receipts, whether for
cash or credit (less returns and refunds) from sales of food, goods, wares and merchandise of
every sort whatsoever, made by Tenant in the operation of Tenant's store on the Premises, or
made by any concessionaire on the Premises. Tenant shall have the right to deduct and exclude
from Gross Sales a stm equal to any approximate amounts which may be paid by Tenant or
which Tenant may add to or include in its selling process of various articles by reason of any
sales taxes, use taxes, retailers' occupation taxes, excise taxes at the retail level and the like, now
or hereafter imposed and however entitled, and which are based upon amounts of sales or the
units of sales. Tenant shall cause to be kept, in accordance with its customary accounting
procedures, records of the Gross Sales made by Tenant in the operation of Tenant's store on the
Premises. Landlord and Landlord's duly authorized representative, at reasonable times during
business hours, shall have access to such records at the place where the same are kept, for the
purpose of inspecting and auditing the same, provided that any such inspection and audit be
made by Landlord within six (6) months after the expiration of any Lease Year. If Landlord does
not object in writing to any statement above mentioned within said time period, such statement
5
shall be conclusively presumed to be correct and final, and thereafter Tenant shall not be
required to preserve the records from which such statement was compiled, Landlord agrees not
to divulge to any person or entity the information obtained by Landlord and Landlord's
representatives from such records or from the statements above mentioned., except to any
mortgagee or prospective purchaser of the Premises and except as may be necessary to enforce
Landlord's rights under this Lease. Nothing herein contained, however, shall be deemed to
confer upon Landlord any interest in the business of Tenant on the Premises.
(e) Other Additional Rent. Tenant shall pay, as Additional Rent, all other sums of
money or charges required to be paid by Tenant under this Lease, whether or not the same be
specifically designated "additional rent" and all sales, use, or other taxes assessed, levied, or
imposed from time to tine on any Additional Rent.
If such amounts and charges are not paid at the time provided in this Lease, they
shall nevertheless, if not paid when due, be collectible as Additional Rent with the next
installment of Minimum Rent thereafler becoming due, but nothing herein shall be deemed to
suspend or delay the payment of any amount of money or charge.
(f) Intent. It is the intent of the parties that the Rent payable to Landlord is
absolutely net of all expenses associated with the operation of the Shopping Center and all sales
or use taxes imposed on the Rent, except as expressly provided herein.
4.6 Payment of Estimated Additional Rent. At least once each calendar year, Landlord shall
deliver to Tenant a statement setting forth the monthly installment of Additional Rent that
Landlord estimates will be needed to pay in full the Additional Rent for that calendar year. If at
any time during the calendar year Landlord determines that the initial estimate should be revised
so that it will more closely approximate the expected actual Additional Rent, Landlord may
revise the initial estimate by delivering to Tenant a subsequent statement. Tenant shall pay to
Landlord, without notice, demand, setoff, or deduction of any kind, on the first day of each
month during the Term of this Lease, the monthly installment of estimated Additional Rent, as
set forth in the last statement received by Tenant from time to time continuing throughout the
Term of this Lease.
4.7 Payment of Additional Rent. If the total amount of estimated payments paid by Tenant
for any fiscal period are less than the actual Additional Rent for the same period, Tenant shall
pay the balance of Additional Rent within fifteen (15) days after Landlord delivers to Tenant a
statement of the following:
(a) The taxes, insurance costs, and Shopping Center Operating Costs for the fiscal
period and Tenant's Pro Rata Share of same;
(b) The amount of any other Additional Rent payable; and,
(c) The total amount of Additional Rent payable for the fiscal period less the amount
previously paid by Tenant as estimated Additional Rent for the same period.
If the total of the estimated payments is greater than the actual Additional Rent for the same
period, Tenant shall receive a credit against the next payment due of estimated Additional Rent.
6
4.8 Verification. Upon ten (10) days prior written request Tenant or its representative shall
have the right to exarnine Landlord's books and records with respect to the items in the foregoing
statement of Additional Rent, during normal business hours, at any time within ten (10) days
following the furnishing by Landlord to the Tenant of the statement. Unless Tenant shall take
written exception to any item within fifteen (15) days after the finishing of the statement, the
statement shall be considered as final and accepted by Tenant. Any amount due to Landlord as
shown on any statement, whether or not written exception is taken thereto, shall be paid by
Tenant within fifteen (15) days after Landlord shall have delivered the statement without
prejudice to any such written exception.
4.9 Proration. If the first year of the Term of this Lease commences on any day other than
the first day of January, or if the last year of the Term of this Lease ends on any day other than
the last day of December, any payment due to Landlord by reason of any Additional Rent or
estimated installment thereof shall be prorated, and Tenant shall pay any amount due to Landlord
within fifteen (15) days after being billed therefor. This covenant shall survive the expiration or
termination of this Lease.\
4.10 Security Deposit.
(a) Tenant has deposited with Landlord the sure set forth in Article 1 of this .Lease,
the receipt of which is subject to confirmation of actual payment thereof irrespective of the
amount specified in Article 1 and subject to collection if paid by check or other financial
instrument which is not cash or deemed immediately collected. Said deposit shall be held by
Landlord, without liability for interest, as security for the faithful performance by Tenant of all
the terms of this Lease to be observed and performed by Tenant. The security deposit shall not
be mortgaged, assigned, transferred or encumbered by Tenant and any such act on the part of
Tenant shall be without force and effect and shall not be binding upon Landlord.
(b) If any of the Rents herein reserved or any other sari payable by Tenant to
Landlord shall be overdue and unpaid or should Landlord make payments on behalf of the
Tenant, or Tenant shall fail to perform any of the tennis of this Lease, or Tenant or any of its
agents, employees, or customers, shall physically damage the Premises and such damages shall
not have been corrected within thirty (30) days of the date Landlord provides Tenant with notice
of the need to repair the damage, tb.en Landlord may, at its option and without prejudice to any
other remedy which Landlord may have on account thereof, appropriate and apply the entire
deposit or so much thereof as may be necessary to compensate Landlord toward the payment of
Rent or Additional Rent or loss or damage sustained by Landlord due to such breach on the part
of Tenant; and Tenant shall, within five (5) days of written demand, deposit cash with Landlord
to restore and replenish said security to the original sum deposited. Tenant's failure to maintain
such security shall constitute a material breach of this Lease. Should Tenant comply with all of
said terms and promptly pay all of the rentals as they fall due and all other sums payable to
Tenant to Landlord, said deposit shall be returned in full to Tenant promptly after the end of the
Term of this Lease or any extension hereof and provided Tenant timely and properly fully
vacates and surrenders,
(c) The Security Deposit shall not constitute prepaid Rent or liquidated damages, nor
a measure of damages in any respect, but may be applied by Landlord to other amounts due
7
under this Lease. Landlord may deliver the funds deposited hereunder by Tenant to the purchaser
of Landlord's interest in the Premises in the event the such interest be sold and thereupon
Landlord shall be discharged from any further liability with respect to such deposit. This
provision shall also apply to any subsequent transferees.
5. COMMON AREAS.
5.1 Use of Common Areas. The use and occupancy by Tenant of the Premises shall include
the use in common with others entitled thereto of the employee parking areas, service roads,
loading facilities, sidewalks, and customer parking areas within the Shopping Center, together
with such other facilities as may be designated from time to time by Landlord (collectively
referred to as the "Common Areas") and provided, however, that use of the Common Areas by
Tenant shall be subject to the regulations for the use thereof as may be prescribed by Landlord
from time to time during the Tenn. The Rules and Regulations currently prescribed by Landlord,
if any, are attached hereto as Exhibit C. Landlord reserves the right to amend the Rules and
Regulations from time to time, which amendments shall become effective upon delivery of a
copy of same to Tenant.
5.2 License. Tenant, its guests, visitors and business invitees shall have the non-exclusive
right to use the parking area located within the Shopping Center, for the Term of this Lease so
long as Tenant is a tenant of Premises subject to the Rules and Regulations. All Cottonton Areas
and facilities which Tenant may be permitted to use and occupy are to be used and occupied
under a revocable license, and if any such license be revoked or if the amount of such areas be
changed or diminished, the mac shall not be deemed constructive or actual eviction. and
Landlord shall not be subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent. Landlord reserves the right to impose reasonable regulations
regarding use of all Common Areas including the right to designate employee parking areas
which regulations may grant exclusive use of the Common Area during certain time periods
when deemed by Landlord to be in the best interest of the Shopping Center as a whole.
5.3 Cost of Maintenance. Landlord shall pay for the cost of maintenance, operation, repair
and administration of the Common Areas, The term "Shopping Center Operating Costs" shall
mean the total cost and expenses incurred in connection with the administration, operation,
maintenance, and repair of the Shopping Center including the Common Areas, including without
limitation: gardening and landscaping; the cost of repairs, line painting, burnpering, and top
coating; lighting; sign maintenance; electricity; water; sanitary control; removal of trash, rubbish,
garbage and other refuse; machinery or equipment used in such maintenance; the cost of
personnel to implement such services; legal fees and management fees; security; fees to direct
parking and to police the Conunon Area,
6. USE OF PREMISES.
6.1 Use and Possession. Tenant shall use and occupy the Premises only for the use set forth
in Section 1.1 hereof, and. shall not use or occupy the Premises or permit the same to be used for
any other purpose. Tenant agrees that it will use the Premises in such a manner so as not to
interfere with or infringe on the rights of other tenants in the Shopping Center. Tenant shall not
use or occupy the Premises in violation of any law, ordinance, regulation, or direetives of any
8
governmental authority having jurisdiction thereof or of any condition of the certificate of
occupancy issued for the building of which the Premises are a part, and shall, upon five (5) days'
written notice froze. Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be in violation of any law, ordinance, regulation, or
directive of said certificate of occupancy. Tenant shall at all times comply with all of the Rules
and Regulations of the Shopping Center.
6.2 Signage, The Tenant will not place any signs or other advertising matter or material on
the exterior or on the interior of the Premises or of the Shopping Center in which the Premises
are located, without the prior written consent of the Landlord. Any lettering or signs shall be of a
type, kind, character and descriptions to be approved in writing by Landlord.
7, ALTERATIONS, REPAIRS, AND MAINTENANCE.
7.1 Alterations. After completion of the Tenant Work, Tenant may, at any time during the
Tenn, with the prior written consent of Landlord, which consent cannot be unreasonably
withheld, make additions, alterations, changes, or improvements in or to the Premises or any part
thereof as Tenant may from time to time deem reasonably necessary or desirable for the
operation of Tenant's business within the Premises consistent with the terms of this Lease;
provided, however, that Tenant shall not have the right to make any additions, alterations,
changes, or improvements which affect the structure, structural strength, or outward appearance
of the Premises or the building. Tenant shall submit to Landlord plans and specifications for such
work not later than fifteen (15) days prior to the time approval is sought. Landlord may withhold
approval in its absolute discretion. Any additions, alterations, changes, or improvements made in
or to the Premises by Tenant shall be in compliance with all insurance requirements and
regulations and ordinances of governmental authorities and shall, upon the expiration or sooner
termination of the Tenn, become the property of Landlord; provided, however, Landlord may at
its option, require Tenant, at Tenant's sole cost and expense, to remove any such additions,
alterations, changes, or improvements at the expiration or sooner termination of the Term, and to
repair any damages to the Premises caused by such removal. Landlord hereby reserves the right
at any time and from time to time during the Term to make any additions, alterations, changes, or
improvements (including without limitation, building additional stories) on, in, or to the building
in which the Premises are contained, and reserves the right to construct other buildings and
improvements in the Shopping Center from time to time and at any time during the Term, and to
make alterations thereto and to build additional stories on any such buildings and to build
adjoining same and to construct multi -level parking facilities.
7.2 Repairs by Landlord. Landlord agrees to keep and maintain in good order and repair the
buildings and the Property, including the roof, structural components, Common Areas,
foundation, the Shopping Center's mechanical, electrical, plumbing and 1 VAC systems (but not
the HVAC system located in the Premises which is the responsibility of Tenant) and exterior
walls of the buildings except for damage caused by casualty and condemnation, and subject to
normal wear and tear, provided such repairs are not occasioned by Tenant, Tenant's invitees or
anyone in the employ or control of Tenant. Landlord gives to Tenant exclusive control of the
Premises and shall be under no obligation to inspect the Premises. Tenant shall at once report in
writing to Landlord any defective condition known to him that Landlord is required to repair
pursuant to this Section. Tenant's failure to report to Landlord any such condition or defect shall
9
make Tenant responsible to Landlord for any liabilities, costs, expenses, and attorneys' fees
incurred by Landlord as a result of such defect. Landlord's obligation to repair is expressly
limited to those items set forth in this Section. Tenant, by taking possession of the Premises,
shall accept and shall be held to have accepted the Premises as suitable for the use intended by
this Lease. Landlord shall not be required, after possession of the Premises has been delivered to
Tenant, to make any repairs or improvements to the Premises, except set forth in this Lease.
7.3 Repairs by Tenant. Except as described in Section 7.2 above, Tenant shall, at its own
cost and expense, keep the Premises and appurtenances thereto and every part thereof, in good
order and to establish and maintain, throughout the Lease term, an HVAC service contract with a
party other than Tenant, providing for annual maintenance and repair of the HVAC system.
Tenant shall provide Landlord proof of such contract on the Lease anniversary date or such other
date as requested by Landlord. Without limiting the foregoing, Tenant agrees to keep in good
order and repair and to replace as needed all fixtures pertaining to heating, air conditioning,
ventilation, water, sewer, electrical and sprinkler systems (if any and Tenant shall be liable for
any damage to such systems. Tenant agrees to return the Premises to Landlord at the expiration
or sooner termination of this Lease in as good condition and repair as when the Tenant Work was
completed, reasonable wear and tear and damage by fire or other insurable casualty excepted.
All damage or injury to the Premises, the Shopping Center, or the Common Areas caused by the
act or negligence of Tenant, its agents, employees, licensees, invitees, or by visitors, shall be
promptly repaired by Tenant at its sole cost and expense and to the satisfaction of Landlord.
Landlord nnay make such repairs that are not promptly made by Tenant and charge Tenant for the
cost thereof and Tenant hereby agrees to pay such amounts on demand as additional rent
hereunder. Tenant shall have no right to make repairs at the expense of Landlord or to deduct the
cost thereof from the rent due hereunder. In order to comply with the provisions of Section
713.10 Florida Statutes, it is specifically provided that neither the Tenant nor anyone claiming
by, through or under the Tenant, including, but not limited to, contractors, subcontractors,
material persons, mechanics and laborers, shall have any right to file or place any kind of lien
whatsoever upon the Premises or the building of which it is a part, or any improvement thereon.
Any such liens are specifically prohibited. All parties with whom the Tenant may deal are put on
notice that the Tenant has no power to subject the Landlord's interest to any claim or lien of any
kind or character, and all such persons so dealing with the Tenant must look solely to the credit
of the Tenant, and not to the Landlord's interest or assets. Tenant shall put all such parties with
whom the Tenant may deal on notice of the terms of this Section. The Tenant understands that
the Property of the Landlord, who is an agency and instrumentality of a Florida municipal
corporation, is expressly exempt from all such liens by Section 713.01(23) Florida Statutes.
7.4 Condition of Premises. Tenant acknowledges that neither Landlord nor any agent or
employee of Landlord has made any representation or warranty with respect to the Premises, the
building, or the Shopping Center or with respect to the suitability thereof for the conduct of
Tenant's business. Tenant accepts the Premises in its "as is" condition subject to the completion
of Landlord's Work. The taking of possession of the Premises by Tenant upon completion of
Landlord's Work conclusively establishes that the Premises, the building, and the Shopping
Center were, at such time, in satisfactory condition free from defects and suitable for Tenant's
use and occupancy.
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7.5 Rubbish Removal. Tenant shall keep the Premises clean, both inside and outside, and
will remove all refuse from the Premises at Tenant's sole cost and expense. Tenant shall not bum
any materials or rubbish of any description upon the Premises or Common Areas. Tenant shall
enter into a contract with a commercial waste removal company to cause its waste recepticals to
be emptied on a regular basis. If Tenant fails to maintain the Premises, Carnrnon Areas, or any
portions heretofore described in the proper condition, Landlord may cause the same to be done
for and on account of Tenant and Tenant hereby agrees to pay the expense thereof on demand as
Additional Rent.
7.6 Sidewalks. Tenant shall neither encumber nor obstruct the sidewalks adjoining the
Premises nor allow the same to be obstructed or encumbered in any manner. Tenant shall not
place or cause to be placed any merchandise, vending machines, or anything else in the Shopping
Center's Common Areas, on the sidewalks or exterior of the Premises without prior written
consent of Landlord.
8. UTILITIES.
Tenant shall pay the cost of water, gas, electricity, fuel, light, heat, power, and all other utilities
furnished to the Premises, all of which shall be separately metered or submetered. Tenant shall
not install any equipment nor shall Tenant use the Premises in a manner that will exceed or
overload the capacity of any utility facilities. If Tenant's use of the Premises shall require
additional facilities, the same shall be installed only after obtaining Landlord's prior written
approval, which may not be unreasonably withheld, and shall be installed at Tenant's expense in
accordance with the plans and specifications approved in writing by Landlord. If Tenant's use
and occupancy of the Premises results in an increase to Landlord of any utilities expense or
results in connection or tap -in fees, changes for increased usage or capacity, or assessments of
any kind whatsoever, Tenant shall pay the entire amount thereof within ten (10) days of
Landlord's written demand. Landlord reserves the right to interrupt, curtail, stop or suspend the
furnishing of heating, elevator, air conditioning and the operations of the plumbing and electric
systems, without any diminution or abatement of rent, nor shall the Lease be affected or any of
Tenant's obligations hereunder reduced. Landlord shall not be liable in damages or otherwise
for any failure or interruption of any utility service being furnished the Premises.
9. TENANT'S PROPERTY.
9.1 Taxes on Leasehold. Tenant shall pay prior to delinquency all taxes, both real and
personal, assessed against or levied upon the leasehold and upon its fixture, furnishings,
equipment, leasehold improvements, and all other personal property of any kind owned by or
used in connection with the Premises by Tenant.
9.2 Indemnity.
(a) Tenant shall indemnify, defend and hold harmless Landlord, its officers,
members, agents and employees from claims, suits, actions, damages, liability, loss and expense
(including but not limited to attorneys' fees in settlement, at trial and on appeal) in connection
with loss of life, bodily injury, personal injury or property damage arising from or out of any
occurrence in, upon, at or from the Premises or the sidewalks and Common Areas, or occasioned
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wholly or in part by any negligent act or omission of Tenant, its agents, contractors, employees,
invitees, licensees, or concessionaires.
(b) Tenant shall store its property in and shall occupy the Premises and all other
portions of the Shopping Center at its own risk, and hereby releases Landlord, to the full extent
permitted by law, from all claims of every kind resulting from loss of life, bodily injury, personal
injury or property damage occurring on the Premises.
(c) Landlord shall not be responsible or liable to Tenant or to those claiming by,
through or under Tenant for any loss or damage to either the person or property of Tenant that
may be occasioned by or through the acts or omissions of persons occupying adjacent,
connecting or adjoining premises.
(d) Landlord shall not be responsible or liable for any defect, latent, or otherwise, in
any building in the Shopping Center or any of the equipment, machinery, utilities, appliances or
apparatus therein, nor shall it be responsible or liable for any injury, loss or damage to any
person or to any property caused by or resulting from bursting, breakage, leakage, steam or snow
or ice, running, backing up, seepage, or the overflow of water or sewage in any pat of said
premises or for any injury or damage caused by or resulting from acts of God or the elements,
including without limitation floods, storms, or hurricanes, or for any injury or damage caused by
or resulting from any defect or negligence in the occupancy, construction, operation or use of
any of said Premises, building, machinery, apparatus or equipment by any occupant of the
Premises.
(e) Tenant shall give prompt notice to Landlord in case of fire or accidents in the
Premises or in the building of which the Premises are a part, of defects therein or in any fixtures
or equipment.
(1) In case Landlord shall, without fault on its part, be made a party to any litigation
commenced by or against Tenant, then Tenant shall protect and hold Landlord harmless and shall
pay all costs, expenses and reasonable attorneys' and paralegals' fees (in settlement, at trial and
on appeal) incurred by Landlord.
(g) Tenant shall also pay all costs, expenses, and reasonable attorneys' and
paralegals' fees (in settlement, at trial and on appeal and in any bankruptcy or similar
proceedings) that may be incurred or paid by Landlord in enforcing the terms of this Lease in the
event Landlord prevails in such enforcement or otherwise succeeds in such action or proceeding.
9.3 Notice by Tenant. Tenant shall give immediate written notice to Landlord in case of fire
or accidents in the Premises and the building of which the Premises are a part, of defects therein,
or in any fixtures or equipment.
10. INSURANCE
10.1 Commercial General liability. Tenant, at Tenant's sole cost and expense, shall procure
and maintain throughout the Term, and any extensions thereof, Commercial General Liability
insurance naming Landlord and the property manager as additional insureds. The limits of the
Commercial General Liability insurance shall not be less than $1,000,000 per occurrence and
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$2,000,000 in the aggregate, covering bodily injury, personal injury and property damage
liability occasioned by or arising out of or in connection with the use, operation and occupancy
of the Premises; Products/Completed Operations with limits of not less than $2,000,000;
Personal and. Advertising Injury with limits of not less than $1,000,000; with endorsements
covering contractual liability, Premises & Operations Liability and Explosion, Collapse and
Underground Hazard. Tenant shall deliver said policies or certificates thereof to Landlord upon
execution of this Lease and thereafter renewal policies or certificates shall be delivered to
Landlord not less than fifteen (15) days prior to the expiration of the policies of insurance. The
failure of Tenant either to effect said insurance in the names herein called for or to pay the
premiums therefore or to deliver said policies or certificates to Landlord shall, at Landlord's
option, permit Landlord to (1) procure the insurance and pay the requisite premiums therefore on
behalf of Tenant, which premiums shall be paid to Landlord with the next installment of Rent or
(2) declare this Lease in default.
10.2 Business Automobile (If Applicable). Tenant shall carry at its own expense business
automobile liability insuring all owned, hired and non owned auto exposures with a limit of at
least $1,000,000, naming the Southeast Overtown/Park West Community Redevelopment
Agency as an additional insured. The certificate should reflect notice of cancellation in
accordance to policy provisions.
103 Workers' Compensation. Tenant shall carry at its own expense workers' compensation
coverage as required by Florida Statutes.
10.4 Property Insurance. Landlord shall procure building coverage subject to special form
coverage, with replacement cost valuation.
10.5 Tenant Personal Property. Tenant shall carry at its own expense and maintain in full
force and effect during the Tenn of this Lease, business personal property coverage written on a
special form basis, including coverage for wind and hail, with a replacement cost valuation,
covering all business personal property, including stock and trade, trade fixtures, improvements
and betterments, equipment and other personal property located in the Premises and used by
Tenant in connection with its business. The certificate or policy should include coverage for
basic flood and sprinkler leakage, if applicable, as well as business income and extra expense.
The certificate or policy should contain a maximum deductible of 5% on the perils of wind and
hail.
10.6 Builders Risk. Prior to Tenant commencing the Tenant's Work, Tenant shall obtain
Builder's Risk insurance utilizing the Completed Value Builders Risk Form with valuation at
Replacement Cost with deductibles of not more than $25,000 for all Perils and 5% maximum for
wind storm, naming Landlord as an additional named insured.
10.7 Insurance Companies. All policies affording the above coverage should possess a rating
of at least (A-) or better as to management, with a financial strength of (V) or higher, in
accordance to the latest edition of A.M. Best Insurance Guide Oldwick, New Jersey.
10.8 Evidence of Insurance. Upon Landlord's written request, duplicate copies of the
certificates of insurance required of Tenant will be delivered to Landlord's mortgagees.
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Landlord and Landlord's mortgagee, if any, shall be named as additional insured under Tenant's
insurance, and such insurance shall be primary and non-contributing with any insurance carried
by Landlord. Tenant's insurance policies shall contain endorsements requiring thirty (30) days
notice to Landlord and Landlord's mortgagee, if any, prior to any cancellation or any reduction
in amount of coverage, Tenant shall deliver to Landlord as a condition precedent to its taking
occupancy of the Premises (but not to its obligation to pay rent), a certificate or certificates
evidencing such insurance acceptable to Landlord and Tenant shall at least thirty (30) days prior
to the expiration of any such policies, deliver to Landlord certificates of insurance evidencing the
renewal of such policies.
10.9 Plate Glass. Tenant shall replace, at its sole cost and expense, any and all plate and other
glass damaged or broken from any cause whatsoever in and about the Premises, Tenant shall
procure and maintain, at its own expense, insurance covering all plate and other glass in the
Premises for and in the name of Landlord. Tenant shall deliver certificates of such insurance to
Landlord as provided in the first Section of this Article.
10.10 Failure to Maintain Insurance. Tenant's failure to maintain any and all insurance
required herein shall be deemed an event of default and Landlord's procurement or maintenance
of such insurance on behalf of Tenant, at Tenant's sole cost and expense and such action shall not
be a waiver of such default.
11. DESTRUCTION.
(a) Subject to the provisions of subparagraphs (b) and (c) if the Premises shall be
partially damaged by any casualty covered by Landlord's insurance policy, Landlord shall repair
the sabre to their condition at the time of the occurrence of the damage and the Minimum Rent
shall be abated proportionately as to that portion of the Premises rendered untenantable;
provided, however, Landlord shall not be obligated to commence such repair until insurance
proceeds are received by Landlord and Landlord's obligation hereunder shall be limited to the
application of the proceeds actually received by Landlord under its insurance policy which have
not been required to be applied towards the reduction of any indebtedness secured by a mortgage
covering the Shopping Center or any portion thereof.
(b) If the Premises (i) are rendered wholly untenantable (as determined by Landlord
in the exercise of its sole discretion) or (ii) should be damaged as a result of a risk which is not
covered by Landlord's insurance; or (iii) should be damaged in whole or in part during the last
three (3) years of the Term or of any renewal term hereof, (iv) or the building of which it is a part
are damaged to the extent of fifty (50%) percent or more of the then monetary value thereof; or
(v) if any or all of the building or Common Areas of the Shopping Center are damaged, whether
or not the Premises are damaged, to such an extent that the Shopping Center cannot in the sole
judgment of Landlord, be operated as an integral unit, then or in any such event, Landlord may
either elect to repair the damage or may cancel this Lease by notice of cancellation within one
hundred twenty (120) days after such event and thereupon this Lease shall expire, and Tenant
shall vacate and surrender the Premises to Landlord. Tenant's liability for Rent, subject to the
provisions regarding abatement of Minimum Rent contained in subparagraphs (a) and (c), shall
continue until the date of termination of this Lease.
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(c) Unless this Lease is terminated by Landlord, Tenant shall repair and re fixture at
Tenant's expense the interior of the Premises in a manner and to at least a condition equal to that
existing prior to its destruction or casualty and the proceeds of all insurance carried by Tenant on
its property and improvements shall be held in trust by Tenant for the purpose of said repair and
replacement. Tenant's obligation hereunder shall be effective regardless of the original source of
such improvements.
(d) If such damage or destruction occurs as a result of the negligence or misconduct
of Tenant or Tenant's employees, agents, contractors or invitees, and the proceeds of the
insurance which are actually received by Landlord are not sufficient to repair all of the damage,
Tenant shall pay, at Tenant's sole cost and expense, to Landlord upon demand, the difference
between the cost of repairing the damage and the insurance proceeds received by Landlord.
12. CONDEMNATION.
(a) If the whole of the Premises shall be acquired or taken pursuant to the power of
eminent domain for any public or quasi -public use or purpose, then this Lease and the term
herein shall cease and tenninate as of the date of title vesting in the public authority in such
proceeding.
(b) If any part of the Premises shall be taken as aforesaid, and such partial taking
shall render that portion not so taken unsuitable for the business of Tenant (as determined by
Landlord in the exercise of its sole discretion) (except for the amount of floor space) then this
Lease and the Term herein shall cease and terminate as aforesaid. If such partial taking does not
render the Premises unsuitable for the business of Tenant (which determination shall be made by
Tenant in the execution of its reasonable discretion), then this Lease shall continue in effect
except that the Minimum Rent shall be reduced in the same proportion that the floor area of the
Premises taken bears to the original floor area and Landlord shall, upon receipt of the award in
condemnation, make all necessary repair or alterations to the building in which the Premises are
located so as to constitute the portion of the building not taken a complete architectural unit, but
such work shall not exceed the scope of the work to be done by Landlord in originally
constructing the portion of the building housing the Premises, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by Landlord as
damages for the part of the Premises so taken. "Aanount received by Landlord" shall mean that
part of the award in condemnation for the part of the Premises so taken which is free and clear to
Landlord of any collection by mortgagees for the value of the diminished fee and less any costs
incurred by Landlord in connection with such condemnation proceeds if such costs were not
included in the amount received by Landlord,
(c) If more than twenty (20%) percent of the floor area of the building in which the
Premises are located shall be taken as aforesaid, Landlord may, by written notice to Tenant
terminate this Lease, such termination to be effective as aforesaid.
(d) All compensations awarded or paid upon such a total or partial taking of the
Premises shall belong to and be the property of Landlord without any participation by Tenant.
Tenant shall, however, be entitled to claim, prove and receive in such condemnation proceedings
such award as may be allowed for reasonable relocation costs, fixtures and other equipment
15
installed by it but only to the extent that the same shall not reduce Landlord's award and only if
such award shall be in addition to the award for the land and building (or portion thereof
containing the Premises). To the extent that the Tenant has claim in condemnation proceedings,
as aforesaid, Tenant may claim from condemnors, but not from Landlord, such compensation as
may be recoverable by Tenant.
13. ASSIGNMENT AND SUBLETTING.
Tenant shall not assign, transfer, sell, pledge, mortgage or encumber this Lease, in whole or in
part, or sublet all or any part of the Premises, without the Landlord's prior written consent which
shall not be unreasonably withheld and full compliance with the applicable Lease provisions.
Notwithstanding the immediately preceding sentence, Landlord's consent shall not be required in
connection with a sublease by Tenant of not more than 1,000 square feet of the Premises, in the
aggregate. No partial assignment of the Lease shall be permitted. No partial assignment of the
leasehold estate or Premises shall be peiinitted. No mortgage, security interest, ,or other
instrument encumbering of the leasehold estate shall be permitted. As a condition of Landlord's
approval for any requested consent to a possible assignment or sublet as aforesaid, Tenant agrees
to promptly pay all costs incurred by Landlord in connection therewith, including, but not limited
to, an administrative fee of not less than Five Hundred and 00/100 dollars ($500.00) and, in
addition thereto, reasonable attorneys' and paralegals' fees of not less than One Thousand and
00/100 dollars ($1,000.00) and shall furnish to Landlord not later than fifteen (15) business days
prior to the proposed assignment or sublease all of the following: (a) financial statements for the
proposed assignee or subtenant for the prior 12 month period prepared in accordance with
generally accepted accounting principles, (b) federal tax returns for the proposed assignee or
subtenant for the past three (3) years, (c) a TRW credit report or similar report known in the
trade and acceptable to the Landlord on the proposed assignee or subtenant, (d) a detailed
description for the business the assignee or subtenant intends to operate at the Premises, (e) the
proposed effective date of the assignment or sublease, (f) a statement all of the material terms
and conditions of the proposed assignment or sublease, and (g) a detailed description of any
ownership or commercial relationship between Tenant and the proposed assignee or subtenant.
The proposed assignee or subtenant shall execute an Assignment/ Assumption of Lease
Agreement and similar instruments in a faun to be furnished by the Landlord with all formalities
required by law. The consent by Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or subletting. This
prohibition against assigning or subletting shall be construed to include a prohibition against any
assignment or subletting by operation of law. In the event Tenant is a corporation, partnership,
limited liability company, trust, or other business entity, the conveyance of a controlling interest
in the capital stock or other ownership or equity (including, without limitations, shares,
membership interest and partnership interests), as the case may be, shall be deemed an
assignment for the purposes hereof. If this Lease be assigned or if the Premises or any part
thereof be occupied by any party other than Tenant, Landlord may collect Rent from the
assignee, or occupant and apply the net amount collected to the Rent herein reserved, but no such
assignment, under -letting, subletting, occupancy or collection shall be deemed a waiver of this
provision or an acceptance of the assignee, under tenant or occupant as lessee, or as a release of
Tenant from the further performance by Tenant of the provisions on its part to be observed or
performed herein. Any increase in rent attributable to any assignment or sublease as set forth
herein shall be paid over to Landlord, as Additional Rent in consideration for Landlord's
16
consent. Notwithstanding any assignment or sublease, or Landlord's consent thereto, Tenant
shall remain fully liable and shall not be released from performing any of the terms of this Lease
for all of the remaining term and any renewals or extensions thereof.
14. SUBORDINATION.
Tenant agrees that this Lease and Tenant's rights hereunder are and shall be subject and
subordinate to any mortgage, deed to secure debt or other security instrument now or hereafter
placed against the land and improvements comprising the Shopping Center, the Premises, or the
building of which the Premises are a part, or any part thereof, and to all renewals, modifications,
replacements, consolidations and extensions thereof. In furtherance of this Section, Landlord and
Tenant agree that this Lease shall act as a subordination agreement and shall automatically
subordinate this Lease to any such mortgage, deed to secure or other security interest. Further, to
the extent of any conflict between the terms of this Lease and the terms of the Loan Documents
relative to any provisions within this Lease, the terms of the Loan Documents shall control.
Upon request of Landlord or any purchase of mortgagee of Landlord, Tenant agrees to execute
and deliver any fiuther instruments, acts, things or documents to evidence such subordination
within ten (10) days of Landlord's request therefore. It is expressly understood and agreed that
any such statement may be relied upon by any prospective purchaser or encumbrance of all or
any portion of the real property of which the Premises are a part. The Tenant, upon request of
any party in interest, shall execute promptly such instruments or certificates to carry out the
intent of this Section as shall be requested by the Landlord. Should Tenant not within ten (10)
days following the request of any party in interest, execute such instruments as aforesaid, then
the Tenant irrevocably appoints the Landlord as attorney -in -fact for the Tenant with full power
and authority to execute and deliver in the name of the Tenant any such instruments or
certificates. Should any mortgagee or prospective mortgagee require a modification or
modifications of this Lease, which nnodifieation or modifications will not cause an increased cost
or expense to Tenant or in any other way substantially change the rights and obligations of
Tenant hereunder, then, and in such event, Tenant agrees that this Lease may be so modified and
agrees to promptly execute whatever documents are required therefore and failure so to do shall
constitute an event of default.
15. ESTOPPEL STATEMENT.
Within ten (10) days of Landlord's written request, Tenant shall promptly execute and deliver to
Landlord a written declaration in recordable form: (1) ratifying this Lease; (2) expressing the
comnnencement and termination dates thereof; (3) certifying that this Lease is in full force and
effect and has not been assigned, modified, supplemented or amended (except by such writings
as shall be stated); (4) that all conditions under this Lease to be performed by Landlord have
been satisfied; (5) that there are no defenses or offsets against the enforcement of this Lease by
the Landlord, or stating those claimed by Tenant; (6) the amount of advance rental, if any (or
none if such is the case), paid by Tenant; (7) the date to which rental has been paid; and (8) the
amount of security deposited with Landlord; (9) and sueh other information as may be
reasonably requested by Landlord or its mortgagee, lenders and/or purchasers. Such declaration
shall be executed and delivered by Tenant from time to time as may be requested by Landlord.
Landlord's mortgagee, lenders and/or purchasers shall be entitled to rely upon the same. The
Tenant, upon request of any party in interest, shall execute promptly such instruments or
17
certificates to carry out the intent of this Section as shall be requested by the Landlord, Should
Tenant not within ten (10) days following the request of any party in interest, execute such
instruments as aforesaid, then the Tenant irrevocably appoints the Landlord as attorney -in -fact
for the Tenant with full power and authority to execute and deliver in the name of the Tenant any
such instruments or certificates.
16. ATTDRNMENT.
Tenant shall in the event of the sale or assignment of Landlord's interest in the building or
Shopping Center of which the Premises form a part, or in the event of any foreclosure of, or in
the event of exercise of the power of sale under any mortgage made by Landlord covering the
Premises, attorn to the purchaser and recognize such purchaser as Landlord under this Lease.
17. DEFAULT, BANKRUPTCY,
17.1 Default.
(a) In the event the Tenant shall not pay the Rent or any other sums payable by the
Tenant at the time and in the amount stated and such default shall continue for a period of five
(5) days, or if Tenant shall fail for any reason to fully restore and replenish the Security Deposit
after demand therefore and such default shall continue for a period of five (5) days, or if, the
Tenant shall fail to keep and perform any other conditions, stipulations or agreements herein
contained and such default shall continue for ten (10) days after written notice thereof, or if the
Tenant vacates or abandons the Premises or ceases doing business therein for a period of five (5)
consecutive days even if Rent payments are not in default, or if this Lease shall pass to or
devolve upon, by law or otherwise, one other than. Tenant except as herein provided, or if the
Tenant's interest hereunder or its property on the Premises is sequestered or taken under the
execution or other legal process, or if any judgment final beyond appeal, has been filed against
Tenant and Tenant shall have failed to pay for such judgment within thirty (30) days after
judgment shall have become final beyond appeal, or any discovery by Landlord that any
financial statement, representation or warranty given to Landlord by Tenant or by any guarantor
of Tenant's obligations hereunder, is or was materially false, or if the Tenant or any guarantor of
Tenant becomes insolvent, or admits its inability to pay debts, or files or has filed against it
pursuant to any statute either of the United States or any state a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee -of all or a portion
of Tenant's property or makes an assignment for the benefit of creditors, or makes a bulk sale of
substantially all its assets or stock if Tenant, Tenant's parent, or Tenant's guarantors is a
corporation, or petitions for or enters into an arrangement, then and in any of such events, the
Landlord may, at Landlord's option, in addition to any all other legal remedies and rights; (i)
terminate this Lease by giving not less than three (3) days written notice and end this Lease and
re-enter upon the Premises; or (ii) declare the entire Rent for the balance of the term or any part
thereof, due and payable forthwith; or (iii) take possession of the Premises without terminating
this Lease and rent the same for the account of the Tenant (which may be for a term extending
beyond the Term of this Lease) in which event the Tenant covenants and agrees to pay any
deficiency after crediting it with the Rent thereby obtained less all repairs and expenses,
including the costs of remodeling and brokerage fees, and Tenant waives any claim it may have
to any rent obtained on such relating which may be in excess of the Rent required to be paid
18
herein by Tenant; or (iv) perform such obligation (other than payment of Rent) on Tenant's
behalf and charge the cost thereof, together with reasonable fee for Landlord's time and effort, to
Tenant as Additional Rent; or (v) exercise any and all other rights granted to Landlord herein or
by applicable law; or (vi) the Landlord may resort to any two or more of such remedies or rights.
The exercise of any of the options herein contained shall not be deemed the exclusive Landlord's
remedy. In addition to any other remedy or rights set forth herein and not in limitation thereof, if
Tenant shall vacate or abandon the Premises or cease doing business therein and Rent payment
shall be in default on such date, Landlord may immediately and without notice terminate this
Lease.
(b) Tenant also covenants and agrees to pay reasonable attorneys' and paralegals'
fees and costs and expenses of the Landlord (at trial, on appeal or in settlement and in any
bankruptcy or similar proceeding), including court costs, if the Landlord employs an attorney to
collect Rent or enforce other rights of the Landlord herein in the event of any breach of the Lease
and the saane shall be payable regardless of whether collection or enforcement is effected by suit
or otherwise.
(c) Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or dispossessed for any
cause, or in the event of Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the provisions of this Lease, or otherwise.
(d) In the event Tenant is in default hereunder prior to the date fixed as the
commencement of any renewal or extension of the Lease, Landlord may cancel such renewal or
extension agreement by two (2) days' written notice to Tenant.
17.2 Rights and Remedies. The various rights and remedies herein granted to Landlord may
be exercised concurrently and shall be cumulative and in addition to any others Landlord may be
entitled to by law, and the exercise of one or more rights or remedies shall not impair Landlord's
right to exercise any other right or remedy. The failure or forbearance of Landlord to enforce any
right or remedy in connection with any default shall not be deemed a waiver of such default nor a
consent to a continuance thereof, nor waiver of the same default at any subsequent date.
18. ACCESS OF PREMISES,
Landlord or Landlord's agents shall have the right to place, maintain and repair all utility
equipment of any kind in, upon or under the Premises as may be necessary for the servicing of
the Premises and other portions of the Shopping Center. Landlord or Landlord's agents shall
also have the right to enter the Premises at all reasonable times to inspect or to exhibit the same
to prospective purchasers, mortgagees, lessees, and tenants and to make such repairs, additions,
alterations or improvements as Landlord may deem desirable. Landlord shall be allowed to take
all material in, to and upon the Premises that may be required therefore without the same
constituting an eviction of Tenant in whole or in part and the Rents reserved shall in no wise
abate while said work is in progress by reason of loss or interruption of Tenant's business or
otherwise and Tenant shall have no claim for damages. If Tenant shall not be personally present
to permit an entry into the Premises when for any reason an entry therein shall be permissible,
Landlord or Landlord's agents may enter the same by a master key (or in the event of emergency
19
or to prevent waste, by the use of force as reasonably necessary mid as allowed by law without it
constituting a breach of the peace ) without rendering Landlord liable therefore and without in
any manner affecting the obligations of this Lease. Tenant shall no recourse against Landlord for
the exercise of Landlords rights under this Section or to institute and maintain any right or
remedy provided by law in the event of a default by Tenant. The provisions of this Section shall
in no manner be construed to impose upon Landlord any obligation whatsoever for the
maintenance or repair of the building or any part thereof except as otherwise herein specifically
provided. During the six (6) months prior to the expiration of this Lease or any renewal term,
Landlord may place upon the Premises "To Let" or "For Sale" signs which Tenant shall permit
to remain thereon.
19. SALE BY LANDLORD.
In the event of any transfer or transfers of Landlord's interest in the Premises or the Shopping
Center, other than a transfer for security purposes only, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord occurring from and after
the date of such transfer and Tenant does hereby release Landlord, provided, however, that in
which Tenant has an interest shall be turned over to the transferee and any amounts then due and
payable to Tenant by Landlord under any provisions of this Lease shall be paid to Tenant, it
being intended hereby that the covenants and obligations contained in this Lease on the part of
the Landlord shall, subject as aforesaid, be binding on Landlord, solely for its periods of
ownership of the Shopping Center. Tenant agrees to look solely to Landlord's estate and
property in the Shopping Center(or the proceeds thereof) for the satisfaction of Tenant's
remedies for the collection of a judgment or other judicial process requiring the payment of
money by Landlord in the event of any default by Landlord hereunder, and no other property or
assets of Landlord shall be subject to levy, execution, or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the relationship of Landlord
and Tenant hereunder, or Tenant's use or occupancy of the Premises.
20. END OF TERM,
At the expiration of this Lease, Tenant shall peaceably surrender the Premises in the condition
Tenant was required to maintain salve (including the state of repair and maintenance to which
the Premises were required to have been sustained throughout the Term(s)) and otherwise in the
same condition as it was in upon the delivery of possession under this Lease, excepting only
reasonable wear and tear and properly effectuated improvements and alterations having been
performed in accordance with the terms of this Lease, and shall deliver all keys and
combinations to locks, safes, and vaults to Landlord. Before surrendering the Premises, Tenant
shall remove all its personal property, trade fixtures, alterations, additions, and decorations, and
shall repair any damage caused to the Premises and the Shopping Center by their installation or
by such removal. Tenant's obligations to perform this provision shall survive the end of the
Tenn of this Lease. If Tenant fails to remove its property upon the expiration of this Lease, the
said property, at Landlord's option, shall be deemed abandoned and shall become the property of
Landlord.-
21. NOTICES.
20
Any notice, demand, request or other instruments which may be or required to be given under
this Lease shall be delivered in person or sent by United States Certified or Registered Mail,
postage prepaid, and shall be addressed:
If to Landlord: Southeast Overtown/Park West Community
Redevelopment Agency
1490 NW aid Avenue, Suite 105
Miami, Florida 33136
Attn: Clarence E. Woods, III, Executive Director
If to Tenant: at the Premises
Either party may designate such other address as shall be given by written notice.
22. INABILITY TO PERFORM.
This Lease and the obligations of Tenant hereunder shall not be affected or impaired because
Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike or other labor troubles, civil commotion, invasion,
rebellion, hostilities, military, or usurped power, sabotage, governmental regulations or controls,
inability to obtain any material, service or financing, energy shortages, acts of God, or by any
other causes beyond the control of Landlord. If Landlord is unable to give possession of the
Premises to Tenant within two (2) years from the Commencement Date for any reason
whatsoever, this Lease shall automatically terminate and Landlord, by reason thereof, shall not
be subject to any liability thereof, except that Landlord shall return to Tenant all monies which
Landlord has heretofore received from Tenant.
23. WAIVERS OF SUBROGATION.
Each of the parties hereto waives any and all rights of recovery against the other or against any
other tenant or occupant of the building or the Shopping Center or against the officers,
employees, agents, representatives, invitees, customers, and business visitors of such other party
or of such other tenant or occupant of the building or the Shopping Center for loss of or damage
to such waiving party or its property or the property of others under its control arising from any
cause insured against under the standard foiui of fire insurance policy with all permissible
extensions and endorsements covering additional perils, or under another policy of insurance
carried by such waiving party in lieu thereof, to the extent of the insurance proceeds paid
hereunder. Such waivers shall be effective only so long as the same is perrnitted by each party's
insurance carrier without the payment of additional premium.
24. RULES AND REGULATIONS/ADVERTISEMENT.
Tenant shall observe faithfully and comply strictly with the rules and regulations as Landlord
may from time to time reasonably adopt for the safety, care, and cleanliness of the Shopping
Center or the preservation of good order therein. Landlord shall not be liable to Tenant for any
violation of the rules and regulations or for the breach of any covenant or condition in any lease
by any other tenant in the building or the Shopping Center.
21
25. RELOCATION. INTENTIONALLY DELETED
26. • MECHANIC'S LIEN.
Tenant shall have no authority to subject the Premises or the Shopping Center, any party thereof
or any interest of Landlord therein to any mechanic's or other lien(s) and same are expressly
prohibited. The provisions hereof shall invoke the protections of Section 713.10, Fla. Stat.
Tenant shall in writing inform all parties who might otherwise be entitled to file such a lien if not
paid, that they are prohibited from doing so by virtue of these provisions. Should any mechanic's
or other lien nonetheless be fled against the Premises or the Shopping Center or any part thereof
or any interest of Landlord therein, by reason of Tenant's act or omissions or because of a claim.
against Tenant, Tenant shall cause the same to be canceled and discharged of record by bond or
otherwise within ten (10) days after notice by Landlord (failing which Landlord in its sole and
absolute discretion may elect to do so and Tenant shall be liable for and pay immediately on
demand all costs and expenses including attorneys' fees so incurred). Tenant hereby indemnifies
Landlord against, and shall keep the Premises and Shopping Center free from, any and all
mechanic's liens or other such liens arising from any work performed, material furnished, or
obligations incurred by Tenant in connection with the Premises or the Shopping Center, and
agrees to obtain discharge of any lien which attached as a result of such work immediately after
such liens attaches or payment for the labor or materials due. The Tenant understands that the
Property of the Landlord, who is an agency and instrumentality of a Florida municipal
corporation, is expressly exempt from all such liens by Section 713.01(23) Florida Statutes.
27. SECURITY INTEREST,
Tenant hereby grants to Landlord a security interest in all the furniture and fixtures, goods,
inventory, equipment, machinery, accounts receivable and chattels of Tenant, all replacements,
replenishment and substitutions thereof and all products and proceeds thereof, now owned or
hereafter acquired and which may be brought or put on the Premises (the "Collateral"), as
security for the performance of Tenant's obligations under this Lease and the payment of the rent
herein reserved and all costs and expenses incurred by Landlord in enforcing this Lease. The lien
hereby conferred is a contractual lien which shall be governed by the provisions of the Uniform
Commercial Code, Article Nine, and may be enforced pursuant to the remedies provided in said
statute. Without limiting the foregoing, Tenant specifically authorizes Landlord, upon a default
by Tenant hereunder, to remove the Collateral from the Premises without notice or legal process
and Tenant hereby waives and releases Landlord of and from any and all claims in connection
therewith or arising there from. Tenant agrees to execute such financing statements as may be
required by Landlord and if Tenant shall fail to do same within five (5) days following
Landlord's notice or demand, then Landlord is hereby authorized to do so on Tenant's behalf.
Landlord shall subordinate the contractual lien provided in this Section to the lien of any one first
security interest but as a condition to executing such subordination, Landlord may require Tenant
to deposit additional amounts as security pursuant to Section 4 of this Lease.
28. ENVIRONMENTAL MATTERS.
28.1 Hazardous Materials. Tenant shall not cause to escape, release or dispose of "hazardous
or toxic materials", as that term is herein defined, in, at, or under the Premises, or the Shopping
22
Center or allow the storage or use of hazardous or toxic materials at, in, or under the Premises, or
in the Shopping Center.
For purposes of this Lease, "hazardous or toxic materials" shall mean all materials or substances
which have been determined to be hazardous to health or the environment, including, but not
limited to, hazardous waste (as defined in the Resource and Conservation and Recovery Act);
hazardous substances as defined in the Conzprelnensive Emergency Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act); gasoline or
any other petroleum product or byproduct or hydrocarbon derivative; toxic substances, (as
defiled by the Toxic Substances Control Act); insecticides, fungicides or rodenticide, (as defined
in the Federal Insecticide, Fungicide and Rodenticide Act); asbestos and radon and substances
determined to be hazardous under the Occupational and Safety Health Act or regulations
promulgated hereunder. State and local regulations, rules or laws that are applicable shall also be
included as a reference for the purposes of this definition. References to any statute, act,
regulation or rule shall include amendments as they are made from time to time.
Tenant agrees that any removal, disposal, handling, use and storage of any hazardous or toxic
materials by Tenant shall comply with all applicable federal, state, and local statutes, regulations
or ordinances.
If Tenant uses, transports, stores or disposes of hazardous or toxic materials which results in
contamination of the Premises, or the Shopping Center, Tenant shall notify Landlord of the
method, time and procedure it proposes for any clean-up or removal of the hazardous or toxic
materials. Landlord shall have the right to require reasonable changes in such method, time or
procedure or to require that the same be done after normal business hours or when the Shopping
Centers otherwise closed (i.e. weekends or holidays) except that, if Tenant is under a duty by
federal, state or local laws, regulations or ordinances to immediately remove the contamination
or is under an order to proceed in a specified manner, Tenant shall comply with the law,
regulation, ordinance or order.
28.2 Indemnity. Tenant shall indemnify and hold Landlord, The Shopping Center and
Southeast Overtowri/Park West Community Redevelopment Agency, harmless from any and all
claims, damages, penalties, costs, liabilities or losses and any and all costs incurred by Landlord
due to the investigation, clean-up, removal, or restoration of the Premises or the Shopping Center
if such claims, damages, penalties, costs, liabilities or losses are incurred by Landlord due to
hazardous or toxic substances introduced to the Premises, or the Shopping Center and result from
actions or inactions of Tenant and/or its agents, employees or contractors.
28.3 Survival. Notwithstanding anything to the contrary provided in this Lease, the provisions
of this Article 28 shall survive the expiration or earlier termination of this Lease.
29. LANDLORD'S RESERVATION.
Landlord shall have the right: (a) to change the name and address of the Shopping Center; and
(b) to permit any tenant the exclusive right to conduct any business so long as such exclusive
right does not conflict with any rights expressly given herein.
30. MISCELLANEOUS.
23
30.1 Attorneys' Fees. In the event of any litigation between Tenant and Landlord to enforce
any provisions of this Lease or any right of either party thereto, the prevailing party in such
litigation shall be entitled to receive from the other party, either as direct payment or as an award
under any judgment, all cost and expenses, including reasonable attorneys' and paralegals' fees,
incurred in negotiation, at trial, or on appeal or in any bankruptcy proceeding. Moreover, if
Landlord without fault is made a party to any litigation instituted by or against Tenant, Tenant
shall indemnify Landlord against and save it harmless from all costs and expenses, including
reasonable attorneys' and paralegals' fees, incurred in connection therewith.
30.2 Time is of the Essence, Time is of the essence with respect to the performance of each of
Tenant's covenants of this Lease and the strict perfoiinance of each shall be a condition
precedent to Tenant's rights to remain in possession of the Premises or to have this Lease
continue in effect.
30.3 Holding Over. Any holding over after the expiration of this Term or any renewal term
shall, by lapse of time or otherwise, be construed to be a tenancy at sufferance and Tenant shall
pay to Landlord, as liquidated damages, triple rent for all of the tilne Tenant shall retain
possession of the Premises or any part thereof. The provisions of this Section shall not operate as
a waiver by the Landlord of any right of reentry herein provided, nor shall any act or receipt of
money by Landlord in apparent affirmance of the holding over operate as a waiver of the right to
terminate this Lease for any breach of covenant by the Tenant; nor shall any waiver by the
Landlord of its right to terminate this Lease for any later breach of the same or another covenant.
30.4 Partial Invalidity. If any provision of this Lease or application thereof to any person or
circumstances shall to any extent be invalid, the remainder of this Lease or the application of
such provision to persons or circumstances other than those as to which it is held invalid shall
not be affected thereby and each provision of this Lease shall be valid and enforced to the fullest
extent permitted by law,
30.5 Brokers. Landlord and Tenant represents and warrant that they have not dealt with any
brokers or finders in connection with the execution of this Lease other than NAI Miami
Commercial Real Estate Services, Worldwide (the "Broker"), The Broker shall be paid by
Landlord pursuant to the terms of a separate agreement. Tenant agrees to indemnify and hold
Landlord harmless from all liabilities arising from any claims for brokerage for any brokers or
finders claiming by, through or under Tenant (excluding cost of counsel fees (in settlement, at
trial or on appeal)).
30.6 Waiver. Failure of Landlord to insist upon the strict performance of any provisions or to
exercise any option contained herein or enforce any rules and regulations shall not be construed
as a waiver for the future of any such provision, rule or option. The receipt of Landlord of Rent
with knowledge of the breach of any provision of this Lease shall not be deemed a waiver of
such breach. No provision of this Lease shall be deemed to have been waived unless such waiver
is in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Rent shall be deemed to be other than on account of the earliest rent
then unpaid nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as Rent be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the balance of such rent
24
or pursue any other remedy provided in this Lease or by law and no waiver by Landlord in
respect to one lessee shall constitute a waiver in favor of any other lessee in the Shopping Center.
30.7 Provisions Binding, etc. Except as otherwise expressly provided all provisions herein
shall be binding upon, and shall inure to the benefit of the parties, their legal representatives,
successors and assigns and any sale by Landlord of the Shopping Center or of the Premises shall
be subject to this Lease. Each provision to be performed by Tenant shall be construed to be both
a covenant and a condition, and if there shall be more than one lessee, they shall all be bound,
jointly and severally, by these provisions. Tenant's obligations for the payment of any and all
sums due pursuant to this Lease shall survive the tenancy created hereunder.
30.8 headings, Landlord, and Tenant. The article and section captions contained in this Lease
are for convenience only and do not in any way limit or amplify any term or provision hereof.
The terms "Landlord and "Tenant" as used herein shall include the plural as well as the singular,
the neuter shall include the masculine and feminine genders and, if there be more than one
tenant, the obligations herein imposed upon Tenant shall be joint and several.
30.9 No Estate by Tenant. This Lease shall create the relationship of lessor and lessee
between Landlord and Tenant; no estate shall pass out of Landlord.
30.10 Entire Agreement. This Lease and the Exhibits, Riders and/or Addenda if any attached,
set forth the entire agreement between the parties. Any prior conversations or writings are
merged herein and extinguished. No subsequent amendment to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by the party sought to be charged.
Submission of this Lease for examination does not constitute an option for the Premises and
becomes effective as a Lease only upon execution and delivery thereof by Landlord to Tenant. It
is herewith agreed that this Lease contains no restrictive covenants or exclusive in favor of
Tenant. The captions and nu nbers appearing herein are inserted only as a matter of convenience
and are not intended to define, limit, construe or describe the scope or intent of any Section, nor
in any way affect this Lease.
30.11 Governing Law. This Lease is made and accepted by the parties in the State of Florida,
with reference to the laws of such state and shall be construed, interpreted, and governed by and
in accordance with the laws of the State of Florida. Tenant agrees that Landlord may institute
any legal proceedings with respect to this Lease or the Premises in the Circuit Court of the
county in which the Premises are located and submits itself to the jurisdiction of such court. If
Tenant is a corporation/ or other business entity chartered other than in the State of Florida,
Tenant acknowledges and agrees that it is "doing business" in the State of Florida and hereby
irrevocably appoints the Secretary of State of the State of Florida as its agents for service of
process for all matters pertaining to this Lease or the Premises unless Tenant has qualified to do
business in Florida and has registered another person with the Secretary of State of the State of
Florida as its agent for service of process within the State of Florida. In the event Tenant does
business under a fictitious name Tenant shall be in compliance with the State of Florida
Fictitious Naive Act Section 865.09, Florida Statutes.
30.12 No Partnership. Nothing contained in this Lease shall, or shall be deemed or construed
so as to, create the relationship or principal -agent, joint venturers, co -adventurers, partners,
25
affiliates, or co -tenants between Landlord and Tenant; it being the express intention of the parties
that they are and shall remain independent contractors one as to the other.
30.13 Recording. Tenant shall not record this Lease or a memorandum thereof without
Landlord's prior written consent and joinder in such instrument and any attempts to so record
without Landlord's consent shall, at Landlord's option, render this Lease null and void.
30.14 Warranties and Representations of Tenant. Tenant warrants and represents to Landlord
that: (i) Tenant is a corporation or other entity (if and as applicable as specified in Article 1) duly
organized and existing under the laws of the State of Florida; (ii) Tenant is qualified to do
business in the State of Florida; (iii) Tenant has all necessary power and authority to enter into
this Lease; and (iv) no provisions of Tenant's organizational documents prohibit the execution or
limit the effectiveness of this Lease.
30.15 Concessionaires. Tenant shall not permit any business to be operated in or from the
Premises by any concessionaire or licensee without the prior written consent of Landlord (which
consent may be withheld at the sole and absolute discretion of Landlord).
30.16 Radon Disclosure, and OFAC Statement and Disclaimers.
Radon: The following notification is required by Florida law:
OFAC:
"Radon is a naturally occurring radioactive gas that, when it is accumulated in
buildings 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 health department"
Landlord has not tested for Radon gas at the Property and therefore, makes no
representation or warranty regarding the presence or absence of same. Tenant
hereby waives any and all actions against Landlord related to the presence of such
gas and Tenant confirns that it was given. every reasonable opportunity prior to
initially entering into possession of the Premises, to engage in any such testing as
it determined was appropriate in Tenant's own business judgment and after
securing any professional advice or guidance Tenant elected to engage in
Tenant's sole discretion.
Tenant hereby represents and warrants that neither Tenant, nor any persons or
entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the
target of any sanctions program that is established by Executive Order of the
President or published by the Office of Foreign Assets Control, U.S. Department
of the Treasury ("OFAC"); (ii) designated by the President or OFAC pursuant to
the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56,
Executive Order 13224 (September 23, 2001) or any Executive Order of the
President issued pursuant to such statutes; or (iii) named on the following list that
26
is published by O 'AC: "List of Specially Designated Nationals and Blocked
Persons." If the foregoing representation is untrue at any titre during the Term, an
Event of Default will be deemed to have occurred, without the necessity of notice
to Tenant.
[Balance of this page intentionally left blank]
30.17 WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT HEREBY
MUTUALLY, KNOWINGLY, WILLINGLY AND VOLUNTARILY WAIVE THEIR RIGHT
TO TRIAL BY JURY AND NO PARTY NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR
LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF WHOM ARE HEREINAFTER
COLLECTIVELY REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION
PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE PARTIES
ALSO WAIVE ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
FULLY NEGOTIATED BY THE PARTIES. THE WAIVER CONTAINED HEREIN IS
IRREVOCABLE, CONSTITUTES A KNOWING AND VOLUNTARY WAIVER, AND
SHALL BE SUBJECT TO NO EXCEPTIONS. LANDLORD HAS IN NO WAY AGREED
WITH OR REPRESENTED TO TENANT OR ANY OTHER PARTY THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
30.18 Waiver of the Right to File Permissive Counterclaims. Landlord and Tenant hereby
mutually, knowingly, willingly and voluntarily waive their right to file pennissive counterclaims,
as defined by Florida law, in any lawsuit, proceeding or other litigation proceeding arising out of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hnnds and seals the day and year
first above written.
First itness for Landlord IMIN• -''vA,
Second ° itness for Landlord
14i.1 Zeu7" A?!
LANDLORD:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III
Its: Executive Director
TENANT:
SMD FOOD CORP., a Florida corporation
By:
7 Melanin A. Diaz, President
Second. Witness for Tenantttx1A,�.--
28
APPROVED AS TO FORM AND CORRECTNESS
By:
Naive: William R. Bloom
Its: Special Counsel
Dated:
[Balance of this page intentionally Ieft blank]
29
AppRovm .As. TO FORM OP CORRECTNESS
1"4atti.c;. 'NiYi11101 :13100in
SpiI COtihkil
Dated.: ..
[Balattabithi p intationally ldft bbfiki
29
FIRST ADDENDUM
GENERAL ADDENDUM
THIS ADDENDUM TO LEASE amends and modifies as hereinafter set forth that certain
Shopping Center Lease (the "Lease") made and entered into as of the 10th day of April, 2014, by
and Between Southeast Overtown/Park West Community Redevelopment Agency (Landlord"),
and VSMD FOOD CORP. ("Tenant").
1, Provided that the Lease shall then be in full force and effect and in good standing and
Tenant shall not be in default thereunder, then Tenant shall have the option to extend the term of
the Lease for two (2) additional terms of ten (10) years each commencing on the date
immediately following the expiration Date of the Lease (the "Renewal Term Commencement
Date"), and extending to the tenth (10th) anniversary of the Expiration Date.
Tenant's option to extend the term of this Lease for each renewal term shall be automatically
exercised unless Tenant provides written notice to Landlord not later than one hundred eighty
(180) days prior to that date of commencement of such renewal term of Tenant's intent not to
exercise the upcoming option to renew; if Tenant does not provide Landlord with such notice not
later than one hundred eighty (180) days prior to that date of commencement of such renewal
term this Lease shall be deemed to be renewed and the term hereof extended for the period of
the renewal term in question without the need for execution of any further Lease or instrument.
For and during each renewal tenn, the Minimum Rent shall be as follows:
Lease Years 11-15:
Lease Years 16-20:
Lease Years 21-25:'
Lease Years 26-3 0:
$76,472.00
$84,119.20
$92,531.12
$101,784.23
For and during each renewal term, all of the terms of the Lease, including without limitation the
provisions in Section 4.2, thereof for adjustments to the Minimum Rent shall be in full force and
effect.
Except as modified and amended hereby, the Lease shall remain in full force and effect
according to its terms, including without limitation, the obligation of Tenant to pay Percentage
Rent and Additional Rent as therein provided,
30
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to Lease to be
executed as required by law as of the 10th day of April, 2014.
41%) ZZLd H,J
First Witness for Landlord
kS' de— frl
LANDLORD:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
larence E. Woods, III
Its: Executive Director
Second Witness for Landlord t.ASIA. . t-
TENANT:
{�' Ci 4 O ff` VSMD FOOD CORP., a Florida corporation
First Witness for Tenant
By:
elanio A. Diaz, Pident
Second Witness for Tenant Lv5\eic • 42, v i
APPROVED AS TO FORM AND CORRECTNESS
By:
Name: William R. Bloom
Its: Special Counsel
Dated:
[Balance of this page intentionally left blank]
31
*WITNESS WHEREOF arid Thriatit have .c'attsed this ,Arriohdxrttht to_ .:14asp tO
6-gbatit&d iiitd b latas oftI* 1-0tli day of Apri.:2Q:14,
LANPLORP.:.
Flit-Witrs 1t14 gr.t.tlg.r4a
Si4ofietwitag tor Lan:aiord
First WitrieSs for Tpnatit
Se�ndWitness for Teriant
59VTHEAST OVORTOWN/PARIc 'WEgT
COMMUNITY REMVPLOPIeNt A:eaiCY
By t
C1001100'EAVOO.dg,. 111
Its:81<b(titiVO.:DitOfOr
171NANT.;:
VSMD C�R,,aFloida.corporgtiort
IvIelkafo A. Diai, Presidwit
OPRoygice AS TO VORM AND COR41ETNp$
By:
Narne-: Wiliam j BJoont
JtsSpetial -Cdpsel
Dodd:
P311.14110 of this. p..gge Intentionally kft-tatga]
31
EXHIBIT "A"
Address of the Shopping Center
OVERTOWN SHOPPING CENTER
1490 NW 3`d Avenue
Miami, Florida 33136
LEGAL DESCRIPTION
Tract "9" of "TOWNPARK SUBDIVISION 4 U.R. PROJECT FLA. R-10", according to the
Plat thereof, as recorded in Plat Book 87, Page 52, of the Public Records of Miami -Dade County,
Florida.
TOGETHER WITH:
A Portion of Tract "10", of "TOWNPARK SUBDIVISION 4 U.R. PROJECT FLA. R-10",
according to the Plat thereof, as recorded in Plat Book 87, Page 52 of the Public Records of
Miami -Dade County, Florida, being more particularly describes as follows:
Begin at the Southeast corner of said Tract 10; thence South 07°49'21" West along the South
line of said Tract 10 for 170.98 feet; thence North 03°21'00" West for 70.02 feet; thence North
87°48'22" East for 40.98 feet; thence North 03°21'00" West for 125 feet; thence North 87°48'22"
East for 120.00 feet to a point on the East line of said Tact 10; thence South 03°21'00" East
along the West right-of-way line of N.W. 3rd Avenue, the same being the East line of said Tract
10 for 195.83 feet to the Point of Beginning.
[Balance of this page intentionally left blank]
32
EXHIBIT "B',
Site Plan for:
OVERTOWN SHOPPING CENTER
The following language is deemed incorporated into and onto the attached Site Plan sketch: This
exhibit is diagrammatic and is intended only for the purpose of indicating the approximate
location of constructed areas comprising the Shopping Center and the approximate location of
the Premises therein, and for the purpose of indicating approximately the boundaries of the
Shopping Center. It does not in any way supersede any of Landlord's rights set forth in the
Lease, including in respect of arrangements and/or locations of shared -use parts of the Common
Areas and changes in such .arrangements and/or locations, including without limitation parking
areas. It is not to be scaled; any measurements or distances shown or parking counts should be
taken as approximate. Dimensions indicated (if any) are measured to the Property line of interior
and party walls, and to the exterior face of exterior walls, or lease lines. It does not purport to
show the exact or final location of columns, division walls or other required architectural,
structural, mechanical or electrical elements. Dimensions diagrammatically reflected (if any) are
not exact nor to scale and in any case are approximate. In furtherance of the foregoing, and not in
derogation or diminution thereof: Landlord expressly reserves the right at any time and from
time to time, in Landlord's sole discretion, to (i) increase, reduce or change the number, size,
nature, height, layout and/or locations of buildings, walks, parking and/or other Common Areas
and facilities now or at any time hereafter forming a part of the Shopping Center, (ii) make
alterations or additions to, and to build additional stories on, the Shopping Center, including the
building of which the Demised Premises forms a part, (iii) construct a parking deck or decks, (iv)
include within and/or to exclude from the defined Shopping Center any existing or future areas,
and (v) enelose any mall, convert Common Areas into leasable areas (and vice versa), change the
means of ingress and egress to and from the Shopping Center and/or the Demised Premises, and
expand or reduce the size of the Shopping Center. References to tenants (if any) are not and shall
not be deemed representations of existing or future tenancies nor of any particular tenant -mix or
tenant physical arrangement or placement, now or in the future anticipated.
33
Overtown Shopping Center
1490 NW 3rd Avenue
Miami, FL 33136
I� f
34
EXHIBIT "C"
RULES AND REGULATIONS OF
OVERTOWN SHOPPING CENTER
A. General Provisions,
1. Definitions. For purposes of these rules and regulation, the following terms shall be
defined as set forth below:
Tenant: Any person(s) or entity leasing or subleasing space within
Overtown Shopping Center.
Owner: Southeast OvertownlPark West Community Redevelopment
Agency, its successors or assigns.
Manager: NAI Miami Commercial Real Estate Services, Worldwide, its
successors or assigns.
Landlord: Southeast Overtown/Park West Community Redevelopment
Agency, its successors or assigns.
Occupant: Tenants and licensees shall collectively be referred to as
Occupants.
Leased Premises: Any leasable space leased or used by a Tenant or Licensee.
Premises: Leased Premises and any occupiable space located in or on
Overtown Shopping Center hereinafter referred to as "the
Property" or "the Premises".
2. Applicability. These rules and regulations shall apply to all Occupants of the Property
except as specifically provided herein to the contrary. The Landlord shall be permitted (but not
required) to grant relief from specific rules and regulations contained herein to one or more
occupants within the Property upon written request therefore and good cause shown in the sole
opinion of the Landlord.
3. Additional Rules and Amendments. Landlord reserves the right to make such other
reasonable rules and regulations which it determines, from time to time, are necessary or
appropriate for the safety, care, protection, cleanliness or good order of the Property. Any such
additional rules and regulations shall be binding upon each Occupant with the same force and
effect as if the same had been included herein and in existence at the time the Occupant acquired
its interest in the Property. Landlord further reserves the right at any time to modify or revoke
any existing rule or regulation.
B. Operation of Premises.
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1. Hours of Operation. All Occupants shall be open for business daily, fully fixtured,
stocked and staffed (Christmas Day, New Years Day, Thanksgiving Day and national holidays
excepted). All Occupants shall open for business no later than 10:00 o'clock A.M. and shall
continuously remain open for business until 6:00 o'clock P.M., Monday through Sunday, except
for the grocery store which shall have the option of being continuously open for business from
Monday through Sunday, including national holidays. Landlord shall have the right to extend or
modify such hours due to seasonal or promotional objectives and such additional hours shall be
binding on all Tenants unless objected to in writing by at least 75% of all Tenants then
occupying the Shopping Center.
2. Illumination of Signs and Displays. All Occupants of the Shopping Center shall keep
their display windows, shadow boxes, if any, signs and exterior lights illuminated during the
hours each business day and night designated by Landlord. All Occupants of Premises within the
Center shall maintain night lights within their Premises at all tunes during which the same are
not open for business.
3. Signs and Advertising. No sign, advertisement, display, notice or other letter shall be
exhibited, inscribed, painted, or affixed on any part of the outside of the Premises or inside, if
visible from the outside, or outside the building of which they form a part, and, no symbol,
design, mark, or insignia adopted by Landlord for the Shopping Center or the tenants therein
shall be used in connection with the conduct of Tenant' s business in the Premises or elsewhere
without, in each instance, the prior written consent of Landlord. All such signs, displays,
advertisements, and notices of Tenant so approved by Landlord shall be maintained by Tenant in
good and attractive condition at Tenant' s expense and risk. No pennants, banners or other
advertising shall be suspended from the ceiling or interior walls of any Premises. No "for sale",
"for rent", or sirnilar sign shall be displayed in any Premises.
4, Awnings. No awning or other projections shall be attached to the outside walls of the
Premises or the Shopping Center of which they form a part without, in each instance, the prior
written consent of Landlord.
5. Plate Glass. Tenant shall. replace, at its sole cost and expenses, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the Premises. Tenant
shall procure and maintain, at its own expense, insurance covering all plate and other glass in the
Premises for and in the name of Owner,
6. Temperature of Premises. Tenant shall keep the Premises at a temperature sufficiently
high to prevent freezing of water in pipes and fixtures and shall maintain positive air pressure in
the Premises so as to prevent the drawing of heated or cooled air from any enclosed area and
keep the Premises comfortably heated or air conditioned.
7. Character of Operations. No Occupant will conduct any auction, fire, bankruptcy, or
closeout sale nor conduct its business in a manner which is commonly know and accepted in a
retail trade as a discount store, wholesale store, outlet store or surplus store, provided, however,
this provision shall not be precluded the conduct of periodic, seasonal, promotional or clearance
sales nor shall it be deemed to give the Landlord a right to approve or disapprove the price at
which any business offers its merchandise for sale.
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8. Window Displays. Tenant shall install and maintain at all times, displays of merchandise
in the show windows of the Premises. All articles and the arrangement, style, color, and general
appearance thereof in the interior of the Premises which shall be visible from the exterior thereof,
including without limitation window displays, advertising matter, signs, merchandise, and store
fixtures shall be maintained subject to the approval of Landlord, and Tenant shall immediately
upon order from Landlord remove all or any part of such articles and arrangements that are
objectionable to Landlord or take such other action with reference thereto as Landlord may
direct.
9. Pest Extermination. Tenant shall use at Tenant's cost such pest extermination contractor
as Landlord may direct and at such intervals as Landlord may require, provided the cast thereof
is competitive with any similar service available to Tenant.
10. Deliveries. Each Occupant shall use its best efforts to cause all delivery vehicles
servicing the Premises to load and unload all supplies, goods, packages, furniture, equipment and
all other items being delivered to the Occupant prior to 3:00 o'clock P.M. Delivery during other
business hours shall not be absolutely prohibited, provided such deliveries do not in the
reasonable opinion of the Landlord constitute a nuisance to the operation of the Property.
11. Window Cleaning. Tenant at its expense shall participate in any reasonable window
cleaning program that may be established by Landlord for all or substantially all other stores in
the Center and shall not permit window cleaning or other exterior maintenance or janitorial
services in and for the Premises to be performed except by such person(s) as shall be approved
by Landlord and except during reasonable hours designated for such purposes by Landlord.
12. Logo. Tenant shall use the Shopping Center name and logo, if any be designated by
Landlord, as either may be changed from thne to time, in referring to the location of the Premises
in all newspapers, radio, television or other advertising. Such logo shall be and remain in the sole
property of Landlord and Landlord may revoke the license hereby granted to Tenant for the use
of it at any tune.
13. Theft or Loss. Each Occupant is fully responsible for the protection of its premises and
the contents thereof from robbery, theft, vandalism, pilferage or other loss.
C. Restrictions and Prohibitions.
1. Nuisances. No business will use or permit the use of any apparatus for sound production
or transmission of any exterior lighting such as flashing lights, search lights, etc., or television or
radio broadcast or permit live entertainment within or outside of the Premise. No Occupant will
cause or permit objectionable odors to emanate or be dispelled from the premises.
2. Television and Radio Equipment. No Occupant shall be permitted to install any antenna
or aerial wire, or radio or television equipment inside or outside the Premises without the prior
written approval of the Landlord, which shall specify the terms and conditions for any such
installation.
3. Vending Machines. No Occupant, except for the grocery store, may operate for use by
the general public any coin or token operated vending machine or similar device for the sale of
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any goods, wares, merchandise, food, beverages or services including, but not limited to, pay
telephones, pay lockers, pay toilets, scales, amusement devices, machines for sale of beverages,
foods, candy, cigarettes, or other commodities without prior written consent of the Landlord.
Any Occupant may install said vending machines or devices for use only by such Occupant and
its employees, provided such installation is in a non -sales area.
4. Trash and Garbage. No Occupant shall permit the accumulation of rubbish, trash,
garbage and other refuse in and around its Premises.
5. Hazardous Substances or Conditions. No Tenant shall overload the floor of its Premises
or use or operate- any machinery equipment or other device that is harmful to the Premises. No
Occupant shall keep in its Premises any inflammable, combustible or explosive substance or any
substance that would create or tend to create a dangerous or combustible condition, Furthermore,
no Tenant shall install electrical or other equipment that the Landlord determines might cause
impairment or interference with the provisions of services to the Property. Any Occupant whose
business requires use or possession of extra hazardous substances, or entails extra hazardous
operations or conditions, shall so advise the Landlord and shall obtain their consent prior to
bringing such substances onto or creating such condition within the Premises. Any damage to
persons or property resulting or arising out of such use shall be the sole responsibility of such
Occupant.
6. Animals. No animals shall be permitted within any of the Premises except as permitted
by Federal Law or as specifically approved by the Landlord.
7. Exterior Painting and Decorating. Following completion of its Premises, no Occupant
shall change the color, type of paint or stain or other covering on any part of the exterior or
interior thereof, without first obtaining the Landlord's written approval of any such painting,
alteration or decorating. Upon notice from the Landlord, any Occupant will promptly remove
any paint or decoration or alteration that has been so applied or installed without prior written
approval, or take such action with reference thereto as the Landlord may direct.
8. Insurance Rates. No Occupant shall permit or suffer anything to be done or kept in its
Premises that will increase the rate of insurance for such Premises or the Property.
9. Concessionaires. Tenant shall not permit any business or activity to be operated in or
from the Premises by any concessionaire, licensee, or invitee without the prior written consent of
Landlord
D. Use of Common Areas and Operation of Property.
1. Use of Sidewalks and Parking Areas. No Occupant may use any sidewalk, or walkway
or any vestibule or entrance of its Premises or any portion of the Common Areas, for keeping,
displaying, advertising or sale of any merchandise, equipment, devises or objects except with the
Landlord's prior written approval. Every Occupant's right to use all sidewalks, vestibules,
entrances, parking areas, corridors, and other Common Areas of the Property is limited to ingress
and egress and parking for no other use. No Occupant shall permit the encumbrance or
obstruction of any portion of the Common Areas. The Landlord reserves the right to control and
operate all Common Areas in such manner as it deems best for the benefit of the Property
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generally, including the grant of exclusive use of the certain portions of the Common Areas as
Landlord sees fit from time to time. No Occupant shall obstruct, litter, mar, or damage any part
of the hallways, corridors, exterior door or walls, landscaped areas, or any other portion of the
Common Areas, and any Occupant shall be responsible for any such damage caused by it or its
employees, agents, or contractors.
2. Employee Parking. The Landlord shall have the right from time to time to designate
those spaces which shall be used for parking by employees of Occupants or to grant exclusive
use of parking spaces as Landlord deems in the best interest of the Property as a whole. In the
event such a designation is made, no employees may park in any parking areas other than that
specifically designated for their use. Any employee vehicle parked in any such area shall be
subject to such fines as are established by the Landlord. In furtherance, hereof, Tenant shall
furnish Landlord with State automobile license numbers assigned to Tenant's car(s) and those of
its employees within five (5) days after the Rental Commencement Date and shall thereafter
notify Landlord of any changes within five (5) days after such changes occur. If Tenant or its
employees shall fail to park their cars in the designated parking areas after giving notice to
Tenant, Landlord shall have -the the right to charge Tenant as Additional Rent Twenty ($20.00)
dollars per day per car parked in any parking area other than those designated. Tenant shall
require each of its on -Premises employees, as a condition of their employment, to acknowledge
in writing each such employee's agreement to abide by all of the rules and regulations
established by Landlord with respect to the Shopping Center parking lot and employees parking.
Tenant shall take such action as is necessary in order to enforce such agreements on behalf of
both Landlord and Tenant.
3. Security. The Landlord may take all the measures it may deem reasonably necessary or
appropriate for the security of the Property, the Occupants and their invitees, licensees or
employees including, but not limited to, searching for cause or suspected cause of any person
entering, leaving, or within the Property, the evacuation of the Property or any part thereof for
drill purposes or otherwise, the temporary denial to Occupants and their invitees, employees, or
licensees of access to the Property of any portion thereof, and the closing of the Property on non -
business days, legal holidays, and after business hours.
4. Solicitations. Solicitations, including the distribution of hand bills or other advertising
matter by any Occupant are prohibited within the Property or the parking areas unless
specifically authorized in advance by the Landlord.
E. Enforcement.
1. Compliance, Fines. Every Occupant shall comply with these rules and regulations as set
forth herein, and any and all rules and regulations which from time to time may be adopted by
Landlord. Failure of an Occupant to so comply shall be grounds for action that inay include,
without limitation, an action to recover sums due for damages, injunctive relief or any
combination thereof In addition to all other remedies, in the sole discretion of the Landlord or
the Association, a fine or fines may be unposed upon an Occupant for failure of an Occupant, its
guest, invitees, lessees or employees, to comply with any restriction, rule, or regulation after
notice of such violation and shall pay to Landlord one hundred and 00/ 100 dollars ($ 100.00) for
each day or portion thereof that Tenant fails to correct such violation. Any violation of these
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rules and regulations which is not immediately corrected upon notice to Tenant by Landlord shall
be deemed an event of default under such Tenant's lease.
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EXHIBIT "D"
WORK LETTER AGREEMENT
PREFACE
This Exhibit D describes the obligation of the Landlord and the Tenant for the design and
construction of the Premises. Each defined term of the Lease shall have the same meaning when
used in this Exhibit.
The work described in Section A will be performed by Landlord at Landlord's expense. The
work required in Section A shall be called "Landlord's Work".
The work described in Sections B and C will be performed by Tenant at Tenant's expense and
shall be completed in accordance with Tenant's Final Plans as approved by Landlord. The work
required in Sections B and C shall be called "Tenant's Work".
In order to insure an orderly and aesthetically coordinated storefront and sign design, plans and
drawings for same shall be submitted to Landlord for approval as described under Section D,
"Procedure".
SECTION "A" - WORK. BY LANDLORD IN PREMISES
The Landlord shall complete the following work in the Premises at the Landlord's sole cost and
expense („Landlord's Work");
1. Interior will be returned to a shell space:
a. Exterior block walls will be exposed without furring and insulation.
b. All interior walls will be removed.
c. Floor will be removed to exposed concrete slab.
d. Ceilings and soffits will be removed and structural steel roof framing will be
exposed.
2. Gypsum board wrap at interior steel columns will remain (these are required for
fire protection)
3. All plumbing will be removed and rough -in capped for future use.
4. Existing refrigeration pipes trenches located under slabs will remain as is.
5. All HVAC installations will be removed, including ductwork, equipment,
controls, etc.
6. Fire Sprinkler system will remain in place and heads will be replaced.
7. New Fire Alarm System will be provided for entire facility. Modifications may be
required as part of tenant built -out.
8. All electrical installations will be removed to the distribution panels. Panels will
remain as is for future use.
9. Temporary lighting will be provided for safety purposes.
10. Overhead door at loading dock will be replaced with insulated roll -up door.
11. West egress door will be replaced and walkway will be provided to loading dock
driveway.
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12. Egress doors at south and east (front) elevations will be removed and blocked -up.
13, Main entrance doors at east elevation will be replaced with automatic electric
sliding doors.
14. Front elevation will be enhanced with stucco bands and metal canopies as
indicated in drawings.
15. Space for tenant sign will be provided over plain entrance, including lighting.
16. Exterior walls will be painted.
17. New roof will be provided.
18. Front parking area will be modified to provide planting between parking and
building.
19. Walkways along front of building will receive brick pavers.
SECTION "B" - WORK BY TENANT IN PREMISES
All work by Tenant in the Premises shall be performed by contractors approved in advance by
Landlord. As one of the conditions for approval, Landlord may require the contractor to procure
a Payment Bond for the benefit of the Tenant and Landlord.
1. Utilities by Tenant: Tenant shall directly arrange for and procure, at the Tenant's
expense, the following:
(a) All building, plumbing, occupancy and other required permits, and furnish copies to
the Landlord.
(b) Telephone service through empty conduit from Landlord's equipment room to the
Premises.
(c) All required utility meters and fees.
(d) Connection to the Landlord installed utilities.
2. Non -Combustible Construction: All Tenant construction shall be non-combustible.
Treated, fire resistant wood will be permitted where approved by the governmental authorities
having jurisdiction over the Shopping Center.
3. Temporary Services: In the event permanent services are not made available to Tenant
for and during construction, including lighting power, and water (but excluding any and all
power for use in heating or air conditioning the Premises), temporary services may be obtained,
at the Tenant's expense, from Landlord at cost, the amount being payable to Landlord by Tenant
on demand.
4. Signs: T11.e Tenant is responsible for the supply and installation of all signage at the
Tenant's expense. The tenant will be responsible for preparing and submitting sign plans and
specifications to the Landlord for approval.
5. Other Work: Tenant shall perform all other work not included in Landlord's work
necessary for Tenant to occupy and use the Premises.
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6. Discipline: Tenant shall enforce strict discipline and good order among the employees of
Tenant's contractors and subcontractors and if requested by Landlord shall enforce Landlord's
rules for the job site,
7. Character of Employees: Tenant shall not employ any unfit person or anyone not skilled
in the work he is performing, or any workmen that are incompatible with the work -force or who
will cause or whose presence will cause labor disputes.
8. Maintenance of Premises: Tenant shall maintain the Premises in a clean and orderly
condition during construction and merchandising. Tenant shall promptly remove all unused
construction materials, equipment, shipping containers, packaging, debris, and flammable waste
from the Shopping Center. Tenant shall contain all construction materials, equipment, fixtures,
merchandise, shipping containers and debris within the Premises. The common exterior areas of
the Shopping Center shall be clear of Tenant's equipment, merchandise, fixtures, refuse and
debris at all times. Trash. storage within the Premises shall be confined to covered metal
containers.
9. Violations: In the event Tenant is notified of any violations of codes, ordinance
regulations, requirements or guidelines, either by the governmental authorities or by the
Landlord, Tenant shall, at its expense, correct such violations within ten (10) calendar days after
such notification.
SECTION "C" - WORK I3Y TENANT IN PREMISES AT TENANT'S EXPENSE
The Tenant shall complete the following work in the Premises at the Tenant's sole cost and
expense except Landlord shall provide a tenant improvement allowance of Two Hundred
Thousand and No/100 Dollars ($200,000.00) (the "Tenant Improvement Allowance"):
1. Tenant shall cause the Premises to be built out in accordance with the plans and
specifications approved by Landlord. Tenant shall make all improvements required to open the
store. Upon the opening for business, the certificate of occupancy being presented to the
Landlord, final lien waivers from Tenant's General Contractor and proof of insurance, the
Landlord shall fluid Tenant the balance of the Tenant Improvement Allowance.
2, Provided Tenant is not in default under the Lease, the Tenant Improvement Allowance
shall be paid by Landlord to Tenant in a series of draws (each, a "Tenant Improvement Draw
Payment") within twenty (20) business days after Landlord's receipt of a draw request from
Tenant or its contractor (an an AIA form or such other form reasonably approved by Landlord)
accompanied by the delivery of notarized partial lien waivers from all applicable contractors,
subcontractors, material men and suppliers and a certification from Tenant's architect (on an AIA
form or such other form reasonably approved by Landlord) that the improvements and materials
subject to the draw request have been completed and/or delivered to the Premises, as applicable.
Tenant shall not make a draw request more than once amonth. The final disbursement of the
Tenant Improvement Allowance shall be made when Tenant provides to Landlord; (i) final lien
waivers from all applicable contractors, subcontractors, m terialmen, architects and engineers;
(ii) certificates of completion are provided by each of Tenant's architect and general contractor;
and (iii) a final certificate of occupancy for the Premises. Any and all costs for the Tenant
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Irnprovernents above the Tenant Improvement Allowance as reflected in the construction budget
for the Tenant Improvements shall be paid by Tenant to the applicable contractors,
subcontractors, and materialrnen and suppliers first. Once Tenant shall have spent its portion of
the cost of the Tenant Improvements and provided reasonable documentation to Landlord
confirming the same, Landlord shall commence to disburse the Tenant Improvement Allowance
as provided herein. For example, if the total estimated cost of the Tenant Improvements is
$120,000 and the Tenant Improvement Allowance is $100,000 Tenant shall fund $20,000 prior
to Landlord funding any portion of the Tenant Improvement Allowance, If at any time the
construction budget becomes out of balance, Tenant shall be required to fund any shortfalls
before Landlord disburses any additional portion of the Tenant Improvement Allowance, If
Landlord disburses the entire Tenant Improvement Allowance and unpaid costs or expenses
remain, Tenant shall be fully responsible for and promptly pay when due. Tenant shall receive no
credit or payment for any unused portion of the Tenant Improvement Allowance.
SECTION "D" .. PROCEDURE
1. Tenant Coordination: Landlord's Tenant Coordinator shall be responsible for the review
of "Tenant's Design Drawings and Final Plans" (as hereinafter defined). All questions pertaining
to the design and construction of the Premises and all plan submittal shall be directed to the
Tenant Coordinator.
2. Lease Outline Drawing: Landlord shall furnish to Tenant a drawing of the Demised
Premises of the type commonly known as a Lease Outline Drawing: (herein sometimes referred
to as the "L.O.D.") The L.O.D. shall be prepared by the Landlord's architect at a scale of 1/ inch
equals one (1) foot and shall show the dimensions and square footage of the Premises. In
addition, the L.O.D, shall show the location of the sprinkler feed, electrical conduit, soil pipe,
water line and points of entry of other Landlord supplied services.
3. Store Plans: Tenant shall supply Landlord with four (4) sets of store plans and
specification ("Tenant's Design Drawings and Final Plans"). These plans should include
storefront elevations, reflected ceiling plan, interior layout and finish, plumbing plans and
mechanical and electrical plans and should be submitted for approval within forty-five (45) days
after notification by Landlord. These plans shall be prepared at a scale of '/ inch equals one (1)
foot.
4. Sign Plans: Tenant shall supply Landlord with four (4) sets of signage plans for
approval. The scale in the signage plan should be 'A inch equals one (1) foot.
5. Final (Revised) Plans: If the Tenant's Design Drawings shall have been marked
"disapproved" by the Landlord, the Final Plans shall incorporate any revisions to the Tenant's
Design Drawing required to satisfy Landlord's reason for disapproval of same. On or before
twenty (20) days after receipt of the Final Plans, Landlord shall return to Tenant the final Plans
marked with either "approved" or "disapproved". If they are marked "disapproved", Landlord
shall also note their reasons for such disapproval, and Tenant shall, on or before ten (10) days
after receipt of such "disapproved" Final Plans, cornet any deficiencies noted by Landlord and
resubmit the corrected Final Plans to Landlord. Tenant's Work shall be performed only in
accordance with the approved Final Plans.
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6. List of Tenant's Contractors: Tenant shall furnish Landlord with a list of contractors
Tenant intends to use to perform Tenant's Work. Landlord shall reserve the right to approve or
disapprove any and all of said contractors. Tenant shall advise all contractors, subcontractors and
material persons of the terms of this Lease at Section 7.3 regarding mechanics liens.
7. Tenant's Work: On or before the Construction Commencement Date, Tenant shall
commence Tenant's Work and diligently and continually proceed to complete the Premises in
accordance with the approved Final Plans and permit Landlord to commence and continue the
work specified in Sections A, B and D hereof,
8. Permits: Tenant shall obtain all necessary permits from the governmental authorities
having jurisdiction over the Shopping Center and forward a copy of all permits to the Landlord
prior to its and Landlord's start of work in the Premises.
9. Certificate of Occupancy: Tenant shall secure an occupancy permit from the
governmental authorities having jurisdiction over the Shopping Center in sufficient time to allow
Tenant to open the Premises in accordance with the opening requirements of this Lease. A copy
of it is to be provided to the Landlord.
10. Temporary Storefront: If Tenant's work is not completed within the time required by this
lease (or in any event, is not completed on the Grand Opening Date), Landlord may, at Tenant's
expense, install a temporary storefront of barricade.
11. Work: Landlord's Work is limited to that required of Landlord by this Exhibit D and
Tenant shall be required to make all improvements to the Premises in accordance with Tenant's
Final Plans, as approved by Landlord.
12. Insurance, etc. Tenant shall provide Landlord with copies of Certificate of Insurance and
Competency from subcontractor.
13. Liens. Tenant shall provide Landlord with Final Release of Liens from all subcontractors
within ten (10) working days of completion of work prior to final acceptance by Landlord.
14. 'Upon completion of Tenant's Work, the amount of square footage in the Premises as set
forth in Section 1.1 of the Lease may in Landlord's sole and absolute discretion, be adjusted in
order to conform to any minor variations in actual square footage and a corresponding
adjustment shall in such case also be made in the amount of Minimum Rent; but not otherwise. If
adjustments are so required by Landlord, then, such will be shown as an amendment to this
Lease, which Tenant agrees to execute within ten (10) days after presentation by Landlord.
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GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to the Southeast
OvertownlPark West Conm.unity Redevelopment Agency (the "Landlord") to enter into that
certain lease dated as of April 10, 2014 (the "Lease") by and between Landlord and VSMD Food
Corp., a Florida corporation (the "Tenant"), the undersigned, jointly, and severally, guarantee to
Landlord, Landlord's successors and assigns, the full performance and observance of all the
covenants, conditions, and agreements therein provided to be performed and observed by Tenant,
including the "Rues and Regulations" as therein provided, without requiring any notice of non-
payment, non-performance, or non -observance, or proof, or notice, or demand, whereby to
charge the undersigned therefor, all of which the undersigned hereby expressly waives and
expressly agrees that the validity of this agreement and the obligations of the guarantor
hereunder shall in no way be terminated, affected, or impaired by reason of the assertion or non -
assertion by Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the within Lease, The undersigned further covenants and agrees
that this guaranty shall remain and continue in full force and effect as to any modification or
renewal. As a further inducement to Landlord to make this Lease and in consideration thereof,
Tenant and the undersigned covenant and agree that in any action or proceeding brought by
either Landlord or the undersigned against the other on any matters arising out of, under, or by
virtue of the terms of this Lease or of this "Guaranty" that Tenant and the undersigned shall and
do hereby waive trial by jury. Guarantor's remedies against Landlord shall be limited to
recoveries available to Tenant under the Lease and Guarantor shall look solely to Landlord's
estate in the Premises for any such action. This Guaranty shall, provided no default exists (or
with notice and the passage of time would exist) be terminated upon the expiration of the tern of
the Lease, as same znay be extended.
Landlord need not resort to any security or proceed against Tenant before enforcing its rights.
hereunder. Moreover, Landlord may sue one or more of the undersigned and the Tenant in any
order or together. Landlord shall be entitled to recover attorneys' and paralegals' fees
necessitated by Landlord's enforcern.ent of its rights against Tenant or Guarantor, whether arising
under the Lease or this Guaranty.
Defined terms utilized but not defined in this Guaranty shall have the meaning ascribed to said
terms in the Lease.
Notwithstanding anything to the contrary contained in this Guaranty, the liability of Guarantor
hereunder shall not exceed two (2) years rent, including Minimum Rent and Additional Rent as
of the date Landlord seeks to enforce this Guaranty.
DATED: April 10, 2014.
Witt
Witness
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Address: ,%�'� .07/ sid
Social Security #:
Date of Execution: '-,'a "'le/
I hereby certify that on this day, before me, an officer duly authorized to administer oaths
and take acknowledgements, personally appeared a 0 , -Piet- known to me to
be the person described in and who executed the foregoing instrument, who acknowledged
before me that executed the same, that I relied upon the following form of
identification of the above named person ; and that an oath (was) (was not)
taken.
INNotarr Rubber Stamp Seal
rr
y ; , ANDREA SMITH
0 NOTARY PUBLIC
3.12 STATE OF FLORIDA
Cnrmrn# EE041975
ts'" Expires 11/1512014
Witness my hand and official seal in the County and State
last aforesaid this 1O day of April, 2014.
Notary Public, State of Florida
#29033474;_v1
2
The undersigned,
CERTIFICATE
OF
CORPORATE AUTHORITY
A.l ' LQ
of VSMD Pood Corp., a corporation organized and existing
under the laws of the State of Florida does hereby certify as follows:
That at a special meeting of the Board of Directors of said corporation held on. the 1 day of
20‘6the following resolutions were unanimously adopted:
RESOLVED that the corporation be and it is hereby authorized to enter into a Iease with Southeast
Overtown/Park West Community Redevelopment Agency leasing the following premises: Suite 101 located
at 1490 NW 3'4 Avenue, Miami, Florida 33136, in accordance with the terms and conditions of the Lease
Agreement submitted to this corporation.
FURTHER RESOLVED that Melanio A, Diaz, as President, signing singly, is hereby authorized to
execute said Lease for and in behalf of the corporation, together with any Lease extension or modification
agreements.
I, do further certify that is th
of said corporation,
IN WITNESS WIIRREOF, I hereuntoy hand and affixed the seal of the corporation, as
thereof, at Miami, Florida, this \ day of April, 2014.
[CORPORATE SEAL]
#29033970_vi
EXHIBIT B
Resolution
EXHIBIT C
Construction Costs
ruc mCi � l\l am , a
ININE" AVI
M AMI EL
C306) t
Cn� % § !¥
pwmQm $eV3R Ay $aentnidhY(i\ .41- Th401 JA3
Construction $ 2,.000, 0
14Yoniend E 7 Q| mfol� S 6'7ƒ0 >
U|K I! email, Sly//9,O
Kft ien $ $ $ §
• Gs@!Qf|!>!� \lam /50$4
Owlet' nrWorking Oak $413,00,Q0
Ave ,44,00(14911
TOTAL CONSTRUC!')N ?849 0,0•
PRICE CIHOICE SUPERMARKET 45
1851NE2NDAVE.
MIAMI TL 33132-1002
(305) 374-2525
(305) 374-4103 Fax
These are the costs 1"or the construction.
Low Cost Cost
Construction 744359.00 or. 747,362.00
Front end Equipment 127,503.21
Equipment 621,187.40 or 638,409.00
Kitchen 19,900.00
I.stallation 100,000.00 or 115,000.00
Cooler or Working Box 16,098.00
Architect 44,000.00
Total Construction S 19670.047.61
EXHIBIT D
Insurance Requirements
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF
INSURANCE- LOAN AGREEMENT GROCERY STORE AT
OVERTOWN SHOPPING CENTER
I. Commercial General Liability
A. 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
B. Endorsements Required
City of Miami and SEOPWCRA listed as an additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami and SEOPWCRA listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
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
IV. Umbrella Policy (Excess Follow Form) over all applicable inability
polices herein mentioned
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 10,000,000
Aggregate $ 10,000,000
City of Miami and SEOPWCRA listed as an additional insured
V Owners & Contractor's Protective
Each Occurrence
General Aggregate
$1,000,000
$1,000,000
City of Miami and SEOPWCRA listed as named insured
VI. Payment and Performance Bond $TBD
City of Miami and SEOPWCRA listed as obligees
VII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils Max Ded
5% maximum on Wind/Hail and Flood
City of Miami and SEOPWCRA listed as loss payees
A. Limit/Value at Location or Site
B. Coverage Extensions: As provided by carrier
The above policies shall provide the City of Miami with written notice of
cancellation or material change from the insurer not less than (30) days prior to any
such cancellation or material change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A--" as to management, and no less
than "Class V" as to Financial Strength, by the latest edition of Best's Insurance
Guide, published by A.M. Best Company, Oldwick, New Jersey, or its
equivalent. All policies and /or certificates of insurance are subject to review and
verification by Risk Management prior to insurance approval.
PROMISSORY NOTE FOR
VSMD FOOD CORP.
Miami, Florida
$400,000.00 September , 2015
FOR VALUE RECEIVED the undersigned, VSMD FOOD CORP., Florida corporation
(hereinafter referred to as the "Maker") at 1490 N.W. 31"d Avenue, Miami, Florida 33136,
promises to pay to the order of the SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and
body corporate created pursuant to Section 163.356, Florida -;Statutes (hereinafter referred to as
the "Lender"), 819 N.W. 2nd Avenue, 3'•d Floor, Miami, Florida 3 313 6, or such other location or
address as the Lender may direct from time to time, the :principal sum of Four Hundred
Thousand Dollard and Zero Cents ($400,000.00), wi h-`interest thereon at a rate of four percent
(4%) per annum simple interest upon the principal balance outstanding, subject to adjustment for
late payment and for certain tax related events, as provided in the Note, wi
th said principal being
payable as follows:
175 monthly payments of the principal in t e;a7noun1t'`of Three Thousand One
Hundred Fifty Eight Dollars and Thirty -On "ntS($3,158.31) begiiriing on
September 1, 2016 and ending March 1, 2030, provided, however, that upon the
occurrence of an Event of Default as ?rovided herein or in that certain Loan
Agreement ("Agreement") of even date herewith, and the continuance of such
Event of Defaul beyond the applicable cure period, if any sir Borrower provides
written notiee-to CRA of Borrower's intent riot to exercises the option to extend
the terrn on fhe Lease as provided in the Lease, the entire principal sum unpaid
shall be immedrafely,due aritl payable.
roceeds of this Note shall be disbursed pursuant to the terms of the Loan Agreement
between Maker and Lender, All capitalized terms not defined herein shall have the meanings
provided in :the Loan. Agreement.
All sums _advanced hereunder together with accrued interest thereon and all other sums
due hereunder `sha�llTbecome irnrnediately due and payable, without notice or demand, upon the
occurrence of anyone or more of'the following Events of Default, subject to any applicable cure
period as provided inthe,_Loan I3ocurnents: (a) the Maker's failure to promptly pay in full any
payment of principal or intter,.es due under this Promissory Note; (b) the dissolution, termination
of existence, insolvency of business failure, appointment of a receiver for any part of the
property or assignment for the benefit of creditors by, or the commencement of any proceedings
under any bankruptcy or insolvency laws, by or against any maker or guarantor hereof which
shall continue beyond any applicable cure period set forth in the Loan Agreement; (c) any
uncured breach, following the giving of notice and the expiration of any applicable cure period,
by the Maker of any of the terms, covenants or conditions set forth in the Loan Agreement, or
otherwise pertains to the Loan evidenced by this Promissory Note; or (d) upon the occurrence of
an Event of Default as provided in the Loan Agreement. Upon the occurrence of any of the
foregoing events, and in addition to any other remedies provided in the Loan Agreement, the
amount disbursed, together with interest accrued thereon at the rate of three percent (3%) above
Page 1 of 4
the rate of interest, and all unpaid fees, charges and other obligations of the Maker due under any
of the Loan Documents, shall, at Lender's option, be irninediately due and payable.
No delay or omission on the part of the Lender in the exercise of any right hereunder
shall operate as a waiver of such right or of any other right under this Promissory Note. A
waiver by the Lender of any right or remedy conferred to it hereunder on any one occasion shall
not be construed as a bar to, or waiver of, any such right and/or remedy as to any future occasion.
The Maker agrees that in the event all terms and conditions of this Promissory Note and
set forth in the Loan Agreement, the whole of said indebtedness then outstanding shall
thereupon, at the option of the Lender, become immediately due:,and payable, as provided in the
Loan Agreement. If this Promissory Note becomes in default and is placed in the hands of an
attorney for collection, the Maker agrees to pay all and singular the costs, charges, and expenses
incurred by the Lender in the enforcement of its rights hereunder, including, but not limited to
reasonable attorneys' fees and costs, including th,,,:attorneys' fees and costs for appellate
proceedings.
The Maker and all persons now or herafterbecoming obligate for for the payment
hereof, do jointly and severally waive deinaiid notice of non-payment; protest, notice of
dishonor and presentiment.
The Maker does not intendor expect to pay,=nor does the Lender intend or expect to
charge, collect or accept, any interest greater than the highest_legal rate of interest which may be
charged under any applicable law. 11ou1d the acceleration hereof or any charges made
hereunder result in the computation or earning ofintorest in excess of such legal rate, any and all
such excess shall be and the Larne is herebywaived b the Lender and any such excess shall be
credited by the Lender,W the`baiance hereof
Each Maker, endorser, of -=any other person, finn or corporation now or hereafter
becoming liable for the payment',of the Loan evidenced by this Promissory Note, hereby
consents to any renewals, extensions inodificatrons, releases of security or any indulgence
shown to _ or =any dealings between the Lender and any party now or hereafter obligated
herelutiler 'without no zco and jointly and severally agree that they shall remain liable hereunder
notwithstanding any such rerlewa1 , extensions, modifications or indulgences, until the debt
evidenced hereby is fully pai
The Maker;agrrees to pay a late charge equal to ten percent (10%) of each payment of
principal and/or int_ei'est which got paid within five (5) business days of the date on which it is
due. In the event that thy payment is returned on account of insufficient funds, the Maker shall
additionally be liable fo ma=retzri check charge of five percent (5%) of the amount of the check
and Lender may require that"�all�future payments be made by cashier's check.
Any payment of principal and/or interest due under this Promissory Note which is not
promptly paid on the date such payment becomes due, shall bear interest at the highest rate
allowable by law commencing on the date immediately following the day upon which the
payment was due. Upon the occurrence of any event of default as defined herein or an Event of
Default as defined in the Agreement, all sums outstanding under this Promissory Note shall
thereon immediately bear interest at the highest rate allowable by law from the date of
disbursement, without notice to the Maker or any guarantor or endorser of this Promissory Note,
and without any affrrrnative action or declaration on the part of the Lender.
Page 2 of 4
This Promissory Note shall be construed and enforced according to the laws of the State
of Florida, excluding all principles of choice of laws, conflict of laws or comity. Any action
pursuant to a dispute under this Promissory Note must be brought in Miami -Dade County and no
other venue. Alt meetings to resolve said dispute, including voluntary arbitration, mediation, or
other alternative dispute resolution mechanism, will take place in this venue. The parties both
waive any defense that venue in Miami -Dade County is not convenient.
The terms of this Promissory Note may not be changed orally.
Attorney's Fees and Costs. The prevailing party in any action to enforce this Promissory
Note, shall recover from the non -prevailing party all and singular the costs, charges and
expenses, including but not limited to, reasonable attorney's,fees` including but not limited to all
trial, appellate, and bankruptcy litigation, including litigation for the amount as well as
entitlement to such, costs, charges, and expenses, because of: the failure on the part of the non -
prevailing prevailing party to perform, comply with, and abide ;by, each and every of the stipulations,
agreements, conditions and covenants of this Promissory Note, Whether or not suit is brought,
and the fees and costs shall bear interest from t iie date thereof at the maximum rate permitted by
law.
THE MAKER OF THIS PROMISSORY NO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WADES THE RIGHT TO=A TRIAL BY
JURY WITH RESPECT TO ANY, LI `TG
OF, UNDER, OR IN CONNECTION WITH THIS PPROMISSORY NOTE OR ANY
LOAN DOCUMENT(S) EXECUTED IN CONNECThON HEREWITH, OR THE
FINANCING CONTEMPLATED HEREBY, OR: ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS', HETHER.,QRAI OR WRITTEN) OR THE
ACTIONS OF AN PARTY_; BERETO d ._. THI
S PROVISION IS A MATERIAL
INDUCEMENT FOR;THE LENDER EXTENDING THE LOAN EVIDENCED BY THIS
PROMISSORY NOTE: =
IN_WITNESS WHEREOF; theMal er_has hereunto set its hand and seal the day and
year first ;above written
[SIGNATUE PAGE TO FOLLOW.]
Page 3 of 4
WITNESSES: MAKER:
Print Name:
Priut Name:
STATE OF FLORIDA
}
COUNTY OF MIAMI-DADE)
THE FOREGOING INSTRUMENT was -acknowledge d before me on this day of
2015 by Melanio A. Diaz; as President, VSMD Food Corp., who is personally
known to me or who produceda as identification.
By: VSMD Food Corp., a Florida
corporation
By:
Melanio A. Diaz, its President
Date:
ACKNOWLEDGMENT
My Commission Expires Signature of Notary Public, State of Florida
lntedName of Notary Public
Page 4 of 4
Second Addendum to Lease
Dated as of the Day of September, 2015, Made by and Between
Southeast Overtown/Park West Community Redevelopment Agency,
As Landlord, and,
VSMD Food Corp., a Florida corporation as Tenant,
for Premises Located at, 1490 N.W. 3rd Avenue, Suite 101, Miami, Florida
In consideration of Ten Dollars ($10.00), the Lease Agreement and other good and valuable
consideration, receipt, and sufficiency of which are hereby acknowledged, Landlord and Tenant
herein agree that this Second Addendum to Lease Agreement amends and modifies as hereinafter
set forth that Lease Agreement and any amendments or modifications thereto (the "Lease"), as
follows:
Whereas, Landlord and Tenant entered into the Lease on the April 10, 2014, as amended
by amendment dated as of April 10, 2014 (the "First Amendment"); "and
Whereas, Landlord delivered the Premises ao Tenant on Septembet,t0, 2014; and
Whereas, pursuant to the Lease, the Lease
commence upon the earlier of: (a) two -hundred and len-
notice from Landlord that Landlord's work is con plete or
public for business; and
Whereas, Tenanit's wbrlc's riot been' comp
since the execution of the_ Lease, al
enant's obligation' tc ' pay rent shall
210) days after Tenant's receipt of
he date Tenant is first open to the
ueto an increase in construction costs
andlord" to -:provide additional funding which Landlord
itant: a
Whereas, there is a= cribner's:error in the Lease due to a miscalculation of the size of the
leased premises in Tenant's option to extend in the Lease (the "Renewal Period") and now
Landlord and -Tenant desire to -66frect the -Same;
Now, therefore, Landlord and Tenant acknowledge and agree to the following Lease revisions:
Article 1. The revised Lease Rent Commencement Date is May 1, 2016, which date is hereby
affirmed by Tenant's Signature herein.
Article 2. For and during each renewal term during the Renewal Period, the Minimum Rent shall
be as follows:
Lease Years 11-15:
Lease Years 16-20:
Lease Years 21-25:
Lease Years 26-30:
$ 85,740.60
$ 94,314.66
$103,746.12
$114,120.73
1
Except as modified and amended hereby, the Lease and First Amendment shall remain in full
force and effect according to their terms, including without limitation, the obligation to pay
Percentage Rent and Additional Rent as therein provided.
IN WITNESS WHEREOF, the parties have executed this Second Addendum as of the
day of September, 2015.
First Witness for Landlord
Second Witness for Landlord
First Witness
Second Witss, for Tenant
APPROVED AS TO FORM -
LEGAL SUFFICIENCY
By:
Renee A. Jadusingh, Esq.
Staff Counsel
LANDLORD:
SOUTHEASTOVERTOWN/PARK WEST
COMMUIs 1TYREDEVELOPMENT
AGENCY, of the City of Miami, a public
agesy and' body corporate created pursuance
to -Section 1 b3 36, Florida Statutes
Y
Clarence E. Woods, III
Executive: Director
SMD FOOD CORP., a Florida corporation
Melanio A. Diaz
President
2