HomeMy WebLinkAboutExhibit -AgreementLEASE
BETWEEN
THE CITY OF MIAMI
AND
GLASSHOUSE COCONUT GROVE, LLC
FOR THE USE OF
A CERTAIN PORTION OF
THE CITY -OWNED PROPERTY LOCATED AT
2820 MCFARLANE ROAD
MIAMI FL. 33133
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
Section 1.1 Definitions
ARTICLE II LEASE OF LEASE AREA
Section 2.1 Lease of Lease Area
Section 2.2 Purpose of Use and Occupancy
Section 2.3 Suitability of Premises
Section 2.4 Limited Representations by Lessor
Section 2.5 Possession
Section 2.6 Existing Liens and Encumbrances
Section 2.7 Lease Execution
ARTICLE III TERM
Section 3.1 Term of Lease
Section 3.2 Option to Renew
ARTICLE IV RENT
Section 4.1 Minimum Base Rent and Percentage Rent
Section 4.2 Security Deposit
Section 4.3 Lessee's Financial Records
Section 4.4 Reports by Lessee
Section 4.5 Right to Examine Financial Records
Section 4.6 Audit
Section 4.7 Lien for Rent
ARTICLE V LEASEHOLD IMPROVEMENTS
Section 5.1 Lessee's Obligation to Provide and Fund Leasehold Improvements
Section 5.2 Possession Date
Section 5.3 Payment and Performance Bond
Section 5.4 Contractor's Insurance
Section 5.5 Additional Consideration
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Section 5.6 Lessor's Premises to Remain Free of Liens
Section 5.7 Lessor Approval
ARTICLE VI CONDUCT OF BUSINESS BY LESSEE
Section 6.1 Use of Premises
Section 6.2 Operation of Lessee's Business
Section 6.3 Signs
ARTICLE VII MAINTENANCE, REPAIR AND ALTERATION OF LEASE
AREA
Section 7.1 Lessee's Maintenance Obligations
Section 7.2 Lessee's Repair Obligation
Section 7.3 Changes/Alterations
ARTICLE VIII INSURANCE AND INDEMNITY
Section 8.1 Insurance on the Premises
Section 8.2 Delivery of Insurance Policies
Section 8.3 Adjustment of Loss
Section 8.4 Insurer to be Approved -Premium Receipts
Section 8.5 Indemnification of Lessor
Section 8.6 Waiver of Subrogation
Section 8.7 Intentionally Deleted
ARTICLE IX SERVICES AND UTILITIES
Section 9.1 Lessor Utilities
Section 9.2 Lessee to Provide and Pay for Utilities
Section 9.3 Lessor Not Liable for Failure of Utilities
Section 9.4 Grease
ARTICLE X SUBLEASES, ASSIGNMENTS AND TRANSFERS
Section 10.1 Subleases, Assignments and Transfers
Section 10.2 Definitions
Section 10.3 Transfers
Section 10.4 Notice of Transfer
Section 10.5 Information as to Shareholders, etc
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Section 10.6
Section 10.7
Section 10.8
Section 10.9
Section 10.10
Section 10.11
ARTICLE XI
Section 11.1
ARTICLE XII
Section 12.1
Section 12.2
Section 12.3
Section 12.4
Section 12.5
Section 12.6
ARTICLE XIII
Section 13.1
Section 13.2
Section 13.3
Section 13.4
Section 13.5
Section 13.6
ARTICLE XIV
Section 14.1
Section 14.2
Section 14.3
Section 14.4
Section 14.5
ARTICLE XV
Effectuation of Permitted Transfers
Criteria for Consent for Transfer
Liability of Lessee
Acceptance of Rent from Transferee
Transfers of the Lessor's Interest
Mortgages of Lease Area
COMPLIANCE WITH LAWS
Compliance With Laws
ENVIRONMENTAL LIABILITY
Definition of Terms
Lessee's Environmental Covenant
Representation by Lessor
Lessee's Indemnification
Asbestos
Survival of Lessee's and Lessor's Obligations
DAMAGE OR DESTRUCTION OF PREMISES
Definitions
Lessee's Duty to Repair, Restore or Replace the Premises after Damage
Performance of Restoration Work
No Right to Terminate
Lessee's Right to Terminate
Unused Insurance Proceeds and Deposits
EMINENT DOMAIN
Total Condemnation
Partial Condemnation
Adjustment of Rent Upon Partial Taking
Deposit of Condemnation Award with Escrow Agent
Temporary Taking
PAYMENT OF TAXES, ASSESSMENTS AND OTHER
IMPOSITIONS
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Section 15.1
Section 15.2
Section 15.3
Section 15.4
Section 15.5
ARTICLE XVI
Section 16.1
Section 16.2
Section 16.3
Section 16.4
Section 16.5
Section 16.6
Payment of Taxes and Impositions
Installment Payments of Ad Valorem Taxes and Impositions
Payment in Lieu of Taxes
Proof of Payment
Lessee's Right to Contest Impositions
DEFAULT OF LESSEE
Lessee Default
Remedies of Lessor
No Waiver by Lessor
Late Payments
Remedies Cumulative
Lessor Default
ARTICLE XVII ACCESS BY LESSOR
Section 17.1 Right of Entry
ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage
ARTICLE XIX
Section 19.1
Section 19.2
ARTICLE XX
Section 20.1
Section 20.2
Section 20.3
ARTICLE XXI
Section 21.1
Section 21.2
Section 21.3
Section 21.4
Section 21.5
HOLDING OVER, SUCCESSORS
Holding Over
Successors
EQUAL EMPLOYMENT OPPORTUNITIES
Equal Employment Opportunities
Affirmative Action
Non -Discrimination
MISCELLANEOUS
Accord and Satisfaction
Entire Agreement
Independent Parties
Notices
Captions and Section Numbers
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Section 21.6 Partial Invalidity
Section 21.7 Estoppel Certificate
Section 21.8 Waiver
Section 21.9 Time is of the Essence
Section 21.10 No Discrimination
Section 21.11 Governing Law
Section 21.12 Consents
Section 21.13 Waiver of Jury Trial
Section 21.14 Quiet Enjoyment
Section 21.15 Surrender of Possession
Section 21.16 Joint and Several Liability
Section 21.17 Third Party Beneficiary
Section 21.18 Radon
Section 21.19 No Liability for Act of other Party
Section 21.20 Rights, Privileges and Immunities; Covenants
Section 21.21 Abatement of Rent
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GLASS HOUSE LEASE
This GLASS HOUSE LEASE ("Lease"), made this day of , 2014, by and
between the CITY OF MIAMI, FLORIDA ("Lessor"), a municipal corporation of the State of
Florida 'having its offices at 3500 Pan American Drive, Miami, Florida 33133 ("Lessor" or
"City") and GLASSHOUSE COCONUT GROVE, LLC, a Florida limited liability company,
having its offices at 2950 SW 27th Avenue, Suite 100, Miami, Florida 33133, ("Lessee").
The Lessor and Lessee, together the "Parties," agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Any word contained in the text of this Lease shall be read as the singular or the plural and
as the masculine, feminine or neuter gender as may be applicable in the particular context. More
specifically, however, for the purposes of this Lease, the following words shall have the meanings
attributed to them in this Section:
1.1.1 "Acceptable Operator" means an entity possessing (A) a minimum of five (5)
years of experience (i) directly managing and operating a cafe, restaurant or food establishment or
any combination thereof during the last fifteen (15) years; or (ii) directly involved in the ownership
and day to day operation of a cafe, restaurant or food establishment during the last ten (10) years;
and (iii) in the management and operation for each use proposed; and (B) the threshold criteria
outlined in Section VIII of City of Miami Department of Real Estate Management RFP #
12-13-067 (the "RFP"); and C) a good reputation in the business community; and (D) adequate
financial resources and personnel necessary for the proper performance of all of Lessee's
obligations under this Lease in a manner consistent with the quality, reputation and economic
viability of the Lessee's business at the Lease Area, including (without limitation) the obligation of
payment of Rent payable by Lessee under this Lease.
1.1.2 "Additional Rent" means any and all additional sums, charges, or amounts of
whatever nature to be paid by Lessee in accordance with the provisions of this Lease, whether or
not such sums, charges or amounts are referred to as Additional Rent.
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1.1.3 "Applicable Law(s)" means all laws, Florida Statutes, Codes, City and
Miami -Dade County Ordinances, orders, judgments, decrees and injunctions from courts having
jurisdiction over the Premises, rules, and requirements of State and local boards and agencies with
jurisdiction over the Premises, now existing or hereafter enacted, adopted, foreseen and
unforeseen, ordinary and extraordinary, which may be applicable to the Premises or any part of it.
1.1.4 "Assignment" refers to the complete transfer of the rights and obligations of the
Lessee under the Lease to a third party, whereupon the third party assignee becomes the Lessee
under the Lease and takes over all of the Lease Area and the rent and other obligations associated
with the Lease, thereby assuming the prior tenant's rights and obligations.
1.1.5 "Assignee" refers to the third -party entity assuming the rights and obligations of
the Lessee or assignor or owner of the leasehold estate.
1.1.6 "Assignor" refers to the Lessee which is assigning its rights and obligations
under this Lease to a third -party entity. Unless released from liability from the City pursuant to
Section 10.8 of this Lease, which decision shall be conditioned on the payment of the
consideration at the time of Assignment set forth in Section 10.1(c) of this Lease, the Assignor
shall remain secondarily liable as a guarantor for the obligations under the Lease, if the new Lessee
(Assignee) defaults under the Lease.
1.1.7 "Business Days" means Monday through Friday, excluding legal holidays in the
City of Miami, Florida.
1.1.8 "Cafe Operations" or "Garden -Style Cafe Operations" means all services
associated with the preparation, service and sale of food and beverages, including alcoholic
beverages, entertainment (excluding adult entertainment), private banquets, catering, parties, cigar
smoking, art shows, happy hour and such other activities ancillary to the sale of food and beverage
including sales of merchandise related to the business conducted on the Lease Area.
1.1.9 "City Improvements" means the undertaking by the City, as contemplated on
Page 9 of the RFP, of the following: (1) Installation of a new rooftop air conditioning units for
Lessee; (2) Installation of a separate utility systems for Lessee, including independent water meter,
separate reduced pressure backflow preventers and electrical utility system; (3) Installation of a
one -hour, tenant separation fire -rated wall and installation of a one -hour fire -rated ceiling; (4)
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Installation of a grease trap; (5) Installation of new concrete ADA ramp; (6) ADA renovations to
existing restrooms, including the construction of an exterior door to access the existing restrooms
from the south side of the building (which door shall not be located within the Leased Area); (7)
Replacement of all vinyl and wooden floors and buff the terrazzo flooring; (8) Cleaning and
buffing of existing terrazzo floors; and (9) Completion of all subdivision improvements required
for an issuance of a final plat for the property within which the Premises is located.
1.1.10 "Date of Taking" means the earlier of (i) the date on which actual possession of
all or less than all of the Premises, as the case may be, is acquired by any lawful power or authority
pursuant to the provisions of Applicable Law; or (ii) the date on which title to all or less than all of
the Premises, as the case may be, has vested in any lawful power or authority pursuant to the
provisions of Applicable Law.
1.1.10 "Fair Market Value" has the meaning set forth in Section 4.1.6 of this Lease and
secondarily as supplemented by V. (D) of the RFP. For purposes of this Lease, "Fair Market
Value" will have the same meaning as "Fair Market Rent."
1.1.11 "Force Majeure" means any period of delay which arises from or through acts of
God; explosion, sabotage, accident, riot, or civil commotion; act of war; fire or other casualty;
delays caused by the other party; and causes beyond the reasonable control of a party.
1.1.12 "Gross Condemnation Award" means the actual amount of the award paid in
connection with or arising from the acquisition or other taking of all or less than all of the
Premises, as the case may be.
1.1.13 "Gross Insurance Proceeds" means the actual amount of insurance proceeds paid
following an insured casualty to the Leasehold Improvements.
1.1.14 "Gross Revenues" shall mean the entire amount of all revenues and percentages
of revenues actually collected and received by the Lessee and its Sub -lessees or its assignees and
derived from the following sales sources, including without limitation:
(i) all revenue from the commercial business and services conducted by Lessee
and its Sub -lessees and/or assignees) on or from the Premises or Lease Area;
(ii) all revenues from sales of food, beverage, wine, beer, merchandise or
services from the Premises or Lease Area;
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(iii) all revenue derived from advertising and sponsorships conducted on the
Premises or Lease Area, including but not limited to, movies, television commercials, etc.;
(iv) all amounts received from any catering food operations based at the
Premises;
(v) all amounts received by Lessee from valet concession sales, parking valet
services or similarly authorized and permitted concessions on the Premises or in the Lease
Area where the Lessee receives and retains any portion, percentage or fraction of the cost
of such sales or services in any manner from the Concessionaire , these sales are subject to
verification by a written concession agreement, and any audit or inspection requested by
the Lessor in accordance with the requirements of Section 18-100 through 18-102 of the
City Code, which is deemed incorporated by reference as if fully set forth herein;
(vi) sales made or performed by means of mechanical or other vending sales and
services devices or machines on the Premises or Lease Area, including without limitation,
pay telephones, vending machines, and entertainment devices both for cash and on credit,
rendered in or upon the Premises;
(vii) all revenue received by Lessee in connection with the special events uses of
the Premises, any facility thereon, or any portion thereof for any period of time, including
without limitation, banquets, parties, receptions held on or initiated from the Premises;
(viii) internet or telephone food/beverage orders received or filled at the
Premises, or procured from the Premises by house -to -house or other canvassing, including
discount, merchant and online savings incentives including, without limitation, sources
and programs such as Groupon, all deposits not refunded to purchasers, and orders taken,
although said orders may be filled elsewhere, including proceeds of all video games;
(ix) all grants, subsidies, rebates, credits or similar benefits received from any
federal, state, regional or local body, agency, authority, department or organization which
revenues are unrestricted or are to be used for general operating expenses;
(x) all donations and contributions received, the revenues of which are
unrestricted or are to be used for general operating expenses;
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(xi) and all other receipts whatsoever derived from other commercial operations
conducted in or from the Premises or Lease Area by the Lessee and its Sub -lessees (if any).
Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in
the period the service was provided or sale took place. Payments received in advance are deferred
and are recognized as revenue in the period the service is rendered or sale takes place. Grants shall
be recorded as income during the period designated by the grants or when the Lessee has incurred
expenditures in compliance with the restrictions of the grantor.
If a sale is by credit card, no deduction shall be allowed for any commission associated
with such sale
Gross Revenues shall not include the following:
i) direct or indirect discounts or other reductions on sales to employees;
ii) any sums collected and paid out by Lessee for any sales, use or excise tax imposed
by any federal, state or governmental authority directly on sales and collected from
customers and accounted for by Lessee and/or Sub -lessees, provided that the
amount is added to the selling price therein and paid by the Lessee to such
governmental authority;
iii) the exchange of merchandise between the stores of Lessee, a party controlled by
Lessee, or Sub -lessees, if any, where such exchange of goods or merchandise is
made solely for the convenient operation of the business of Lessee and not for the
purpose of consummating a sale which has theretofore been made in or from the
Premises and/or for the purpose of depriving Lessor of the benefit of a sale which
otherwise would be made in or from the Premises;
iv) the amount of returns to shippers or manufacturers;
v) proceeds from the sale of trade fixtures, operating equipment or similar assets after
use thereof in the conduct of Lessee's and Sub -lessees" business on the Premises;
vi) the amount of any bona fide charges paid by Lessee to a third party in connection
with any catering services to customers of Lessee (such as, by way of example, a
fee imposed by a chair rental company for the provision of rental furniture),
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provided that (a) such charges are billed separately by Lessee to the customer above
the Lessee's charges for catering service, (b) Lessee passes through the third party
charges to the customer without mark-up and Lessee does not otherwise receive
any rebate or other compensation from such third party, and (c) Lessee actually
pays the charges to such third party as substantiated by bona fide receipts or
invoices;
vii) the sales price, if Lessee sells part or all of the entire business (for avoidance of
doubt, this exclusion does not relieve the Lessee of the obligations to make
payments under Section 10.1(c) upon an Assignment of the Lease;
viii) all sums and credits received in settlement of claims for loss or damage to
merchandise;
ix) cash or credit refunds, discounts, or rebates provided to customers to the extent
previously included in Gross Revenue;
x) funds collected with regard to the Premises which are not actually related to the
day-to-day business of the Premises such as, but not limited to the financing of the
Lessee's interest in the Premises;
xi) sale or assignment of Leasehold Estate;
xii) collection of insurance proceeds;
xiii) collection of eminent domain proceeds;
xiv) monies collected for events that are done for charities wherein the total amounts
collected are paid to the charitable sponsor or not -for -profit organizations;
xv) all gratuities paid to employees;
xvi) amounts received by Lessee as reimbursements of expenses and cost sharing (for
example, reimbursement of taxes, insurance or utility bills);
xvii) any grants, subsidies or similar benefits first applied for by and thereafter received
by Lessee or Sub -lessee from any federal, state, regional or local public body,
public agency, public authority, department or organization;
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xviii) interest earned on Lessee's deposit accounts, earnings or profits on Lessee's
investments;
xix) proceeds of any borrowings by Lessee for use in the Lease Area ;
xx) interest income from loans or credit facilities granted by Lessee and similar passive
or investment income of Lessee related to Lessee's liquid assets, investments or
loans/credit facilities granted by Lessee;
xxi) rents or percentage rents and commissions paid to Lessee by any Sub -lessees where
the City is collecting rent based on a percentage of Sub -Lessee's Gross Revenues as
provided in Section 10.1.
xxii) amounts received by a valet parking concessionaire when Lessee is including in
Gross Revenue the amounts paid to Lessee by such valet parking concessionaire as
provided above.
xxiii) Any restricted donations or contributions whose revenues are earmarked for capital
expenditures, as approved by the Lessor, to the Property;
xxiv) the sale of equipment ( excluding fixtures affixed to the Leased Area which cannot
be easily removed or which would damage the Leased Area and which fixtures will
become the Property of the Lessor at termination of the Lease) or related property
which are not stock in trade after their use.
A "sale" shall be deemed to have been consummated for the purpose of this Lease, and the
entire amount of sales price collected by Lessee and Sub -lessees, shall be included in Gross
Revenues, at such time that (i) the transaction is initially reflected in the books or records of Lessee
or Sub-lessee(s); or (ii) Lessee or Sub-lessee(s) receives all or any portion of the sales price; or (iii)
the applicable goods or services are delivered to the customer and payment is made to Lessee or
Sub-lessee(s), whichever first occurs, irrespective of whether payment is made in installments, the
sale is for cash or for credit, or otherwise, or all or any portion of the sale price has actually been
paid at the time of inclusion in Gross Revenues or at any other time.
Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in
the period the service was provided or sale took place. Gross Revenues shall be reduced by the
amount of any refund made upon any sale in or from the Premises, provided said amounts had been
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previously included in "Gross Revenues," not to exceed the sum so previously included, where the
merchandise sold is thereafter returned by the purchaser and accepted by the Lessee or
Sub -lessees, and if such refund is in the form of a credit to customer, such credit shall be included
in Gross Revenues when used.
1.1.15 "Impositions" means all assessments, including assessments imposed by the
City, franchise fees, fire fees, excises, parking surcharges, license and pen -nit fees, levies, charges
and taxes, including ad valorem real estate taxes on the Premises and the Leasehold
Improvements, general and special, ordinary and extraordinary properly levied against the
Premises and the Leasehold Improvements, any personal property, and/or the Lessee's Leasehold
Estate which constitute a lien on the Premises or the Leasehold Improvements. "
1.1.16 "Lease" means this Lease as supplemented by the RFP, any addendums thereto,
and the Lessee's response to the RFP , all of which are deemed as being incorporated by reference
into this Lease as additional documents providing supplemental terms and conditions;, provided,
however, that in the event of any express conflicts between this Lease and the other documents
referenced in this subsection this Lease shall govern.
1.1.17 "Lease Area" shall refer to that certain portion of the Glass House property which
shall be designated for use by the Lessee, more particularly described in Exhibit "A2" attached
hereto and incorporated.
1.1.18 "Lease Date" means the date that the following conditions have all been
satisfied: (i) this Lease is fully executed and legally binding upon the Parties, after approval by the
City of Miami Commission, and (ii) Lessor delivers to Lessee possession of the Property (which
delivery of possession shall be subject to the conditions set forth in Section 5.2 of this Lease).
1.1.19 "Leasehold Estate" means all of Lessee's right, title and interest as Lessee in, to
and under this Lease, the Premises and the Leasehold Improvements.
1.1.20 "Leasehold Improvements" means a description of remodeling/renovation work
to be done to the physical plant as described in Exhibit "B" entitled "Schedule of Leasehold
Improvements" and all furnishings or equipment constituting fixtures to be installed in accordance
with Section 5.1, and all other items and improvements constituting fixtures to be installed or
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constructed thereafter, from time to time during the Lease Term that are hereafter located upon the
Premises.
1.1.21 "Leasehold Mortgage" means a mortgage, deed of trust, or other instrument
which constitutes, or any security interest given in connection therewith, which together constitute
an encumbrance or lien upon the Lessee's Leasehold Estate or any part of it, or any related
personal property, and Lessee's interest in the Leasehold Improvements as security for any loan.
The Leasehold Mortgage may never encumber or lien the fee simple interest of the Lessor.
1.1.22 "Lease Tern" means the period of time fixed in Section 3.1 and shall be deemed
to include the additional period of time fixed in Section 3.2 if Lessee exercises Lessee's right to
renew the Lease.
1.1.23 "Lease Year" means twelve (12) full consecutive months. The first Lease Year
shall begin on. the Lease Date. If the Lease Date does not fall on the first day of the month, the first
Lease Year will commence on the first day of the following month. Each succeeding Lease Year
shall commence upon the anniversary date of the first Lease Year.
1.1.24 "Minimum Base Rent" shall mean the annual Minimum Base Rent due and payable
by the Lessee on a monthly basis for the use of the subject Premises and shall have the sum
ascribed to it in Section 4.1.1.
1.1.25 "Parties" means the Lessor and Lessee.
1.1.26 "Percentage Rent" shall have the meaning ascribed to it in Section 4.1.4 and shall
be payable annually and calculated as a percentage of the Gross Revenues.
1.1.27 "Possession Date" means the date that the City delivers possession to the Lease
Area to Lessee, by notice in writing, in accordance with this Lease (which delivery of possession
shall be subject to the conditions set forth in Section 5.2 of this Lease).
1.1.28 "Premises" means the space more particularly described in Section 2.1 herein
and Exhibit "A2" attached herewith and incorporated herein by reference, known as the "Glass
House," within the building having an address of 2820 McFarlane. Road, Miami, Florida, located
upon the real property legally described on Exhibit "Al" attached herewith incorporated herein by
reference. The tern Premises shall have the same meaning as the phrase "Lease Area." The parties
agree that the intent of the Lessor is to provide the Lessee with 1,725 square feet of interior space
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and 600 square feet of exterior space as part of the Premises/Lease Area and, as such, the
Premises/Lease Area as described on Exhibit "A2" shall be adjusted by the parties if a survey
determines that Exhibit "A2" depicts that the Premises/Lease Area contains more than or less than
1,725 square feet of interior space and 600 square feet of exterior space. Thereupon, the parties
shall replace Exhibit "A2" with a revised Exhibit "A2" depicting the Premises/Lease Area with
1,725 square feet of interior space and 600 square feet of exterior space within the Premises/Lease
Area as determined by survey.
1.1.29 "Proposal" means the document received by the Lessor from the Lessee dated
March 10, 2014, in response to the RFP.
1.1.30 "Rent" means Minimum Base Rent, Percentage Rent and Additional Rent as
defined above.
1.1.31 "Rent Commencement Date" means the date that is two hundred seventy (270)
days after the Lease Date, which is the date on which Rent commences to become due and payable
as referenced in Article IV.
1.1.32 "RFP" means the document entitled Request for Proposals # 12-13-067 for the
Leasing of a certain portion of city -owned property as a garden -style cafe located at 2820
McFarlane Road, Miami Florida, issued by the City of Miami on September 13, 2013, a copy of
which is available at the City Clerk's Office, and any addendurs issued to this RFP..
1.1.33 "Sublease" means any lease (excluding this Lease), sublease, license, concession
or other agreement by which Lessee or any person or other entity claiming under Lessee
(including, without limitation, a Sub -lessee or sub -licensee) demises, leases, subleases, licenses or
sublicenses to or permits the use or occupancy by another person or entity of any part of the
Premises and Leasehold Improvements.
1.1.34 "Sub -lessee" means any person, firm, corporation or other legal entity using or
occupying or entitled to use or occupy any part of the Premises or the Leasehold Improvements
under a Sublease.
1.1.35 "Lessee" has the meaning ascribed to it in the opening paragraph of this Lease as
well as Lessee's successors and assigns.
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ARTICLE II
LEASE OF LEASE AREA
Section 2.1 Lease of Lease Area
The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases
from the Lessor the Lease Area, subject to the following terms and conditions, to have and to hold
the said lands, tenements and hereditaments, with all of the rights, privileges and appurtenances,
thereunto belonging or pertaining unto Lessee for the Lease Term herein specified, unless this
Lease shall be sooner terminated in a manner hereinafter provided. The Lease Area is legally
described more particularly in Exhibit "A2" attached herewith and incorporated herein by
reference.
Lessee shall have all rights, privileges, easements and appurtenances, if any, benefiting the
Premises in, over and upon adjoining and adjacent public and private land, highways, roads and
streets reasonably required for ingress or egress to or from the Premises by Lessee, its agents,
servants, employees, contractors, customers and invitees and all others related to Lessee's use and
occupancy of the Premises.
In addition to the foregoing, under Addendum IV of the RFP, the Lessor contemplated,
among other matters, that Lessee would be permitted to use up to 4,000 square feet of exterior space
through a permit agreement in the form attached hereto as Addendum A. The Lessor and Lessee
shall execute such permit agreement contemporaneously with the execution of this Lease.
As identified in attached Exhibit "A2," the Lease Area includes a room that contains an
electrical panel. The Lessee acknowledges that this electrical panel services the entire building in
which the Premises is located. As such, upon reasonable notice to the Lessee, the Lessee agrees to
provide the Lessor and any of its representatives access to the electrical panel room when
necessary for the maintenance and service of such electrical panel by the Lessor and its
representatives.
Section 2.2 Purpose of Use and Occupancy
The Lessee will use and occupy the Premises for Garden -style Cafe Operations, which may
also include, subject to compliance with all applicable laws, rules, regulations, permits, licenses
and similar approvals, beer, wine and liquor service with food consumption; magazine stand;
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entertainment uses generally consistent with the first class restaurant operated by the Lessee
(excluding adult entertainment); educational, recreational and cultural activities; and ancillary
functions and services, without the prior written consent of Lessor, and for no other purpose or use
of any kind. Except as otherwise set forth in this Lease, the Lessee will operate the Premises a
minimum of fifty (50) hours per week, except in cases of Force Majeure or any reasonable period
of remodeling, repair or reconstruction of the Premises, which remodeling, repair or reconstruction
may not, without the City 's prior written consent, exceed a continuous period of thirty (30) days in
any calendar year, or more than a cumulative total period of forty five( 45) days in any calendar
year.
Section 2.3 Suitability of Premises
Lessee acknowledges that neither the Lessor nor any of Lessor's officers, representatives,
or employees has made any representation or warranty with respect to the Premises or Lease Area,
or with respect to the suitability or fitness of the Premises or Lease Area, for the conduct of
Lessee's Garden -style Cafe Operations or for any other purpose, except as set forth in this Lease or
in the RFP. The execution of this Lease by Lessee shall establish that the Lessee accepts the
condition of the Lease Area "AS IS", subject to the representations set forth in Section 2.4 herein,
the RFP or elsewhere in this Lease.
Section 2.4 Limited Representations by Lessor
Lessor makes the following representations, covenants and warranties which shall survive
the execution of this Lease and the taking of possession of the Lease Area by the Lessee:
(a) That Lessor has taken all requisite actions to make this Lease binding upon
the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title to the Lease Area,
and is the sole owner of and has good right, title and authority to convey and transfer all property,
rights and benefits which are the subject matter of this Lease, free and clear of all known liens and
encumbrances.
(b) That no party, except Lessee, shall, on the Lease Date, be in or have any
right to possession of the Lease Area.
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(c) That there is on the Lease Date a legal and physical ingress and egress to the
Lease Area from a paved public street for legal and physical ingress and egress for pedestrian
traffic.
(d) The Lease Area may be used and operated for Garden -style Cafe
Operations as contemplated by the RFP and this Lease; and there are no Applicable Laws, private
restrictions of record or other conditions of record which restrict or prevent the Lease Area from
being used and operated for Garden -style Cafe Operations or obtaining building permits on the
Lease Date or a certificate of occupancy as of the completion of the Leasehold Improvements.
Nothing herein shall be construed to imply that Lessor herein warrants or represents that Lessee
can obtain a liquor license.
(e) That as of the Lease Date, there are no ad valorem real or personal property
taxes or assessments due and owing for the Premises for the year 2013 and all prior years.
(f) That there are no liens, encumbrances, mortgages, easements, or any other
matters known to Lessor affecting title which would preclude or otherwise materially affect
Lessee's intended use or its quiet enjoyment of other Leasehold rights or benefits under this Lease.
Absent emergency action or other Municipal Home Rule Action required by the public health, safety
and general welfare, Lessor covenants with Lessee that it will not , during the Lease Tenn and any
option period hereof, conferred and validly exercised, knowingly permit the imposition upon the
Premises any liens, encumbrances, mortgages, easements or any other matters affecting title which
would preclude or otherwise materially affect Lessee's quiet enjoyment of the Premises. The
obligation of the Lessor set forth in the preceding sentence is not intended to limit the ability of the
Lessor, acting in its governmental capacity, to exercise its police powers with respect to the Premises
and any activities within the Premises, for matters including, without limitation, the imposition and
levy of Special Assessments, occupational, building and zoning, regulatory, business and
occupational license fees, charges and impositions, the exercise of emergency powers or its powers
under the Municipal Home Rule Powers Act of the State of Florida , Chapter 166, Florida Statutes.
the issuance of municipal bonds and similar public finance transaction and the like.
Notwithstanding anything contained in the Lease to the contrary, Lessor covenants with Lessee to
keep Lessee in quiet possession of the Premises during the Lease Term and any extensions thereof.
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(g) That the terms of this Lease, including, without limitation, the intended use
of the Property by Lessee, are not in violation of or expressly inconsistent with any operative
agreement or covenant known to Lessor of any kind whatsoever which relates to the Property.
(h) That all of the representations and warranties of Lessor contained in this
Lease shall continue to be true as of the Lease Date and said representations and warranties shall
be deemed to be restated and affirmed by Lessor as of the Lease Date without the necessity of
Lessor's execution of any document with regard thereto, and the Lessor's liability (except with
respect to the environmental condition of the Lease Area which is expressly addressed in Article
XII of this Lease) therefore, shall survive the signing of this Lease. Should any of the
representations and warranties prove to be incorrect, it shall be Lessor's obligation to cure those
warranties and representations which are set forth herein forthwith at Lessor's expense.
Section 2.5 Satisfaction of Liens.
Lessor shall satisfy or cancel of record all existing liens and encumbrances affecting the
Premises as of the Lease Date except as otherwise set forth in this Lease.
Section 2.6 Lease Execution
Lessee shall execute this Lease no later than thirty (30) days following approval by the City
of Miami Commission.
ARTICLE III
TERM
Section 3.1 Term of Lease
The initial Lease Term is for a period of twenty-five (25) years, commencing on the Lease
Date. The Lease Term shall be extended to include any fraction of a calendar month between the
Lease Date and the first day of the first full calendar month thereof.
Section 3.2 Option to Renew
The Lessee has the option of extending this Lease for two (2) additional terms of five (5)
years each ("First Renewal Term" and "Second Renewal Term"), as long as the Lessee is not in
Default of any of the Lease provisions. To exercise the First Renewal Term or the Second
Renewal Term, the Lessee must give Lessor written notice by the latter of (i) the date which is one
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hundred eighty (180) prior to the expiration date of the Lease Term or the First Renewal Term or
(ii) the date thirty (30) days following written notice from Lessor advising Lessee that Lessee has
failed to furnish notice of its option to exercise the First Renewal Tenn or the Second Renewal
Term, as applicable, in the manner provided for herein, which notice shall state in bold capitalized
large font letters that such notice constitutes final notice to Lessee of its option to exercise the First
Renewal Tenn or the Second Renewal Term, as applicable. The First Renewal Tenn and the
Second Renewal Tenn will be on the same terms and conditions as the Lease Tenn, except that the
Minimum Base Rent will be adjusted as set forth in Section 4.1.2 below.
ARTICLE IV
RENT
Section 4.1 Minimum Base Rent and Percentage Rent
Commencing on the Rent Commencement Date and on the first (1st) day of every calendar
month thereafter during the Lease Term, Lessee hereby agrees to pay to the Lessor the Minimum
Base Rent. If the first payment of Minimum Base Rent does not fall on the first day of the month,
the first payment shall be prorated based on the number of days in such month. In addition, the
Lessee hereby agrees to pay the Lessor Percentage Rent on an annual basis as set forth in 4.1.4 in
the manner described in Sections 4.1.4 through 4.1.5 below.
4.1.1 Minimum Base Rent.
The Minimum Base Rent shall be Eight Thousand Three Hundred Thirty Three Dollars and
Thirty Three Cents ($8,333.33) per month. The Minimum Base Rent shall be adjusted and
increased annually by the method described in Section 4.1.2 below upon the commencement of the
second Lease Year.
4.1.2 Minimum Base Rent Increase
Lessee agrees that the Minimum Base Rent shall be increased annually by three percent (3
%) upon the commencement of the second Lease Year.
4.1.3 Sales Tax
The Lessee shall be liable for the prevailing State of Florida Sales , Use or similar Tax
unposed on the amount of Rent paid to Lessor under this Lease, in the absence of an exemption or
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other reduction by the State of Florida. This Sales and Use Tax shall be payable to the Lessor
when Rent is due, and in turn, Lessor will remit the same, less any authorized handling deductions,
if any, to the State.
4.1.4 Percentage Rent
From the Rent Commencement Date and continuing throughout the term of the Lease,
Lessee shall pay to the City a percentage of Lessee's annual Gross Revenues (as defined herein)
made from or upon the Lease Area, in excess of the annual Rent Breakpoint (as defined below) for
that same time period. Percentage Rent shall be computed on an annual basis ("Percentage Rent
Period") beginning with the Rent Commencement Date and continuing throughout the Term.
Percentage Rent shall be payable to the Lessor upon the Lessee exceeding Gross Revenues
of One Million Three Hundred Thirty Three Thousand Three Hundred Thirty Three dollars
($1,333,333.00) ("Rent Breakpoint") pursuant to 4.1.5 below. The Percentage Rent shall be equal
to seven and one-half percent (7.5%) of the combined Gross Revenues of the Lessee over the Rent
Breakpoint for any preceding Lease Year.
4.1.5 Manner of Payment
The Percentage Rent, if any, shall be payable within sixty (60) days after the end of each
Lease Year. Lessee shall deliver to the Lessor a statement setting forth the Gross Revenues during
the applicable Percentage Rent Period (the "Annual Percentage Rent Statement"), and Lessee shall
pay to the City the amount of Percentage Rent due and payable, if any, to the Lessor pursuant to the
terms of this Lease. Each Annual Percentage Rent Statement shall be signed and certified to be
complete and correct by an officer of Lessee. Such statement shall show the annual Gross
Revenues and an itemization of any exclusions or deductions for the current Lease Year. Lessee
shall use a Gross Revenue Report, a sample of which is attached herewith and incorporated herein
as Exhibit "C" to itemize any and all reportable Gross Revenues.
Lessee shall (i) pay the Lessor (x) the monthly Minimum Base Rent and (y) the Percentage
Rent if applicable, and (ii) deliver the corresponding Gross Revenue Report for the preceding
Lease Year to the City of Miami, Department of Finance at the address noted below:
City of Miami
Department of Public Facilities
Attention: Lease Manager
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444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
4.1.6 Fair Market Value
As required by Applicable Laws , , the Lessor has determined that the Minimum Base Rent
and the Percentage Rent constitutes Fair Market Value. The Lessor has made such determination
based on an appraisal of the proposed project as perfonned by two (2) State -certified general
appraisers hired by the Lessor.
Section 4.2 Security Deposit
Simultaneously upon the execution of this Lease by Lessee, the Lessee shall pay to the
Lessor a security deposit in the sum of Twenty Five Thousand Dollars ($25,000.00)(the "Security
Deposit"), to be held as security for performance by Lessee of all obligations imposed under this
Lease which Lessee is required to perform during the Lease Term, and any extension thereof. The
Lessor acknowledges that Two Thousand Five Hundred Dollars ($2,500.00) of the Security
Deposit was previously deposited by the Lessee with the Lessor as part of initial earnest money
deposit pursuant to the terns of the RFP. The Security Deposit shall be in the fore of cash or its
equivalent which funds may be commingled by Lessor with its other funds. No interest shall be
paid on the Security Deposit. For so long as the Security Deposit has not been repaid by Lessor, it
shall constitute an account payable by Lessor to Lessee within thirty (30) days following
termination of this Lease to the extent, if any, that the Security Deposit has not been applied by
Lessor as hereunder provided.
If an Event of Default shall occur with respect to any covenant duty, or obligation of
Lessee under this Lease, then the Security Deposit or any part thereof may be applied by Lessor
(but Lessor shall not be obligated to do so) to the damages sustained by Lessor by reason of any
such Event of Default or to indebtedness owing by reason of any failure of Lessee to make any
required monetary payment under this Lease. No such application shall be construed as an
agreement to limit the amount of Lessor's claim or as a waiver of any damage or release of any
indebtedness, and any claims of Lessor under this Lease not recovered in full from the Security
Deposit shall remain in full force and effect. At any time or times when Lessor has made any such
application of all or any part of the Security Deposit, Lessor shall have the right (but not the
obligation) at any time thereafter to request in writing that Lessee pay to Lessor a sum or sums
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equal to the amounts so applied by Lessor so that Lessor will always be in possession of a sum
equal to the amount of the Security Deposit stated above. Lessee shall make each such requested
remittance within thirty (30) days following such request from Lessor and each such remittance
received by Lessor shall thereupon constitute a part of the Security Deposit subject to the terms
and provisions thereof. Failure to make any such requested remittance within such thirty (30) day
period may be treated by Lessor as a failure by Lessee to make timely payment of rent and as an
Event of Default. In the event Lessee conveys or otherwise transfers the Lease Area, Lessor's
remittance of the Security Deposit or any remaining portion thereof to the purchaser of the Lease
Area shall release and relieve Lessor of any further obligation or liability to Lessee with respect to
the Security Deposit.
The Security Deposit shall be retained by the Lessor throughout the entire term of this
Lease and, if not utilized by Lessor as needed will be returned less interest, and less allowable
deductions, credits or setoffs by Lessor, within thirty (30) days following the vacation and
surrender of the Leased Area at the termination or expiration of this Lease, inclusive of any validly
exercised option period, as applicable.
Section 4.3 Lessee's Financial Records
Lessee will establish an operating entity that is unique to the operations of the Lessee in the
Premises, as well as one or more bank accounts through which deposits of Gross Revenues
generated from such operations will be made. The said deposits of Gross Revenues will not be
coringled with those from any other operations of the Lessee outside of the Premises or any other
affiliated organizations. In addition and/or alternatively, Lessee will use an accounting system that
will separately provide for a detailed accounting of Gross Revenues. The detailed accounting shall
not be commingled with the Lessee's other operations; and, should agree with federal income tax
returns and state sales and use tax returns.
Accordingly, Lessee shall prepare and keep full, complete and proper financial records and
source documents in accordance with generally accepted accounting principles, of the Gross
Revenues, whether for cash, credit or otherwise, of each separate department at any time operated
in the Premises. The financial records and source documents to be kept by Lessee shall include,
without limitation, true copies of all federal, state and local tax returns and reports, bank
statements, records of inventories and receipts of merchandise, daily receipts from all sales and
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other pertinent original sales records and records of any other transactions conducted in or from the
Premises by Lessee.
Pertinent original sales records shall include, without limitation: (i) sales reports of back
office systems fed from point of sale terminals, (ii) cash register tapes, including tapes from
temporary registers, if any, (iii) serially pre -numbered sales slips, (iv) the original records of all
mail, internet and telephone orders at and to the Premises, if any, (v) settlement report sheets of
transactions with any person conducting business in the Premise, if any, (vi) original records
indicating that merchandise returned by customers was purchased at the Premises by such
customers, (vii) memorandum receipts or other records of merchandise taken out on approval,
(viii) detailed original records of any exclusions or deductions from Gross Revenues, (ix) sales tax
records, and (x) such other sales records, if any, which would normally be examined by an
independent accountant pursuant to accepted auditing standards in performing an audit of Lessee's
sales.
Lessee shall record, at the time of each sale or other transaction, in the presence of the
customer, all receipts from such sale or other transaction, whether for cash, credit or otherwise, in
a cash register or cash registers having a cumulative total, which shall possess such other features
as shall be reasonably required by Lessor. Lessee shall be required to install point of sale terminals,
point of sales cash register systems or such other point of sale equipment of a make and model
generally used in the industry.
Section 4.4 Reports by Lessee
Within thirty (30) days following the last day of each month of each Lease Year, Lessee
shall furnish to Lessor a monthly statement of Gross Revenues generated in the preceding calendar
month ("Monthly Report"). The Monthly Report shall be signed and certified to be complete and
correct by an officer of Lessee. Lessee shall use a Gross Revenue Report, a sample of which is
attached herewith and incorporated herein as Exhibit "C" to itemize any and all reportable Gross
Revenues, or any similar form acceptable to Lessor.
Within ninety (90) days after the end of each Lease Year, Lessee shall also furnish to
Lessor a gross revenue report, certified by an independent certified public accountant ("Annual
Report"), showing in all reasonable detail of the amount of such Gross Revenues made by Lessee
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from the Premises during the preceding Lease Year. Lessee shall in all events furnish to Lessor
within fifteen (15) days after the end of each month of the Lease Term a written statement of Gross
Revenues covering the preceding month, the statement to be in such form and style and contain
such details and breakdown as Lessor may reasonably require. Any intentional misstatement of
Gross Revenues will constitute a default under this Lease.
Section 4.5 Right to Examine Financial Records
Notwithstanding the acceptance by Lessor of payments of Minimum Base Rent and
Percentage Rent, Lessor shall have the right to all Rents and other charges actually due hereunder,
and the right to examine, make extracts from and copy, at the Lease Area or Lessee's main
accounting office, Lessee's financial records, source documents, bank statements, state sales and
use tax returns/reports, and federal income tax returns filed by Lessee in order to verify the
information contained in the monthly statements of Gross Revenues as described in Section 4.4
above, Annual Percentage Rent Statements and Annual Reports in and from the Lease Area. For a
period of seven(7) years after the expiration of each Lease Year, Lessee shall make all such
documents and records available at the Lease Area or Lessee's main accounting office upon not
less than thirty (30) days prior written notice from Lessor.
Section 4.6 Audit
At its option, Lessor may at any time, upon not less than thirty (30) days, prior written
notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit (including a
physical inventory) of the entire records and operations of Lessee included in Gross Revenues
from the Premises during the period covered by any statement issued by Lessee. Lessee shall
make available to the Lessor's auditor at the Lease Area or Lessee's main accounting office on the
day set forth in Lessor's notice, requiring such audit, all of the financial records, source
documents, and other items listed in Section 4.4 hereof and any other materials which such auditor
deems necessary or desirable for the purpose of performing such audit. Lessee shall promptly pay
to Lessor the amount of any deficiency in Percentage Rent payments disclosed by any such audit.
If such audit shall disclose that Lessee's statement of Gross Revenues is at variance to the extent of
five percent (5%) or more, Lessor may bill to Lessee the cost of such audit, which Lessee shall pay
within thirty (30) days after Lessee's receipt of Lessor's invoice. If such audit shall disclose an
overpayment, Lessor shall credit such overpayment towards the next payment of Rent due. In
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addition to the foregoing, and in addition to all other remedies available to Lessor, in the event
Lessee's auditor and Lessor's auditor shall schedule a date for an audit of Lessee's records, and
Lessee shall fail to be available or shall otherwise fail to comply with the requirements for such
audit, Lessee shall pay all costs and expenses associated with the canceled audit. Lessor and
Lessee agree to attempt to resolve any audit dispute not resolved in sixty (60) days following
delivery of the final audit by submitting the results of the disputed audit to a mutually acceptable
third -party accounting firm for its opinion, the fees of which will be paid by Lessor.
(b) In addition to all other remedies available to Lessor, in the event that any
such audit shall disclose that Lessee's records and other documents as referred to in Section 4.3,
4.4, 4.5 and 4.6 hereof and such other materials Lessee provides to Lessor's auditor are
unavailable to the auditor as a result of circumstances that were within the reasonable control of
the Lessee and such unavailability results in the auditor being unable to accurately verify Lessee's
Gross Revenues, then Lessor shall be entitled to collect as Additional Rent from Lessee equal to
the lesser of (i) an amount equal to fifty percent (50%) of the Percentage Rent (the "Audit
Unavailability Penalty") paid by Lessee in the preceding Lease Year prorated for the period in
question (i.e., if the period in question is equal to six (6) months, then the Additional Rent provided
for herein will be equal to 50% (1/2 of the year) of the Audit Unavailability Penalty) or (ii) the
difference between (x) 110% of the Percentage Rent that Lessee has calculated as payable in the
year in question and (y) the Percentage Rent paid in the preceding Lease Year. Lessor's exercise of
the foregoing remedy shall in no way limit or otherwise affect Lessor's ability to exercise other
remedies available to it, nor shall Lessee's obligations pursuant to the terns, covenants and
conditions of this Lease (including, without limitation, Lessee's obligation with respect to
reporting Gross Revenues and payment of Percentage Rent) be in any manner reduced or
diminished by the exercise of such remedy. Lessee's failure to provide the required information
under the circumstances set forth in this Section 4.6 will additionally constitute a Default.
Lessor shall additionally have such audit rights as are set forth by Section 18-102,
City Code, which is deemed as being incorporated by reference as if fully set forth herein. In
addition Lessor shall have the ability but not the duty to conduct inspections, as are set forth in
Section 18-101, City Code, deemed as being incorporated by reference as if fully set forth herein,
from time to time, of the Lease Area as provided.
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Section 4.7 Lien for Rent
The whole amount of the Rent and each and every installment, and the amount of all taxes,
assessments, water rates, insurance premiums and other charges and Impositions paid by the
Lessee under the provisions of this Lease, and all costs, attorney's fees and other expenses which
may be incurred by the Lessor in enforcing the provisions of this Lease, or on account of any
delinquency of the Lessee in carrying out any of the provisions of this Lease, shall be and they are
deemed to constitute a valid lien upon the Leasehold hmprovements, and upon the Lessee's
leasehold estate.
ARTICLE V
LEASEHOLD IMPROVEMENTS
Section 5.1 Lessee's Obligation to Provide and Fund Leasehold Improvements
Within thirty (30) days of the Lease Date, Lessee, at its own cost and expense, shall submit
to Lessor for Lessor's approval (not to be unreasonably withheld, delayed, or conditioned) its Plans
(defined below) for the commencement and completion of the construction of the Leasehold
Improvements. The plans shall include: a layout of the Lease Area, a lighting plan, a depiction of
all fixtures to be added to Premises, interior finish and material samples, typical display technique,
interior and exterior signage plan, store front and any work or equipment to be done or installed by
Lessee affecting any structural, mechanical or electrical part of the Lease Area (collectively, the
"Plans"). Within thirty (30) days of receipt of the Plans, the Lessor shall give Lessee written
notice of either, Lessor's approval or Lessor's disapproval setting forth the reasons therefore. In
the event that Lessor disapproves the Plans, the Lessee shall within ten (10) business days of
receipt of the notice modify the Plans in accordance with the reasons set forth in Lessor's
disapproval notice. The modified Plans shall be resubmitted to Lessor for Lessor's final review
and approval, which shall be provided within thirty (30) days of receipt by the Lessor of the
modified Plans. If Lessor fails to respond within each of the thirty (30) day time frame of Lessor's
receipt of the Plans provided above, the Plans shall be deemed approved by Lessor.
Lessee, at its sole cost and expense, shall complete construction, acquisition and
installation of the Leasehold Improvements, and acquire and install the furnishings, fixtures and all
garden -style cafe equipment required for operation of the Lease Area within nine (9) months
following the approval of the building permits for the Plans. Notwithstanding the foregoing, if the
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construction of the Leasehold Improvements (in conjunction with the City Improvements) triggers
the requirement in the Florida Building Code to bring the entire structure into conformity with the
current requirements of the Florida Building Code, then any additional costs incurred by the
Lessee as a result thereof shall be reimbursed to the Lessee as a dollar -for -dollar credit against
Rent.
Section 5.2 Possession Date
Lessor shall deliver possession of the Lease Area to Lessee and Lessee shall take
possession thereof, subject to Force Majeure delays, after the following conditions precedent have
been complied with by the respective Parties;
i) Lessor shall deliver possession of the subject property to Lessee free and clear of all
leases, claims of possession, licenses, and parties in possession;
ii) Lessee shall have provided the City Manager or his/her designee evidence, as may
be reasonably satisfactory to the Lessor, that Lessee has sufficient funding or binding funding
commitments to complete the Leasehold Improvements to be constructed at the subject property;
and
iii) Lessor shall have completed all of the City Improvements and the Asbestos
Reinediation (as defined in Section 12.5 of this Lease).
Lessee and Lessor shall use good faith efforts to satisfy all of the aforesaid conditions
precedent to Lessee's taking possession of the Lease Area.
The Lessee (as with respect to (i) and (iii) above) or Lessor (as with respect to (ii) above)
may therefore terminate this Lease if all of the aforesaid conditions precedent are not satisfied on
or before six (6) months after the date that the Lease is fully executed by all of the parties; provided
further that, Lessee, subject to the written concurrence of Lessor (which may not be unreasonably
withheld, delayed, or conditioned), may reasonably extend the time for performance of any of the
conditions precedent and Lessee may postpone taking possession of the Lease Area and the
commencement of the Rent obligations set forth in this Lease in the event of a Force Maj eure delay
or delay in connection with any litigation related to or arising from the execution of the Lease by
the City or the review and approval by the City Commission, City Manager, or administrative staff
of (i) any matters set forth herein as requiring approval thereof or (ii) any zoning or other
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permitting approvals required for the intended use provided, however, that for any such extension
requested by Lessee the written concurrence of the City Manager will be required in each such
instance (which may not be unreasonably withheld, delayed, or conditioned) and the parties will
use good faith efforts to include a stipulated time frame .fixing an express time for such extension.
The time may be reduced but may not be enlarged in the absence of a compelling showing by
Lessee for an additional extension which for any additional extension will require the City
Manger's written concurrence and may be withheld if in the Manager's reasonable professional
judgment there is not a compelling showing for a further extension. Lessee will use its best efforts
to comply with all Lease schedules, time periods and completion dates. Requested extensions will
be for the briefest periods possible , and if granted by the City manager , will be for the shortest
duration possible. Any extensions under this section which exceed sixty (60) days shall require the
prior approval of the City Commission. The date that Lessor delivers possession of the Lease Area
to Lessee in accordance with this section, by notice in writing, is herein called the "Possession
Date." Lessor and Lessee agree to execute a Possession Date Certificate in the form of the
certificate attached hereto as Exhibit "D."
During the period of time between the execution date of this Lease and the Possession Date
(the "Inspection Period"), Lessee shall have the non-exclusive right to have access to the Premises
solely for the purpose of inspecting the Premises and preparing its Plans. During the Inspection
Period, Lessee is required to give Lessor written notice of each entry by Lessee or its employees,
contractors or agents within a reasonable period of time after each entry; said notice shall also
specify the purpose of the entry. Any invasive testing desired by Lessee during the Inspection
Period shall require the prior written consent of Lessor, which consent shall not be unreasonably
withheld, delayed or conditioned by Lessor. Lessee shall be responsible for all costs and expenses
incurred in connection with its access and inspection of the Premises during the Inspection Period.
During the Inspection Period, Lessee shall conduct all of its activities on the Premises in compliance
with all applicable laws. Lessee shall promptly repair any damage to the Premises or any
improvements located thereon caused by the activities of Lessee or any of its employees, agents or
contractors. Lessee agrees to indemnify and save Lessor and its employees, agents and contractors,
harmless from and against any and all liability, damage, expense, claims, liens or judgments,
including reasonable attorneys' fees, in connection with any injury to person or damage to property
as a result of the acts or omissions of Lessee or its employees, agents or contractors while on the
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Premises during the Inspection Period. The foregoing indemnity and repair obligations shall survive
expiration of the Inspection Period.
Section 5.3 Payment and Performance Bond
Within ten (10) days after the Lessor approves the plans in writing and Lessee obtains
building permits consistent with the Plans, but in any event prior to the commencement of any
construction, the Lessee shall, at Lessee's sole cost and expense, furnish the Lessor with a
Payment and Performance Bond in substantially the form prescribed by Section 255.05, Fla.
Statutes. Plans, design and construction documents will comply with all applicable contract, legal
and regulatory requirements including without limitation the Florida Building Code.
The Payment and Performance Bond shall be issued by a bonding company which shall be
approved by Lessor, in the reasonable exercise of its discretion, in an amount equal to one hundred
percent (100%) of the costs to construct the Leasehold Improvements described in Exhibit "E"
naming the Lessor as the owner/obligee, and the Lessee or Lessee's general contractor, as the
principal guaranteeing the payment and performance of Lessee's obligations with respect to any
and all construction work pertaining to the Leasehold Improvements, free of construction or other
liens. The conditions of the Payment and Performance Bond shall be to insure that the Lessee or
Lessee's general contractor will:
(i) promptly make payment to all claimants, as defined in Section 255.05
Florida Statutes, 2013 as amended, supplying the Lessee with labor, materials, or supplies,
used directly or indirectly by the Lessee in the prosecution of the work related to the
Leasehold Improvements under this Lease; and
(ii) to pay the Lessor all losses, damages, expenses, costs, and attorney's fees,
including appellate proceedings, that the Lessor sustains because of a default by the Lessee
under this Lease pursuant to claims made under Section 255.05, Florida Statutes; and
(iii) perform the guarantee of all obligations of the Lessee's under this Lease
with respect to the construction, and the acquisition and installation of the Leasehold
Improvements.
The Payment and Performance Bond may be terminated at such time as the construction,
and the acquisition and installation of the Leasehold Improvements are completed as evidenced by
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issuance of a Certificate of Occupancy and reasonably satisfactory evidence thereof is provided by
the Lessee to the City Manager, including certification by the Lessee's architect that all
requirements of the Payment and Performance Bond have been satisfactorily concluded, and by
the issuance of a certificate of occupancy. The form of the Payment and Performance Bond, a
sample of which is attached herewith by reference as Exhibit "E," shall be approved by the City
Manager or the Risk Manager as his designee and by the City Attorney as to legal form, , which
approval shall not be unreasonably be withheld.
Lessor agrees that in the event the Lessee cannot obtain the above Payment and
Performance Bond, the Payment and Performance Bond may be provided by the General
Contractor(s) (in an amount acceptable to Lessor with respect to the work to be performed by the
General Contractor(s), together with such Performance Bonds of the subcontractors as shall be
required by Lessor, in lieu of the Lessee providing the same as Principal of the project. Said
Payment and Performance Bond(s) shall comply with all the requirements listed under in
subsections (i) through (iii) above. The City will be named as an additional oblige on such
bond(s).
Section 5.4 Contractor's Insurance
The Lessee shall require every contractor performing any work pertaining to the Leasehold
Improvements to furnish certificates of insurance, including Builder's Risk insurance, if
applicable, to the reasonable satisfaction of the Lessor in accordance to Exhibit "F1" attached
hereto. Copies of such certificates shall be furnished to the City of Miami Risk Manager, 444 SW
2nd Av. 10th Floor, Miami, Fl. 33130. The City will be named as an additional insured on such
policies.
Section 5.5 Additional Consideration
(a) The Lessee hereby, in consideration of the granting of this Lease shall upon
termination or expiration of this Lease:
(i) grant and convey unto the Lessor, free and clear of all liens, title to
all Leasehold Improvements of a permanent character including but not limited to, refrigerators,
stoves, freezers, hood systems, grills, dishwashers, sinks, kitchen work stations and light fixtures,
and
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(ii) In addition to the Leasehold Improvements to be conveyed to Lessor
as referenced above, Lessee shall further grant to the Lessor the right to purchase from the Lessee,
all of Lessee's personal property added to or installed at the Lease Area by the Lessee during the
Lease Term, including all furnishings, and equipment at actual cost less actual "observed"
depreciation as determined by an appraisal, provided that the Lessor by notice in writing to the
Lessee of at least forty five (45) days prior to the expiration, or earlier termination of the Lease
Term, notifies the Lessee of its election.
Section 5.6 Lessor's Premises to Remain Free of Liens
The Lessee shall make, or cause to be made, prompt payment of all money due and legally
owing to all persons doing any work, including subcontractors, or providing supplies and
equipment in connection with the construction, reconstruction or operation of the Premises. The
Lessee shall have no power or right to and shall not in any way encumber the Lessor's fee simple
interest in the Premises. If any liens shall at any time be filed against the Premises, the Lessee shall
upon acquiring knowledge of such lien promptly take and diligently pursue a cause of action to
have the same discharged or to contest in good faith the amount or validity thereof and if
unsuccessful in such contest, to have the same discharged. Upon the Lessee's failure to do so, the
Lessor, in addition to any other right or remedy that it may have, may take such action as may be
reasonably necessary to protect its interest, and the Lessee shall be responsible for any and all
reasonable costs incurred by the Lessor in connection with such action, including all reasonable
legal fees, costs and expenses.
Section 5.7 Lessor Approval
All Plans furnished under this Lease are expressly subject to Lessor's written approval,
which the City Manager is hereby authorized to act on behalf of for purposes of such approval, and
which approval he or she may not unreasonably withhold or delay.
No approval by the City Manager of any Plans furnished under this Lease pursuant to this
section shall relieve Lessee of any obligation it may have at law to file such Plans with any
department of the City or any other governmental authority having jurisdiction over the issues; or
to obtain any building or other permit or approval required by Applicable laws. Lessee
acknowledges that any approval given by the City Manager pursuant to this Section shall not
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constitute an opinion or agreement by the City that the Plans are structurally sufficient or in
compliance with any Applicable laws.
ARTICLE VI
CONDUCT OF BUSINESS BY LESSEE
Section 6.1 Use of Premises
Upon completion of the Leasehold Improvements, Lessee shall occupy the Lease Area
without delay, and covenants to continuously conduct its permitted business therein throughout the
Lease Tenn. Lessee shall use the Lease Area solely for Garden -Style Cafe Operations and
ancillary uses related thereto permitted pursuant to the terms hereof. Lessee shall not use, permit or
suffer the use of the Lease Area for any other business or purpose without Lessor's prior written
consent. Lessee agrees to conduct its business upon the Lease Area in accordance with the
operating standards of comparable restaurants in the City of Miami.
Section 6.2 Operation of Lessee's Business
At all times during the Lease Tenn, Lessee shall manage the Garden -Style Cafe Operations
at the Lease Area with due diligence and efficiency, in Lessee's sole and absolute discretion, and
in a manner prudent and in accord with the current first class and best business practices and
techniques within the locale for Lessee's business in similar businesses located in Miami -Dade
County. Lessee shall cany at all times in the Lease Area a stock of merchandise of such quantity,
character and quality as shall be in accord with comparable restaurants within the locale of the
Lease Area.
Section 6.3 Signs.
Lessee will not place or permit to be placed or maintained on any exterior door, wall or
window of the Premises, or within the interior of the Premises, any signage or advertising matter of
any kind, without first obtaining Lessor's written approval and consent, which may not be
unreasonably withheld. Lessee shall erect an exterior sign of type, composition and design in
conformance with the pity of Miami Zoning Code and the Sign Regulations of Miami -Dade
.County, as applicable. Lessee further agrees that such signs, awning, canopy, decoration,
lettering, advertising matter or other thing as may be approved shall be maintained in good
condition and repair at all times.
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ARTICLE VII
MAINTENANCE, REPAIR AND ALTERATION OF LEASE AREA
Section 7.1 Lessee's Maintenance Obligations
Lessee, at its sole cost and expense, agrees to provide the necessary management and labor
to continuously maintain the Leasehold Improvements in the Lease Area, including all operating
equipment, utility services, and connections within the Lease Area. Lessee, at its sole cost and
expense, agrees to provide, janitorial and custodian services, trash and garbage removal services,
and any and all other related services necessary to have the Lease Area, and the Leasehold
Improvements remain in good, safe, code compliant and sanitary condition and repair throughout
the Lease Term. Lessee shall be responsible for periodic painting of the interior and exterior of the
Lease Area and decorating the interior of the Lease Area, maintaining its equipment, fixtures,
furnishings, and other personal property in good condition and repair. All maintenance shall be at
the Lessee's sole cost and expense and will be subject to general inspection by the Lessor to insure
a continuing quality of maintenance and appearance and physical condition of the Lease Area
commensurate with maintenance, health, and safety standards established by the Lessor and
Applicable Law.
Section 7.2 Lessee's Repair Obligation
Subject to the provisions of this Lease regarding casualty damage and condemnation and
except as otherwise provided for in this Lease, Lessee, at Lessee's sole cost and expense, at all
times during the Lease Term, shall make all repairs to the Leasehold Improvements, including,
without limitation, all heating, ventilating and air-conditioning equipment and any other repair or
replacement to the Leasehold hnprovements. The Lessee will be responsible for maintenance and
repairs in the Leased Area throughout the term of this Lease. For avoidance of doubt, the Lessee's
repair obligations shall not include (i) the initial installation or provision of the City
Improvements, which is the obligation of the Lessor, or (ii) any repair, maintenance or
replacement that includes areas outside of the Lease Area, or (iii) any repair, maintenance or
replacement, which is the responsibility of Lessor, as provided in Section 7.3, below.
Section 7.3 Lessor's Repair Obligation.
Subject to the provisions of this Lease regarding casualty damage and condemnation and
except as otherwise provided for in this Lease, Lessor, at all tunes during the Lease Term, shall
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make any repair, maintenance and replacement to the building and structures containing the Lease
Area, including, without limitation, the exterior and structural portions of such buildings or
structures, including the repair of foundations, floor slabs, structural support, roof structure
(including maintaining the roof and water tight condition) and exterior walls (excluding the
portion of the roof and window installed by the Lessee) located in the Lease Area and the common
utility lines to the point of connection with the Lease Area. Lessee shall pay its proportionate share
of the reasonable cost and expense incurred by Lessor in connection with customary repair,
maintenance and replacement (expressly excluding the cost of any repair or restoration in
connection with casualty damage or condemnation, the responsibility for the cost and expense of
which shall be that of the Lessor); provided that to the extent any such replacement shall entail
capital expenditures, then Lessee shall be liable during any Lease Year only for the annual amount
required to amortize such capital expenditure over the useful life thereof, assuming amortization
on a straight-line basis.
Section 7.4 Changes/Alterations.
Lessee shall not install or cause to be installed any exterior signs, affixed exterior
machinery, shades, awnings in and to the Premises or any part thereof without the prior written
consent of the Lessor, which consent the City Manager is hereby authorized to give, and may not
unreasonably withhold or delay.
No approval by the City Manager of any changes or alterations shall relieve Lessee of any
obligation it may have at law to file the required documents with any department of the City or any
other governmental authority having jurisdiction over the issues; or to obtain any building or other
permit or approval required by law. Lessee acknowledges that any approval given by the City
Manager pursuant to this section shall not constitute an opinion or agreement by the City that the
changes or alterations are in compliance with any Applicable Laws.
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ARTICLE VIII
INSURANCE AND INDEMNITY
Section 8.1 Insurance on the Premises
In connection herewith, Lessee shall obtain and maintain or cause to be obtained and
maintained in full force and effect throughout the period of this Lease, the types and amounts of
insurance coverage set forth in Exhibits "F 1 ", and "F2" attached hereto and incorporated herein by
reference. If required by state, county, or city laws from time to time for work conducted on or use
of municipal properties, Lessee shall obtain and maintain or cause to the obtained and maintained
throughout or during the Lease Term, as applicable, such types and amounts of payment,
performance, maintenance, or restoration bond(s) as shall be required to be reviewed and approved
by the City's Risk Management Department in coordination with Lessee's Risk Manager.
The Lessor reserves the right to reasonably amend the herein insurance requirements by the
issuance of a notice in writing to the Lessee, which amended insurance requirements shall be
subject to the reasonable approval by Lessee, which approval shall not be unreasonably withheld.
Section 8.2 Delivery of Insurance Policies
All liability, workers compensation and employer's liability policies shall be retained by
the Lessee. Except as otherwise specifically provided, all other policies of insurance required to be
furnished shall be held by and be payable jointly to the Lessor and the Lessee with the proceeds to
be distributed in accordance with the terns of this Lease. Insurance company certificates
evidencing the existence of all of these policies of insurance shall be delivered to the Lessor. All
policies of insurance required to be provided and obtained shall provide that they shall not be
amended or canceled on less than thirty (30) days prior written notice to the Lessor and all insured
and beneficiaries of the policies shall contain waiver of subrogation rights endorsements, as
required below. The Lessor shall have no obligation to pay premiums or make contributions to the
insuring company or any other person or satisfy any deductible. On or before the Lease Date and
not less than thirty (30) days prior to the expiration date of any policy required to be carried
pursuant to this section, the Lessee shall deliver to the Lessor the applicable respective policies and
insurance company certificates evidencing all policies of insurance and renewals required to be
furnished. Receipt of any documentation of insurance by the Lessor or by any of its
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representatives which indicates less coverage than required does not constitute a waiver of the
Lessee's obligation to fulfill the insurance requirements herein.
Section 8.3 Adjustment of Loss
Any Gross Insurance Proceeds recovered on account of any damage or destruction by any
casualty shall be made available for the payment of the cost of the reconstruction, replacement or
repairs. All of the Gross Insurance Proceeds plus the amount of any deductible applicable to said
damage or destruction shall be deposited by the insurance company or by the Lessee (in the case of
the deductible) with an escrow agent reasonably acceptable to the City Manager, with instructions
to the escrow holder that the escrow holder shall disburse the funds to the Lessee, with notice
thereof to the Lessor, as the work of the reconstruction, replacement or repairs progresses upon
certificates of the architect or engineer supervising the work that the disbursements then requested,
plus all previous disbursements made from such Gross Insurance Proceeds, plus the amount of any
deductible, do not exceed the cost of the work already completed and paid for, and that the balance
in the escrow fund is sufficient to pay for the reasonably estimated cost of completing the required
work. The escrow holder shall be any bank mutually agreeable to Lessor and Lessee. If the
amount of the Gross Insurance Proceeds is less than the cost of the required work, then Lessee
shall pay the excess cost; and if the amount of the Gross Insurance Proceeds is greater than the
cost of the required work, then the excess shall be paid to and belong to the Lessee.
Section 8.4 Insurer to be Approved -Premium Receipts
All policies of insurance of the character described in Sections 8.1 and 8.2 shall be written
by companies of recognized responsibility reasonably acceptable to the Lessor. On request by
Lessor, Lessee shall provide photocopies of receipts showing the payment of premium for all
insurance policies required to be maintained by this Lease.
Section 8.5 Indemnification of Lessor
Lessee shall indemnify, defend and hold Lessor harmless from and against any and all
claims actions, damages, liability and expense in connection with loss of life, personal injury
and/or damage to or destruction of Premises arising from or out of any occurrence in, upon or at
the Premises, or the occupancy or use by Lessee of the Premises or any part thereof, or occasioned
wholly or in part by any act of omission of Lessee, its agents, contractors, employees, servants,
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customers, invitees, licensees, Sub -lessees or concessionaires, excluding any claims arising from
the negligence or willful misconduct of the Lessor (or any other person acting on behalf of the
Lessor as its contractor, employees, agent or representative or any claim relating to hazardous or
toxic materials for which the Lessee is not responsible pursuant to the provision of Article XII of
this Lease. In case Lessor shall be made a party to any litigation commenced by or against Lessee
covered by this indemnity provision, then Lessee shall protect and hold Lessor harmless and pay
all of Lessor's third party costs and attorney's fees incurred by. Lessor in connection with such
litigation, and any appeals thereof. Lessee shall also pay all of Lessor's third party costs, expenses
and reasonable attorneys' fees that may be incurred or paid by Lessor in enforcing the covenants
and agreements in this Lease inclusive of administrative, litigation and appellate proceedings.
Section 8.6 Waiver of Subrogation
Lessee waives all rights to recover against the Lessor for any damages arising from any
cause covered by any insurance required to be carried by Lessee, or any insurance actually carried
by Lessee. The Lessee shall cause its insurer(s) to issue appropriate waiver of subrogation rights
endorsements to all policies of insurance carried in connection with the Premises, or any part
thereof.
Section 8.7 Release of Lessor
The Lessee and its assignees, for and in consideration of the leasing and the demise of the
Premises to the Lessee, hereby release, remise and discharge the Lessor, its officers and
employees, of and from all claims, demands, actions, whether in law or in equity which may be
filed or asserted by the Lessee or its assignees for or on account of improvements made and
furniture, fixtures and equipment installed in the Premises, and from any and all costs and
expenses, of Lessee or its assignees in connection with this Lease, including, but not limited to the
development of the Premises and acquisition of the Leasehold Improvements, which may result
from an adverse judgment, order, decree or ruling from a court of competent jurisdiction
terminating or otherwise invalidating the Lease as a result of a third party challenging the validity
or legality of this transaction under the City Charter or Code or the laws of the State of Florida, or
arising out of the award of this Lease, or any subsequent assigninent of this Lease by the Lessee or
its assignees (the "Claim"). It is the intent of the Parties that this provision shall control over any
other provision in this Lease and that notwithstanding any limited representations provided by
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Lessor under Section 2.4 of this Lease, neither the Lessee, nor its assignees shall seek to recover
from the Lessor compensation for, or reimbursement of any costs, losses, fees or expenses incurred
by the Lessee or its assignees, including expenses incurred in connection with the acquisition of
this Lease or the financing, and/or installation of the Leasehold Improvements, or otherwise, as a
result of any adverse judgment which may be entered or relief granted in connection with the
Claim, except in the case that such adverse judgment results from the gross negligence of the
Lessor. The terms of this provision shall expressly be made a part of any future assignment or
mortgage of the Leasehold Interest.
In the event a Claim is filed or asserted within forty (40) days of the execution by the City
of this Lease, either party shall have the right to terminate this Lease and except as otherwise
hereafter provided in this paragraph, the Parties shall thereupon be relieved of any and all further
responsibility hereunder and neither Party shall have any further obligation under this Lease. In
the event of such termination, Lessor shall return the Security Deposit to the Lessee, without
interest. Lessor shall further prorate the Minimum Base Rent due, without a discount, from the
Lease Date to the date of termination and shall refund to the Lessee the difference between the
pre -paid rent and the amount of rent due.
In the event a Claim is filed or asserted after the forty (40) day period has expired, or in the
event the Parties agree not to terminate this Lease as provided above, Lessor agrees that it will
defend against the Claim in good faith and with reasonable diligence.
Section 8.7 Notwithstanding anything to the contrary in this Lease, in the event this
Lease is terminated as a result of a Claim within the first two years of the Lease Term, Lessee shall
be permitted to remove such movable trade fixtures installed as part of the initial Leasehold
Improvements so long as same does not damage the Premises,
ARTICLE IX
SERVICES AND UTILITIES
Section 9.1 Lessor Utilities.
Lessor represents and warrants that all water, electric power lines, telephone lines, and
sanitary and store sewers (collectively, the "Utilities") are located in the public right-of-way and
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are installed to the property line of the Lease Area, and are available and adequate for Lessee's
intended use, except as otherwise specified in the RFP.
Section 9.2 Lessee to Provide and Pay for Utilities
The Lessee shall pay, or cause to be paid, all proper charges for gas, electricity, light, heat,
water and power, for telephone, protective and other communication services, and for all other
public or private utility services, which shall be used, rendered or supplied upon or in connection
with the Lease Area and the Leasehold Improvements, or any part of it, at any time during the
Lease Term, and the Lessee shall comply with all contracts relating to any such services and will
do all other things required for the maintenance and continuance of all services as are necessary
for the proper maintenance and operation of the Lease Area and the Leasehold Improvements. The
Lessee shall also at its sole expense procure any and all necessary permits, licenses or other
authorization required for the lawful and proper installation and maintenance upon the Lease Area
of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such
utilities, services or substitutes to the Lease Area.
Section 9.3 Lessor Not Liable for Failure of Utilities
The Lessor shall not be liable for any failure of water supply, sewer, gas or electric current,
or for any injury or damage to any person or the Premises caused by or resulting water, gas or
electricity which may leak or flow from the water or gas mains on to any part of the Premises or the
Leasehold Improvements. The Lessor shall not be required to make any alteration to any service
or utility system of the Premises on behalf of Lessee. Lessor shall not be liable for temporary
failure of services, and same shall not be deemed to constitute actual or constructive eviction, nor
entitle Lessee to any abatement or diminution in rent payable under this Lease. Lessor shall not
make or allow to be made after the Lease Date any changes in any utility service to, through, under
or above the Premises that would result in a materially disruptive effect on the use or operation of
the Premises by the Lessee and its customers, including but not limited to fiber optics, telephone,
electricity, water, storm and sanitary sewer, gas, heat, ventilation and air conditioning, without the
prior written consent of Lessee, which shall not be unreasonably withheld, conditioned or denied. ;
further, provided, that the written consent of the Lessee shall not be required for minor , routine
and customary, maintenance, , repair , improvement and upgrades being made by the utility
provider to the utilities it furnishes,
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Section 9.4 Durnpster.
The Lessor shall permit the Lessee to locate and maintain dumpsters for its exclusive use
within the area designated on Exhibit "G". The Lessor shall complete the improvements necessary
to make such location useable as a dumpster area for the Lessee in a timely manner. The Lessee
shall have the right to access such dumpster area to dispose of trash and, subsequently, the right to
move the dumpster from such location to the area designated for trash pick up service. Lessee, at
its sole cost and expense, shall make special arrangements, which must be in compliance with
Applicable Laws, for the collection, storage and removal of any grease, oils, fats, renderings,
foods, or similar waste from the Lease Area.
Section 9.5 Bathrooms.
As depicted on Exhibit A-2, the bathrooms used to service the Cafe Operations are located
outside of the Lease Area and within the common area servicing the building in which the Lease
Area is located. As provided in the RFP, Lessor hereby grants the Lessee (for its use and the use of
its patrons, contractors, and invitees) the non-exclusive right to access and use such bathrooms
during the Lessee's hours of operation. The Plan Action for Bathroom (Restroorn) Usage shall be
followed and is attached hereto as Exhibit "H" which is incorporated by reference herein. The
Lessee may undertake, at its sole cost and expense, a remodeling of the referenced bathroom area
consistent with the general look set forth in the Plans. The cost of any repairs to the bathroom area
shall be split equally between the Lessee and the Lessor.
ARTICLE X
SUBLEASES, ASSIGNMENTS AND TRANSFERS
Section 10.1 Subleases, Assignments and Transfers
(a) Lessee shall not, at any time during the Lease Term, enter into (i) any
Sublease, license, concession, easement, or perrnit agreement with respect to the Premises, or (ii)
assign or transfer this Lease to any third party or parties other than Lessee, its authorized agents,
employees, contractors, invitees and visitors, which with respect to (i) and (ii) has the effect of
granting exclusive possession to the Premises and assigning the rent and other obligations set forth
in this Lease to any third party or parties (collectively, an "Assignment"), without first procuring
the prior written consent of Lessor's City Manager (except as otherwise permitted under this
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Article X). In recognition of the fact that this Lease was awarded to Lessee following a competitive
procurement relying on Lessee's unique attributes, any Assigmnent or Transfer this Lease to any
third party or parties other than Lessee (except as otherwise permitted under this Article X) shall
require the prior written approval of the City Commission, which may grant, deny, refuse or
consent to such Assigmnent or Transfer based on reasonable commercial factors including the
credit worthiness, solvency, reputation, ability and experience of such proposed Assignee or
Transferee. If approved any such Assignee or Transferee shall be required to sign an Assumption
and Assignment of the Lease Agreement in a form satisfactory to the City. Any such attempted
Assignment of the Premises or Assignment of the Lease, without the Lessor's prior written
consent, shall be void and of no force or effect and shall not confer any interest or estate in the
purported Assigmnent or Transfer.
The provisions of this Article 10 constitute the sole means by which Lessee may request
Lessor's consent to an Assignment. The consent of Lessor shall not be unreasonably withheld or
delayed.
It is agreed that all terns and conditions of this Lease shall extend to and be binding on all
Sub -lessees under any Assignment as may be approved by Lessor and shall be for a period of time
equal to or less than the Lease Tern. Lessor reserves the right to directly terminate the rights and
interests of any Sub -lessee under any Assignment for any cause for which Lessee's Leasehold
Interest may be terminated.
Lessee shall reimburse to Lessor, as Additional Rent, all costs and expenses, including
third party attorneys' fees, which Lessor reasonably incurs by reason of or in connection with an
Assigmnent or Transfer, and all negotiations and actions with respect thereto, such Additional
Rent to be due and payable within thirty (30) days of receipt of a statement of such costs and
expenses from Lessor.
(b) Procedure for Assigmnent or Transfer.
Subject to the provisions of Section 10.1(a), should Lessee desire to Assign or Transfer the
Lease, Lessee shall, in each instance, give written notice of its intention to do so to Lessor's City
Manager at least thirty (30) days prior to the effective date of any such proposed Assignment or
Transfer, specifying in such notice the nature of such proposed Assignment or Transfer and the
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proposed date thereof and specifically identifying the proposed Sub -lessee, assignee or transferee.
Such notice shall be accompanied by a copy of the proposed Assignment or Transfer agreement
and any other documents or financial information Lessor may reasonably require in order to make
a determination as to the suitability of the Sub -lessee, assignee or transferee. If requested by
Lessor, Lessee shall provide to Lessor copies of all Assignment or Transfer documents and
amendments thereto. Lessor shall, within thirty (30)days after its receipt of such notice of a
proposed Assignment or Transfer from Lessee, by mailing written notice to Lessee of its intent to
do so, either (i) withhold consent to the Assignment or Transfer, together with a detailed
explanation for such denial, or (ii) consent to such Assignment or Transfer upon the terms and
subject to the conditions provided for in this Article. Lessee acknowledges and agrees that the
imposition of the conditions described in this Article X as a condition of Lessor's consent is
reasonable.
(c) Additional Consideration Payable to Lessor.
Except as provided below with respect to a valet concession, if Lessor gives its consent to
any Assignment or Transfer, Lessor shall participate in any proceeds from any such Assignment or
Transfer, with the Lessor's participation capped at a maximum of 7% of gross proceeds from the
sale if the lease is assigned, sublet, otherwise transferred or sold within Lease Years 1 — 5, 5%
between Lease Years 5 — 10 and 3% after Lease Year 10. Lessee shall, in consideration of any
Assignment or Transfer, include in Lessee's Gross Revenues the amount of Sub -Lessee's,
Assignee's or Transferee's Gross Revenues which shall be listed separately on Lessee's
Semi -Annual Report.. Assignee's or Transferee's records shall be kept in accordance with Section
4.5. Additionally, Lessor reserves the right to examine Sub -Lessee's books and audit
Sub -Lessee's entire records in accordance with Sections 4.7 and 4.8 of this Lease.
The acceptance by Lessor of the payment of rent following any Assignment or Transfer
prohibited by this Article shall not be deemed to be a consent by Lessor to any such Assignment or
Transfer nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder.
Section 10.2 Definitions
As used in this Article the term:
(a) "Transfer" means:
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(i) any total or partial sale, or assignment of Lessee's business or
Leasehold Estate or any contract or agreement to do any of the same;
(ii) any transfer of more than forty-nine percent (49%) of the stock of
Lessee or of the stock of any Owner, other than an Owner whose shares are publicly traded, if the
transfer results in a transfer of more than forty-nine percent (49%) of the beneficial ownership of
Lessee;
(iii) any merger, consolidation or sale or lease of all or substantially all
of the assets of the Lessee or of any Owner, other than an owner whose shares are publicly traded.
(b)
"Owner" means:
(i)
any person, firin, corporation or other entity which owns, directly or
indirectly, legally or beneficially, more than fifteen percent (15%) of the stock of the Lessee, but
shall not include any shareholder of an Owner whose shares are publicly traded.
(c) "Owner whose shares are publicly traded" means an Owner:
(i)
who has filed an effective registration statement with the Securities
& Exchange Commission (or its successor) with respect to the shares of any class of its voting
stock or of all classes of any other form of ownership interest which includes voting rights; and
(ii) whose voting stock and other form of ownership interest described
in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory
jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over
the counter.
Section 10.3 Transfers
The Lessee recognizes that the operational experience of the Lessee as set forth in the
proposal was given special consideration by the Lessor in the public selection process undertaken
by the Lessor for the award of this Lease. Therefore, Lessee agrees that except as permitted
pursuant to this Article 10 of this Lease, no Transfer may be made, suffered or created by the
Lessee, or any Owner without the prior written consent of the City Manager and City Commission,
which consent shall not be unreasonably withheld or delayed. The following Transfers shall be
permitted hereunder without the written approval of the City Manager or the City Commission:
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(a) Any Transfer directly resulting from the foreclosure of Lessee's Leasehold
Estate, provided that such purchaser or grantee is an institutional investor (including a bank or
other similar financial institution) or an agent, designee or nominee of an institutional investor
which is wholly owned or controlled by an institutional investor, and that such purchaser or
grantee within six (6) months after taking possession of the Premises, shall have entered into an
agreement for the management and operation of the Premises with an Acceptable Operator or is
itself an Acceptable Operator;
(b) any Transfer to an Acceptable Operator consented to by the City Manager;
(c) the issuance of stock or stock options to Lessee's directors, officers, or
employees, provided the stock or stock options issued constitute, in the aggregate, less than fifteen
percent (15%) of the issued and outstanding stock of Lessee;
The Parties hereby acknowledge and agree that anything herein to the contrary
notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of a
registration statement with the Securities and Exchange Commission, the creation of one or more
classes of stock and the offering of shares of stock to the public for purchase, shall not constitute a
Transfer hereunder and shall not require the consent of the Lessor.
Any consent to a Transfer shall not waive or abridge any of the Lessor's rights to consent to
a subsequent Transfer. Any Transfer made in violation of the terns hereof shall be null and void
and of no force and effect. Any transferee must be an institutional investor (as provided above) or
an Acceptable Operator in each such instance.
Section 10.4 Notice of Transfer
With respect to any Transfer which must be approved by the City Manager, the Lessee
shall give or cause to be given to the Lessor written notice (including all information necessary for
the Lessor to make an evaluation of the proposed Acceptable Operator according to the
requirements of this Lease) of any Transfer of which Lessee, or its officers shall have knowledge,
not less than thirty (30) days prior to any such proposed Transfer, and the Lessor shall within thirty
(30) days of its receipt of such information, advise Lessee in writing if it shall consent to same. If
the Lessor shall not consent to a Transfer, the City Manager shall state the reasons for such
disapproval in his notice to Lessee. If the Lessor is not required to consent to a Transfer pursuant
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to the teens hereof, the Lessee shall notify the Lessor in writing of same within thirty (30) days
after the date of Transfer. In the event that City Commission approval is required by this Lease,
the City Manager shall use due diligence to present the request for Transfer to the City
Commission as soon as practicable and the time for performance by Lessor shall be reasonably
extended to provide sufficient time for presentation to the City Commission.
Section 10.5 Information as to Shareholders, etc.
Lessee shall from time to time throughout the Lease Term, as the Lessor shall reasonably
request, furnish the Lessor with a complete statement, subscribed and sworn to by the President or
Vice -President and the Secretary or Assistant Secretary of the Lessee, setting forth (to the extent
known) the full naives and addresses of material holders of stock interests in Lessee, and the extent
of their holdings, and in the event any other parties have a material beneficial interest in such
stock, their full names and addresses and the extent of such interest as determined or indicated by
the records of Lessee. Notwithstanding the foregoing, the information required by this Section
10.5 shall not be required to be furnished with respect to the shareholders of any Owner whose
shares are publicly traded. As used in this section, the term "material" shall mean ownership of not
less than a ten (10%) percent interest in Lessee.
Section 10.6 Effectuation of Permitted Transfers
No Transfer shall be effective unless and until:
(a) all Rents, taxes, assessments, impositions, insurance, permitting and other
charges required to be paid by the Lessee under this Lease shall be paid by the Lessee up to the date
of transfer, and all other covenants and agreements to be kept and perforned by the Lessee shall be
substantially complied with at the date of the Transfer; and
(b) the entity to which such Transfer is made, by instrument in writing
reasonably satisfactory to the City Manager (subject to approval as to legal form by the City
Attorney) and in a form recordable among the land records, shall, for itself and its successors and
assigns, and especially for the benefit of the Lessor expressly assume all of the obligations of
Lessee under this Lease, and agree to be subject to all conditions and restrictions to which Lessee
is subject; provided, however, that any transferee shall not be required to assume any personal
liability under this Lease with respect to any matter arising prior or subsequent to the period of
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such transferee's actual ownership of the Leasehold Estate created by this Lease (it being
understood, nevertheless, that the absence of any such liability for such matters shall not impair,
impede or prejudice any other right or remedy available to the Lessor for default by Lessee).
Nothing herein shall be construed to relive or release the Lessee from liability for the performance
of all of the obligations of Lessee under this Lease, except as provided for in Section 10.8 of the
Lease.
Section 10.7 Criteria for Consent for Transfer
The Lessor may condition its consent to a permitted Transfer upon satisfaction of all or any
of the following conditions:
(i) The net assets of the Transferee immediately prior to the Transfer shall not
be less than: (a) the net assets of the Transferor whose interest is being transferred
immediately prior to the Transfer; (b) the net assets of said Transferor on the Lease Date
adjusted for inflation; or (c) an amount reasonably necessary to discharge Lessee's
remaining obligations hereunder;
(ii) Such Transfer shall not adversely affect the quality and type of business
operation which the Lessee has conducted theretofore;
(iii) Such Transferee, shall possess qualifications for the Lessee's business
substantially equivalent to Lessee or an Acceptable Operator, or shall engage an
Acceptable Operator and shall have demonstrated recognized experience in successfully
operating such a business, including, without limitation, experience in successfully
operating a similar quality business;
(iv) Such Transferee shall agree to continue to operate a business similar to the
use conducted at the Premises pursuant to this Lease;
(v) Such Transferee shall assume in writing, in a form acceptable to Lessor, all
of Lessee's obligations hereunder, and Lessee shall provide Lessor with a copy of all
documents pertaining to such Transfer;
(vi) Lessee shall pay to the Lessor any due, but unpaid Rent.
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Section 10.8 Liability of Lessee
If an Assignee or Transferee does not meet all of the criteria set forth in Section 10.7,
Lessor, at its sole option, may require Lessee or Owner transferring such interest to remain liable
under this Lease for the performance of all terms, including, but not limited to, payment of Rent
due under this Lease. If an Assignee or Transferee does meet the criteria set forth in Section 10.7,
Lessee shall be released from any and all remaining liability and/or obligations set forth in this
Lease from the effective date of such Assignment or Transfer, but shall remain liable and
responsible as provided by this Agreement and Applicable Laws for performance of duties
including, without limitation, payment of rent .prior to the effective date of such transfer.
Section 10.9 Acceptance of Rent from Transferee
The acceptance by Lessor of the payment of Rent following any Transfer prohibited by this
Article shall not be deemed to be a consent by Lessor to any such, nor shall the same be deemed to
be a waiver of any right or remedy of Lessor hereunder.
Section 10.10 Transfers of the Lessor's Interest
At the Lessee's request, Lessor shall provide the Lessee copies of any and all agreements
or contracts pertaining to the total or partial sale, assignment, conveyance, mortgage, trust or
power, or other transfer in any mode or form of or with respect to the Lessor's reversionary or fee
interest in the Premises, or any part thereof, or any interest therein, or any contract or agreement to
do any of the same, to any purchaser, assignee, mortgagee, or trustee. Lessor hereby agrees to
incorporate the terms and conditions set forth in this Lease or in any agreement or contract with
such purchaser, assignee, mortgagee, or trustee.
Section 10.11 Mortgages of Leasehold Interest
(a) Right to Mortgage. All rights of Lessee pursuant to this Lease are mortgageable,
pledgeable, assignable or transferable, in accordance with the terms of this Lease. Any successor
to, or assignee of, the rights of Lessee hereunder (whether as the result of voluntary assignment,
foreclosure, assignment in lieu of foreclosure or otherwise) shall hold or be entitled to exercise the
rights of Lessee hereunder as fully as if named as such party herein. No party exercising rights as
Lessee hereunder shall have or incur any liability for the acts of any other party which previously
exercised or subsequently shall exercise such rights.
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(b) Notice. In the event Lessor gives a notice of default under this Lease to Lessee,
Lessor shall also send a copy of such notice to any holder of a Leasehold Mortgage, provided such
holder or its mortgagor shall have sent Lessor a notice informing it of the existence of such
Leasehold Mortgage and the naive of the person or officer and the address to which copies of the
notices of defaults are to be sent (each, a "Mortgagee"). Such Mortgagee shall have an additional
thirty (30) days to cure any default that is capable of being cured with the payment of money, and
an additional sixty (60) days for all other defaults (and such additional time, as to non -monetary
defaults, as the Mortgagee in good faith and with reasonable diligence either attempts to cure such
default or commences and thereafter prosecutes with reasonable diligence, if not enjoined or
stayed, appropriate proceedings for foreclosure or other enforcement of the liens securing its
financing). Initiation of foreclosure proceedings against Lessee shall constitute "diligence" by a
Mortgagee hereunder so long as such foreclosure proceedings are continuously pursued and all
rent and additional rent is being paid to Lessor by Lessee or Mortgagee during the pendency of any
foreclosure proceeding. The foregoing requirements to give notice of default to a Mortgagee and
allow such Mortgagee an opportunity to cure such default shall not delay the exercise of self-help
remedies by Lessor in the event of an emergency.
(e) Rights of Mortgagees. Once Lessor has received a notice as specified in the
preceding section, then, from and after receipt of such notice:
(1) No voluntary termination by Lessee of this Lease shall be effective unless
consented to in writing by such Mortgagee; and any material amendment or material modification
of this Lease or the exercise by Lessee of any option to terminate this Lease without the written
consent of such Mortgagee shall be voidable as against such Mortgagee at its option. If any
Mortgagee shall fail to respond to any written consent under this section within thirty (30) days
after the receipt by such Mortgagee of such written request (which written request shall make
specific reference to this section), the Mortgagee shall be deemed to have denied its consent to
such request.
(2) no notice required to be given to Lessee by Lessor shall be effective as to
such Mortgagee unless and until a copy thereof has been given to such Mortgagee.
(3)
Lessor shall accept performance of any and all of Lessee's obligations
hereunder, including the obligations to pay rent, from any such Mortgagee and the performance of
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such obligation by such Mortgagee shall be deemed to have been a cure effected by Lessee. Lessor
hereby consents to the entry onto the Lease Area by any such Mortgagee for the purpose of
effecting the cure of any default by Lessee. In the event of a default by Lessee hereunder, any
Mortgagee may effect the cure of such default by foreclosing its Mortgage, obtaining possession of
the Lease Area and performing all of Lessee's obligations hereunder.
(4) If it shall be necessary for any such Mortgagee to obtain possession of the
Lease Area to effect any such cure of a default by Lessee under this Lease, then Lessor shall not
commence any proceeding or action to terminate the Lease Term if (a) such Mortgagee shall have
informed Lessor within the grace period applicable to such Mortgagee that such Mortgagee has
taken steps to foreclose its Leasehold Mortgage, to obtain possession of the Lease Area, (b) the
rent and all monetary obligations of Lessee shall be paid and all other provisions and requirements
of this Lease which are. capable of being observed and performed without obtaining possession of
the Lease Area are so observed and performed while any such foreclosure, other action or other
remedy is being prosecuted by any such Mortgagee and for so long thereafter as such Mortgagee
shall have obtained possession of the Lease Area, and (c) such Mortgagee shall be diligently
prosecuting such foreclosure or cancellation and attempting to effect a cure of the default. Nothing
herein contained shall be deemed to require the Mortgagee to continue with any foreclosure or
other proceedings, or, in the event such Mortgagee shall otherwise acquire possession of the Lease
Area, to continue such .possession, if the default in respect to which Lessor shall have given the
notice shall be remedied.
(5) Lessor agrees that in the event of the termination of this Lease by reason of
any default by Lessee or rejection of this Lease in a bankruptcy proceeding effecting Lessee, and if
Lessor has prior to such termination been given written notice of the name and address of such
Mortgagee, Lessor will enter into a new agreement for the Lease Area with any Mortgagee or a
wholly owned subsidiary of Mortgagee for the remainder of the Lease Tern, effective as of the
date of such termination, at the rent and upon the terms, options, provisions, covenants and
agreements as herein contained, provided:
(a) Such Mortgagee shall make written request upon Lessor for such
new agreement prior to or within ten (10) days after the date of such termination and such written
request is accompanied by payment to Lessor of all sums then due to Lessor hereunder;
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(b) Such Mortgagee or its nominee shall pay to Lessor at the time of the
execution and delivery of said new lease any and all sums which would at that time be due
hereunder but for such termination; and
(c) That in the event there exists more than one Mortgagee, the first
Mortgagee shall have the first option to become Lessee under the provisions of this section, with
priority over the second Mortgagee.
(6) No Mortgagee shall become liable under the agreements, terms, covenants
or conditions of this Lease unless and until it becomes the owner of the estate held by Lessee on the
date of execution of this Lease.
(d) All of the provisions contained in this Lease with respect to Leasehold Mortgage
and the rights of Mortgagees shall survive the termination of this Lease for such period of time as
shall be necessary to effectuate the rights granted to all Mortgagees by the provisions of this Lease.
(e) Nothing herein contained shall require any Mortgagee or its nominee to cure any
default by Lessee hereunder, unless Mortgagee accepts assignment and assumption; however this
shall not preclude the City from seeking a judicial remedy for any such losses or breaches of the
Lease in a manner consistent with the terms of this Lease.
(f) If the Mortgagee acquires title, the Mortgagee must comply with the applicable
provisions in this Article X related to a Transfer and such other applicable provisions of this Lease
regarding approval by Lessor of any new Lessee that is proposed.
(g) Notwithstanding any other provision of this Lease to the contrary, only if Lessee
acquires the title to the fee estate, there shall not be a merger of the fee and the leasehold estates.
ARTICLE XI
COMPLIANCE WITH LAWS
Section 11.1 Compliance With Laws
Lessee shall, at Lessee's sole cost and expense, comply with all regulations and all
Applicable Laws now in force, or which may hereafter be in force, pertaining to Lessee or its use
of the Premises, and shall faithfully observe in the use of the Premises or in the performance of any
alterations (including, without limitation, the construction of the Leasehold Improvements) all
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Applicable Laws now in force or which may hereafter be in force. Lessee shall indemnify (and
such indemnity will survive the termination or expiration of the Lease for a period of three (3)
years), defend and save Lessor harmless from penalties, fines, costs, expenses, suits, liabilities,
claims, or damages resulting from Lessee's failure to perform its obligations in this Lease and/or
for Lessee's failure to comply with Applicable Laws .
ARTICLE XII
ENVIRONMENTAL LIABILITY
Section 12.1 Definition of Terms
For purposes of this Article XII the following terms shall have the meaning attributed to
them herein:
12.1.1 "Hazardous Materials" means any toxic or hazardous substance, material, or
waste, and any other contaminant, pollutant or constituent thereof, whether liquid, solid,
semi -solid, sludge and/or gaseous, including without limitation, chemicals, compounds,
pesticides, petroleum products including crude oil and any fraction thereof, asbestos containing
materials or other similar substances or materials which are regulated or controlled by, under or
pursuant to any federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or
decrees including, but not limited to, all Applicable Laws.
12.1.2 "Environmental Laws" shall include, but shall not be limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
by the Superfund Amendment and Reauthorization Act of 1986 ("Sara"), 42 U.S.C. §9601, et seq.
(hereinafter collectively "CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardous and Solid Waste
Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S.C. §9601, et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as
amended, 33 U.S.C. §1311, et seq.; the Clean Air Act, as amended, 15 U.S.C. §2601 et seq.; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y;
the Emergency Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or
EPCRA"), as amended, 42 U.S.C. §11001, et seq. (Title III of Sara); the Occupational Safety and
Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute,
including without limitation Chapters 252,255,376,403,442, Florida Statutes, as amended; and the
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regulations promulgated thereunder, and any other local laws regulations, including, but not
limited to Chapter 24, Enviromnental Protection, of the Code of Miami -Dade County, Florida, as
all of the foregoing may be amended, modified, supplemented, superseded or replaced at any time
during the Term, that govern or relate to:
(i) The existence, cleanup and/or remedy of contamination of property;
(ii) The protection of the environment from spilled, deposited or otherwise
emplaced contamination;
(iii) The control of hazardous or toxic substances or wastes; or
(iv) The use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Materials.
12.1.3 "Costs" shall mean all costs incurred in connection with correcting any violations
of any Enviromnental Laws and/or in connection with the clean-up of contamination on the
Premises.
12.1.4 "Clean Up" shall mean any remediation and/or disposal of Hazardous Materials
at or from the Premises which is ordered by any federal, state, or local environmental regulatory
agency.
Section 12.2 Lessee's Enviromnental Covenant
The Lessee shall not cause or permit any Hazardous Materials to be brought upon, treated,
stored, disposed of, discharged, released, produced, manufactured, generated, refined, or used
upon, about or beneath the Premises or any portion thereof by the Lessee, its agents, employees,
contractors, licensees, or invitees except as may be customarily used and required to conduct Cafe
Operations or as may be used in compliance with Enviromnental Laws. Lessee shall not permit
any activities on the Premises that would violate Enviromnental Laws. If Lessee should breach
this covenant, Lessee shall take all actions necessary to comply with all Environmental Laws and
shall, at Lessee's sole cost and expense, perform any legally required Clean Up. Lessee's
obligation under this section shall survive the expiration or earlier termination of this Lease for a
period of one (1) year.
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Section 12.3 Representation by Lessor
The Lessor represents and warrants that no lawsuits, claims, legal or administrative, have
been brought against Lessor, in connection with the environmental condition of the Premises as a
result of the Lessor's or any prior lessee's use or occupancy of the Premises, nor is Lessor aware of
the existence of any Hazardous Materials thereon, except as may be present in connection with the
asbestos containing materials as expressly disclosed in Section 12.5 of this Lease.
Section 12.4 Lessee's Indemnification
Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against
any and all suits, actions, claims, regulatory actions, liabilities, penalties, losses, injuries, and
expenses, including attorney's fees, resulting from the death or injury to any person, destruction or
damage to property, arising from or caused by the presence, in or about the Premises, of any
Hazardous Materials placed on or about the Premises by Lessee, or its agents, employees or
assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable
Environmental Laws.
Section 12.5 Asbestos
The Lessee acknowledges that prior to the Lease Date, the Lessee has undertaken an
environmental site assessment of the Premises and accordingly, the Lessee knows that there may
be asbestos containing materials ("ACM") in the form of ceiling tiles, plaster walls and roofing
material. The Lessor shall, at Lessor's sole cost and expense, Clean Up any such ACM in the
event that as a result of building renovations or modifications such ACM becomes friable (the
"Asbestos Reinediation").
Section 12.6 Survival of Lessee's and Lessor's Obligations
The respective rights and obligations of Lessor and Lessee under this Article XII shall
survive the expiration or termination of this Lease for a period of one (1) year.
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ARTICLE XIII
DAMAGE OR DESTRUCTION OF PREMISES
Section 13.1 Definitions
For the purposes of this Article XIII, the following words shall have the meanings
attributed to them in this Section 13.1:
(a) "Completely Destroyed" means the destruction of the safe, leasable use or
occupancy of a substantial portion of the Premises or Lease Area under this
Lease which damage cannot reasonably be repaired, restored or replaced
within one hundred and eighty (180) calendar days from the date on which
the damage occurred.
(b) "Partial Destruction" means any damage to the Premises or the Lease Area
which damage can reasonably be repaired, restored or replaced within one
hundred eighty (180) calendar days from the date on which the damage
occurred.
Section 13.2 Duty to Repair, Restore or Replace the Premises and Leasehold
Improvements after Damage
In the event of damage by fire or otherwise of the Premises and/or the Lease Area including
any machinery, fixtures or equipment which are a part of the Lease Area, the Parties agree as
follows:
(i) In the event of Partial Destruction of the Premises or the Lease Area,
within sixty (60) calendar days of the damage (subject to reasonable delay and/or Force Majeure),
(i) the Lessee shall use the Gross Insurance Proceeds available for that purpose, together with
Lessee's own funds (if the Gross Insurance Proceeds are insufficient) to commence and diligently
pursue to completion within one hundred eighty (180) calendar days from the date the damage
occurred (subject to reasonable extension due to Force Majeure or delays by Lessor in the repair,
restoration, or replacement of the damaged or destroyed portion of the Premises as required in
order for the Lessee to commence the restoration of the Leasehold Improvements), the repair,
restoration or replacement of the damaged or destroyed portion of the Leasehold Improvements
("Restoration Work"), and (ii) the Lessor shall, at its sole cost and expense, commence and
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diligently pursue to completion within one hundred eighty (180) calendar days from the date the
damage occurred (subject to reasonable extension due to Force Majeure), the repair, restoration, or
replacement of the damaged or destroyed portion of the Premises, including, without limitation,
repair, maintenance and replacement to the City Improvements, including, without limitation, the
exterior and structural portions of the building including the Lease Area, including the repair of
foundations, floor slabs, structural support, roof structure (including maintaining the roof and
water tight condition) and exterior walls (excluding the portion of the roof and window installed by
the Lessee) located in the Lease Area and the common utility lines to the point of connection with
the Lease Area; and this Lease shall remain in full force and effect, with no abatement in Rent.
(ii) In the event the Premises or the Lease Area are Completely
Destroyed at any time during Lease Years One (1) through Eighteen (18) of the Lease Term, and in
Lease Years Nineteen (19) through Twenty-two (22), if the second option has been exercised,
within sixty (60) days of the damage, the Lessee, in its sole discretion, shall have the option to
select whether to terminate to terminate this Lease. In the event the Lessee shall determine not to
terminate this Lease, then (a) at the Lessee's sole cost and expense, (together with Gross Insurance
Proceeds available for that purpose), Lessee shall commence and diligently pursue to completion
the Restoration Work, in accordance with the provisions of Section 13.3 below, and Lessee shall
complete the Restoration Work within twelve (12) months from the date the damage occurred
(subject to reasonable extension due to Force Majeure or delays by Lessor in the repair,
restoration, or replacement of the damaged or destroyed portion of the Premises as required in
order for the Lessee to continence the restoration of the Leasehold Improvements), and (b) the
Lessor shall, at its sole cost and expense, commence and diligently pursue to completion within
one hundred eighty (180) calendar days from the date the damage occurred (subject to reasonable
extension due to Force Majeure), the repair, restoration, or replacement of the damaged or
destroyed portion of the Premises, including, without limitation, repair, maintenance and
replacement to the City Improvements, including, without limitation, the exterior and structural
portions of the building including the Lease Area, including the repair of foundations, floor slabs,
structural support, roof structure (including maintaining the roof and water tight condition) and
exterior walls (excluding the portion of the roof and window installed by the Lessee) located in the
Lease Area and the common utility lines to the point of connection with the Lease Area; and this
Lease shall remain in full force and effect, with no abatement in Rent. Alternatively, the Lessee
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may elect not to undertake the Restoration Work by providing written notice to Lessor and in
which event this Lease shall terminate, and the Lessee shall, at the Lessee's sole cost and expense,
(but using along with the Lessee's own funds, Gross Insurance Proceeds available for that
purpose) deliver possession of the Lease Area to Lessor free and clear of all debris and Lessor and
Lessee shall each be released thereby from any further obligations hereunder accruing after the
effective date of such termination, except that such release shall not apply (aa) to any Rent or other
sums accrued or due (bb) Lessee's obligations regarding surrender of the Lease Area including the
removal of debris, and (cc) environmental liability as provided for in Article XII.
(iii) In the event the Premises and/or the Lease Area are Completely
Destroyed at any time during Lease Years Nineteen (19) or Twenty (20), if the second option has
not been exercised, and at any time during Lease Years Twenty-three (23), Twenty-four (24) and
Twenty-five (25), either Party, in its sole discretion, shall have the right to terminate this Lease by
giving written notice to the other Party within ninety (90) days from the date the damage occurred.
In the event this Lease is teiminated as provided above, the Lessee shall, at the Lessee's sole cost
and expense, (but using along with the Lessee's own funds, Net Insurance Proceeds available for
that purpose) deliver possession of the Lease Area to Lessor free and clear of all debris and Lessor
and Lessee shall each be released thereby from any further obligations hereunder accruing after the
effective date of such termination, except that such release shall not apply (aa) to any Rent or other
sums accrued or due (bb) Lessee's obligations regarding surrender of the Lease Area including the
removal of debris, and (cc) environmental liability as provided for in Article XII.
Section 13.3 Performance of Restoration Work
In the event Lessee undertakes any Restoration Work in accordance with the provisions of
this Article, such Restoration Work by Lessee shall be substantially as possible to the condition
that existed immediately prior to the damage, and shall be performed in accordance with the
provisions of Article V applicable to the construction of the initial Leasehold Improvements.
Lessor hereby acknowledges and agrees that Lessee's obligations hereunder and the time periods
set forth above are subject to Force Majeure, and reasonable extensions based on the severity of the
damage. In the event Lessor undertakes the repair, restoration, or replacement of the damaged or
destroyed portion of the Premises, including, without limitation, the roof, the foundations, the
exterior walls, all structural elements and the common utility lines to the point of connection with
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the Lease Area, such restoration by Lessor shall be substantially as possible to the condition that
existed immediately prior to the damage, and shall be performed in accordance with the provisions
of Article V. Lessee hereby acknowledges and agrees that Lessor's obligations hereunder and the
time periods set forth above are subject to Force Majeure, and reasonable extensions based on the
severity of the damage.
Section 13.4 No Right to Terminate
Except for the Lessee's right to terminate this Lease in accordance with the provisions of
Subsections 13.2(ii)(b) and (iii), Lessee waives the provisions of any statute, code or judicial
decision which grants Lessee the right to terminate this Lease in the event of damage or destruction
of the Premises and/or the Lease Area.
Section 13.5 Lessee's Right to Terminate
If Lessee or Lessor elects to exercise the option given under Subsections 13 .2(ii) or (iii),
respectively, to terminate this Lease, then any and all Gross Insurance Proceeds paid for damage or
destruction of the Lease Area shall be applied as follows:
(i)
(ii)
First toward debris removal; and
Second, toward the balance of the proceeds, if any, after payment of
any Rent due, shall be paid to the Parties as their respective shall be prorated based on the useful
life of the Premises prior to the casualty event as compared to the remaining term of the Lease and
any option periods without consideration of the termination of the Lease as provided in this
Section.
Section 13.6 Payment for Construction of the Restoration Work
Except as otherwise provided for in this Section 13, all Gross Insurance Proceeds shall be
applied by the Parties to the payment of the cost of the Restoration Work to restore the Lease Area,
and the Gross Insurance Proceeds shall be paid out, the Restoration Work shall be performed, and
the Lessee shall make additional deposits with an escrow agent, if any are required, as may be
applicable.
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Section 13.7 Collection of Insurance Proceeds
The Lessor shall in no event be responsible for the non -collection of any insurance
proceeds under this Lease but only for insurance money that shall come into its hands; providing,
however that the Lessor will use its best efforts to obtain such insurance proceeds, and disburse
them accordingly,
Section 13.8 Unused Insurance Proceeds and Deposits
In the event any Gross Insurance Proceeds or sums deposited with an escrow agent or
Lessor in connection with the Restoration Work shall remain in the hands of an escrow agent or the
Lessor, if the Parties have agreed to allow the Lessor to hold the insurance proceeds until
completion of the Restoration Work, and if the Lessee shall not then be in default under this Lease
in respect of any matter or thing of which notice of default has been served on the Lessee, then the
remaining funds shall be applied first towards any unpaid Rent, and the balance paid to the Lessee.
ARTICLE XIV
EMINENT DOMAIN
Section 14.1 Total Condemnation
In the event that all of the Lease Area (or such portion thereof as shall, in the good faith
opinion of Lessor or Lessee, render it economically unfeasible to effect restoration thereof for its
intended purpose) shall be taken for any public purpose by the right of condemnation, the exercise
of the power of eminent domain or shall be conveyed by the Lessor and Lessee acting jointly to
avoid proceedings of such taking, the Rent pursuant to this Lease shall be prorated and paid by the
Lessee to the ,l ate of Taking or conveyance in lieu thereof, and this Lease shall terminate and
become null and void as of the Date of Taking or such conveyance; and the amount of damages
resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Lease
Area, the Leasehold Improvements, and in connection with this Lease (which amount of damages
shall be calculated based on the remaining term of the Lease and any option periods without
consideration of the termination of the Lease as provided in this Section), shall be separately
determined and computed by the court having jurisdiction and separate awards and judgments with
respect to damages to Lessor and Lessee, respectively, and to each of their respective interests,
shall be made and entered.
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Section 14.2 Partial Condemnation
(a) In the event less than all of the Lease Area shall be taken for any public use
or purpose by the right or the exercise of the power of eminent domain, or shall be conveyed by the
Lessor and Lessee acting jointly to avoid proceedings of such taking, and Lessee shall be of the
good faith opinion that it is economically feasible to effect restoration thereof, then this Lease and
all the covenants, conditions and provisions hereunder shall be and remain in full force and effect
as to all of the Lease Area not so taken or conveyed . Lessee shall to the extent the proceeds of the
Gross Condemnation Award are made available to it, pursuant to the terms hereof, remodel, repair
and restore the Lease Area so that it shall be comparable to the Lease Area prior to the
condemnation, taking into consideration the fact of the condemnation; provided, however, that in
so doing, Lessee shall not be required to expend more than the amount of any Gross Condemnation
Award actually received by Lessee.
(b) The Gross Condemnation Award allowed to Lessor and Lessee shall be
paid to and received by the Parties as follows:
(i) There shall be paid to the Lessor the value of the portion of the land
so taken and Lessor's reversionary interest in the improvements so taken, which land and
reversionary improvements shall be valued as if unencumbered. Lessor shall further be paid an
amount by which the Rent has been reduced by the taking;
(ii) There shall be paid to the Lessee any amount by which Lessee's
profits and value of Lessee's interest in the Lease and the Lease Area have been reduced by the
taking after any payment required by the Lease;
(iii) There shall be paid to the Lessee the amount required to complete
the remodeling and repairs to the Lease Area pursuant to (a) above;
(iv) The Lessor and Lessee shall be paid portions of the balance of the
Gross Condemnation Award or awards, if any, which are allocable to and represented by the value
of their respective interest in the Lease Area as found by the court in its condemnation award.
Section 14.3 Adjustment of Rent Upon Partial Taking
In the event a part of the Lease Area shall be taken for any public use or purpose by the
exercise of the power of eminent domain, or shall be conveyed by Lessor and Lessee acting jointly
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to avoid proceedings of such taking, then Rent pursuant to this Lease, shall be paid by Lessee to the
Date of Taking or conveyance in lieu thereof, and after such date the Rent for the remainder of the
Lease Area shall be reduced in the same proportion that Gross Revenues have been reduced due to
such taking compared to the Gross Revenues immediately prior to the taking.
Section 14.4 Deposit of Condemnation Award with Escrow Agent
Unless the effect of a condemnation proceeding shall be to terminate this Lease by
operation of law or as provided in Section 14.2 above, any Gross Condemnation Award made in
respect to the Lease Area in a condemnation proceeding shall be deposited with an escrow agent
selected by the Lessor to be disbursed for the cost of restoring the Lease Area.
Section 14.5 Temporary Taking
In the event that all or any portion of the Lease Area shall be taken by the right of
condemnation or the exercise of the power of eminent domain for governmental use or occupancy
for a temporary period, this Lease shall not terminate and Lessee shall continue to perform and
observe all of its obligations (including the obligation to pay Rent as provided throughout this
Lease) as though the temporary taking had not occurred except only to the extent that it may be
prevented from so doing by the terms of the order of the authority which make the temporary
taking or by the conditions resulting from the taking, including the loss of its possession of all or
any part of the Lease Area. If the period of governmental occupancy extends beyond the
termination of the Lease Tenn, the Lessor shall be entitled to receive that portion of the Gross
Condemnation Award allocable to the period beyond the termination of the Lease Term. The
amount of any Gross Condemnation Award payable to Lessee, on account of a temporary taking of
all or any part of the Leasehold Improvements, shall be deemed a part of the Lessee's Leasehold
Estate for all purposes in this Lease. If the Gross Condemnation Award does not separately
determine the amount applicable to the taking of the interest of the Lessor in this Lease and in the
Leasehold Improvements and if Lessor and Lessee shall not agree in writing as to the proportion of
the award so applicable to the respective Parties, then Lessor and Lessee shall submit the matter to
the court on stipulation for the purpose of a judgment determinative of the interest of the Parties in
accordance with the terms of this Section 14.5.
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ARTICLE XV
PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
Section 15.1 Payment of Taxes and Impositions
From and after the Rent Commencement Date, Lessee shall pay all Impositions levied
against the Lease Area before any fine, penalty, interest or costs are added for non-payment. All
such ad valorem and similar taxes, governmental levies, charges, impositions and assessments shall
be payable by Lessee directly to the taxing authority prior to delinquency (without penalty) of such
taxes, provided that Lessor has advised Lessee of its share of such taxes and assessments in a written
notice, including a copy, of the tax bill prior to delinquency.
Section 15.2 Installment Payments of Ad Valorem Taxes and Impositions
Lessee agrees that to the extent the Lease Area or any interest thereon is subject to ad
valorem taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad Valorem Tax
Payment Plan.
If by law, any ad valorem taxes or other Impositions are payable or may, at the option of the
taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid balance of the
Imposition), the Lessee may pay the same (and any accrued interest on the unpaid balance of the
Imposition), in installments before any fine, penalty, interest or cost is added for the nonpayment
of any installment and interest. Any Imposition relating to a fiscal period of the taxing authority, a
part of which period is included before the Lease Date and part of which is included after the Lease
Date shall be adjusted as between the Lessor and the Lessee as of the commencement of the Lease
Tenn, so that the Lessee shall pay that portion of the Imposition attributable to that part of the
fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable.
Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included
within the Lease Term and a part of which is included in a period of time after Lease Term shall be
adjusted as between the Lessor and the Lessee as of the termination of the Lease Term, so that the
Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period
included in the Lease Term, and the Lessor shall pay the remainder, if applicable.
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Section 15.3 Payment in Lieu of Taxes
The Lessee shall be responsible for the following payments or for payments in lieu of taxes
("PILOT") during the use period in the event the Property is deemed exempt from ad valorem real
estate taxes, in which case, Lessee will pay the City an annual PILOT in an amount initially equal
to three hundred seventy-five dollars ($375) per month. The PILOT will increase on each
anniversary of the Lease Date at a rate equal to three percent (3%). If Lessee is required to pay ad
valorem taxes on the Property, it shall not be required to pay the PILOT.
Section 15.4 Proof of Payment
The Lessee shall furnish to Lessor, within thirty (30) days after the date whenever any
Imposition is payable by or in behalf of the Lessee, official receipts of the appropriate taxing
authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment.
Section 15.5 Lessee's Right to Contest Impositions
Anything herein to the contrary notwithstanding, Lessee shall have and retain the right to
appeal or contest by legal proceedings, or in such other manner as it may deem suitable, any
Imposition, (including but not limited to ad valorem taxes on the Lease Area and the Leasehold
hnprovements), or any valuation in connection therewith, without the consent of Lessor, even if
the same ultimately results in the payment of any interest, costs or penalties. In the event that
Lessee contests any hnposition, Lessee shall immediately notify the City Manager or his/her
authorized designee of its intention to appeal said Imposition.
If at any time during the last Three (3) years of the Lease Term, Lessee shall contest an
Imposition, Lessee may defer payment of a contested item upon the condition that, before
instituting any such proceedings, Lessee shall furnish and keep in effect a surety bond, cash
deposit or other security satisfactory to the City Manager or his/her designee the Chief Financial
Officer ("CFO") in an, amount sufficient to pay one hundred percent (100%) of the contested
Imposition , with all interest on it and costs and expenses, including reasonable attorneys" fees to
be incurred in connection with it. The legal proceedings herein referred to shall include
appropriate proceedings to review tax assessments and appeals from an order issued therein and
appeals from any judgments, decrees or orders. Any such contest shall delay the time periods set
forth in Section 15.2 above.
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Lessor agrees to pay such Impositions in a lump sum payment or on an installment basis.
Failure of the Lessee to pay such Impositions or any installment payment thereof shall constitute a
default under this Lease.
ARTICLE XVI
DEFAULT OF LESSEE
Section 16.1 Lessee Default
The occurrence of any one or more of the following events is deemed a "Lessee Default":
(a) If the Lessee defaults in the due and punctual payment of any installment of
Rent, as and when due and payable in accordance with this Lease, and such default continues for
more than ten (10) days after the sum is due;
(b) Except with respect to an event of Force Majeure, in the event Lessee shall
cease to operate its business, unless in connection with alterations or renovations, for a period of
fifteen (15) consecutive days;
(c) In the event a petition in bankruptcy under any present or future bankruptcy
laws (including but not limited to reorganization proceedings or voluntary insolvency filing) be
filed by or against Lessee and such petition is not dismissed or contested in good faith within sixty
(60) days from the filing thereof, or in the event Lessee is adjudged a bankrupt;
(d) In the event an assignment for the benefit of creditors is made by Lessee;
(e) In the event of an appointment by any court of a receiver or other court
officer of Lessee's Lease Area and such receivership is not dismissed or contested in good faith
within sixty (60) days from the date of such appointment;
(f) In the event Lessee removes, attempts to remove, or permits to be removed
from the Lease Area, except in the usual course of trade, a substantial portion of the Leasehold
Improvements (furnishings, fixtures, and equipment) installed or placed upon the Lease Area by
the Lessee during the Lease Term;
(g) In the event Lessee, before the expiration of the Lease Term, and without
the written consent of Lessor, abandons the possession of the Lease Area, or uses the same for
purposes other than the purposes for which the same are hereby leased or as otherwise permitted
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by Lessor, and such default continues for more than thirty (30) days after written notice of the
default from the Lessor to the Lessee, In the event an execution or other legal process is levied
upon the goods, furniture, effects or other personal property of Lessee brought on the Lease Area,
or upon the interest of Lessee in this Lease, and the same is not satisfied, dismissed or contested in
good faith within sixty (60) days from such levy; or
(h) In the event Lessee defaults in the due performance or observance of any
lease covenant or condition or provision, other than the payment of Rent, and such default
continues for more than thirty (30) days after written notice of the default from the Lessor to the
Lessee, or such longer period as is reasonably necessary to diligently cure such default; or
(i) Inability of Lessee to produce financial records under the circumstances set
forth in Section 4.6 (b) of this Lease.
Section 16.2 Remedies of Lessor
(a) If any Lessee Default occurs, Lessor shall have the right after the expiration
of the applicable cure period, at the option of Lessor, to terminate this Lease upon providing fifteen
(15) days written notice if the default has not been cured by the expiration of such fifteen (15) day
period. An Event of Default shall be deemed to have occurred at the expiration of such fifteen (15)
day period if the default has not been cured by the expiration of such fifteen (15) day period.
Additionally, if any Event of Default occurs, Lessor may, at its option, from time to time, without
terminating this Lease, re-enter and re -let the Lease Area, or any part thereof, as the agent and for
the account of Lessee upon such terns and conditions as Lessor may deem advisable or
satisfactory, in which event the rents received on such re -letting shall be applied first to the
expenses of such re -letting and collection including but not limited to, necessary renovation and
alterations of the Lease Area, reasonable attorney's fees, any real estate commissions paid, and
thereafter toward payment of all sums due or to become due to Lessor hereunder, and if a sufficient
sum shall not be thus realized or secured to pay such sums and other charges, at Lessor's option,
Lessee shall pay Lessor any deficiency immediately upon demand therefore, notwithstanding that
Lessor may have received periodic rental in excess of the periodic rental stipulated in this Lease in
previous or subsequent rental periods, and Lessor may bring an action therefore as such deficiency
shall arise. Nothing herein, however, shall be construed to require Lessor to re-enter and re -let the
Lease Area in any event. Lessor shall not, in any event, be required to pay Lessee any surplus of
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any sums received by Lessor on a re -letting of said Lease Area in excess of the rent provided in this
Lease.
(b) If any Event of Default occurs, Lessor shall have the right to obtain
injunctive and declaratory relief, temporary and/or permanent, against Lessee or any acts, conduct
or omissions of Lessee, and to further obtain specific performance of any tern, covenant or
condition of this Lease, including but not limited to the appointment of a receiver to operate
Lessee's business at the Lease Area. .
(c) If any Event of Default occurs, Lessor shall have the right, at its option, to
declare all Rent (or any portion thereof) for the entire remaining Lease Term, and other
indebtedness owing by Lessee to Lessor, if any, immediately due and payable without regard to
whether possession of the Lease Area shall have been surrendered to or taken by Lessor, and may
commence action immediately thereupon and recover judgment therefore,
(d) If any Event of Default occurs, Lessor, in addition to other rights and
remedies it may have, shall have the right to remove all or any part of Lessee's personal property
from the Lease Area and any personal property removed may be stored in any public warehouse or
elsewhere at the cost of, and for the account of Lessee, and Lessor shall not be responsible for the
care or safekeeping thereof whether in transport, storage or otherwise, and Lessee hereby waives
any and all claim against Lessor for loss, destruction and/or damage or injury which may be
occasioned by any of the aforesaid acts.
(e) No such re-entry or taking possession of the Lease Area by Lessor shall be
construed as an election on Lessor's part to terminate this Lease unless a written notice of such
intention is given to Lessee. Notwithstanding any such re -letting without termination, Lessor may
at all times thereafter elect to terminate this Lease for such previous default. Any such re-entry
shall be allowed by Lessee without hindrance, and Lessor shall not be liable in damages for any
such re-entry, or guilty of trespass or forcible entry.
(f) Any Rent which may be due Lessor, whether by acceleration or otherwise
as herein provided in this Article, shall include Minimum Base Rent, Percentage Rent and any
other rents, costs and expenses denominated as Additional Rent in this Lease.
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(g) It is expressly agreed that the forbearance on the part of Lessor in the
institution of any suit or entry of judgment for any part of the Rent herein reserved to Lessor, shall
not serve as a defense against nor prejudice a subsequent action for such Rent. Lessee hereby
expressly waives Lessee's right to claim a merger or waiver of such subsequent action in any
previous suit or in the judgment entered therein. Furthermore, it is expressly agreed that claims for
liquidated Minimum Base Rent and/or Percentage Rent may be regarded by Lessor, if it so elects,
as separate and independent claims capable of being separately assigned.
(h) Any and all rights, remedies and options given in this Lease to Lessor shall
be cumulative and in addition to and without waiver of, or in derogation of, any right or remedy
given to it under any laws now or hereafter in effect.
Section 16.3 No Waiver by Lessor
The waiver (either expressed or implied by law) by Lessor of any default of any term,
condition or covenant herein contained shall not be a waiver of any subsequent default of the same
or any other term, condition or covenant herein contained. The consent or approval by Lessor to
or of any act by Lessee requiring Lessor's consent or approval shall not be deemed to waive or
render unnecessary Lessor's consent to or approval of any subsequent similar act by Lessee. No
re-entry hereunder shall bar the recovery of rents or damages for the default or delay on the part of
Lessor to enforce any right hereunder and shall not be deemed a waiver of any preceding default
by Lessee of any term, covenant or condition of this Lease, or a waiver of the right of Lessor to
annul this Lease or to re-enter the Lease Area or to re -let same.
Section 16.4 Late Payments
Any installment of Rent not received within five (5 ) days after the due date shall be
subject to a late payment as provided in this Section 16.4. Lessee shall pay, in addition to the
payment then due, five (5%) percent of the amount due, ("Late Fee"), and in the event that any
check, bank draft, order for payment , or negotiable instrument given to Lessor for any payment
under Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor, in
addition to the five (5%) percent Late Fee, shall be entitled to make an administrative charge to
Lessee of One Hundred and 0/100 Dollars ($100.00), or the actual charge, to Lessor by Lessor's
bank for dealing with such dishonored tender, whichever is more. In the event that it shall be
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necessary for Lessor to give more than one (1) written notice to Lessee of any violation of this
Lease, during the term hereof, Lessor shall be entitled to make an administrative charge to Lessee
of Twenty-five and 0/100 Dollars ($25.00) for each such subsequent notice after the first notice.
Lessee recognizes and agrees that the charges which Lessor is entitled to make upon the conditions
stated in this section represent, at the time this Lease is made, a fair and reasonable estimate and
liquidation of the costs of Lessor in the administration of the Premises resulting from the events
described which costs are not contemplated or included in any Rent, or other charges provided to
be paid by Lessee to Lessor in this Lease. Any charges becoming due under this Section of this
Lease shall be added to and become due with the late payment for which the charge was assessed
and shall be collectible as a part thereof.
Section 16.5 Remedies Cumulative
No remedy conferred upon or reserved to the Lessor or the Lessee shall be considered
exclusive of any other remedy, but shall be cumulative and shall be in addition to every other
remedy given under this Lease or existing at law or in equity or by statute; and every power and
remedy given by this Lease to the Lessor or the Lessee may be exercised from time to time and as
often as occasion may arise or as may be deemed expedient by the Lessor or the Lessee. No delay
or omission of Lessor or Lessee to exercise any right or power arising from any default shall
impair any right or power, nor shall it be construed to be a waiver of any default or any
acquiescence in it.
Section 16.6 Lessor Default.
In the event that Lessor shall at any time be in default in the observance or performance of
any of the covenants hereunder and any such default shall continue for a period of sixty (45 ) days
after written notice to Lessor (if such default is incapable of being cured in a reasonable manner
within sixty (60) days then if Lessor has not commenced to cure the same within such sixty (60) day
period and thereafter diligently prosecutes the same to completion) and Lessor shall not thereafter
cure the default, Lessee shall have the right at any time thereafter (but in no event shall be obligated)
to cure such default for the account of Lessor, and Lessor shall reimburse Lessee for any amount
paid and any expense or contractual liability so incurred upon invoice; and in addition, Lessee shall
be entitled at its election, to exercise concurrently or successively, any one or more of the rights or
remedies in law or equity provided hereunder or under applicable law.
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ARTICLE XVII
ACCESS BY LESSOR
Section 17.1 Right of Entry
Lessor and Lessor's agents shall have the right to enter the Lease Area at all reasonable
times upon reasonable prior written notice to the Lessee (except in the case of an emergency when
no notice is required), to examine the same. If Lessee shall not be personally present to open and
permit entry into the Lease Area at any time when for any reason an entry therein shall be
necessary or permissible, Lessor or Lessor's agents may enter the same without in any manner
affecting the obligations and covenants of this Lease. Nothing herein contained, however, shall be
deemed or construed to impose upon Lessor any obligation, responsibility or liability whatsoever,
for the care, maintenance or repair of the Lease Area or any part thereof, except as otherwise herein
specifically provided.
ARTICLE XVIII
DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage
Unless caused by a negligent act or omission of Lessor or the Lessor's officers, employees,
or agents, the Lessor shall not be responsible for any damage to any property of Lessee (including
without limitation appliances, equipment, machinery, stock, inventory, fixtures, furniture,
improvements, displays, decorations, carpeting and painting), or of others located on the Lease
Area, nor for the loss of or damage to any property of Lessee, or of others by theft or otherwise.
Lessor shall not be liable for any injury or damage to persons or Lease Area resulting from fire,
smoke, explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any part of the
Lease Area or from the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place by dampness or by any other cause of whatsoever nature. Lessor shall not
be liable for any latent defect in the Lease Area. All property of Lessee kept or stored on the Lease
Area shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor harmless
from any and all claims arising out of damage to same, including subrogation claims by Lessee's
insurance carriers.
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ARTICLE XIX
HOLDING OVER, SUCCESSORS
Section 19.1 Holding Over
In the event Lessee remains in possession of the Lease Area after the expiration of the
Lease Tenn, Lessee, at the option of Lessor, shall be deemed to be occupying the Lease Area as a
Lessee at sufferance at a monthly rental equal to two (2) times the Minimum Base Rent and the
Percentage Rent of the preceding Lease Year, payable during the last month of the Lease Term
hereof. In addition, Lessee agrees to pay monthly: (a) one -twelfth (1/12) of the taxes for the Lease
Area based upon the total taxes payable for the Lease Year immediately prior to the Lease Year in
which the expiration occurs; (b) cost of insurance for which Lessee would have been responsible if
this Lease had been renewed on the same terms contained herein; (c) all sales taxes assessed
against such increased rent, and (d) any and all Additional Rent otherwise payable by Lessee
hereunder. Such tenancy shall be subject to all the other conditions, provisions and obligations of
this Lease. Lessee's obligation to pay any rents or sums provided in this Lease shall survive the
expiration or earlier termination of this Lease.
Section 19.2 Successors
All rights and liabilities herein given to, or unposed upon, the respective Parties hereto
shall extend to and bind the several respective heirs, executors, administrators, successors, and the
assigns of the said Parties; and if there shall be more than one Lessee, they shall be bound jointly
and severally by the terms, covenants and agreements herein. Nothing contained in this Lease
shall in any manner restrict Lessor's right to assign or encumber this Lease and, in the event Lessor
sells its interest in the Lease Area and the purchaser assumes Lessor's obligations and covenants,
Lessor shall thereupon be relieved of all further obligations hereunder.
ARTICLE XX
EQUAL EMPLOYMENT OPPORTUNITIES
Section 20.1 Equal Employment Opportunities
The Lessee agrees that during the Lease Term; (a) it will not discriminate against any
employee or applicant for employment because of race, creed, color, place of birth, religion,
national origin, sex, age, marital status, veteran and disability status and will take affirmative
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action to assure that applicants are employed and that employees are treated during employment
without regard to race, creed, color, place of birth, religion, national origin, sex, age, marital status,
veteran and disability status; (b) post in conspicuous places, available to employees and applicants
for employment, notices, the form of which is to be provided by the Lessor, setting forth
provisions for this nondiscrimination clause; (c) in all solicitations or advertisements for
employees placed by or on behalf of the Lessee shall state that all qualified applicants will receive
consideration for employment without regard to race, creed color or national origin; and (d) if
applicable, to send to each labor union or representative of workers with which the construction
contractor has a collective bargaining agreement or other contract or understanding a notice, the
form of which is to be provided by the Lessor, advising the union or representative of the Lessee's
commitment and posting copies of the notice in a conspicuous places available to employees and
applicants for employment.
Section 20.2 Community Small Business Enterprise.
Lessee shall have in place an Community Small Business Enterprise ("CSBE") "goal",
employing the requirements of the Community Small Business Enterprises set forth in the City of
Miami Procurement Ordinance, codified in Chapter 18, Article III, City Code, as a model,. and
shall try to attain, but not mandate a plan for its achievement, which will strive to provide equal
opportunity in hiring and promoting for CSBE companies, women, minorities, the disabled and
veterans. Such plan will include a set of positive measures which will be taken to insure utilization
of CSBE companies whenever practicable, nondiscrimination in the work place as it relates to
hiring, firing, training and promotion. This is an aspirational goal and not a requirement.
20.3 Non -Discrimination
Lessee represents and warrants to the Lessor that it will comply with § 18-188, § 18-189 and
§18-190 of the City of Miami Code incorporated herein. Lessee hereby represents and warrants
that it does not and will not engage in discriminatory practices and shall not discriminate in
connection with Lessee's use of the Lease Area on account of race, national origin, ancestry, color,
sex, religion, age, handicap, familial status, marital status or sexual orientation. Furthermore,
should the Lessee have existing or introduce membership rules for patrons at the Lease Area, that it
will comply with the non-discrimination provisions incorporated within §18-188, §18-189 §
18-190, and §18-191 of the City of Miami Code as incorporated herein by reference.
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ARTICLE XXI
MISCELLANEOUS
Section 21.1 Accord and Satisfaction
No payment by Lessee or receipt by Lessor of a lesser amount than the Rent herein
stipulated to be paid shall be deemed to be other than on account of the earliest stipulated Rent, nor
shall any endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Lessor may accept such check or
payment without prejudice to Lessor's right to recover the balance of such Rent or pursue any
other remedy provided herein or by law.
Section 21.2 Entire Agreement
This Lease and the Exhibits attached hereto and forming a part thereof as if fully set forth
herein constitute all of the covenants, promises, agreements, conditions and understandings
between Lessor and Lessee concerning the Lease Area and there are no covenants, promises,
conditions or understandings, either oral or written, between them other than as are herein set
forth. Neither Lessor nor Lessor's agents have made nor shall be bound to any representations
with respect to the Lease Area except as herein expressly set forth, and all representations, either
oral or written, shall be deemed to be merged into this Lease. No course of prior dealings between
the Parties or their officer's employees, agents or affiliates shall be relevant or admissible to
supplement, explain or vary any of the terms of this Lease. Acceptance of, or acquiescence in, a
course of performance rendered under this or any prior agreement between the Parties or their
affiliates shall not be relevant or admissible to detennine the meaning of any of the terms of this
Lease. Except as herein otherwise provided, no subsequent alteration, change or addition to this
Lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by the Parties.
Any amendments to this Lease must be approved with the same formalities as were used in its
execution; providing, however, that the City Manager may administratively execute non -material
(i.e. non -substantial) amendments of the Lease in the exercise of his professional discretion. This
Lease has been negotiated "at arm's length" by and between Lessor and Lessee, each having the
opportunity to be represented by legal counsel of its choice and to negotiate the form and substance
of this Lease, and therefore in construing the provisions of this Lease neither party will be deemed
disproportionately responsible for draftsmanship.
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Section 21.3 Independent Parties
It is understood and agreed by the Parties hereto that this Lease does not create a fiduciary
or other relationship between Lessor and Lessee, other than Lessor and Lessee or contracting
parties, as applicable. Lessor and Lessee are and shall be independent contracting parties and
nothing in this Lease is intended to make either Party a general or special agent, joint venturer,
partner or employee of the other for any purpose.
Section 21.4 Notices
Any notice by the Parties required to be given must be served by certified mail return
receipt requested, or by hand delivery, addressed to Lessor or Lessee at:
If to Lessor at:
City Manager
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
With a copies to:
City of Miami
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
City of Miami
Director, Department of Public Facilities
Asset Management Division
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
If to Lessee at:
Glasshouse Coconut Grove, LLC
2640 S. Bayshore Drive, Suite 302
Miami, Florida 33133
Attn: Francesco Balli
With a copy to:
Holland & Knight, LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33155
Attn: Richard A. Perez
All notices given hereunder shall be effective and deemed to have been given upon receipt
by the party to which notice is being given, said receipt being deemed to have occurred upon hand
delivery or posting, or upon such date as the postal authorities shall show the notice to have been
delivered, refused, or undeliverable, is evidenced by the return receipt or proof of deliver.
Notwithstanding any other provision hereof, Lessor shall also have the right to give notice to
Lessee in any other manner provided by law. If there shall be more than one Lessee, any notice
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required or permitted by the terms of this Lease may be given by or to any one thereof, and shall
have the same force and effect as if given to all thereof.
Section 21.5 Captions and Section Numbers
The captions, section numbers, and article numbers appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe, or describe the scope or
intent of such sections or articles of this Lease nor in any way affect this Lease.
Section 21.6 Partial Invalidity
If any term, covenant or condition of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, the
application of such term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and enforceable to the fullest extent permitted by law.
Section 21.7 Estoppel Certificate
Each party agrees that it will, at any time and from time to time, within ten (10) business
days following written notice by the requesting party specifying that it is given pursuant to this
section, execute, acknowledge and deliver to the requesting party a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have been modifications, that
the same is in full force and effect and stating the modifications), and the date to which the
Minimum Base Rent, Percentage Rent and any other payments due hereunder from Lessee have
been paid in advance, if any, and stating whether or not there are defenses or offsets claimed by the
certifying party and whether or not to the best knowledge of certifying party, the requesting party
is in default in performance of any, covenant, agreement or condition contained in this Lease, and
if so, specifying each such default of which certifying party may have knowledge. The failure of
certifying party to execute, acknowledge and deliver to requesting party a statement in accordance
with the provisions of this Section within said thirty (30) Business day period and shall constitute
an acknowledgment by certifying party, which may be relied on by any person holding or
proposing to acquire an interest in the Premises or any party thereof or this Lease from or through
the other party, that this Lease is unmodified and in full force and effect and that such rents have
been duly and fully paid to and including the respective due dates immediately preceding the date
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of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such
statement, a waiver of any defaults which may exist prior to the date of such notice. It is agreed
that nothing contained in the provisions of this Section shall constitute waiver by requesting party
of any default in payment of rent or other charges existing as of the date of such notice and, unless
expressly consented to in writing by requesting party and, certifying party shall still remain liable
for the same. There will be a two hundred fifty dollar ( $ 250.00) regulatory fee per 166.221, Fla.
Stat. for each request made of Lessor for each Estoppels Certificate Requested, payment in full
shall be made a the time of the request.
Section 21.8 Waiver
Failure on the part of either part of complain of any action or non -action on the part of the
other, no matter how long the same may continue, shall never be deemed to be a waiver by such
party of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time
of any of the provisions hereof by either party shall be construed as a waiver of any of the other
provisions hereof, and that a waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same provisions. The consent or approval to or
of any action by either party requiring such consent or approval shall not be deemed to waive or
render unnecessary such consent or approval to or of any subsequent similar act by such party.
Section 21.9 Time is of the Essence
Time is of the essence with respect to the performance of every provision of this Lease in
which time of performance is a factor.
Section 21.10 No Discrimination
It is intended that the Premises shall be developed so that all customers, employees,
licensees and invitees of the Lessees shall have the opportunity to obtain all the goods, services,
accommodations, advantages, facilities and privileges of the Lease Area without discrimination
because of race, creed, color, sex, age, national origin, ancestry, handicap or disability of any kind.
To that end, Lessee shall not discriminate in the conduct and operation of its business in the
Premises against any person or group of persons because of the race, creed, color, sex, age,
national origin, ancestry, handicap or disability of such person or group of persons.
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Section 21.11 Governing Law
It is the intent of the Parties hereto that all questions with respect to the construction of the
Lease and the rights and the liabilities of the Parties hereto shall be determined in accordance with
the laws of Florida and that all disputes arising hereunder shall be heard and decided in
Miami -Dade County, Florida.
Section 21.12 Waiver of Counterclaims
Lessee shall not impose any counterclaim or counterclaims for damages in a summary
proceeding or other action based on tennination or holdover, it being the intent of the Parties
hereto that Lessee be strictly limited in such instances to bringing a separate action in the court of
appropriate jurisdiction. The foregoing waiver is a material inducement to Lessor making,
executing and delivering this Lease and Lessee's waiver of its right to counterclaim in any
summary proceeding or other action based on termination or holdover is done so knowingly,
intelligently and voluntarily.
Section 21.13 Waiver of Jury Trial
Lessor and Lessee hereby waive trial by jury in any action, proceeding or counterclaim
brought by either of the Parties hereto against the other on, or in respect of, any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of Lessor and Lessee
hereunder, Lessee's use or occupancy of the Lease Area and/or any claim of injury or damage.
Section 21.14 Quiet Enjoyment
Subject to the terms of this Lease, upon the observance by the Lessee hereunder of all the
terms, provisions, covenants and conditions unposed upon the Lessee, the Lessor covenants to the
Lessee that the Lessee shall peaceably and quietly hold, occupy and enjoy the Lease Area for the
Lease Term without any interruption, disturbance or hindrance by the Lessor, its successors and
assigns, or by persons claiming by, through or under the Lessor for the Lease Area leased herein,
or by persons with title superior to the Lessor, its successors and assigns.
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Section 21.15 Surrender of Possession
Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof,
the Lessee shall deliver to the Lessor possession of the Lease Area in good repair and condition,
reasonable wear and tear excepted.
Section 21.16 Joint and Several Liability
If two or more individuals, corporations, partnerships or other business associations (or
any combination of twc or more thereof) shall sign this Lease as Lessee, or by virtue of a Transfer
assume the rights and obligations of the Lessee hereunder, the liability of each such individuals,
corporations, partnerships or other business associations (or any combination of two or more
thereof) to pay Rent and perform all other obligations hereunder shall be deemed to be joint and
several, and all notices, payments and agreements given or made by, with or to any one of such
individuals, corporations, partnerships or other business associations (or any combination of two
or more thereof) shall be deemed to have been given or made by, with or all of them.
Section 21.17 Third Party Beneficiary
Nothing contained in this Lease shall be construed so as to confer upon any other party the
rights of third party beneficiary.
Section 21.18 Radon
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels
of Radon that exceed Federal and State guidelines have been found in buildings in Florida.
Additional information regarding Radon and Radon testing may be obtained from your county
public health unit.
Section 21.19 No Liability for Act of other Party
Lessee shall not sign any contract, application for any license or permit or do anything that
may result in liability to the Lessor for any indebtedness or obligation of Lessee, unless expressly
provided herein or approved in writing by the Lessor. Except as expressly authorized in writing,
neither Lessor nor Lessee shall make any express or implied agreement, warranties, guarantees or
representations or incur any debt, or represent that their relationship is other than Lessor and
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Lessee, unless otherwise agreed to herein for the management and operation of the Lease Area and
neither Lessor nor Lessee shall be obligated by or have any liability under any agreements or
representations made by the other that are not expressly authorized as aforesaid. Lessor reserves
the right, at its sole option, to refuse an agreement for any Federal, State or local grants and loans
when the acceptance of same by either Lessor or Lessee may impose a hardship upon Lessor or
include obligations which extend beyond the Lease Term.
Section 21.20 Rights, Privileges and Immunities; Covenants
The Lessee shall have, and the Lessor shall fully cooperate in providing to the Lessee, for
its use and enjoyment, all rights, privileges and immunities as shall from time to time be granted or
afforded by Federal, State or local law to restaurant operators or proprietors.
Section 21.21 Consents.
Wherever in this Lease the consent of one party is required for an act of the other party,
unless otherwise specified, such consent shall not be unreasonably withheld, delayed or conditioned.
The Parties agree that each of the terms, covenants and conditions hereof agreed to be
observed or performed by each party shall constitute concurrent conditions of exchange.
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease, or have caused the same
to be executed, as of the date and year first above written.
THIS SPACE LEFT INTENTIONALLY BLANK
ATTEST:
By:
Todd B. Hannon
City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
LESSOR:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Daniel J. Alfonso
City Manager
APPROVED AS TO LEGAL FORM
AND
CORRECTNESS:
By: By:
Ann -Marie Sharpe, Director Victoria Mendez
Risk Management Department City Attorney
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LESSEE:
By: GLASS HOUSE COCONUT GROVE,
LLC
Francesco Balli
1Manager
ATTESTED BY:
By: CORPORATE SEAL
Name
Title
Company Name
By:
Name
Title
Company Name
1 Submit to the Public Facilities Director Glass House Coconut Grove LLC Resolution authorizing Mr. Balli to bind
the LLC prior to Execution of this lease.
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EXHIBIT "Al"
LEGAL DESCRIPTION
A PORTION OF TRACT A, COCONUT GROVE BAYFRONT PARK SECTION ONE, AS
RECORDED IN PLAT BOOK 82 AT PAGE 85, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA, LYING IN SECTION 21, TOWNSHIP 54 SOUTH,
RANGE 41 EAST, CITY OF MIAMI, MIAMI-DADE COUNTY, FLORIDA.
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EXHIBIT "A2"
LEASE AREA
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EXHIBIT "A2"
LEASE AREA
1,680 SF LEASE AREA (INDOOR)
600 SF. LEASE AREA (OUTDOOR)
2,320 SF. PATIO AREA (COVERED)
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EXHIBIT "B"
SCHEDULE OF LEASEHOLD IMPROVEMENTS
[TO BE INSERTED PRIOR TO EXECUTION]
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EXHIBIT "C"
GROSS REVENUE REPORT
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EXHIBIT "C"
GROSS REVENUE REPORT
LESSEE
GLASSHOUSE COCONUT GROVE, LLC
Percentage Rent Period
Base Rent Pald
Annual Breakpoint
$1,333,333,33
Percentage Rent
7.50%
Gross Revenue Source
Gross Revenue Amount
Total Annual Gross Revenue
Itemization of Exclusions or Deductions
ExcluslonslDeductions
Amount
Total Exclusions/Deductions
Effective Gross Revenue
Annual Percentage Rent
State Use Tax
Total Annual Percentage Rent
TOTAL RENT DUE (Pennentage Rent less Base
Rent Pala)
0 Supplement Page Attached
I hereby certify to the accuracy of this report, and acknowledge that ( 1 has paid all
applicable Florida State sales and use taxes which are due and payable, whether directly or Indirectly, under FL.
Statute 212 to the State of Florida Department of Revenue***. The City of Miami can rely on the above monthly
report to be true and accurate as submitted.
SIGNATURE DATE
REMARKS
The Percentage Rent, if any, shall be payable within sixty (60) days after the end of each Lease Year. Lessee shall deliver
to the Lessor a statement setting forth the Gross Revenues during the applicable Percentage Rent Period (the "Annual
Percentage Rent Statement"), and Lessee shall pay to the City the amount of Percentage Rent due and payable, if any, to
the Lessor pursuant to the terms of the Lease. Each Annual Percentage Rent Statement shall be signed and certified to
be complete and correct by art officer of Lessee. Such statement (Gross Revenue Report) shall show the annual Gross
Revenues and an itemization of any exclusions or deductions for the current Lease Year.
Make check payable to the City of Miami and return this report together with the proper remittance to:
CITY OF MIAMI
DEPARTMENT OF FINANCE
ATTENTION: TREASURY MANAGEMENT/RECEIPTS
444 SW 2ND AVENUE, 6TH FLOOR
MIAMI, FL 33130
*Gross Revenue Report subject to change and revision.
Rev. 11Po6/14
EXHIBIT "D"
POSSESSION DATE CERTIFICATE
This Possession Date Certificate is entered into by Lessor and Lessee pursuant to Section 5.2 of the
Lease (as hereinafter defined). Capitalized terms not defined herein shall have the meanings
provided in the Lease.
1) Definitions. In this certificate the following terms have the meanings given below:
Lessor: City of Miami
Lessee:
Lease: Lease dated as of between City and Lessee.
Subject Property: As legally described and identified in Exhibit attached to the Lease.
2) Confirmation of Possession Date: Lessor and Lessee confirm that the Possession Date of
the Lease is and the expiration date of the Initial Term is
3) Acceptance of the Subject Property: Lessee accepted the Subject Property on
, 20 with the rent and any other fees due under the Lease,
including but not limited to the fees described in Section , commencing on the same date.
Lessor and Lessee have executed this Possession Date Certificate as of the dates set forth
below:
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LESSOR:
CITY OF MIAMI, a municipal corporation
of the State of Florida
ATTEST:
By: By:
Todd B. Hannon Daniel J. Alfonso
City Clerk City Manager
APPROVED AS TO FORM AND
CORRECTNESS:
Victoria Mendez City Attorney
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was acknowledge before me this day of
20, by , who is personally known to me or who has
produced (type of identification) as identification and who did (did not)
take an oath.
Signature of Notary Public
Print Name
Commission No.
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LESSEE:
a Florida corporation
ATTESTED BY:
By: By:
Name Name
Title Title
Company Name Company Name
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was acknowledged before me this day of
20 , by , who is personally known to me or who has
produced (type of identification) as identification and who did (did not)
take an oath.
Signature of Notary Public
Print Name
Commission No.
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WITNESSES:
By:
Name
Title
Company Namip
By:
Name
Title
Company Name
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was acknowledged before me this day of
20 by , who is personally known to me or who has
produced (type of identification) as identification and who did (did not)
take an oath.
Signature of Notary Public
Print Name
Commission No.
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EXHIBIT "E"
PAYMENT AND PERFORMANCE BOND
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00710. FORM OF PERFORMANCE BOND (Page 1 of 3)
BY THIS BOND, We
hereinafter called CONTRACTOR, and
, as Principal,
, as Surety, are
bound to the City of Miami, Florida, as Obligee, hereinafter called CITY, in the amount of
Dollars ($ ) for the payment whereof
CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors
and assigns, jointly and severally.
WHEREAS, CONTRACTOR has by written agreement entered into a Contract,
Bid/Contract No.: , awarded the day of , 20 ,
with CITY which Contract Documents are by reference incorporated herein and made a part
hereof, and specifically include provision for liquidated damages, and other damages identified,
and for the purposes of this Bond are hereafter referred to as the "Contract";
THE CONDITION OF THIS BOND is that if CONTRACTOR:
1. Performs the Contract between CONTRACTOR and CITY for construction of
, the Contract being made a
part of this Bond by reference, at the times and in the manner prescribed in the Contract;
and
2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees including
appellate proceedings, that CITY sustains as a result of default by CONTRACTOR under
the Contract; and
3. Performs the guarantee of all work and materials furnished under the Contract for the time
specified in the Contract; then THIS BOND IS VOID, OTHERWISE IT REMAINS IN
FULL FORCE AND EFFECT.
Whenever CONTRACTOR shall be, and declared by CITY to be, in default under the
Contract, CITY having performed CITY obligations thereunder, the Surety may promptly
remedy the default, or shall promptly:
3.1. Complete the Project in accordance with the terms and conditions of the Contract
Documents; or
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00710. FORM OF PERFORMANCE BOND (Page 2 of 3)
3.2. Obtain a. bid or bids for completing the Project in accordance with the terms and
conditions of the Contract Documents, and upon determination by Surety of the
lowest responsible Bidder, or, if CITY elects, upon determination by CITY and
Surety jointly of the lowest responsible Bidder, arrange for a contract between such
Bidder and CITY, and make available as work progresses (even though there
should be a default or a succession of defaults under the Contract or Contracts of
completion arranged under this paragraph) sufficient funds to pay the cost of
completion less the balance of the Contract Price; but not exceeding, including
other costs and damages for which the Surety may be liable hereunder, the amount
set forth in the first paragraph hereof. The term "balance of the Contract Price," as
used in this paragraph, shall mean the total amount payable by CITY to
CONTRACTOR under the Contract and any amendments thereto, less the amount
properly paid by CITY to CONTRACTOR.
No right of action shall accrue on this bond to or for the use of any person or corporation other than
CITY named herein.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the Contract or
the changes does not affect Surety's obligation under this Bond.
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00710. FORM OF PERFORMANCE BOND (Page 3 of 3)
Signed and sealed this day of , 20
WITNESSES:
(Name of Corporation)
Secretary By:
(Signature)
(CORPORATE SEAL)
(Print Name and Title)
IN THE PRESENCE OF: INSURANCE COMPANY:
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By:
Agent and Attorney -in -Fact
Address:
(Street)
(City/State/Zip Code)
Telephone No.:
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00721. CERTIFICATE AS TO CORPORATE PRINCIPAL
I, , certify that I am the Secretary of the
corporation named as Principal in the foregoing Performance and Payment Bond (Performance
Bond and Payment Bond); that , who signed the Bond(s) on behalf
of the Principal, was then of said corporation; that I know his/her signature; and
his/her signature thereto is genuine; and that said Bond(s) was (were) duly signed, sealed and
attested to on behalf of said corporation by authority of its governing body.
Secretary (on behalf of)
Corporation
STATE OF FLORIDA
) SS
COUNTY OF MIAMI-DADE )
(SEAL)
Before me, a Notary Public duly commissioned, qualified and acting personally, appeared
to me well known, who being by me first duly
sworn upon oath says that he/she has been authorized to execute the foregoing Performance and
Payment Bond (Performance Bond and Payment Bond) on behalf of CONTRACTOR named
therein in favor of CITY.
Subscribed and Sworn to before me this day of , 20
My commission expires: Notary Public, State of Florida at Large
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Bonded by
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EXHIBIT "Fl"
INSURANCE REQUIREMENTS
FH2M.
GE Al
I. Commercial General Liability (Primary & Non Contributory)
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Personal and Advertising Injury
Products & Completed Operations
Damage to Rented Premises
Endorsements Required
City of Miami included as an Additional Insured
Premises & Operations Liability
Contingent Liability & Contractual Liability
II. Business Automobile Liability
$ 1,000,000
$ 2,000,000
$ 1,000,000
$ 1,000,000
$ 100,000
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit $ 300,000
Owned Autos/Scheduled Autos
Including Hired, Borrowed or Non -Owned Autos
Endorsements Required
City of Miami included as an Additional Insured
III. Business Personal Property
Causes of Loss: Special Form
Valuation: Replacement Cost
Deductible: $1,000 Maximum
Business Income included
W. Worker's Compensation
Limits of Liability
Statutory -State of Florida
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V. Employer's Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
VI. Liquor Liability
A. Limits of Liability
Each Occurrence
Policy Aggregate
$ 1,000,000
$ 1,000,000
The above policies shall provide the City of Miami with written notice of cancellation or material
change from the insurer 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.
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EXHIBIT "F2"
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -
CONSTRUCTION REQUIREMENTS GLASS HOUSE
I. Commercial General Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
Endorsements Required
City of Miami listed as an Additional Insured
Primary Insurance Clause Endorsement
Contingent and Contractual Liability
Premises/Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
Limits of Liability
$ 1,000,000
$ 2,000,000
$ 1,000,000
$ 1,000,000
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
Endorsements Required
City of Miami listed as an additional insured
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III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
IV. Employer's Liability
B. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
V. Umbrella Policy (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 3,000,000
Aggregate $ 3,000,000
City of Miami listed as an additional insured
VI. Payment and Performance Bond $TBD
City of Miami Listed as Obligee
VII. Owner's & Contractor's Protective Policy
A. Limits of Liability
Each Occurrence
Policy Aggregate
City of Miami listed as named insured
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$ 1,000,000
$ 1,000,000
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VIII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $2,500 All other Perils
5% maximum on Wind
Flood Coverage included
City of Miami listed as an additional insured
A. Limit/Value at Location or Site $ TBD
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 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.
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EXHIBIT G
DUMPS TER AREA
[TO BE INSERTED PRIOR TO EXECUTION]
EXHIBIT H
BATHROOM USAGE RULES
City of Miami
Parks of Recreation Department
Peacock Park Facility (Glass House)
Plan of Action for Restroom Usage
11 /3/14
1. The restrooms at Peacock Park Recreation Center (the Glass House) will be available to
restaurant patrons and the general public during the hours of operation of the restaurant
and any hours in which City -related activities take place within the Peacock Park
Recreation Center.
2. During the hours the City of Miami is operating summer programs, after school
programs, and other children -related programs, the staff designated by the Parks
Department (the "Recreation Staff') will be responsible to monitor the activities within
the restroom area and ensure the adequate safety of the children utilizing the restroom
facilities.
3. The Recreation Staff will have the responsibility for opening and monitoring the entrance
to the restroom facility during any days in which Park -related activities will occur.
4. The Recreation Staff will monitor supplies and be responsible for cleaning the restrooms
and replacing supplies for the period between 7 AM and 11 AM. The City will purchase
all cleaning products and bathroom supplies necessary to clean and supply the bathroom
for such period of time.
5. The Restaurant staff will monitor supplies and be responsible for cleaning the restrooms
and replacing supplies from 11 AM until the close of the Restaurant. The Restaurant will
purchase all cleaning products and bathroom supplies necessary to clean and supply the
bathroom for such period of time.
6. The Recreation staff will monitor use of the restrooms by non -restaurant patrons and, as
required, clean the restrooms if a non -restaurant patron .
7. Recreation Staff will inform the Restaurant when they open and close the exterior doors
for restroom access.
8. At the end of the day, the restrooms will be closed by the Restaurant staff
9. This plan of action will be jointly reviewed from time -to -time by the parties and, as
warranted, amended by the mutual agreement of the parties.
ADDENDUM A
GLASSHOUSE PATIO PERMIT AGREEMENT
GLASS HOUSE PATIO PERMIT AGREEMENT
THIS GLASS HOUSE PATIO PERMIT AGREEMENT ("Permit Agreement") is
made as of the day of November 2014 by and between CITY OF MIAMI, FLORIDA., a
municipal corporation of the State of Florida (the "City") and GLASSHOUSE COCONUT
GROVE, LLC, a Florida limited liability company ("Licensee").
A. City and Licensee have entered into that certain Glass House Lease, dated of even
date herewith (the "Lease"), whereby City leased to Licensee, and Licensee leased from City, the
premises located within the building having an address of 2820 McFarlane Road, Miami, Florida
(the "Premises").
B. The City entered into the Lease with Licensor pursuant to that certain Request for
Proposals # 12-13-067 for the Leasing of a certain portion of city -owned property as a garden -
style cafe located at 2820 McFarlane Road, Miami Florida, issued by the City of Miami on
September 13, 2013 (the "RFP").
C. Addendum IV of the RFP contemplated, among other matters, that Licensee
would be permitted to use up to 4,000 square feet of exterior space, inclusive of the covered side
terraces within the Premises, through a permit agreement with the City in consideration of a use
fee in the amount of $17.50 per square feet.
D. The Licensee desires to use 2,320 square feet of the covered side terraces within
the Premises as identified on Exhibit A (the "Patio Area") and the City has determined this
square footage is currently available subject to the terms of this Agreement and Licensees'
compliance with applicable laws, rules, regulations, permits, and governmental approvals
applicable to the Patio Area.
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City and Licensee agree as follows:
1. Defined Terms. Capitalized terms and other defined items used herein but not
defined herein shall have the meanings ascribed to them in the Lease.
2. Grant. City hereby grants to Licensee the right to use the Patio Area for such
uses as consistent with the uses set forth in Section 2.2 of the Lease (the "License"), and the
RFP, as amended by Addendums, subject to the terms and conditions set forth below.
3. Permit Fee. Licensee shall pay to City a gross annual fee equal to $17.50 per
square foot for the use of the Patio Area, which based on a Patio Area of 2,320 square feet equals
Three Thousand Three Hundred Eighty Three Dollars and 33/100 Cents ($3,383.33) per month,
plus applicable sales tax, use tax or other similar and generally applicable taxes, levies,
impositions, fees and charges, as and when the Licensee makes payment of the Minimum Base
Rent in the manner set forth in Section 4.1 of the Lease (the "Permit Fee"). Licensee
acknowledges that, notwithstanding the payment of the Permit Fee, under the Lease entered
pursuant to the RFP, any Gross Revenues derived by Licensee from the use of the Patio Area
#33023220_v3
shall be included in the calculation for Gross Revenue and, as such, deemed part of the
calculation of the Percentage Rent and Rent Breakpoint.
4. "As -Is" Condition; Alterations.
A. The Patio Area shall be furnished to Licensee in an "as is" condition, and
Licensee waives any warranty of suitability, fitness for a particular purposes , merchantability
and ALL EXPRESS OR IMPLIED WARRANTIES ARE DISCLAIMED in connection
therewith. Licensee shall not make or permit alterations to the Patio Area, except pursuant to the
terms of the Lease.
B. The parties agree that in calculating the amount of square footage that the
Licensee has requested from the City pursuant to this Permit Agreement that (i) neither party has
surveyed the actual amount of square footage within the exterior and interior areas encumbered
by the Lease and this Permit Agreement, and (ii) the Licensee has calculated that, when
combined with the square footage of the interior space subject to the Lease, the Licensee will
require 2,320 square feet of exterior space under an affixed roof to meet the minimum
requirements of a 4COP SRX liquor license. As such, the Patio Area as described in Exhibit A
will be adjusted by the parties (i) if a survey determines that Exhibit A depicts that the Permit
Area contains more than or less than 2,320 square feet under the covered terraces or (ii) if the
Licensee requires more than 2,320 square feet of exterior space under an affixed roof to meet the
requirements of a 4COP SRX liquor license. Thereupon, the parties shall replace Exhibit A with
either (i) a revised Exhibit A depicting the Permit Area with 2,320 square feet within the covered
terraces of the Premises as determined by survey or (ii) such amount of exterior space under an
affixed roof as necessary to meet the requirements of a 4 COP SRX liquor license, but, under no
circumstances, more than an aggregate of 4,000 square feet of exterior space. Any costs incident
to such survey will be borne by the Licensee.
5. Non -Exclusive Use of Patio Area. As set forth in the RFP, the Licensee may
include tables for use by the Licensee's customers and patrons; however, the Licensee
acknowledges that the use by the Licensee of the Patio Area shall not be exclusive.
Notwithstanding the foregoing, the Licensee shall be permitted to install fixtures, conduits, and
piping within the Patio Area consistent with the improvements contemplated by the Plans (as
such term is defined in the Lease).
6. Insurance. The insurance policies obtained by Licensee pursuant to the Lease
shall specifically include within its coverage limits the property consisting of the Patio Area.
7. Default and Remedies. Upon default by Licensee of any obligation under this
Permit Agreement, or upon the occurrence of default under the Lease, City may elect, in addition
to all other remedies available to it at law or in equity, to terminate all of Licensee's rights with
respect to the Patio Area and this Permit Agreement, effective immediately upon written notice
from City to Licensee of such election, and to seek damages and costs incurred by City related to
such default, without terminating or otherwise affecting the Lease as it pertains to the Premises.
8. Incorporation of Lease Terms. Except to the extent expressly inconsistent with
this Permit Agreement, all rights and obligations of the parties hereto with respect to the
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Premises under the Lease shall apply to the Patio Area, as of the beginning of the term of this
Permit Agreement. In addition to the foregoing, the parties hereby agree to incorporate by
reference, as if fully set forth herein, the following provisions of the Lease: (i) Additional
Consideration/Ownership of Improvements (Section 5.5 of the Lease), (ii) Compliance with
Laws (Section 11.1 of the Lease), (iii) Equal Employment Opportunities (Section 20.1 of the
Lease), (iv) Notices (Section 21.4 of the Lease), (v) Non -Discrimination (Section 21.10 of the
Lease), and (vi) Surrender of the Premise (Section 21.15 of the Lease). For purposes of such
incorporation, references to the Lessor in the Lease shall constitute references to the City,
references to the Lessee in the Lease shall constitute references to the Licensee, and references to
the Premises or the Lease Area in the Lease shall constitute references to the Patio Area. For
avoidance of doubt, (x) this Permit Agreement shall only be assignable by Licensee in
conjunction with an Assignment or Transfer of the Lease and, if applicable, the approval of the
Assignment or Transfer of the Lease by the City shall constitute the approval of the assignment
or transfer of this Permit Agreement by the City and (y) the repair and maintenance obligations
of the respective parties as set forth in Article VII and Article XIII of the Lease shall apply to the
Patio Area.
9. Miscellaneous. Licensee hereby acknowledges that in no event shall City be
responsible or liable to Licensee for any damage , destruction, to or loss of property placed or
otherwise placed in the Patio Area or for personal injury or wrongful death or any invitee, guest
or patron of Licensee, except as related to the negligence or willful misconduct of the City (or
any other person acting on behalf of the City as its contractor, employee, agent or representative)
and as related to such maintenance and repair obligations of the respective parties set forth in
Article VII and Article XIII of the Lease. Florida law shall govern this Permit Agreement.
Venue shall be in Miami —Dade County, Florida. The parties shall bear their own respective
attorney's fees. To the extent allowed by law, the parties hereby voluntarily and freely waive
their rights to demand a jury trial or to file a permissive counterclaim in any civil action between
them arising by virtue of this License. This instrument and its attachments constitute the sole
and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations
of each to the other as of its date. Any prior agreements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force or effect.
Notwithstanding any other provision in this Permit Agreement to the contrary, except as related
to a default by the Licensee, the City agrees not to take any action in the exercise of its
proprietary functions, including but not limited to, reducing the size or limiting access to the
Permit Area, which actions will cause the Licensee to become ineligible to maintain a 4 COP
SRX liquor license. The City shall have the right to revoke this Permit Agreement at its
discretion.
10. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. Licensee may, have an appropriately licensed
person test the Area for radon. If the radon level exceeds acceptable EPA standards, the City
may choose to reduce the radon level to an acceptable EPA level, failing which either party may
cancel this Agreement.
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IN WITNESS WHEREOF, City and Lessee have executed this Permit Agreement, or
have caused the same to be executed, as of the date and year first above written.
LESSOR:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Daniel J. Alfonso
City Manager
ATTEST:
By:
Todd B. Hannon
City Clerk
APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM
REQUIREMENTS: AND CORRECTNESS:
By: By:
Ann -Marie Sharpe, Director
Risk Management Department
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Victoria Mendez
City Attorney
LICENSEE :
By: GLASSHOUSE COCONUT
GROVE, LLC, a Florida limited
liability company
Francesco Balli
Manager
ATTESTED BY:
By: CORPORATE SEAL
Name
Title
Company Name
By:
Name
Title
Company Name
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EXHIBIT "A"
PATIO AREA
2,320 SF. PATIO AREA (COVERED)
1,680 SF LEASE AREA (INDOOR)
600 SF. LEASE AREA (OUTDOOR)