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HomeMy WebLinkAboutExhibit SUBDraft LLease Agreement SUS-LsC \LAe C: i N ,.L` C an C.. (-I --L( 1 v LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND RIVERSIDE WHARF, LLC FOR THE LEASE OF CITY -OWNED PROPERTY LOCATED AT 236 AND 298 SW NORTH RIVER DRIVE MIAMI, FL 33130 Draft Lease Agreement RECITALS ARTICLE I Section 1.1 Section 1.2 Section 1.3 Section 1.4 ARTICLE II Section 2.1 Section 2.2 Section 2.3 Section 2.4 Section 2.5 ARTICLE III Section 3.1 Section 3.2 ARTICLE IV Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 Section 4.6 Section 4.7 ARTICLE V Section 5.1 Section 5.2 Section 5.3 Section 5.4 Section 5.5 Section 5.6 Section 5.7 ARTICLE VI Section 6.1 Section 6.2 ARTICLE VII Section 7.1 Section 7.2 Section 7,3 TABLE OF CONTENTS INCORPORATION, EXHIBITS, & DEFINITIONS Incorporation by Reference Exhibits Definitions Priority of Documents LEASE OF PREMISES Lease of Premises Purpose of Use and Occupancy Suitability of Premises Limited Representations by Lessor Satisfaction of Liens TERM Term of Lease Option to Renew RENT, SECURITY DEPOSIT, & FINANCIAL RECORDS Base Rent and Percentage Rent Security Deposit Lessee's Financial Records Reports by Lessee Right to Examine Financial Records Audit Lien for Rent & Other Charges LEASEHOLD IMPROVEMENTS Lessee's Obligation to Provide and Fund Leasehold Improvements Possession Date Payment and Performance Bond Contractor's Insurance Conveyance of Improvements Premises to Remain Free of Liens Lessor Approval CONDUCT OF BUSINESS BY LESSEE Operation of Lessee's Business Signs MAINTENANCE, REPAIR & ALTERATION OF PREMISES Lessee's Maintenance Obligations Lessee's Repair Obligation Changes/Alterations 2 Draft Lease Agreement Section 7.4 ARTICLE VIII Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 ARTICLE IX Section 9.1 Section 9.2 ARTICLE X Section 10.1 Section 10.2 Section 10.3 Section 10.4 Section 10.5 Section 10.6 Section 10.7 Section 10.8 Section 10.9 Section 10.10 Section 10.11 Section 10.12 Section 10.13 ARTICLE XI Section 11.1 ARTICLE XII Section 12.1 Section 12.2 Section 12.3 ARTICLE XIII Section 13.1 Section 13.2 Section 13.3 Section 13.4 Section 13.5 Section 13.6 Section 13.7 Capital Expenditure Fund INSURANCE AND INDEMNITY Insurance on the Premises Delivery of Insurance Policies Adjustment of Loss Indemnification of Lessor Waiver of Subrogation Release of Lessor SERVICES AND UTILITIES Lessee to Provide and Pay for Utilities Lessor Not Liable for Failure of Utilities SUBLEASES, ASSIGNMENTS AND TRANSFERS Subleases, Assignments and Transfers Procedure for Transfer Additional Consideration Payable to Lessor Definitions Acceptable Transfers Notice of Transfer Information as to Shareholders, etc. 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 Leasehold Interest COMPLIANCE WITH LAWS Compliance With Laws ENVIRONMENTAL LIABILITY Definition of Terms Lessee's Environmental Covenant Survival of Lessee's and Lessor's Obligations DAMAGE OR DESTRUCTION OF PREMISES Definitions Duty to Repair, Restore or Replace the Premises after Damage Performance of Restoration Work No Additional Right to Terminate Lessee's Right to Terminate Payment for Construction of Restoration Work Collection of Insurance Proceeds 3 Draft Lease Agreement Section 13.8 ARTICLE XIV Section 14.1 Section 14.2 Section 14.3 Section 14.4 Section 14,5 ARTICLE XV 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 Section 16.7 ARTICLE XVII Section 17.1 ARTICLE XVIH Section 18.1 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 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 Payment of Taxes and Impositions Installment Payments of Ad Valorem Taxes and Impositions Payment in Lieu of Taxes Proof of Payment State -Owned Sovereignty Submerged Lands DEFAULT OF LESSEE Lessee Default Remedies of Lessor No Waiver by Lessor Late Payment Fee Additional Guarantees Remedies Cumulative Lessor Default ACCESS BY LESSOR Right of Entry DAMAGE TO LESSEE'S PROPERTY Loss and Damage HOLDING OVER & SUCCESSORS. Holding Over Successors EQUAL EMPLOYMENT OPPORTUNITIES Equal Employment Opportunities Community Small Business Enterprise Non -Discrimination MISCELLANEOUS Accord and Satisfaction Public Records Entire Agreement Independent Parties 4 Daft Lease Agreement Section 21.5 Notices Section 21.6 Captions and Section Numbers Section 21.7 Partial Invalidity Section 21.8 Estoppel Certificate Section 21.9 Waiver Section 21.10 Time is of the Essence Section 21.11 No Discrimination Section 21.12 Governing Law, Venue, & Attorney's Fees Section 21.13 Waiver of Counterclaims Section 21.14 Waiver of Jury Trial Section 21.15 Quiet Enjoyment Section 21,16 Surrender of Possession Section 21.17 Joint and Several Liability Section 21.18 Third Party Beneficiary Section 21.19 Radon Section 21.20 No Liability for Act of other Party Section 21.21 Rights, Privileges and Immunities; Covenants Section 21.22 Consents 5 Draft Lease Agreement LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease"), made this day of , 2016, by and between the CITY OF MIAMI , a municipal corporation of the State of Florida having its offices at 3500 Pan American Drive, Miami, Florida 33133 ("Lessor" or "City") and Riverside Wharf, LLC, a Limited Liability Company, having its offices at 2950 Northwest 7tb Avenue, Miami, Florida 33127, ("Lessee"). The Lessor and Lessee, (together the "Parties") hereby recite: RECITALS Whereas, the City is the owner in fee simple of certain land located in the City of Miami, Miami -Dade County, Florida referred to herein as the "Premises," as specifically set forth in Exhibit A. Whereas, in response to the North River Property Request for Proposals # 14-15-024 ("RFP"), Lessee submitted to Lessor a proposal, which was approved by the City Commission on by Resolution No. Whereas, this Lease was negotiated pursuant to the authority expressly conferred by the City of Miami Charter, general law, and the City Commission Resolution No. , which authorized the execution of this Lease. Whereas, this Lease was approved by referendum on March 15, 2016 by a majority of City of Miami voters as required by City of Miami Charter Section 3(f)(iii). Whereas, it is the mutual desire of the Parties that the Property be leased and demised by Lessor to Lessee for the purposes set forth in this Lease, subject to and upon the express terms and conditions contained herein. The Parties believe that this Lease is consistent in all material respects with the RFP. Now therefore, in consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the Parties do hereby covenant and agree as follows: ARTICLE I INCORPORATION, EXHIBITS, & 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 herein in subsection 1.3. id Incorporation by Reference Draft Lease Agreement The foregoing Recitals are hereby incorporated into this Lease by this reference as if set out in full in the body of this Lease. 1.2 Exhibits Attached hereto and forming a part of this Lease are the following Exhibits: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H 1.3 Definitions Survey/Legal Description of Premises Annual Percentage Rent Statement Annual Gross Revenue Report Monthly Gross Revenue Report Lessee's Leasehold Improvements Payment & Performance Bond Contractor Insurance Requirements Leasehold Insurance Requirements 1.3.1 "Acceptable Operator" means an entity possessing (A) a minimum of five (5) years of experience (i) directly managing and operating a similar establishments during the last fifteen (15) years; or (ii) directly involved in the ownership and day to day operation of a similar 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 the City of Miami Department of Real Estate and Asset Management RFP # 14-15-024; 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 Premises, including (without limitation) the obligation of payment of Rent payable by Lessee under this Lease. 1.3.2 "Additional Rent" means any and all additional sums, charges, or amounts of whatever nature to be paid by Lessee in accordance with the terms of this Lease, whether or not such sums, charges or amounts are referred to as Additional Rent. 1.3.3 "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. 1.3.4 "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 Premises and the rent and other obligations associated with the Lease, thereby assuming the prior tenant's rights and obligations. 7 Draft Lease Agreement 1.3.5 "Assignee" refers to the third -party entity assuming the rights and obligations of the Lessee or assignor or owner of the leasehold estate. 1.3.6 "Assignor" refers to the Lessee that is assigning its rights and obligations under this Lease to a third -party entity. Unless released from liability from the City pursuant to Section 10.10 of this Lease, which decision shall be conditioned on the payment of the consideration at the time of Assignment set forth in Section 10.3 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. 1.3.7 "Average Repair Costs" shall mean the average of the previous five (5) years' "repair and maintenance" line -item costs, inclusive of any capital items, Average Repair Costs shall be calculated in order to determine the annual amount due to the CapEx Fund, as specified in section 7.4 below. 1.3.8 "Base Rent" shall mean the annual Base Rent due and payable by 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. 1.3.9 `Business Days" means Monday through Friday, excluding legal holidays in the City of Miami, Florida. 1.3.10 "City Manager" shall mean the Chief Administrative Officer of the City. In day to day matters all decisions attributed to the City in this Lease may be made by the City manager, or his authorized designee, unless otherwise specified. 1.3.11 "City Commission" shall mean the local legislative body of the Executive Mayor City Commission. Notwithstanding Section 1.3.9 above the City Commission will be required to approve the Lease and any amendments to the Lease 1.3.12 "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 any 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 any applicable law. 1.3.13 "Fair Market Value" has the meaning set forth in Section 4.1.6 of this Lease and secondarily as supplemented by the applicable terms of the RFP. For purposes of this Lease, "Fair Market Value" will have the same meaning as "Fair Market Rent." 1.3.14 "Force Majeure" means an event beyond human control, including but not limited to acts of national security, national emergency acts of God, war, act or threats of terrorism, Government regulation, strikes (other than strikes of Licensee's employees), fire or other natural calamity, disorder, civil disobedience, curtailment of transportation facilities or service, or any occurrence which makes it inadvisable, illegal, or impossible for Licensee to perform its obligations under this License. Force Majeure shall not include events caused, directly or indirectly, by Lessee or individuals or entities under Lessee's control.. Draft Lease Agreement 1.3.15 "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. 1.3.16 "Gross Insurance Proceeds" means the actual amount of insurance proceeds paid following an insured casualty to the Leasehold Improvements. 1.3.17 "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 or transferees and derived from the following sales sources, including without limitation: a. all revenue from the commercial business and services conducted by Lessee and its Sub -lessees and/or assignees on or from the Premises; b. all revenues from sales of food, beverage, wine, beer, merchandise or services from the Premises; c. all revenue derived from advertising and sponsorships conducted on the Premises, including, but not limited to, movies, television commercials, etc.; d. all amounts received from any catering food operations based at the Premises; e. all amounts received by Lessee from valet concession sales, parking valet services or similarly authorized and permitted concessions on the Premises 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 18-99 through 18-102 of the City Code, which is deemed incorporated by reference as if fully set forth herein; f. all amounts received by Lessee from sales made or performed by means of mechanical or other vending devices or machines on the Premises, including without limitation, payphones, vending machines, and entertainment devices both for cash and on credit, rendered in or upon the Premises; g. 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 banquets, parties, and receptions held on or initiated from the Premises; h. amounts received by Lessee from 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; i. 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; j. all donations and contributions received, the revenues of which are unrestricted or are to be used for general operating expenses; k. and all other receipts whatsoever derived from commercial operations conducted in or from the Premises by the Lessee and its Sub -lessees (if any). 9 Draft Lease Agreement 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. 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. 1.3.18 "Impossitions" means all assessments, impositions, levies, and governmental charges, including, without limitation, assessments imposed by the City and/or County, franchise fees, fire fees, excises, parking surcharges, license and permit fees, levies, charges and taxes, including ad valorem real estate taxes on the Premises and the Leasehold Improvements, general and special, ordinary and extraordinary properly levied against the Premises and the Leasehold Improvements, any personal property, and/or the Lessee's Leasehold Estate which constitute a lien on the Premises or the Leasehold Improvements. 1.3.19 "Lease" means this Lease as supplemented by the RFP, any addendums thereto, and the Lessee's response to the RFP, all of which are hereby 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. 1.3.20 "Lease Date" means the date that the Lease is fully executed and legally binding upon the Parties after approval by the City of Miami Commission. The Lease Date shall also be the date on which Rent commences to become due and payable as referenced in Article IV. 1.3.21 "Leasehold Estate" means all of Lessee's right and interest as Lessee in, to and under this Lease, the Premises and the Leasehold. Improvements, if applicable. 1.3.22 "Leasehold Improvements" means any initial furnishings or equipment constituting fixtures to be installed on the Premises, and all other items and improvements constituting fixtures to be installed or constructed thereafter, from time to time during the Lease Term that are hereafter located upon the Premises. 1.3.23 "Leasehold Mortgage" means a mortgage, deed of trust, or any security interest given in connection therewith, which together constitute an encumbrance or lien 10 Draft Lease Agreement 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 lien, pledge, hypothecate, or otherwise encumber the fee simple interest of the Lessor. 1.3.24 "Lease Term" means the period of time fixed in Section 3.1 and shall be deemed to include the additional period of time fixed in Section 3.2 if Lessee exercises Lessee's right to renew the Lease. 1.3.25 "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 on the anniversary date of the first Lease Year. 1.3.26 "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. 1.3.27 "Premises" means the space more particularly described in Section 2.1 herein and Exhibit A attached herewith and incorporated herein by reference, and having a collective address of 236 and 298 SW North River Drive, Miami, Florida. 1.3.28 "Proposal" means the document received by Lessor from Lessee in response to the RFP. 1.3.29 "Rent" means the greater of Base Rent or Percentage Rent and any other rents, costs and expenses denominated as Additional Rent. 1.3.30 "RFP" means the document entitled Request for Proposals # 14-15-024, issued by the City on June 15, 2015, and any addendums thereto. 1.3.31 "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. 1.3.32 "Sub -lessee" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Premises or the Leasehold Improvements under a Sublease. 1.4 Priority of Documents The North River Property Request for Proposals # 14-15-024 ("RFP") shall be incorporated hereto by reference. Following the issuance of the RFP, Lessee submitted a Proposal ("Proposal"), which was accepted by the City. The above -referenced documents shall be interpreted to avoid conflicts, where possible. In the event of an express conflict between the above -referenced documents and the terms of this Lease, the following order of priority shall govern: 1.4.1 This executed Lease and its exhibits shall govern over the RFP and the Proposal; 1.4.2 The RFP shall govern over the Proposal; 11 Drafi Lease Agreement 1.4.3 The Proposal will be subordinate to the Lease and the RFP, respectively. ARTICLE II LEASE OF PREMISES 2.1 Lease of Premises The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases from the Lessor the Premises, subject to the following terms and conditions, to have and to hold the said lands, tenements and hereditaments, with all of the rights, privileges and appurtenances, thereunto belonging or pertaining unto Lessee for the Lease Term herein specified, unless this Lease shall be sooner terminated in a manner hereinafter provided. The Premises is described more particularly in Exhibit A attached hereto 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. Notwithstanding any language in this Lease to the contrary, Lessor is the fee simple owner of the Premises, and this Lease shall in no way convey any title or other rights to the Premises to Lessee unless otherwise specified herein; Lessee may not mortgage, pledge, transfer, hypothecate, or otherwise encumber Lessor's fee simple ownership interest in the Premises in any way, or in any way pledge any rights held by the fee simple owner. 2.2 Purpose of Use and Occupancy The Lessee will use and occupy the Premises, subject to compliance with all applicable laws, rules, regulations, permits, licenses, consents, and similar approvals, including the requirements set forth in the RFP, for the development, management and operation of restaurants on the Premises and for other ancillary purposes, without the prior written consent of Lessor, and for no other purpose or use of any kind. Reasonably related special events may be held on the Premises with the City's prior written consent; the request for such special event must be provided a minimum of thirty (30) days prior to the date of the event. Except as otherwise set forth in this Lease, the Lessee will operate the Premises a minimum of 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. 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 with respect to the suitability or fitness of the Premises, for the conduct of Lessee's operations or for any other purpose, except as set forth in this Lease or in the RFP. The execution of this Lease by 12 Draft Lease Agreement Lessee shall •establish that the Lessee accepts the condition of the Premises "AS IS," subject to the representations set forth in Section 2,4 herein, the RFP or elsewhere in this Lease. 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 Premises by the Lessee: a) That Lessor has taken all requisite actions to make this Lease binding upon Lessor, and Lessor has marketable, fee simple title to the Premises, and is the sole owner of and has good right, title and authority to convey and transfer all rights and benefits which are the subject matter of this Lease, free and clear of all known liens and encumbrances, 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 Term 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. b) That no party, other than Lessee, shall on the Lease Date be in or have any right to possession of the Premises. c) 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. 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. ARTICLE III TERM 3.1 Term of Lease The initial Lease Term is for a period of thirty (30) 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. 3.2 Option to Renew The Lessee has the option of extending this Lease for two (2) additional terms of ten (10) 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 13 Draft Lease Agreement one 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 Term or the Second Renewal Term, as applicable, in the manner provided for herein, which notice shall state that such notice constitutes final notice to Lessee of its option to exercise the First Renewal Term or the Second Renewal Term, as applicable. The First Renewal Term and the Second Renewal Term will be on the same terms and conditions as the Lease Term, except that the Base Rent will be adjusted as set forth in Section 4.1.2 below. The total term of the Lease, inclusive of the First and Second Renewal Term, is fifty (50) years. No additional renewals will be available. ARTICLE IV RENT, SECURITY DEPOSIT, & FINANCIAL RECORDS 4.1 Base Rent or Percentage Rent Commencing on the Lease 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 Base Rent. If the first payment of 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. The Lessee hereby agrees to pay the Lessor the greater of a) the Base Rent defined in Section 4.1.1 below, or b) Percentage Rent as defined in Section 4.1.4 on an annual basis as set forth in this Article. In the event that Lessee fails to provide payment of Rent in the time required by the terms of this section, shall be subject to a Late Fee in addition to payment then due, as more particularly described in Section 16.4 below. 4.1.1 Base Rent. The Base Rent shall be One Hundred and Ninety -Five Thousand Five Hundred Dollars and 00/100 Cents ($195,500.00) per year. The 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 Base Rent Increase Lessee agrees that the Base Rent shall be increased annually by an amount equal to the greater of: an increase by three percent (3%) of the previous year's Base Rent, or an increase based on the amount indicated by the Consumer Price Index as of three (3) months prior to the beginning of the applicable adjustment date. In no event shall any such annual adjustment to the Base Rent result in an increase that is less than three percent (3%), or more than Five Percent (5%) of the Base Rent in the year amount immediately prior to the effective date of such adjustment. 4.1.3 Sales Tax The Lessee shall be liable for the prevailing State of Florida Sales, Use or similar tax imposed on the amount of Rent paid to Lessor under this Lease, in the absence of an exemption or other reduction by the State of Florida. This Sales and Use Tax shall be payable to the Lessor when Rent is due, and in turn, Lessor will remit the same, less any authorized handling deductions, if any, to the State. 14 Draft Lease Agreement 4.1.4 Pcrcentne Rent Percentage Rent shall be equal to a percentage of Lessee's annual Gross Revenues made from or upon the Premises for that same time period. Percentage Rent shall be computed on an annual basis ("Percentage Rent Period") beginning with the Lease Date and continuing throughout the Term. The Percentage Rent shall be equal to fifteen percent (15%) of the combined Gross Revenues of the Lessee for any preceding Lease Year. PERCENTAGE RENT SHALL BE SUBJECT TO NEITHER NATURAL NOR ARTIFICIAL BREAKPOINT. 4.1.5 Manner of Payment The Percentage Rent 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 ("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 provide the Annual Percentage Rent Statement with an Annual Gross Revenue Report in substantially the same form as attached hereto as Exhibit B and Exhibit C. Lessee shall (i) pay the Lessor (x) the monthly Base Rent and (y) the Percentage Rent, and (ii) deliver the corresponding Annual Percentage Rent Statement and Gross Revenue Report for the preceding Lease Year to the City of Miami, Department of Real Estate and Asset Management at the address noted below: City of Miami Department of Real Estate and Asset Management Attention: Lease Manager 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 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 performed by two (2) State -certified general appraisers hired by the Lessor. 4.2 Security Deposit Simultaneously upon the execution of this Lease by Lessee, the Lessee shall pay to the Lessor a security deposit equal to one hundred percent (100%) of the Base Rent specified in section 4.1.1 above (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 a portion of the Security Deposit was previously deposited by the Lessee with the Lessor as part of initial earnest money deposit 15 Draft Lease Agreement pursuant to the terms of the RFP. The Security Deposit shall be in the form 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, at Lessor's sole discretion, 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. In no way shall the security deposit serve as liquidated damages for any event of default; rather, Lessor may apply the security deposit amount to damages sustained by Lessee's default and continue to request any additional amount owed. Further, at any time or times when Lessor has made any such application of all or any part of the Security Deposit, Lessor shall have the right (but not the obligation) at any time thereafter to request in writing that Lessee pay to Lessor a sum or sums equal to the amounts so applied by Lessor so that Lessor will always be in possession of a sum equal to 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. The Security Deposit shall be retained by the Lessor throughout the entire term of this Lease and, if not utilized by Lessor, will be returned less interest, and less allowable deductions, credits or setoffs by Lessor, within thirty (30) days following the surrender of the Leased Area at the termination of this Lease, inclusive of any validly exercised option period, as applicable. 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 bank in which such deposits are made shall be based in the United States or shall have a large local presence. The said deposits of Gross Revenues will not be comingled 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 comply 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. 16 Draft Lease Agreement The financial records and source documents to be kept by Lessee shall include, but shall not be limited to true copies of: (1) records of inventories and receipts of merchandise; (2) profit and loss statements; (3) variance reports; (4) arrearage reports;. (5) balance sheets; (6) financial journals and sales summary records; (7) general ledgers; daily dated cash register tapes; (8) daily dated cash register summary tapes ("z" tapes); (9) prenumbered sales slips, including those for mail or telephone orders; daily sales and/or point of sale (pos) reports; (10) financial statements; (11) bank statements; (12) records of daily bank deposits from transactions at or from the premises; (13) duplicate validated bank deposit slips; (14) purchase invoices; (15) inventory and receiving records; (16) pricing schedules or other materials showing price markups; (17) federal, state, and local income tax returns; (18) state and local sales tax reports; (19) settlement statements of transactions with subtenants, concessionaires, and licensees; and any and all records that may be examined or required by an independent accountant in performing an audit of Lessee's Gross Sales or which may be requested by Lessor. If Lessee subleases the property or provides a license to a third party in accordance with Article X herein, and Lessee's operations require its sub -lessees (or licensees) to pay a security deposit and/or advance rent, Lessee shall deposit such security deposit/advance rent monies into a separate bank account and shall not commingle these monies with any other bank account used in its operations as described herein. 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 on the Premises, 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. 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 Gross Revenue Report"), The Monthly Report shall be signed and certified to be complete and correct by an officer of Lessee. Lessee shall use a Monthly Gross Revenue Report, a sample of which i.s attached herewith and incorporated herein as Exhibit D to itemize any and all reportable Gross Revenues, or any similar form acceptable to Lessor. Within sixty (60) days after the end of each Lease Year, Lessee shall also furnish to Lessor the Annual Percentage Rent Statement and Annual Gross Revenue Report specified in section 4.1.5 above, showing in reasonable detail the amount of such Gross Revenues made by Lessee from the Premises during the preceding Lease Year. Any intentional misstatement of Gross Revenues will constitute a default under this Lease. 17 DraftLease Agreement 4.5 Right to Examine Financial Records Lessor shall have the right to examine, make extracts from, and copy Lessee's financial records, source documents, bank statements, state sales and use tax returns/reports, and federal income tax returns filed by Lessee, and pertaining to the financial operations on the subject property. Lessee shall make all such documents and records available for a period of seven (7) years after the expiration of each Lease Year. Lessee shall furnish such information at the Premises or Lessee's main accounting office upon not Tess than thirty (30) days prior written notice from Lessor. 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 Premises 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, variance reports, general ledgers, management reports, arrearage reports, check registers, 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 toward the next payment of Rent due. In addition to the foregoing, and in addition to all other remedies available to Lessor, in the event Lessee's auditor and Lessor's auditor shall schedule a date for an audit of Lessee's records, 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 shall be paid by Lessee. In addition to Lessor's available remedies, in the event an audit or other reliable information reveals that Lessee's records are unavailable due to Lessee's failure to reasonably maintain such records, Lessor shall be entitled to collect as Additional Rent from Lessee an amount equal to the lesser of (i) 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 terms, covenants and conditions of this Lease (including, without limitation, Lessee's obligation with 18 Draft Lease Agreement respect to reporting Gross Revenues and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. 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 Premises as provided. 4.7 Lien for Rent & Other Charges 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 not 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 Improvements, and upon the Lessee's leasehold estate, ARTICLE V LEASEHOLD IMPROVEMENTS 5.1 Lessee's Obligation to Provide and Fund Leasehold Improvements Should Lessee construct and install improvements to the Premises, Lessee shall, with no less than thirty (30) days prior written notice and at Lessee's sole cost and expense, 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 any work or equipment to be done or installed by Lessee affecting any structural, mechanical or electrical part of the Premises ("Plans"). Within thirty (30) days of receipt of the Plans, the Lessor shall give Lessee written notice of either Lessor's approval or disapproval setting forth the reasons therefore. In the event that Lessor disapproves the Plans, 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, if applicable. The modified Plans shall be resubmitted to Lessor for Lessor's final review and approval. 5.2 Possession Date Lessor shall deliver possession of the Premises to Lessee and Lessee shall take possession thereof on the Lease Date, as defined in Section 1.3 above. By the Lease Date, the 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. 5.3 Payment and Performance Bond 19 Draft Lease Agreement 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, Florida 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, 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; ii. Pay Lessor all losses, damages, expenses, costs, and attorney's fees, including appellate proceedings, that Lessor sustains because of a default by Lessee under this Lease pursuant to claims made under Section 255.05, Florida Statutes; and 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 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 F, 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 withheld. 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 G attached hereto. Copies of such certificates shall be furnished to the City of Miami Risk Manager, 444 SW 2nd Avenue 9111 Floor, Miami, FL 33130, The City will be named as an additional insured on such policies. 5.5 Conveyance of Improvements 20 Draft Lease Agreement The Lessee hereby, in consideration of the granting of this Lease shall upon termination or expiration of this Lease, convey unto 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. 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 Premises by the Lessee during the Lease Term, including all furnishings, and equipment at actual cost less depreciation as determined by an appraisal, provided that the Lessor by written notice to the Lessee at least forty five (45) days prior to the expiration or termination of the Lease Term. 5.6 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 or encumbrances shall at any time be filed against the Premises, the Lessee shall, upon acquiring knowledge of such lien or encumbrance, 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. If Lessee fails to discharge the lien, 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. 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 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 6.1 Operation of Lessee's Business At all times during the Lease Term, Lessee shall manage the Premises with due diligence and efficiency, in Lessee's sole discretion, subject to the limitations set forth in this Lease, and in 21 Draft Lease Agreement 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 carry at all times in the Premises a stock of merchandise of such quantity, character and quality as shall be in accord with comparable businesses within the locale of the Premises. 6.2 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 City 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. ARTICLE VII MAINTENANCE, REPAIR AND ALTERATION OF PREMISES 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 Premises, including all operating equipment, utility services, and connections within the Premises. 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 Premises, 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 Premises and decorating the interior of the Premises, maintaining its equipment, fixtures, furnishings, and other personal property in good condition and repair. All maintenance shall be at the 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 Premises commensurate with maintenance, health, and safety standards established by the Lessor and Applicable Law, 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 all Leasehold Improvements, including, without limitation, all heating, ventilating and air-conditioning equipment and any other repair or replacement to the Leasehold Improvements, 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) any initial installation or provision of City Improvements or (ii) any repair, maintenance or replacement that includes areas outside of the 22 Draft Lease Agreement Premises, or (iii) any repair, maintenance or replacement, which is the responsibility of Lessor, as provided in Section 7.3 below. 7.3 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. 7.4 Capital Expenditure Fund Commencing in Lease Year ten (10) and extending through Lease Year fifteen (15), Lessee shall set aside an amount equal to twenty percent (20%) per year of Average Repair Costs into a separate reserve account (until 100% of Average Repair Costs is deposited), in order to fund capital expenditures for the Premises ("CapEx Fund"), which is required to be capitalized as an improvement to the Premises. The CapEx Fund may be used beginning in Lease Year eleven (11). The CapEx Fund shall be applied toward major repairs and improvements, including, but not limited to, substantial mechanical and structural purchases, upgrades, improvements, or repairs; the CapEx Fund shall not be applied to minor repairs due to regular wear and tear. The CapEx Fund accrued from Lease Years ten (10) through fifteen (15) must be spent in the manner specified above on or before Lease Year twenty-five (25). Commencing in Lease Year twenty-five (25) and extending through Lease Year thirty (30), the CapEx Fund shall be replenished in an amount equal to ten percent (10%) per year of Average Repair Costs. Commencing in Lease Year forty (40) and extending through Lease Year forty-five (45), the CapEx Fund shall be replenished in an amount equal to ten percent (10%) per year of Average Repair Costs. Any amounts remaining in the CapEx Fund must be spent in the manner specified above on or before the termination of the Lease. Lessee shall maintain financial accounting and "scope of work" records together with any corresponding documentation of amounts placed and amounts used from the CapEx Fund, which shall be subject to review by Lessor, in the manner specified above in sections 4.6 and 4.7 of this Lease. ARTICLE VIII INSURANCE AND INDEMNITY 8.1 Insurance on the Premises 23 Draft Lease Agreement 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 insurance coverage set forth in Exhibit H. 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 as may be applicable in connection with the scope contemplated under this agreement. Lessor further reserves the right to request copies of all applicable policies in connection with this agreement. 8.2 Delivery of Insurance Policies All liability, statutory workers compensation and property policies, if applicable, shall be retained by the Lessee. Except as otherwise specifically provided, all other policies of insurance required to be furnished shall be held by and be payable jointly to the Lessor and the Lessee with the proceeds to be distributed in accordance with the terms of this Lease. Insurance company certificates evidencing the existence of all of these policies of insurance shall be delivered to the Lessor. All policies of insurance required by this Lease 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 beneficiaries of the policies shall contain waiver of subrogation rights endorsements, as required below. The Lessor shall have no obligation to pay premiums, make contributions to the insuring company or any other person, or to 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, or insurance company certificates evidencing all policies of insurance and renewals required to be furnished. Receipt of any documentation of insurance by the Lessor or by any of its representatives that indicates less coverage than required does not constitute a waiver of the Lessee's obligation to fulfill the insurance requirements herein. The Lessor shall appear listed as an additional insured on all applicable liability policies, and loss payee on any property policy. The insurance shall be primary and non-contributory, and should include all corresponding endorsements in connection with the agreement, and as required by the City. 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 24 Draft Lease Agreement 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. 8.4 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 personal injury and/or damage to or destruction of Premises arising from or out of any occurrence in, upon or at the Premises, or arising from the occupancy or use by Lessee of the Premises or any part thereof, or occasioned wholly or in part by any act or omission of Lessee, its agents, contractors, employees, servants, 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). Lessee shall further indemnify Lessor for any 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. In case Lessor shall be made a party to any litigation commenced by or against Lessee and covered by this indemnity provision, then Lessee shall protect and hold Lessor harmless and pay all of Lessor's 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. Further, Lessee shall indemnify, defend and hold Lessor harmless from and against any and all claims actions, damages, liability and expense 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. 8.5 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. 8.6 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, and 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 25 Draft Lease Agreement 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 those costs associated with the development of the Premises and acquisition of the Leasehold Improvements (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 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. The teriiis of this provision shall expressly be made a part of any future assignment or mortgage of the Leasehold Interest. ARTICLE IX SERVICES AND UTILITIES 9.1. Lessee to Provide and Pay for Utilities The Lessee shall pay, or cause to be paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Premises and any Leasehold Improvements, if any, 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 Premises and the Leasehold Improvements. The Lessee shall, at its sole expense, procure any and all necessary permits, licenses or other authorization required for the lawful and proper installation and maintenance upon the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Premises. 9.2 Lessor Not Liable for Failure of Utilities The Lessor shall not be liable for any failure of water supply, sewer, gas or electric current, or for any injury or damage to any person or to the Premises caused by or resulting from 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 any such temporary failure 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 made by the utility provider to the utilities it furnishes. 26 Draft Lease Agreement ARTICLE X SUBLEASES, ASSIGNMENTS AND TRANSFERS 10.1 Subleases, Assignments and Transfers Lessee shall not, at any time during the Lease Term, enter into (i) any sublease, license, concession, easement, or permit agreement with respect to the Premises or (ii) sublease, assign or transfer this Lease to any third party or parties, which 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 "Transfer"), without first procuring the prior written consent of the City. The provisions of this Article constitute the sole means by which Lessee may request Lessor's consent to a Transfer. In recognition of the fact that this Lease was awarded to Lessee following a competitive procurement relying on Lessee's unique attributes, any Transfer of this Lease to any third party or parties (except as otherwise permitted under this Article X) shall require the prior written approval of the City, which may grant, deny, refuse or consent to such Transfer, in the City's sole discretion, based on reasonable commercial factors including the credit worthiness, solvency, reputation, ability and experience of such proposed transferee. If approved, any such transferee shall be required to sign a written agreement assuming all terms and conditions of the Lease, without exception in a form satisfactory to the Lessor. Any such attempted Transfer 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 Transfer and will additionally be a. default by Lessee of this Lease. It is agreed that all terms and conditions of this Lease shall extend to and be binding on all transferees, assignees or Sub -lessees as may be approved by Lessor and shall be for a period of time equal to or less than the Lease Term. Lessor reserves the right to directly terminate the rights and interests of any transferee or Sub -lessee under any Transfer 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 a 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. 10.2 Procedure for Transfer Subject to the provisions of Section 10.1, should Lessee desire to 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 Transfer, specifying in such notice the nature of such proposed Transfer and the proposed date thereof and specifically identifying the proposed Sub -lessee, Assignee or transferee. Such notice shall be accompanied by a copy of the proposed Transfer agreement and any other documents or financial information Lessor may reasonably require in order to determine the suitability of the Sub -lessee, Assignee or transferee. If requested by Lessor, Lessee shall provide to Lessor copies of all Transfer documents and amendments thereto. Lessor shall either (i) withhold consent to the Transfer, together with a detailed explanation for such denial, or (ii) consent to such Transfer upon the terms and subject to the conditions provided for in this Article, by mailing written 27 Draft Lease Agreement notice to Lessee of its intent to do so. Lessee acknowledges and agrees that the imposition of the conditions provided herein requiring Lessor's consent is reasonable. 10.3 Additional Consideration Payable to Lessor If Lessor gives its consent to any Transfer, Lessor shall be entitled to any proceeds from any such Transfer, with the Lessor's participation capped at a maximum of four percent (4%) of gross proceeds from the sale if the Lease is assigned or otherwise transferred or sold within Lease Years one (1) through five (5); and five percent (5%) if transferred after Lease Year five (5) ("Transfer Fee"). Lessee shall, in consideration of any 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 Annual Report. Assignee's or transferee's records shall be kept in accordance with Article IV. Additionally, Lessor reserves the right to examine transferee's books and audit transferee's entire records in accordance with Article IV of this Lease. The Transfer fee shall be perpetual and shall apply to any successive Transfer procured by the terms of this Lease for as long as this Lease is active, including modifications and extensions, if any. The acceptance by Lessor of the payment of rent following any Transfer prohibited by this Article shall not be deemed to be consent by Lessor to any such Assignment or Transfer, nor shall the same be deemed a waiver of any right or remedy of Lessor hereunder. 10.4 Definitions As used in this Article, the term: "Transfer" means: 1. 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, including by entering into a sublease, assignment, transfer agreement, •concession agreement, etc. 2. 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; 3. 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. "Owner" means: any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifteen percent (15%) of the stock of the Lessee, but shall not include any shareholder of an Owner whose shares are publicly traded. "Owner whose shares are publicly traded" means: 1. an Owner who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the 28 Draft Lease Agreement shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and 2. 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. 10.5 Acceptable 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 X 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, which consent shall not be unreasonably withheld or delayed. The following Transfers shall be permitted hereunder without the written approval of the City Manager: (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) 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 Iimited to, the filing of a registration statement with the Securities and Exchange Commission and/or 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 terms 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. 10.6 Notice of Transfer With respect to any Transfer which must be approved by the City Manager, the Lessee shall give or eause 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 29 Draft Lease Agreement reasons for such disapproval in his notice to Lessee. If the Lessor is not required to consent to a Transfer pursuant to the terms hereof, the Lessee shall notify the Lessor in writing of same within thirty (30) days after the date of Transfer. In the event 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. 10.7 Information as to Shareholders, etc. If applicable, 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 names 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 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. 10.8 Effectuation of Permitted Transfers No Transfer shall be effective unless and until: (1) all Rents, taxes, assessments, impositions, insurance, permitting and other charges required to be paid by the Lessee under this Lease shall be paid by the Lessee up to the date of transfer, and all other covenants and agreements to be kept and performed by the Lessee shall be substantially complied with at the date of the Transfer; and (2) 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, agree to be subject to all conditions and restrictions to which Lessee is subject, including the additional guarantees required under Section 16.5 of this Lease; provided, however, that any transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such transferee's actual ownership, partial or whole, 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. 10.9 Criteria for Consent for Transfer The Lessor may, at its sole discretion, condition its consent to a permitted Assignment, Sublease or Transfer upon satisfaction of all or any of the following conditions: 30 Draft Lease Agreement (1) The proposed entity to which the Leasehold is being assigned, transferred, or subleased ("Transferee"), shall be an Acceptable Operator; (2) Transferee shall satisfy the qualification requirements imposed upon Lessee and set out in the original RFP; Transferee shall have no open permits, liens, fines, unsafe structures, or any open lawsuits; (4) 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; Such Transfer shall not adversely affect the quality and type of business operation which the Lessee has conducted theretofore; (6) 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; Such Transferee shall agree to continue to operate a business similar to the use conducted at the Premises pursuant to this Lease; 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; Transferee shall submit to a credit check and other background checks as Lessor sees fit. Failure or refusal to submit to said credit and background checks shall be an automatic disqualification of the potential transferee; (10) Lessee shall pay to the Lessor any due, but unpaid Rent. (3) (5) (7) (8) (9) 10,10 Liability of Lessee If a Transferee does not meet all of the criteria set forth in this Article, 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 a Transferee does meet the criteria set forth in this Article, 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. 10.11 Acceptance of Rent from Transferee 31 Draft Lease Agreement 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 Transfer, nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder. 10.12 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. 10.13 Mortgages of Leasehold Interest 10.13.1 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. In no way shall Lessee have any authority to mortgage the ownership interest belonging to Lessor. 10.13.2 Requirements for Mortgage. In addition to the requirements specified throughout this Lease, Lessee may only pledge, hypothecate, or otherwise mortgage the Leasehold Estate with the written permission of the City Manager, the permission for which shall not be unreasonably withheld. 10.13.3 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 name 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 thirty (30) 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 32 Draft Lease Agreement 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. 10.13.4 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. 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. (2) 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 such obligation by such Mortgagee shall be deemed to have been a cure effected by Lessee. Lessor hereby consents to the entry onto the Premises 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 affect the cure of such default by foreclosing its Mortgage, obtaining possession of the Premises and performing all of Lessee's obligations hereunder. If it shall be necessary for any such Mortgagee to obtain possession of the Premises 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 Premises, (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 Premises 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 Premises, 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 Premises, to continue such possession, if the default in respect to which Lessor shall have given the notice shall be remedied. (3) (4) Lessor agrees that in the event of the termination of this Lease by reason of any 33 Draft Lease Agreement (5) 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 Premises with any Mortgagee or a wholly owned subsidiary of Mortgagee for the remainder of the Lease Term, effective as of the date of such termination, at the rent and upon the terms, options, provisions, covenants and agreements as herein contained, provided: i. 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; ii. 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 iii. 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. 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. 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. 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. ARTICLE XI COMPLIANCE WITH LAWS 11.1 Compliance with Laws Lessee shall, at Lessee's sole cost and expense, comply with all applicable Federal, State, and local laws, and all applicable permitting and regulatory requirements, rules, regulations, codes, ordinances, and written policies 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 any Leasehold Improvements) all applicable laws now in force or which may hereafter be in force. 34 Draft Lease Agreement ARTICLE XII ENVIRONMENTAL LIABILITY 12.1 Definition of Terms For purposes of this Article XII the following terms shall have the meaning attributed to them herein: 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. 2. "Environmental Laws" shall include all applicable laws, rules and ordinances, existing now or in the future during the Term, as amended, modified, supplemented, superseded or replaced at any time during the Term, that govern or relate to: the existence, cleanup and/or remedy of contamination of property; the protection of the environmentfrom spilled,deposited or otherwise emplaced contamination; the control of hazardous or toxic substances or wastes; the use, generation, discharge, transportation, treatment, removal or recovery of Hazardous Materials; or otherwise regulating the impact of human activities on the environment. 3. "Costs" shall mean all costs incurred in connection with correcting any violations of any Environmental Laws and/or in connection with the clean-up of contamination on the Premises. 4. "Clean Up" shall mean any rernediation and/or disposal of Hazardous Materials at or from the Premises which is ordered by any federal, state, or local environmental regulatory agency. 12.2 Lessee's Environmental 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 Lessee's business or as may be used in compliance with Environmental Laws. Lessee shall not permit any activities on the Premises that would violate Environmental Laws, If Lessee should breach this covenant, Lessee shall take all actions necessary to comply with all Environmental Laws and shall, at Lessee's sole cost and expense, perform any and all Clean Up. Lessee's obligation under this section shall survive the expiration or earlier termination of this Lease for a period of two (2) years. 12.3 Survival of Lessee's Obligations Draft Lease Agreement 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. ARTICLE XIII DAMAGE OR DESTRUCTION OF PREMISES 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 under this Lease which damage cannot reasonably be repaired, restored or replaced within one hundred eighty (180) calendar days from the date on which the damage occurred. , (b) "Partial Destruction" means any damage to the Premises which damage can reasonably be repaired, restored or replaced within one hundred eighty (180) calendar days from the date on which the damage occurred. 13.2 Duty to Repair, Restore or Replace Premises after Damage In the event of damage by fire or otherwise of the Premises including any machinery, fixtures or equipment which are a part of the Premises, the Parties agree as follows. In the event of Partial Destruction of the Premises, 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, 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 this Lease shall remain in full force and effect, with no abatement in Rent. In the event the Premises are Completely Destroyed at any time during Lease Term, Lessee, in its sole discretion, shall have the option to select whether to terminate this Lease within sixty (60) days of the damage. In the event the Lessee shall determine not to terminate this Lease, then 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 commence the restoration of the Leasehold Improvements), and this Lease shall remain in full force and effect, with no abatement in Rent. Alternatively, the Lessee 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 36 Draft Lease Agreement expense, (but using along with the Lessee's own funds, Gross Insurance Proceeds available for that purpose) deliver possession of the Premises 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 to any Rent or other sums accrued or due, Lessee's obligations regarding surrender of the Premises including the removal of debris, and environmental liability as provided for in Article XII. 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 the same 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 any 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. 13.4 No Additional Right to Terminate Except for the Lessee's right to terminate this Lease in accordance with the provisions of Article XIII set forth herein, 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. 13.5 Lessee's Right to Terminate If Lessee elects to exercise the option given under Subsection 13.2, to terminate this Lease, then any and all Gross Insurance Proceeds paid for damage or destruction of the Premises shall be applied as follows: 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 the respective Rent 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. 13.6 Payment for Construction of Restoration Work Except as otherwise provided for in this Article XIII, all Gross Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work to restore the Premises, 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. 13,7 Collection of Insurance Proceeds 37 Draft Lease Agreement 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. 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 remaining balance paid to the Lessee. ARTICLE XIV EMINENT DOMAIN 14.1 Total Condemnation In the event that all of the Premises (or such portion thereof as shall, in the good faith opinion of Lessor or Lessee, render it economically unfeasible 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 date of taking or conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the date of taking or such conveyance. Any damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Premises, 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. 14.2 Partial Condemnation In the event less than all of the Premises shall be taken for any public use or purpose by the right or the exercise of the power of eminent domain, or shall be conveyed by the 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 the Premises 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 remaining portion of the Premises so that it shall be comparable to the Premises prior to 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. 38 Draft Lease Agreement The Gross Condemnation Award allowed to Lessor and Lessee shall be paid to and received by the Parties as follows: (a) 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; (b) 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 Premises have been reduced by the taking after any payment required by the Lease; (c) There shall be paid to the Lessee the amount required to complete the remodeling and repairs to the Premises pursuant to (a) above; (d) 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 Premises as found by the court in its condemnation award. 14.3 Adjustment of Rent Upon Partial Taking In the event a part of the Premises shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by Lessor and Lessee acting jointly 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 Base Rent for the remainder of the Lease Term shall be reduced on an equitable basis and Percentage Rent shall continue at the same rate. 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 Premises in a condemnation proceeding shall be deposited with an escrow agent selected by the Lessor to be disbursed for the cost of restoring the Premises. 14.5 Temporary Taking In the event that all or any portion of the Premises shall be taken by the right of condemnation or the exercise of the power of eminent domain for governmental use or occupancy for a temporary period, this Lease 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 Premises. If the period of governmental occupancy extends beyond the termination of the Lease Term, 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 39 Draft Lease Agreement 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 sub -section. ARTICLE XV PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS 15.1 Payment of Taxes and Impositions From and after the Lease Date, Lessee shall pay all ad valorem and similar taxes, surcharged, levies, charges, assessments, and impositions levied against the Premises 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. 15.2 Installment Payments of Ad Valorem Taxes and Impositions Lessee agrees that the Premises 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 Term, so that the Lessee shall pay that portion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the Lease Term and a part of which is included in a period of time after Lease Term shall be adjusted as between the Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable. 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 40 Draft Lease Agreement initially equal to three thousand three hundred and seventy-six and 71/100 dollars ($3,376.71) per year. 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. 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 on behalf of the Lessee, official receipts of the appropriate taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment. 15.5 State -Owned Sovereignty Submerged Land In the event the Lessee wishes to utilize the Premises in a manner that would derive income directly or indirectly from the use of the State-owned sovereignty submerged lands, or otherwise is required to make payments under applicable law, the Successful Proposer shall be solely responsible for all fees, costs, expenses, impositions, and payments due. ARTICLE XVI DEFAULT OF LESSEE 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 Premises 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 Premises, except in the usual course of trade, a substantial portion of the Leasehold Improvements (furnishings, fixtures, and equipment) installed or placed upon the Premises by the Lessee during the Lease Term; 41 Drafi Lease Agreement g. In the event Lessee, before the expiration of the Lease Terrn, and without the written consent of Lessor, abandons the possession of the Premises, or uses the same for purposes other than the purposes for which the same are hereby leased or as otherwise permitted 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 Premises, 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 term, covenant, condition or provision, other than the payment of Rent, including without limitation failure to maintain insurance coverage in effect, failure to obtain permits or approvals required by law, or failure to timely pay taxes, fees, surcharges, or other impositions when required by law, 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 Article IV of this Lease. 16.2 Remedies of Lessor If any Lessee Default occurs, Lessor shall have the right after the expiration of the applicable cure period, and at the sole discretion of Lessor, to terminate this Lease upon providing five (5) days written notice. An Event of Default shall be deemed to have occurred at the expiration of such five (5) day period if the default has not been cured by the expiration of such five (5) day period. Lessor may terminate the Lease irrespective of any suit or action brought by Lessee and the time period required for termination of this Lease shall not be tolled by the filing of a suit or action. 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 Premises, or any part thereof, as the agent and for the account of Lessee upon such terms and conditions as Lessor may deem advisable or satisfactory, in which event the rents received on such re -letting shall be applied first to the expenses of such re -letting and collection including but not limited to, necessary renovation and alterations of the Premises, 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 Premises in any event. Lessor shall not, in any event, be required to pay Lessee any surplus of any sums received by Lessor on a re -letting of said Premises in excess of the rent provided in this Lease. 42 Draft Lease Agreement If any Event of Default occurs, Lessor shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, against Lessee for any acts, conduct or omissions of Lessee, and to further obtain specific performance of any term, covenant or condition of this Lease, including but not limited to the appointment of a receiver to operate Lessee's business at the Premises. 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 Premises shall have been surrendered to or taken by Lessor, and may commence action immediately thereupon and recover judgment therefore. 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 Premises 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. No such re-entry or taking possession of the Premises 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. 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 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. 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. 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 term 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 43 Draft Lease Agreement 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 Premises or to re -let same. 16.4 Late Payment Fee Any installment of Rent not received within five (5) days after the due date shall be subject to a late payment fee. Lessee shall pay, in addition to the payment then due, five percent (5%) 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 greater. In the event that it shall be necessary for Lessor to give more than one (1) written notice to Lessee of any violation of this Lease, during the term hereof, Lessor shall be entitled to make an administrative charge to Lessee of Twenty-five and 0/100 Dollars ($25.00) for each such subsequent notice after the first notice. Lessee recognizes and agrees that the charges 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 of the costs of Lessor in the administration of the Premises resulting from the events described herein, 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. 16.5 Additional Guarantees In the event that Lessee defaults in accordance with the terms of this Article, or otherwise fails to perform any obligation required by this Lease, which directly or indirectly causes Lessor to suffer damages, and thereafter Lessee fails to cure or remedy the respective default in accordance to the terms of this Lease, Lessee's parent company, if any, and Lessee's President shall assume responsibility as a personal guarantors (collectively "Guarantor"), and shall pay the amounts due or perform the obligation required, as applicable. Guarantor may, at Lessor's option, be joined in any action or proceeding commenced by Lessor against Lessee in connection with and based upon the failure of Lessee to perform. 16.6 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. 44 Draft Lease Agreement 16.7 Lessor Default. In the event that Lessor shall at any time be in default of the terms of this Lease and any such default shall continue for a period of sixty (60) days after written notice to Lessor, and Lessor shall not thereafter cure or commence to 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. ARTICLE XVII ACCESS BY LESSOR 17,1 Right of Entry Lessor and Lessor's agents shall have the right to enter the Premises 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 Premises 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 Premises or any part thereof, except as otherwise herein specifically provided. ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY 18.1 Loss and Damage Unless caused by a negligent act or omission of Lessor or 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 Premises, 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 Premises resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any part of the Premises or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other place by dampness or by any other cause of whatsoever nature. Lessor shall not be liable for any patent or latent defect in the Premises. All property of Lessee kept or stored on the Premises 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. 45 Draft Lease Agreement ARTICLE XIX HOLDING OVER & SUCCESSORS 19.1 Holding Over In the event Lessee remains in possession of the Premises after the expiration of the Lease Term, Lessee, at the option of Lessor, shall be deemed to be occupying the Premises as a Lessee at sufferance at a monthly rental equal to two (2) times the 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 Premises based upon the total taxes payable for the Lease Year immediately prior to the Lease Year in which the expiration occurs; (b) cost of insurance for which 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. 19.2 Successors All rights and liabilities herein given to, or imposed upon, the respective Parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and the assigns of the said Parties; and if there shall be more than one Lessee, they shall be bound jointly and severally by the terms, covenants and agreements herein. Nothing contained in this Lease shall in any manner restrict Lessor's right to assign or encumber this Lease and, in the event Lessor sells its interest in the Premises and the purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved of all further obligations hereunder. ARTICLE XX EQUAL EMPLOYMENT OPPORTUNITIES 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 definitive 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 statethat 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 46 Draft Lease Agreement 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. 20.2 Community Small Business Enterprise Lessee shall work towards achieving Community Small Business Enterprise ("CSBE") goals, 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 Miami -Dade County certified CSBE companies, the disabled and veterans. Such plan shall include a set of positive measures taken to insure utilization of CSBE companies when practicable and nondiscrimination in the work place as it relates to hiring, firing, training and promotion. 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 shall not engage in discriminatory practices and shall not discriminate in connection with Lessee's use of the Premises on account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Further, should the Lessee introduce or have existing membership rules for patrons at the Premises, 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. ARTICLE XXI MISCELLANEOUS 21.1 Accord and Satisfaction No payment by Lessee or receipt by Lessor of a lesser amount than the Rent or other amount due as specified herein shall be deemed in satisfaction of any such amounts owed; nor shall any endorsement or statement on any check remitting partial payment or any letter accompanying any partial payment be deemed an accord and satisfaction of Lessee's debt. 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. 21.2 Public Records Lessee shall additionally comply with Section 119,0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the City to perform this service; (2) provide the public with access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet 47 Draft Lease Agreement all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records to the City in a format compatible with the City's information technology systems. 21.3 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 Premises and there are no covenants, promises, conditions or understandings, either oral or written, between them other than those set forth herein. All representations, either oral or written, made between the Parties 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 determine the meaning of any of the terms of this Lease. Except as herein otherwise provided, no subsequent alteration, change or addition to this Lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by the Parties. 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. 21.4 Independent Parties It is understood and agreed by the Parties hereto that this Lease does not create a fiduciary or other relationship between the Parties, other than as 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. 21.5 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: If to Lessee at: City Manager City of Miami 48 Draft Lease Agreement 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 Attn: With copies to: With a copy to: City of Miami City Attorney Office of City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 City of Miami Director, Department of Real Estate and Asset Management 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Attn: All notices given hereunder shall be effective and deemed to have been given upon receipt by the party to which notice is being given, said receipt being deemed to have occurred upon hand delivery or posting, or upon such date as the postal authorities shall show the notice to have been delivered, refused, or undeliverable, is evidenced by the return receipt or proof of deliver. Notwithstanding any other provision hereof, Lessor shall also have the right to give notice to Lessee in any other manner provided by law. If there shall be more than one Lessee, any notice required or permitted by the terms of this Lease may be given by or to any one thereof, and shall have the same force and effect as if given to all thereof. 21.6 Captions and Section Numbers The captions, section numbers, and article numbers appearing in this Lease are inserted only for 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. 21.7 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 deemed invalid or unenforceable by a Court with jurisdiction, the remainder of this Lease 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. 21,8 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 Base Rent, Percentage Rent and any other payments due hereunder from Lessee 49 Draft Lease Agreement 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 the certifying party to execute, acknowledge and deliver to the requesting party a statement in accordance with the provisions of this Section within said ten (10) business day period, shall constitute an acknowledgment by the certifying party, which may be relied on by any person holding or proposing to acquire an interest in the Premises or any party thereof, that this Lease is unmodified and in full force and effect and that all Rent and dues have been fully paid to and including the respective due dates immediately preceding the date of such notice, and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice. It is agreed that nothing contained in the provisions of this Section shall constitute waiver by 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 Section 166.221, Florida Statutes for each request made of Lessor for each Estoppel Certificate requested, payment in full shall be made at the time of the request. No certificate shall be issued without payment of the fee. 21.9 Waiver Failure on the part of either party to 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. 21.10 Time is of the Essence Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. 21.11 No Discrimination It is intended that the Premises shall be operated in a manner whereby all customers, employees, licensees and invitees of the Lessee shall have the opportunity to obtain all the goods, services, accommodations, advantages, facilities and privileges of the Premises without discrimination because of race, creed, color, sex, age, national origin, ancestry, handicap or disability of any kind. To that end, 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, 50 Draft Lease Agreement color, sex, age, national origin, ancestry, handicap or disability of such person or group of persons. 21.12 Governing Law, Venue, & Attorney's Fees 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. Additionally, all disputes civil action or legal proceeding arising out of or relating to this Lease shall be brought in the courts of record in Miami -Dade County. Each party shall bear their own attorney's fees in civil actions between them arising out of this Lease except the prevailing party may be awarded by the court in action for removal of the Lessee as provided by Florida Statute 83.231, as amended or modified. 21.13 Waiver of Counterclaims Lessee shall not impose any permissive counterclaims) for damages in a summary proceeding or other action based on termination or holdover, it being the intent of the Parties hereto that Lessee 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. 21.14 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, and/or Lessee's use or occupancy of the Premises. 21.15 Quiet Enjoyment Subject to the terms of this Lease, upon the observance by the Lessee hereunder of all the terms, provisions, covenants and conditions imposed upon the Lessee, the Lessor covenants to the Lessee that Lessee shall peaceably and quietly hold, occupy and enjoy the Premises 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 Premises leased herein, or by persons with title superior to the Lessor, its successors and assigns. 21.16 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 Premises in good repair and condition, reasonable wear and tear excepted. 51 Draft Lease Agreement 21.17 Joint and Several Liability If two or more individuals, corporations, partnerships or other business associations (or any combination of two 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 shall be deemed as having been given to all of them. 21.18 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. 21.19 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. 21.20 No Liability for Act of other Party Lessee shall not sign any contract or 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 or agreed to herein, neither Lessor nor Lessee shall make any express or implied agreement, warranties, guarantees or representations or incur any debt, or represent that their relationship is other than Lessor and Lessee, for the management and operation of the Premises; 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 in writing. 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. 21.21 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. 21.22 Consents. 52 Draft Lease Agreement 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. 53 Draft Lease Agreement 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. 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: CORRECTNESS: By: By: Ann -Marie Sharpe, Director Victoria Mendez Risk Management Department City Attorney 54 Draft Lease Agreement LESSEE: 'INSERT LESSEE'S NAME] Name of Authorized Agent Title ATTESTED BY: By: CORPORATE SEAL Name Title Company Name By: Name Title Company Name GUARANTOR: By; [PARENT COMPANY] Name of Authorized Agent Title ATTESTED BY: By: CORPORATE SEAL Naive Title Company Name 55 By: [PRESIDENT OF LESSEE] Name President Draft Lease Agreement EXHIBIT A SURVEY/LEGAL DESCRIPTION OF PREMISES [to be inserted prior to execution] 56 Draft Lease Agreement EXHIBIT B ANNUAL PERCENTAGE RENT STATEMENT [to be inserted prior to execution] 57 Draft Lease Agreement EXHIBIT C ANNUAL GROSS REVENUE REPORT [to be inserted prior to execution] 58 Draft Lease Agreement EXHIBIT D MONTHLY GROSS REVENUE REPORT [to be inserted prior to execution] 59 Draft Lease Agreement EXHIBIT E LESSEE'S LEASEHOLD IMPROVEMENTS [to be inserted prior to execution] 60 Draft Lease Agreement EXFIII3IT F PAYMENT & PERFORMANCE BOND [to be inserted prior to execution] 61 Draft Lease Agreement EXI-IIBIT G CONTRACTOR INSURANCE REQUIREMENTS [to be inserted prior to execution] 62 Draft Lease Agreement EXHIBIT H LEASEHOLD INSURANCE REQUIREMENTS [to be inserted prior to execution] 63 i RTVERSIDt WHARF, LLC F R THE LEASE OF C Y-OWNED PROPERTY 6 AND 298 SW NORTH RIVER DRIVE RECITALS ARTICLE I Section 1.1 Section 1.2 Section 1.3 Section 1.4 ARTICLE II Section 2.1 Section 2.2 Section 2,3 Section 2;4 Section 2.5 ARTICLE In Section 3.1 Section 3.2 ARTICLE IV Section 4.1 Section 4,2 Section 4.3 Section 4.4 Section 4.5 Section 4.6 Section 4.7 ARTICLE V Section 5.1 Section 5.2 Section 5.3 Section 5.4 Section 5.5 Section 5.6 Section 5.7 ARTICLE V Section .1 Section .2 ARTICL <' VII Section 7.1 Section 7.2 Section 7.3 Draft Lease Agreement TABLE OF CONTENTS INCORPORATION, EXHIBITS, & DEFIN IONS Incorporation by Deference l; chibits Definitions Priority of Documents LEASE OF PREMISES Lease of Premises Purpose of Use and Oocupanc Suitability of Premises Limited Representations by essor Satisfaction of Liens TERM Tenn of Lease Option to ReneW RENT,SECU• Y DEPOSIT, & FINANCIAL RECORDS Base Rent and ° erceritage Rent Security Dep it Lessee's Fi nci.1 Records Reports by essee Right to xami.eFinancial Records Audit Lien f Rent &, Other Charges LE SElOLD,IMPROVEMENTS Le:see's Obligation to Provide -and Fund Leasehold Improvements P ssession Date . . ayment and Performance. Bend Contractor's Insurance. Conveyance oflinproVernonts Premises to Remain Free of Liens Lessor Approval CONDUCT OF BUSINESS EY LESSEE Operation of Lessee's. Business Signs MAINTENANCE, REPAIR & ALTERATION OF PREMISES Lessee's Maintenance Obligations Lessee's Repair Obligation Changes/Alterations Section '7.4 ARTICLE VIII Section 8.1 Section 8.2 Section 8,3 Section 8.4 Section 8.5 Section 8.6 ARTICLE IX Section 9.1 Section 9.2 ARTICLE X Section 10.1 Section 10.2 Section 10..3 Section 10.4 Section 10.5 Section 10.6 Section ction 10.7 Section 10..8 Section 10.9 Section 10.10 Section 10.11 .Section 10.12 Section 10.13 ARTICLE xI Section 11.1 ARTICLE XII Section.12.1 Section 12.2 Section 12.3 ARTICLE XII Section 1 .1 Section 3.2 Secti• .13,3 See 'on13.4 Section 13.5 Section 13,6 Section 13.7 Capital Expenditure Fund INSURANCE AND INDEMNITY Insurance on the Premises Delivery of Insurance Policies Adjustment of Loss Indemnifioation of Lessor Waiver of Subrogation Release of Lessor SERVICES AND UTILITIES Lessee to Provide and Pay for Utilitie Lessor Not Liable for Failure of Utilities SUBLEASES, ASSIGNMEN Subleases, Assignments and T/ansfers Procedure for Transfer Additional Consideration P�'ayable to Lessor Definitions Acceptable Transfers Notice of Transfer Information as to S ebolders, etc. Effectuation of Pe netted Transfers Criteria for Cons nt for Transfer Liability of Le ee Acceptance o.' Rent from Transferee Transfers o .the Lessor's Interest Mortgageof Leasehold Interest COM F IANCE WITH LAWS Com! lance With Laws Draft Lease Agrethent AND TRANSFERS E. 1 ONMENTAL LIABILITY efinition of Terms essee's Environmental Covenant Survival of Lessee's and Lessor's Obligations DAMAGE OR DESTRUCTION OF PREMISES Definitions Duty to Repair, Restore or Replace the Premises after Damage Performance .of Restoration Work No Additional Right to Tei uiinate Lessee's Right to Terminate Payment for Construction of Restoration Work Collection of Insurance Proceeds 3 Section 13.8 ARTICLE XIV Section 14.1 Section:14,2 Section 14.3 Section 14.4 Section;14.5 ARTICLE XV 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 Section 16,7 ARTICLE XVII Section 17.1 ARTICLE XVIII Section 18.1 ARTICLE XIX Section 19.1 Section 19.2 ARTICLE XX Section 20,1 Section 20.2 Section 2.0.3 ARTICLE Section 2 1 Section 1.2 Secti 21.3 Sec on 21.4 Draft Leas Agreement Unused Insurance Proceeds and Deposits EMINENT DOMAIN Total Condemnation Partial Condemnatrori Adjustment of Rent Upon Partial Taking ,' Deposit of Condemnation Award with Escrow Agent Temporary Taking PAYMENT OF TAXES, ASSESSMENTS AND 0 HER. IMPOSITIONS Payment of Taxes and impositions Installment Payments of Ad Valorem. Taxes '.. a Impositions' Payment in Lien of Takes Proof of Payment State -:Owned Soveregn.ty Sthmerged DEFAULT. OF LESSEE Lessee Default ;N Remedies of Lessor No 'Waiver by Lessor Late Payment Fee Additional Guarantees Remedies Cumulative Lessor Default ACCESS BY LES Right of Entry DAMAGE T ESSEE'S PROPERTY Loss and Da. age UfOLDI1N ` OVER & SUCCESSORS Haldin_. ever Suoce ors E 4 AL .EMPLOYMENT OPPORTUNITIES E►dial Employment Opportunities othfriin ty Small Business Enter i se Non -Discrimination MISCELLANEOUS :. .Accord and Satisfaction Public Records Entire Agreement Independent Parties Section21.5 Notices Section 21.6 Captions and Section Numbers Section 21,7 Partial Invalidity Section 21,8 Estoppel Certificate Section 219 Waiver Section 21,10 Time is of the Essence Section 21,11 No Discrimination Section 21.12 Governing Law, Venue, & Attoitley's Fees Section 21.13 Waiver .of Counterclaims Section 21,14 Waiver of Jury Trial Section 21.15 Quiet Enjoyment Section 21.16 Surrender of Possession Section21.17 Joint and Several Liability Section 21 18 Third Party Beneficiary Section 21.19 Radon Section 21,20 No Liability for Act of other P t ty Section 21,21 Rights, Privileges and Immurfities.; Covenants Section 21.22. Consents 5 Drat Lease Agreement Draft Lease Agreement LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease"), made this day of ; 2016,.by and between the CITY OF MIAMI , a Municipal corporationof the State of orida having its affixes at 3500 Pan American Drive, Miar'rii,' Florida 33133 .("Lessor" or " y.'z) :and Riverside Wharf, LLC, a Limited Liability Company, b.aving its offices at 2950 rtl west 7th Avenue, Miami, Florida 33127, ("Lessee"). The Lessor' and Lessee; (together the,arties") hereby recite: RECITALS Whereas, the City is the owner in fee simple of rtaiii land located in the City of Miami, Miami -Dade County,. Florida referred to herein as `?re ses, pis specifically' set forth in Exhibit A. Whereas, in response to the North Riv . Property Request. for Proposals # 14-15-024 ("RFP"), Lessee submitted to Lessor. apropos ,which was approved by the City COMIllission on by Resolution No. Whereas, this Lease was negotiat pursuant to the authority expressly conferred by the City of Miami Charter, general law, and e City Commission Resolution No. , which authorized the execution of this Lease. Whereas, this Lease was aroved by referendum on March 15, 2016 by a majority of City of Miami voters as required City of Miami Charter Section 3(f)(iii). Whereas, it is the mu zai desire of the Parties that the Property be leased and demised by Lessor to Lessee for the pt +oses set forth in this Lease, subject to and upon the express terms and conditions contained li ein. The Parties believe that this Lease is consistent in all material respects with the REP. Now therefore, in consideratio'er of the foregoing and of the rent, covenants, and agreements hereinafter .• et forth, the Parties do hereby covenant and agree as follows: ARTICLE 1 INCORPORATION, EXHIBITS, & DEFINITIONS Anywor+ contained in the text of this Lease shall be read as the singular or the plural and as the masc 1i feminine oY touter. gender as may be applicable in the particular context. More specifically, owever, for the purposes of this Lease, the following words shall have the meanings at bated to them herein in subsection.1.3. 1,1 In In by Reference .Draft Lease Agreement The foregoing Recitals are hereby incorporated into this Leaseby this referee . 'as if set out in full in the body of this Lease, 1.2 Exhibits Attached hereto and forming a part of this Lease are the following Exhibit A -- Survey/Legal Description of Pr Exhibit 13 -- Annual Percentage Rent Stat Exhibit C Annual Gross Revenue Re Exhibit D -- Monthly Gross Revenu Exhibit E -- Lessee's Leasehold Exhibit F Exhibit G Exhibit H 1.3 Definitions ort _eport revements Payment & Perforn + nce Bond Contractor lnsur ioe Requirements Leasehold rnsu :iteice.Requirements hibits: ises ent 1,3.1 "Acceptable Operator" me years of experience (i) dir during the last fifteen (1 day to day operation of (iii) in the manage threshold criteria o Asset Managemen community; .and proper perform consistent wi business at t of Reiit pa 1.3.2. "Ad diti whatev whetb s an entity possessing (A) a minimum of five (5) tly managing and operating a similar establishments years; or (ii) directly involved in. the ownership and similar establishment during the last ton (10) years; and nt and operation for each use proposed; and (B) the fined in the City of Miami Department of Real Estate and RFP # 14-15-024; and C) a good reputation in the business ) adequate financial resources and personnel necessary for the- ce of all of Lessee's obligations under this Lease in a manner the quality, reputation and economic viability of the Lessee's e Premises, including (without limitation) the obligation of payment ble by Lessee under this Lease. al Rent" means any and all additional sums, charges, or amounts of nature to be paid by Lessee in accordance with the terms of this Lease, r or not such sums, charges or amounts are referred to as Additional Rent. 1,3.3 "A licable Law " means all laws, Florida Statutes, Codes, City and Miami- D 1 e County Ordinances, orders, judgments, decrees and injunctions from courts having jurisdiction over the Premises, rules, and requirements of State and local oards 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, 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 Premises and the rent and other obligations associated. with the Lease, thereby assuming the prior tenant's rights and obligations, 7 Draft Lease Agreement 1,3.5 •"Assignee" refers to the third -party entity assuming the rights and ob Z ations of the Lessee or assignor or owner of the leasehold estate,: 1.3.6 "Assignor" refers to the Lessee that is assigning its rights and ligatians under this Lease to a third-partyentity. i Unless released from 1` i hty from the City � ptrs_uant to Section1,0.10 of this Lease, which decision:' all be conditioned on the payment of: the consideration at the time of Assi : ent set forth in Section 10:3 of this Lease, the 'Assignor `shall remain seem" ily liable as a guarantor for the obiigationa under the Lease, if the new Less (Assignee) defaults under the •• Lease: 1.3.7 "Average Repair Costs" shall xiean the, a rage of the previous five (5) years' "repair and Inaihterlance" line-iteit costs, elusive of any capital items, Average Repair Costs :shall 'bo calculated in ord to determine the. annual amount due to the CapEx Fund, as specified in seetio 7.4below. 1..3.8 "Base Rent" shall mean the. annuBase Rent due and payable by Lesseeon a monthly basis for the use of the s eject Premises and shall have t :e sum ascribed to it in Section 4,1.1. 1,19 "BusinessDays"` means Mo day through Friday, excluding legal holidays in the City of Miami, Florida, 1.3.10 "CIO Manager" shall i an the Chief Administrative Officer of the City, In day to day matters all deci ions attributed to the City in this Leasse•may be made by the City manager, or f is authorized designee, unless otherwise specified. 1.3.11 "Cl Cornmissio ►'' shall mean the local legislative body of the Executive Mayor City Cominissio :: Notwithstanding Section 1.,39 above the City Commission will be required to :'.prove the Lease:'aiid any amendments to the Lease 1.3.1.2 "Date of'I'a . mt" means the earlier of (i) the:date on Which actual possession of all or less an all of the Premises,: as tho case may be,: is acquired by any lawful power_ or uthority pursuant to the provisions of any applicable:law, or (ii) the dale en.=hich title to'all or less than all of the Promises,'ad the case may be, has vested . n any Iawftil`'power or autb.orly pursuant to the provisions of any `appliclela v: 1.3.13 "Fa. Market Value" has the meaning set forth in Section 4;1,6 of this Lease and se ndarilyas supplemented by the applicable terms, of the RFP. For purposes of s ` Lease, "Fair Market Value" Will have the same Meaning as "Fair Market crrt." 1.3.1 "Force Majeure' means an event beyond human control, including but not limited to acts of national security, national emergency acts of Cod, war, act or threats:'of terrorism, Government regulation, strikes (otherthan strikes of • Licensee's employees), fire or other natural calamity, disorder, civil disobedience, curtailment of transportation facilities or service, or any occurrence which makes it inadvisable, illegal, or impossible for Licensee to perform its obligations under this License, Force Maj cure shall not include events caused, directly or indirectly, by Lessee or individuals or entities under Lessee's control,. 8 Draft Lease Agreement 1.3.1.5 "Gross Condemnation Award" means the actual amount of the award p id'in connection with or arising from the acquisition or other taking of all or 6ks than all of the Premises, as the case maybe. 1.3,16 "Gross Insurance Proceeds" means the actual amount of in ranee proceeds paid following an insured casualty to the Leasehold Improve = ts. 1.3,1.7 "Gross Revenues" shall mean the entire amount of -all re -flues and percentages of revenues actually collected and received by the Les e and its Sub -lessees or its assignees or transferees and derived from t following sales sources, including without limitation; a. all revenue from the commercial business and ervices conducted by Lessee and its Sub -lessees and/or assignees on or from e Premises; -b, all revenues from sales of food, bevera . ,. wine, beer, merchandise or services from the Premises; c, all revenue derived from advertising d sponsorships conducted on the Premises, including, but not limited to,. movi , television commercials, etc,; d. all amounts received from any ea ring food operations based at the Premises; e. all amounts received by Lessee am valet concession sales, parking valet services or similarly authorized and ermitted concessions on the Premises where the Lessee receives and retain any portion, percentage or fraction of the cost of such sales or services in any annex from the Concessionaire, these sales are subject to verification by a w tten concession agreement, and any audit or inspection requested by the Le or in accordance with the requirements of Section 18-99 through 18-102 of e City Code, which is deemed incorporated by reference as if pally set forth ein; f all amounts re ived by Lessee from sales made or perfonned by means of mechanical o r other vending devices or machines on the Premises, including without lint .tion, payphoties, vending machines, and entertainment devices- both for cash a % on credit, rendered in or upon the Premises; g, all reven received by Lessee in connection with the special events uses of the Preinis e, any facility thereon, or any portion thereof for any period of time, includ' g banquets, parties, and receptions held an or initiated from the Premises; h. amou is received by Lessee from Internet or telephone food/beverage orders recta ved or filled at the Premises, or procured from the Premises by house-to- hoese or other canvassing, including discount, merchant and online savings centives including, without limitation, sources and programs such as Groupon, 11 deposits not refunded to purchasers, and orders taken, although said orders tnay be filled elsewhere, including proceeds of all video games; i, 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; all donations and contributions received, the revenues of which are unrestricted or are to be used for general operating expenses; k. and all other receipts whatsoever derived from commercial operations conducted in or from the Premises by the Lessee and its Sub -lessees (if any). 9 Drqft Lease Agreement • Gross Revenues, whether for cash,.: credit, credit cards or othem' o, shall be recognized in the period the service was provided or sale took piac Payments received in advance are deferred and are recognized as :revenue e period the service is rendered or sale takes place Grants shall be recorde as income during the period designated by the grants or when the Lessee has Burred expenditures compliance with the restrictions of the, grantor: if a s ae is.# by credit card, no • deduction shall be `allowed for any domrnission associa d with such. sale. A. "sale" shall be deemed to have,leen co+.umniated for the purpose of this Lease, and the entire amount of sales prig . collected by Lessee and Sub- lessees, shall be included in Gross Revenues, such tithe that (i) the transaction is initially -reflected in the.books or recor'e° of Lessee of Sub-lessee(s)i or (ii) Lessee or Sub-lessee(s) receives` all or a portion 'of the sales price; or (iii) the , applicable goods orservices are deliver to the' Customer and'payment is made to Lessee orSub-lessee(s), whichever f'r t occurs, irl:espectwe, of, whether payment is- made in: installments,' the sale is fi `cash or for credit, or otherwise, or all or any portion of the sale price has Ott y been paid at the time of inclusion in Gross Revenues or at any other tune 13.18 "hnpositioxi" : means all a essments, impositions, levies, and governmental . elaarg es, including, witho ,it limitation, assessments imposed by the City and/or County, franchise fees; fi fees, excises, parking surcharges,: license and permit fees, levies, charges an taxes, including ad valorem real 'estate taxes on the Premises .and the Lea ehold lm rovenients, general and special, ordinary and extraordinary grape .y levied . against the Premises and the Leasehold Irn.provernents, any ersonal property, and/or tho .Lessee's Leasehold Estate which constitute a lien o the Premises or the Leasehold improvements 1.3.19 "Lease" means his Lease as supplerriented by. the RIP, any addendums thereto, . and 'the Less 's response to the RFP, all. of which are hereby incorporated by reference in ..this Lease as additional doctor tents providing supplemental terms and, .Condit' trs; provided,` however, that in the event of any express conflicts between is .Lease and the other documents referenced in this 'subsection this Lease s 1 govern: • 1.3,20 °`Lea. •. Date" inean.s the date that the Lease:is fully executed and legally binding upon. the parties after approval by the City of Miai-ni Connnission. The Lease Dat shall also be the date en which Rent commences to beconie due and payable as eferenced in lrtiele rV 1.3,21 " easehold Estate" means all of Lessee's right and .interest as. Lessee in, to and triderthis Lease, the Premises and the Leasehold Tmproverents if applicable. 1.3. "Le4sahold lz .provements" Means any initial . fb nishings or equipment constituting fixturesto be installed on the'Prem ses, and all other items and improvements• constituting fxtures to be installed or co lstrd oted. thereafter, from time to time during the. Lease Tern that are hereafter located upon the Premises, .3,23 "Lea:sehol.cl Mort age" means a znartgage, deed of trust, or any security interest given in connection therewith, which together constitute an encumbrance or lien 10 Drat Lease Agreement upon the Lessee's Leasehold Estate or any part of it, or any ref dd personal property, and Lessee's interest in the Leasehold Improvements as ecurity for any loan. The Leasehold Mortgage may never lien, pledge, hypot Cate, or otherwise encumber the .fee simple interest of the Lessor, 1.3.24 "Lease Term" means the period .of time fixed in Sectio .1 and shall be deemed to include the additional period of time fixed in Se troll 3.2 if Lessee exercises Lessee's right to renew the. Lease. 1.3.25 "Lease Year" means twelve (12) full consecut e months. The first Lease Year shall begin on the Lease Date. If the Lease ►. ate does not fall on the first day of the month, the first Lease Year will co • -nee an the first day of the following month. Each succeeding Lease Year sh 1 commence on the anniversary date of the first Lease Year. 1.3.26 "Percentage Rent" shall have the eaning ascribed to it in Section 4,1.4 and shall be payable annually and calc ated as a percentage of the Gross Revenues. 1.3.27 "Premises" means the space r ore particularly described in Section 2.1 herein and Exhibit A attached herew and incorporated herein by reference,. and. having a collective address of 236 d 298 SW North River Drive, Miami, Florida. 1,3.28 "Proposal" means the d. nment received by Lessor from Lessee in response to the RFP. 1.3.29 "Rent" means the grater of Base Rent or Percentage. Rent and any other rents, costs and expenses nominated as Additional Rent, 1.3.30 "RFP" means th' document entitled Request for Proposals # 1.4-15-024, issued by the City on 7. e 15, 2015, and any addendums thereto. 1.3.31 "Sublease" rn alas any lease (excluding this Lease), sublease, license, concession or other agre merit by which Lessee or any person or other entity .claiming under Lessee (in luding, without limitation, a Sub -lessee or sub -licensee) demises, leases, sn leases, licenses or sublicenses to or permits the use or occupancy by another rson or entity of any part of the Premises and Leasehold Improvements. 1.3.32 "Sub-1 ssee" means any person, firm, corporation or other legal entity using or occup, ' g or entitled to use or occupy any part of the Premises or the Leasehold Imprvements under a Sublease. 1.4 Priority f Documents The North Rivet Property Request for Proposals # 14-15-02;4 ("REP") shall be incorporated ereto by reference. Following the issuance of the RFP, Lessee submitted a Proposal ("1' roposal"), which was accepted by the City. The above -referenced documents shall be interpret.d to avoid conflicts, where possible. In the event of an express conflict between the above-refe eneed documents and the terms of this Lease, the following order of priority shall govern: 1.4.1. This executed Lease and its exhibits shall govern over the RFP and the Proposal; 1.4.2 The RFP shall govern over the Proposal; :11 Drat Lease Ag�ryment 1.4,3 The Proposal will he subordinate to the Lease and the RFP, tespeo ' ely. ARTICLE 11 LEAS 1a: OF PREMISES 2.1. Lease of Premises The Lessor does hereby lease, let and demise to the Le ; ee, and the.Lessee hereby leases from the 'Lessor the Preiises, subjeot, to the following Writs d: eonditi,ons, to have and to hold the said lands, tenements and hereditaments, with all of rights, privileges and appurtenances, `thereunto belonging or pertain.g Unto Lessee for ;the ase Term herein specified, .unless this Lease shall be sooner terminated in a: manner 'herein: Cr" provided. The Premises is described more particu1ar1yin Bxhibit..A attached hereto and i morated herein by reference; Lessee shall. have all rights, privileges, eas eats and appurtenances, if any, benefiting the Premises -in, over and upon acjorning;arid adja zit public and private land, highways, roads and streets `reasonably requited for rrigre3s or age s to or fro#n the 'Premises by ;Lessee`, its agents, servants; 'employees, contractors, cutomers . d invitees and all others related to Lessee's use and occupancy of the:Prerxaises. Notwitlistancli gany language in this Lase to the contrary, Lessor is the fee'•simple owner of the. Premises, d this Lease sh4 in no tray`convey. any title or other rights to the Promises. to Lessee unit otherwise specified herein; Lessee :may not mortgage, pledge, transfer, hypothecate; or othev' ise encumber Lessor's fee'sirnple ownership,interest in the Prernise:5 in any way; or in any vvay edge any rights held by'the fee simple owner. 2.2 .Purpose of Use and Oe The Lessee will. -use : d occupy the Premises, subject .to compliance with all applicable laws, rules, regulations, ennits, ;licenses, consents; and .similar approvals, including the requirements set forth in e RFP,,for the development,: management and operation of restaurants on the Promises and for Cher ancillary purposes, without the prior -written consent of Lessor, and for no, other purpose o use ,of any.,kind., treasonably related special events May be heldon the Premises with the ty's prior ,written consent; the request for such special event must be provided a irinirnum of thirty (30) digs prior to the date'o•f the ovvent. Except as therwise set forth in this Lease, the Lessee will operate the Premises a minimum, of hours per week, except cases of Force Majeure or any reasonable period of remodeling, rep r or reconstruction of the Premises, which remodeling, repair or reconstruction may not, with It the City's prior written consent, exceed a continuous period of thirty (30) days in any calen. year, or more than a .cumulative total `period of forty five- (45) days in any calendar ye 2,3 , Sul ability of Prerriises` essee acknowledges that neither the Lessor nor any of Lessor's officers, representatives, or ern oyees has made any representation or warranty with respect to the Premises, or with respe to the suitability or fitness of the Premises, for the conduct of Lessee's operations or for any her purpose,except as set forth in this Lease or in the RFP. The execution. of this Lease by 12 Drcft Lease Agreement Lessee shall establish that the Lessee accepts the condition of the Premises "AS 1S ''subject to the representations set forth in Section 2.4 herein, the RFP or elsewhere in this L-. e. 2.4 Limited Representations by Lessor Lessor makes the following representations, covenants warranties which shall survive the execution of this Lease and the taking of possession of lie Premises by the Lessee: a) That Lessor has taken all, requisite actions to make this ease binding upon Lessor, and Lessor has marketable, fee simple title to the Premise , and is the sole owner of and has good right, title and authority to convey and transfe all rights and benefits which are the subject matter of this Lease, free and clear of all own liens and encumbrances. Absent emergency action, or other Municipal Home e Action required by the public health, safety and general welfare, Lessor covenants th Lessee that it will not, during the Lease Term and any option period hereof, conferr and validly exercised, knowingly permit the imposition upon the Premises any liens, - r nnbrances, mortgages, easements or any other matters affecting title which would precde or otherwise materially affect Lessee's quiet enjoyment of the Premises, The obligon of the Lessor set forth in the preceding sentence is not intended to limit the ability . the Lessor, acting in its governmental capacity, to exercise its police powers with respe t to the Premises and any activities within the Premises, b) That no party, other than Lessey-, shall on the Lease Date be in or have any right to possession of the Premises. c) That the terms of this Lease, ' chiding, without limitation, the intended use of the Property by Lessee, are not in violati n of or expressly inconsistent with any operative agreement or covenant known to Lessor . any kind whatsoever which relates to the Property. 2.5 Satisfaction of Liens Lessor shall satisfy or cancel of record all existing liens and encumbrances affecting. the Premises as of the Lease ate except as otherwise set forth in this Lease. ARTICLE III TERM 3i Term of .. se The initi a Lease Term is for a period of thirty.(30) years, commencing on the Lease Date. The Leas Teim shall be extended to include any fraction of a calendar month between the Lease Date an• the first day of the first full calendar month thereof. 3.2 Option, to Renew Th, Lessee has the option of extending this Lease for two (2) additional terms of ten (10) years eacr. ("First Renewal .Terra" and "Second R.enewal Tenn"), as long as the Lessee is not in Default of any of the Lease provisions. To exercise the First Renewal Term or the Second Renew. Terra,, the Lessee must give Lessor written notice by the latter of (i) the date which is 13 Draft Lease Agreement one hundred. eighty:.(180) prior to The expiration date of the Lease Term or the: Fir t tenewal Tebui or (ii) the date thirty(30) days following I,vritten notice from Lessor adyisi Lessee that Lessee has failed to furnish notice of its option to exercise the First Renewal T n or the Second Renewal Term, as applicable, in the manner provided far herein; which .n lee `shall state that such notice constitutes final notice to Lessee of its option to exercise the ii:st Renewal Term or the Second Renewal. Term, as applicable'.The . irst'Renewal. °Tein d the Second Renewal Term will be on tile's arne terms and; conditions as:the Lease Term, eept that the Base Rent will . be adjusted as set forth in Section 41,2 below.. The total tebnb O f e Lease, inclusive of the First and. Second Renewal Term, is fifty (50) years Na additional r.e Ovals will be'avai1able.. 4.1 AITxCLE RENT, SECURITY DEPOSITF ..ANCIAL RECORDS. Commencing on the : Lease Date and n the first ,(1 t•) : day. of ;every calendar month thereafter during the Lease Teri, Lessee here agrees, to pay to the Lessor. the Base Rent. If the first payment of Base Rent does not;fall on e first day of the ino .ath, the first Payment shall be prorated based on the number Ofdays1n s ch. month. The Lessee hereb ees to . .the Lessor the the Base Rentdefined in Section 4.1.1 below or b Percental .; Rent as defined irb Section 4.1.4 .cin an annual basis as set forth in this Article, In the event that Lessee f is to providepa,yrnent of Rent in the time required by the terms of this section, 'shall be siibj ct to, a Late Fee in addition to :payment then due, as more particularly described in Seeion 16.4:below. 4.1.1 Base Rent. The Base ent shall be One .FIundred and Ninety -Five Thousand and 001100 Dollars $1'� 000 per year The Base Rent shall. be, adjusted.and n ei:eased annually by the rib od described, in: Section 4.1,2 below linen the commencement of the second Lase Year.. eater of a 4.1,2 l a 'e Re t Increase L-ssee agrees that the Base Rent shall be increased annually by an amount equal to eater of: an increase by throe percent (3%) of the previous year's Base Rent, or n increase based on the amount :indicated by the Consumer Price Index as of three (3 months prior to the beginning of the applicable adjustment date. In no event shall y suchannual adjustment to the Base Rent result in an increase that is less than -wee percent (3%),or more than Five percent (5 .o), of the Base Rent in the year amount immediately prior to the effective date of such adjustment. 4.1,E 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 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. -14 Draft Lease Agreement 4.1.4 Percentage Rent Percentage Rent shall be equal to a percentage of Lessee's annt ,a Gross Revenues made from or upon the Premises for that same time period. Pe entage Rent shall be computed on an annual basis ("Percentage Rent Period") b ginning with the Lease Date and continuing throughout the Term. The Percentage Rent shall be equal to fifteen cent (1'5%) of the combined Gross Revenues of the Lessee for any preoedii Lease Year, PERCENTAGE RENT SHALL BE SUBJECT TO NEITHE E NATURAL NOR ARTIFICIAL BREAKPOINT. 4.1..5 Manner of -Payment The Percentage Rent shall be payabl ithin sixty (60) days after the end of each Lease Year. Lessee shall deliver to e Lessor a statement setting forth the Gross Revenues during the applicable Percentage Rent Period ("Annual Percentage Rent Statement"), and Lessee shall pay + the City the amount of Percentage Rent due and payable, if any, to the Lessor rsuant to the terms of this- Lease. Each Annual Percentage Rent Statement sha be signed and certified to be complete and correct by an officer of Lessee. Such s :tement shall show the annual Gross Revenues and an itemization of any exclusio s or deductions for the current Lease Year. Lessee shall provide the Annual Perce age Rent Statement with an Annual Gross Revenue Report in. substantially the sal form as attached hereto as Exhibit B and Exhibit C. Lessee shall (i) pay the Lssor (x) the monthly Base Rent and (y) the Percentage Rent, and (it) deliver e corresponding Annual Percentage Rent Statement and Gross Reven e Report for the preceding Lease Year to the City of Miami, Deptment of Real Estate and Asset Management at the address noted bel City of Miami 'apartment of Real Estate and Asset Management Attention: Lease Manager 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 4.1.6 F ,r Market Value required by applicable laws, the Lessor has determined that the Base Rent and the montage Rent constitutes Fair Market Value, The Lessor has made such det iination based on an appraisal of the proposed project as performed by two (2) State -certified general appraisers hired by the Lessor. 4.2 Sec city Deposit Sif ultaneously upon the execution of this Lease by Lessee, the Lessee shall pay to the Lessor a security deposit equal to one hundred percent (1 00%) of the Base Rent specified in section -.1.1 above (the "Security Deposit"), to be held as security for performance by Lessee of all -obi' ations imposed under this Lease which Lessee is required to perform during the Lease Term and any extension thereof. The Lessor acknowledges that a portion -of the Security Deposit was previously deposited by the Lessee with the Lessor as part of initial earnest money deposit 15 Draft Lectse Agreement pursuant .to the terms of the RFP•. The Security Deposit shall: bein the forum of ca or its equivalent which funds maybe commingled by Lessor: with its,' other funds No inte t shall be paid on the Security Deposit.: For so long as the SecurityDepoSit has not been r d by Lessor, it shallconstitute an `account 'payable .by Lessor' to Lossee within thirty (3 days following termination Of this Lease to the extent, if any; the the Security Deposit has of been applied by Lessor as hereunder provided; If EV'ent,of Defanit'shall oocur ,th r'espect.te any coy M t duty, .or obligation of Lessee:Under this: Lease, then.the Security Deposit of any Pet `thererfmaybe' applied by Lessor, at Lessor's sole discretion, to the dariages sustained by Lessor . reason of any such Event of Default or to indebtedness awing by reason of .any failure ,f Lessee to maloe any: required monetary payment under this Lease N'o such applications 11.be construed as: an agreement to lrnait the axnourit of Lessor's cl<um or as a waiver :of any « age er r elease;of any indebtedness, and, any tiaims o Lessor under this Lease not recovere in full from t1e Security Deposit shall teniain in full 1'erce and `effeet: In no:wayShall the s rarity deposit serve as;liilurdated damages for any. event Of default, rather, Lessor may app the security deposit amount to damages. sustained by Lessee's default and contrnne to. regi st any'additional amount owed.; Further :'at any time or times when Le sot has 'made any sucb application of all or any part of: the Security Doposit; Lessor sball::.� ve'the right. (but not the obligation). at any time thereafter to: request..in WritingthatLessoe ay. toLessor a sla131 or slurs equal to the amorous so applied by Lessor so that Lessor will alww ys be in possession of a sunirequal to the amount of the Security Deposit stated above. Lessee shall snake each such requestedr'en ittanoe within thirty (30) days following such request fro Lessor and each such remittance: reoeiyed by Lessor shall thereupon constitute. a part of the clarity Deposit subject to terms and provisions thereof Failure to make any such request : remittance within such thirty (30) clay period may be treated by Lessor as a failure by Lessee. o make timely payinent 'of rent and as an Event. of Default, The Security Deposit : all be retained by the Lessor throughout the entire term of this Lease and, if not utilized by essor, will be returned less interest, and less allowable deductions, credits or setoffs by Lesso within; thirty (30) days following the surrender of the Leased Area at the terminationof this Le se, inclusive of any validly exercised option period, as applicable. 4.3 Lessee's Fin.a ►dal Records Lessee will -stablishan operating entity that is unique. to the operations of the Lessee in the Premirses, as ell as one or more bank ;' accounts through Which deposits. of Gross Revenues generated from, eh operations will,be made. The bank in Which such deposits .are made shall be based in the rifted States or shall have a large local presence. .The said.deposits of Gross Revenues will not be comingled with those from any other operations of the Lessee outside of the Premises •r any other „affiliated organizations. In addition andfor alternatively, Lessee 'will use an ace tinting .system that will separately provide for a detailed accounting of Gross Revenues. he detailed accounting shall not be commingled with the Lessee's other operations; and, sho . d Qomply with federal income tax returns and . state sales, and use tax returns. Accord' gly, Lessee shall prepare and keep full, complete and proper financial records and source octirments In accordance with generally accepted accounting principles, of the Gross Revers es, whether for cash, credit or otherwise, of each separate department at any time opera ed in. the Premises. 16 Drafi Lease Agreemejt The financial records and source documents to be kept by Lessee shall inel e, but shall not be limited to true copies of: (1) records of inventories and receipts of merch disc; (2) profit and loss statements; (3) variance reports; (4) arrearage reports; (5) balance Bets; (6) financial journals and sales summary records; (7) general ledgers, daily dated cash gister tapes; (8) daily dated cash register summary tapes ("z" tapes); (9) prenurnbered sales : ips, including those for snail or telephone orders; daily sales and/or point of sale (pos) repor :, (10) financial statements; (11) bank statements; (12) records of daily bank deposits fro ,R transactions at or from the promises; (13) duplicate validated bank deposit slips; (14) purcse invoices; (15) inventory and receiving records; (16) pricing schedules or other materials s •wing price markups; (17) federal, state, .and local income tax returns;. (18) state and loc sales tax reports; (19) settlement statements of transactions with subtenants, concessio 'res, and licensees; :and any and all records that may be examined or required by an indep nden.t accountant in performing an audit of Lessee's Gross Sales or which may be requested .. Lessor, If Lessee subleases the property or provi# -s a license to a third party in accordance with Article X herein, and Lessee's operations reclue its sub -lessees (or licensees) to pay a security deposit and/or advance rent, Lessee shall d .+sit such security deposit/advance rent monies into a separate bank account and shall net co r.«ngle these monies with any other bank account used in its operations as described herein. Pertinent original sales records all include, without limitation, (i) sales reports of back office systems fed from point of sa - terminals, (ii) cash register tapes, including tapes from temporary registers, if any, (iii) se '.11y pre -numbered sales slips, (iv) the original records of all mail, internet and telephone order at and to the Premises, if any, (v) settlement report sheets of transactions with any person eoo ducting business on the Promises, if any, (vi) original records indicating that merchandise returned by customers was purchased at the. Premises by such customers, (vii) memoranda receipts or other records of merchandise taken out on approval, (vili) detailed original reco s 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 .ursuant to accepted auditing standards in performing an audit of Lessee's sales. 4.4 Reports by essee Within thi y (30) days following the last day of each month. of each Lease Year, Lessee shall furnish to essor a monthly statement of Gross Revenues generated in the preceding calendar neon ("Monthly Gross Revenue Report"). The Monthly Report shall be signed and certified to be complete. and correct by an officer of Lessee. Lessee shall use a Monthly Gross Revenue Report, .a sample of which is attached herewith and incorporated herein as Exhibit D to itemize any : nd all reportable Gross Revenues, or any similar form acceptable to Lessor. W' n sixty (60) days after the end of each Lease Year, Lessee shall also furnish to Lessor Annual Percentage Rent Statement and Annual Gross Revenue Report specified in section .1.5 above, showing in reasonable detail the amount of such Gross Revenues made by Lessee from the Premises during the preceding, Lease Year, Any intentional misstatement of Gros evenues will constitute a default under this Lease. 17 Draft Lease Agreement 4.5 : light to Examine 1 h ancial Records • Lessor shall have theright to examine make extracts from, and cop es;,ee&s financial records, seurce"documents, bank statements; state Sales arid use 'tax. v'ett, Y' slreports, and federal inconie tax returns filed by;:Lesseei and pertaining tc the financial orations on the subject property° ' Lessee shall make. all suchdocuments and records avail e for a.period.of seven (7) years after the :expiration of'seach `Lease Year Lessee :shall sh such information' at 'the Premises or Lessee's main. accounting office upon net' less t an thirty (30) days pi ,er . written notice from Lessor 4.6 Audit At its option, Lessor tray a't. •,any •tine, rip not lessthan tlirty. (30),ddays, prier written notice to. Lessee :arrange for an aia.ditor; selected Lessor to conduct a;complete audit (including a ph)sic441.:ven.tory) of the entire records ari Aerations of Lessee included in Gross Revenues from the premises during-the.period_ cover-: by any statement' issued. by' Lessee Lessee shall make available to:the Lessor's auditors at t e Prernis{es or. Lessee's main accounting office on the day set forth.' in. Lessor's notice? ;regi. rig such •audits all of the financial records, source documents, variancereports;: genera ledgers; management reports, arrearage reports, check registers; . and. a a:y Other. Materials '' bleb suoh auditor deems necessary ::or desirable for the puirpose ofperforming.Snell audit Leseeshall promptly p»y to Lessor the amount of any delioiency in Percentage Rent payments _disclosed by any s . h audit Yf such audit shall disclose that Lessee's statement of Gross Revenues ;is at yarn' 'e to, tide extent of, five percent (5%a) or niore,. Lessor may bill to Lessee the cost 'of such dit, which Lessee shall pay within thirty '(30) days after Lessee's receipt of Lessor's invoi . Tfsuch audit shall disclose,an overpayment, Lessor shall credit such overpayment toward. th next.payment of Rent duo: In addition to the' foregoing, .and in addition to all other renedie~s adtable':to Lessor,. in.'the event. Lessee's axclitoi� and Lessor's auditor shall schedule a date: 'for anclit'of Lessee's records, and Lessee shall fail to be available or shall otherwise fail to comply with the reqUirernents for stela audit, Lessee shall pay all costs and expensesassociat cl with the canceled audit Lessor and Lessee agree: to attempt to resolve any audit dispute no, resolved in sixty (60) days following delivery of the final audit by submitting the results of e disputed audit ta„a. mutually aceoptable third -party accounting firm for its opinion, the f which wch shalt be paid by Lessee, hi dition . to Lessor's available'' remedies, inthe: event an ,audit or other reliable inforinato reveals that Lessee'; records are unavailable due to Lessee's failure to reasonably maintain uch records, Lessor shall be „entitled, to collect .as ..Additional. Rent from Lessee an amount equal `to the lesser of .(i) fifty` percent (50%) of the Percentage Rent (the "Audit Unava' abthty Penalty') paid by.Lessee in the preceding Lease year prorated for the period in quest` •ri (i.e,, if the period .in, question is egnal`to six (6) months, then the Additional Rent prey dcd for herein Will be equal to 50% (1/2 of the year) of the. Audit Unavailability Penalty) or (ii) e difference between. (x) 1.10% ofthy Percentage Rent that Lessee has ealci fated as payable in he year in question and (y) the Percentage 'Rent ' paid, in the preceding Lease Year. Lessor's e ercise of the foregoing remedy shall in no way limit dr otherwise affect Lessor's ability to xercise other reixiedies available to it, nor shall Lessee's obligations pursuant to the terms, covenants and conditions of this Lease (iii.cliiding, without limitation, Lessee'.s obligation with 18 Draft Lease .Agreemet/ respect to reporting Gross Revenues and payment of Percentage Rent) be in any ma reduced or diminished by the exercise of such remedy. Lessor shall additionally have such audit rights as are set forth by Se ion 18402, City Code,which is deemed as being incorporated by reference as if fully set for herein. In addition Lessor shall have the ability but not the duty to conduct inspections, as e set forth in Section 18-101, City Code,. deemed as being incorporated by reference as if f�. ly set forth herein, from time to time, of the Premises as provided. 4.7 Lien for Rent & Other Charges The Whole amount of the Rent aiid each and eve taxes, assessments, water rates, insurance premiums an by the Lessee under the provisions of this Lease, and which may be incurred by the Lessor in enforcing t any delinquency of the Lessee in carrying out a they are deemed to constitute a valid lien u Lessee's leasehold estate. installment, and the amount of .all other charges and Impositions not paid costs, attorney's fees and other expenses e provisions of this Lease, or on account of of the provisions of this Lease, shall be and n the Leasehold Improvements, and upon the RTICLE V LEASE. LLD IMPROVEMENTS 51 Lessee's Obligation to Prov'de and Fund Leasehold Improvements Should Lessee construct nd install improvements to the Premises, Lessee shall, with no less than thirty (30) days prior written notice and at Lessee's solo cost and expense, submit to Lessor. for Lessor's approval of to be unreasonably withheld, delayed, or conditioned) its Mans (defined below) for the coy encement and completion of the construction of the Leasehold Improvements. The plans hall include any work or equipment to be done or installed by Lessee affecting any structural, . echanical or electrical pad of the Premises ("Plans"). Within thirty (30) days of receipt of the Plans, the Lessor shall give Lessee written notice of either Lessor's approval or disapprovv 1 setting forth the reasons therefore. In the event that Lessor disapproves the Plans, Lessee shall within ten (10) business days of receipt of the . otice modify the Plans in accordance with the reasons set forth in Lessor's disapproval noti , if applicable. The modified Plans shall be resubmitted to Lessor for Lessor's final review an. approval. 5.2 Poss .. sxon Date Le or shall deliver possession of the Premises to Lessee and Lessee shall take posscssia thereof on. the Lease. Date, as defined in Section 1.3 above. By the Lease Date, the Lessee s all have provided the City Manager or his/her designee evidence, as may be reasonably satisfa ory to the Lessor, that Lessee has sufficient funding or binding funding commitments to comp to the Leasehold Improvements to be constructed at the subject property. 5.3 Payment and Performance Bond 19 Draft Lease Agr eynetnt Within ton (10) days Mier the Lessor approves the plans in writing .an essee obtains building permits consistent with the Plans, bat in atiy event prior to the: co erieern.ent of any construction, .,the Lessee shall,: at Lessee's sole . cost and expense, fir '.sh the Lessor with a 'Payment and Performance Bond in stbstantially the form preseribed Section 255.05, Florida Statutes.: `Plans, design and construction documents Will comply 'tit all applicable; contract, legal, and, regulatory requirements tricludingx Without limitation,` e Florida Building Code. The Payment and Performance Bond shall be issued a bonding company which shall be approved b � . Lesson in the reasonable exercise of its creflon in an amount equal to one Pp �' �� .q . hundred percent (100%) of the costs to construct the : easehold4mProvenientS described in Exhibit E naming the Lessor as the'owner/obligee, and e Lessee or Lessee's general contractor, as the principal guaranteeing_the:paythent and. perf / mance of Lessee's • obligations with respect to any and all cot strixet or% work pertaining to the easehald l'rripr-overnents;, free of. Constiuction or other liens.. The conditions of the .Payment d Performance Bondshall be to insure 'that the Lessee or Lessee's general contractor will: . _i. Promptly snake payinent t all claimants, as defined in Section 255.0' Florida Statutes; as amended,''sup ying the Lessee with labor, :materials, or supplies, used directly or indirectly ,b the Lessee in the prosecution, of the Work 'related to the Leasehold Improvem is under this. Lease; ii. Pay Lessor all: loss s damages,: eN cnses, costs, and attorney fees, including appellate proceedi g$`that Lessor sustains becattse of a default by Lessee Under this Lease pi rsu t te'claitns made under Section 255.05, Florida Statutes; and iii. Perform the rantee of all obliga idfs °of the Lessee's tinder this Lease with respect to th construction, and the acquisition and installation of the Leasehold fmproveme ts. The Payment an PerformanceBond may be terminated :at such time as the construction, and the acquisition an installation ;of.the:Leasehcld Improvements are completedas evidenced by issuance of a C rtii cate of Occupancy and reasonably satisfactory evidence thereof is providecl,by the Le ee to the. City Manager, including certification by the Lessee's architect that all requirementsO. the Payment and;Perfor'm.ance Bond have been satisfactorily Concluded; and by' the issuance a Certificate of Oceupaaxey , . he fora of the Payment and.. Performance Bond, a sample of w 'ch is attached herewith byrefexen:ce as Exhibit F, shall be approved by the City Manager or Risk Manager as hiS designee and by the City Attorney as to legal form, which approval sha1 notbe u:rireasonably.wit held, 5.4 Cq%tractor's Insurance e Lessee shall require every contractor performing any work pertaining to the Lease old Improvements to fuxnish certificates of insurance, including Builder's Risk insurance, if ap icable, to -the reasonable satisfaction of the Lessor in accordance to Exhibit (3 attached hereO. Copies of such certificate s shall be furnished to the City of Mimi. Risk Manager, 444 SW 2"`l A:venue 9tli Floor, Miami FL 33130. The City will the named as an additional insured on su h policies. Conveyance of Improvements 20 Draft Lease Agreeme The Lessee hereby, in consideration of the granting of this Lease shall upon ter fnination or expiration of this Lease, convey unto Lessor, free and clear of all liens, title to 11 Leasehold Improvements of a permanent character, including but not limited to, refr jg6raters, stoves, freezers, hood systems, grills, dishwashers, sinks, kitchen work stations and li t fixtures, In addition to the Leasehold Improvements to be conveyed to Les r.as referenced above, Lessee shall further grant to the Lessor the right to purchase from t Lessee, all of Lessee's personal property added to or installed at the Premises by the Les e during the Lease Term, including all furnishings, and equipment at actual cost less dep elation .as determined by an appraisal, provided that the Lessor by written notice to the Le ee at least forty five (45) days prior to the expiration or termination of the Lease Term,. 5.6 Premises to Remain Free of Liens The Lessee shall make, or cause to be rnao -, prompt payment of all money due and legally owing to all persons doing any work, hielu 'ng subcontractors; or providing supplies and equipment in connection with the construction, r onstruction or operation of the Premises. The Lessee shall have no power or right to and shal of in any way encumber the Lessor's fee simple interest in the Premises. If any liens or e brances shall at any time be filed against the Premises, the Lessee shall, upon acquirin /ri.z�ninowledge of such lien or encumbrance, promptly take and diligently pursue a cause of act - n to have the same discharged or to contest in good faith the amount or validity thereof c d if -unsuccessful in such contest, to have the same discharged. If Lessee fails to dischar e the lien, the Lessor, in addition to any other right or remedy that it may have, may take ich action as may be reasonably necessary to protect its interest, and the Lessee shall be r ponsible for any and all reasonable costs incurred by the Lessor in connection with such acon, including all reasonable legal fees, costs and expenses. 5.7 Lessor Approval All Plans furnished finder this Lease are expressly subject to Lessor's written approval, which the City Manager is ereby .authorized to act on behalf of for purposes of such approval, and which approval he or he may not unreasonably withhold or delay. No approval by ' .e City Manager of any Plans furnished under this Lease pursuant to this section shall relieve essee of any obligation it may have at law to file such Plans with any department of the Cit or any other governmental authority having jurisdiction over the issues; or to obtain any bail ins 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 constitute an opi 1,on or agreement by the City that the Plans are structurally sufficient or in compliance with - y applicable laws. ARTICLE VI CONDUCT OF BUSINESS BY LESSEE 6.1 Op ation of Lessee's Business At all times during the Lease Tenn, Lessee shall manage the Premises with due diligence and effl envy, in Lessee's sole discretion, subject to the limitations set forth in this Lease, and in 21 Draft Lease Agreerraen a marmex. prudent and in accord with the current first: class and best busineess pra ces and techniques within the locale for Lessee's business in similar businesses located:_iri ami-Davie County, . Lessee shall carry at all tunes• in the Premises a ;stock of merchandise Stich quantity,. character .and quality as shall be in accord with comparable businesses wi the locale of the Premises. Signs Lessee -will not place or perinit to -be placed or maintai cl on any exterior door, wall or window of the Premises, or within the in.€error of the Premise , any signage or advertising: matter of any kind, without first obtaining Lessor's written appr' al and eonsent, which may not be uiueasonably withheld. Lessee shall;. erect an exterior s'.. of type, cornpositlon and design in conformance with the City of Miami Zoning Code:: d the Sign Regulations of Miami -Dade County, as applicable. Lessee furrier agrees tha such signs, awning, canopy, decoration, lettering, advertising matter or other thing as m: be ap p7ovecl. shall be maintained in good condition andropair at aii times. • IY1411.1TEINl-WE,.P.All1 AND ALTERATION i F' FREiISES 7:.i Lessee's Maintenance:Obl ga Lessee, at its sole cost and labor to continuously maintain erp•erating equiprrient, utility se cost and expense, agrees to pr services, and any and all oth Improvements remain in g the Lease Term. Lessee the Pr"emise5 .and decor furnishings,. and ether at the Lessee's sole • insure a ooritinnin Premises coinnaen and Applicable expense,. agrees to provide the necessary inanagenient and e Leasehold Im.pro`'einents. in the Premises, including all lees, and Connections within the Premises. Lessee, at its sole ide, janitorial and. custodian ser doss, trash and garbage removal related services necessary to have the Premises, and the Leasehold d, safe, code compliant and sanitary condition and repair throughout all be responsible for'periodic painting of the interior and, exterior of this the interior Of the: Premises, maintaining its equipznent, fixtures, ersonal property good condition acid repair. All Maintenance shall be at and expense and wilt be subject to general inspeetian by the Lessor to quality of maintenance and appearance :and: physical, cortclition of the crate svith'rnaintei ance; health, and safety staiidaida established by the Lessor 7.2 Lessees Repair Obligation Subj except as times du without 1 replace and r Lesse .Impr at to the provisions of this Lease regarding casualty damage and condemnation and herwise provided for in this Lease; Lessee, at Lessee's sole cost and expense, at all g the Lease Terrm,shall make' all i epairs to all Leasehold Itnprovmvents, including, nnitation, all heating, veritilating acid air=t;aildi.tioning equipment and any other repair or eat to the Leasehold Improvements. The Lessee will be responsible for maintenance airs in the Leased Area throughout the term of this. Lease. For avoidance of doubt, the 's repair obligations shall not include • (i) any initial installation or provision of City vements or (ii) any repair, maintenance or replacement that includes areas outside of the 22 Draft Lease Agreement Premises, or (iii) any repair, maintenance or replacement, which is the responsib' ,ray Oi' Lessor, as provided in Section 7.3 below. 7.3 Changes/Alterations. Lessee shall not install or cause to be installed any e . Brier signs, affixed exterior machinery, shades, awnings in and to the Premises or any par ereof without the prior written consent of the Lessor, which consent the City Manager is he;by authorized to give, and may not unreasonably withhold or delay. No approval by the City Manager of any chat(ges or alterations shall relieve Lessee of any obligation it may have at law to file the require documents with any department of the City or any other governmental authority having juri.sc ction over the issues; or to obtain any building or other permit or approval required by law, )/essee acknowledges that any approval .given by the City Manager pursuant to this section sha not constitute an opinion or agreement by the City that the changes or alterations are in complce with any applicable laws. 7.4 Capital Expenditure Fund. Commencing in Lease Ye ten (10) and extending through Lease Year fifteen (15), Lessee shall set aside an amount ual to twenty percent (20.%) per year of Average Repair Costs into a separate reserve account (until 100% of Average Repair Costs is deposited), in order to fund capital expenditures for e Premises ("CapEx Fund"), which is required to be capitalized as an improvement to the P emises. The CapEx Fund may be used beginning in Lease Year eleven (11). The CapEx . and shall be applied toward major repairs and improvements, including, but not Um' ed to, substantial mechanical and structural purchases, upgrades, improvements, or repai s; the CapEx Fund shall not be applied to minor repairs due to regular wear .and tear, The CapEx F" and accrued from Lease Years ten (10) through fifteen (15) must be spent in the manner specifi d above on or before Lease Year twenty-five (25). Commencing in Lease Year twenty-five 25) and extending through Lease Year thirty (30), the CapEx Fund shall be replenished in amount equal to ten percent (10%) per year of Average Repair Costs. Commencing i Lease. Year forty (40) and extending through Lease Year forty-five (45), the CapEx Fund all be replenished in an amount equal to ten percent (10%) per year of Average Repair Cost .Any amounts remaining in th.e CapEx Fund must be spentin the manner specified above on o efore the termination of the Lease. L: 'see shall maintain financial accounting and "scope of work" records together with any correspo: ding documentation of amounts placed and amounts used from the CapEx Fund, which shall b: subject to review by Lessor, in the manner specified above in sections 4.6 and 4,7 of this Lease ARTICLE VIII. INSURANCE AND INDEMNITY 8.1 Insurance on the Premises 23 Draft Lease A. eement In connection herewith, Lessee. -shall obtain and maintain or cause maintained in full force and effect throughout the period of this Lease, the forth in Exhibit . H. If required by state, county, or city laws fro conducted an or use of municipal properties, Lessee shall obtain obtained and maintained throughout or during the tease Tenn, amounts of payment, performance, maintenance, or restoration ,reviewed and approved by the City's Risk Managerxient Lessee's Risk Manager. e obtained and urance coVerage set iine to time for work Maintain or cause to the ss applicable, such types and nd(s) as shill' be required to be epartinent in coordination with. The Lessor resolves'the right to reasonably am d the herein insurance requirements as :may be applreabie in connection with the; -scope etemplated' under this agreement.. Lessor further reserves the right to request copies of al ✓applicable policiesin connectien, with this agreement. Delivery of Insurance Policies All' liability, statutory workers co pensation and property policies, if applicable, shall be retained by the Lessee. Except as of - r ise specifically provided; all other policies of insurance required to be furnished shall be held and be payable jointly to the Lessor and the Lessee with the proceeds to be distributed in a cordanee with -the terms of this Lease lnist1rai ce company certificates evidencing the existe e of all of these poizc os of.insuranee shall be delivered to the Lessor, . A11 policies of insun7. e ce require d by this Lease shall provide. that they shall not be amended. Orcanceled on less han thirty . (30) days :prior written notice to the Lessor and all : insured b erieficiaries of the olieies shall contain waiver of subrogation rights endorsements, as required below. The Lesso shall have no obligation. to Pay premiums, make contributions: to the insuring company or any ether person, or to satisfy any deductible. On or before the Lease Date and not less than thirty ' 0) days prior to the expiration date of am/ policy required to be carried pursuant to this sectio the Lessee shall deli -Vex to the Lessor,the applicable respective policies, or insurance coin.pan certificates: evidencing all, policies of insurance and renewalsrequired to be. f irnis red. Rec ipi of ar y deettri,ennation of insurance by the; Lessor ; or by any of its representatives th indicates less coverage than required does not constitute a waiver of the Lessee's o bligate s to fatf iiti the insurance requirements herein.,:The i essoi shall ,appear listed as en sxtclitianal in- lied on all'applicable liability pd1ioies, and loss payee onany property policy. : The insurance shall, be primary and non-contributory; and should ineltkle all corresponding endorsements n connection with the agreement, and as required -by the City. 8.3 Adj tment of Loss A y Gross InsuranceProceeds 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 ofthe Gross Insurance Proceeds plus the amount of any deductible applicable to said dainas; or destruction shall be deposited by the insurance company or by the Lessee (in the case of deductible) with en escrow agent reasonably acceptable to the City Manager, with inst ctians 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 pr1igresses upon certificates of the architect or engineer supervising the work that the t sbtirserents then requested, plus all previous disbursements made from such Gross Insurance 24 Draft Lease Agree rat Proceeds, plus the amount of any deductible, do not exceed the cost of the ork already completed and paid for, and that the balance in the escrow fund is sufficieto pay for the reasonably estimated cost of completing the required work. The escrow hole shall be any bank mutually agreeable to Lessor and Lessee. If the amount of the Gross Ins ance Proceeds is less than the cost of the required work, then Lessee shall pay the excess co . , and if the amount of the Gross Insurance Proceeds is greater than the cost of the required wrjrk,. then the excess shall be paid to and belong to the Lessee. 8.4 Indemnification of Lessor Lessee shall indemnify, defend and hold Less.. harmless from and against any and all clairns actions, damages, liability and expense in co ection with personal injury and/or damage to or destruction of Premises arising from or out o any occurrence in, upon or at the Premises, or arising from the occupancy or use by Lessee of e Premises or any part thereof, or occasioned wholly or in part by any act or omission of Lsee, its agents, contractors, employees,servants, customers, invitees, licensees, sub -lessees o concessionaires, excluding any claims arising from the negligence or willful misconduct .ofLessor (or any other person acting on behalf of the Lessor as its contractor, employees, a ht or representative). Lessee shall further indemnify Lessor for any penalties, fines, costs expenses, suits, liabilities, claims, or damages resulting from Lessee's failure to perform obligations in this Lease and/or for Lessee's failure to comply with applicable laws. Inc e Lessor shall be made a party to any litigation commenced by or against Lessee and covered y this indemnity provision, then Lessee shall protect and hold Lessor harmless and }gay all f Lessor's costs and attorney's fees incurred by Lessor in connection with such litigatio , and any appeals thereof. Lessee shall also pay all of Lessor's third party costs, expenses d reasonable attorneys' fees that may be incurred or paid by Lessor in enforcing the covenant • and agreements in this Lease inclusive of administrative, litigation and appellate proceedin . Further, Lessee shall indemnify, defend and hold Lessor harmless from and against any d all claims actions, damages, liability and expense arising from or caused by the presene , in or about the Premises, of any Hazardous Materials placed on or about the Premises by Les ee, or its agents, employees or assignees, or at Lessee's direction, or by Lessee's failure to mply with all applicable Environmental Laws. 8.5 Waiver + Subrogation Lessee waives all rights to recover against the Lessor for any damages arising from any cause cover-. ` by any insurance required to be carried by Lessee, or any insurance actually carried by essee. The Lessee shall cause its insurer(s) to issue appropriate waiver of subrogatio rights endorsements to all policies of insurance carried in connection with the Premises or any part thereof. 8,6 ' elease of Lessor The Lessee and its assignees, for and in consideration of the leasing and the demise of the Pr ises to the Lessee, hereby release, remise and discharge the Lessor, its officers and ei �loyees, of and from all claims, demands, and 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 25 Deaf i Lease Agreement furniture, fixtures and equipment installed in the Premises, and from any and. all costs and expenses: of Lessee or its assignees inconnectio With this Lease, including, lint not 1 ited to those costs' associated withthe.developinent of the Premises and acquisition of easehold Improvements (the'" Clairn'j, it isthe intent of the Parties that this provision s1 control over any other:provision in. this Lease and that :notwithstanding anylimited repre tatiens provided by Lessor under Section 2.4 of this Lease : neither the .Lessee, nor its signees ,shall seek to recover front the Lessor compensation for, or reimbursement of, costs; lossesi fees or expenses incurred by.the Lessee or its assignees. The teri .s of this revision shall expressly be made a part of any fture assignment or Mortgage of the Leasehol riterest ARTICI* X SE1 V1C S AND YTTTL T IES 9,1 Lessee to Prov tte and Pay for`TTt hies Lessee shall pay, :or cause to be pa' , all proper charges..for gas, electricity,, light, heat, Water and power, for telephone, protects e and other comtu cation; sorvi.ces,. and for all other publi6. or privateutility services, .whi shall be. used, rendered or supplied upon or in x. cot `tiectioii with the Premmses. and. catty• Loa'ehold Tmpr reinents if arty, car any part of it, at any tithe- clur'ing. the Lease Term, and the Le ee sha11 comply With all contracts relating to any such seryiees and *ill do all "other things `xe . bred for the Maintenance and continuance of all services as are necessary for the pioperiri ai enance aril operatien`of the Premises and the Leasehold Tinproveinents. The Lessee shall, t its sate expennse,:procure any and all necessary permits, licenses'or other, authorization --re Tired for the lawfrd .and proper installation and maintenance iron the Premises ofwires,,pip s, conduits, tribes and other equipment and appliances for use in supplying any- such utilities; sey `ces or substitutes to the`. rerhises. 9.2 Lessor Not Liable r Tailiire of Jtilities The Lessor slam not, be liable 'for any failure :of water supply, serer, gas 'or electric current; or for any inju r or darnage:to any person or `to thePre isea: caused by er resulting from water, ga:s or elet;trici which; may leak or flog from the Water or as mains on to any part of the Premises or the Le sehold. Improvements. The Lessor shall not be recited to make any alteration to any se: vice or utility,systein of the Premises on behalf of Lessee. Lessor shall not be liable for tempfrary failure of services, and aia.y such'teinporaiy failureshall not be deemed to constitute` actual' or Constructive eviction; nor "entitle Leo tci any abatement or' diminution in rent payable unr.er this Lease. Lessor shall not make or allow to be made after the Lease Date .any changes in any utility service to, trough, under or above the Premises that would'result in a materially disruptive effect on th 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, ventilatio r and air conditiOning, without the prior written consent of Lessee, which shall not be unreaso •bly withheld, conditioned or denied;. further, provided, that the written consent of the Lessee,' . all not be required for minor, routine and customary, maintenance; repair, improvement and L s ales made by the utility provider to the utilities it furnishes. 26 Draft Lease Agreement ARTICLE X SUBLEASES, ASSIGNMENTS AND TRANSFERS 10.1 Subleases, Assignments and Transfers Lessee shall not, at any time during the Lease Terra, enter into any sublease, license, concession, easement, or permit agreement with respect to the Premise or (ii) sublease, assign or transfer this Lease to any third party or parties, which has the (feet of granting exclusive possession to the Premises and assigning the rent and other obli Lions set forth in this Lease to any third party or parties (collectively "Transfer"), without first procuring the prior written consent of the City. The provisions of this Article consti e the sole means by which Lessee inay request Lessor's consent to a Transfer. In recognition of the fact that this Lease was a arded to Lessee following a competitive procurement relying ort Lessee's unique attributes, 3. y Transfer of this Lease to any third party or parties (except as otherwise permitted under t, is Article X) shall require the prior written approval of the City, which may grant, deny, r se or consent to such Transfer, in the City's sole discretion, based on reasonable co cial factors including the credit worthiness, solvency, reputation, ability and experience such proposed transferee. If approved, any such transferee shall be required to sign a writte r agreement assuming all terms and conditions of the Lease, without exception ina form satis ° ctory to the Lessor. Any such. attempted Transfer of the Lease, without the Lessor's prior w tten consent, shall be void and of no force or effect and shall not confer any interest or estate the purported Transfer and will additionally be a default by Lessee of this Lease. It is agreed that all terns d conditions of this Lease shall extend to and be binding on all transferees, assignees or Stub- .essees as may be approved by Lessor and shall be for a period of time equal to or less than the Lease Term, Lessor reserves the right to directly terminate the rights and interests of any tr sferee or Sub -lessee under any Transfer for any cause for which Lessee's Leasehold Interest n ay be terminated. Lessee shall reimburse to Lessor, as Additional Rent, all costs .and expen -s, including third party attorneys' fees, which Lessor reasonably incurs b.y reason of or in cnnection with a Transfer, and all negotiations and actions with respect thereto, such Additiona Rent to be duo and payable within thirty (30) days of receipt of a statement of such costs nd expenses from Lessor, 10.2 Procedure fq Transfer Subject to e provisions of Section 10,1, should Lessee desire to Transfer the Lease, Lessee shall, in ach instance, give written notice of its intention to do so to Lessor's City Manager at lea t'thirty (30) days prior to the effective date of any such proposed Transfer, specifying in s eh notice the nature of such proposed Transfer and the proposed date thereof and specifically i entilying the proposed Sub -lessee, Assignee or transferee, Such notice shall be accompanies by a copy of the proposed Transfer agreement and any other documents or financial in nnation Lessor may reasonably require in order to determine the suitability of the Sub -lessee Assignee or transferee. If requested by Lessor, Lessee shall provide to Lessor copies of all Tr sfer documents and amendments thereto, Lessor shall either (i) withhold consent to the Trans er:, together with a detailed explanation for such denial, or (ii) consent to such Transfer upon the terms and subject to the conditions provided for in this Article, by mailing written 27 Draft Lease Agreement notice to Lessee of its intent to do so. Lessee aol riewledges and agrees that the imposition of the conditions provided iaei ein=recluiriiag Lessor}sconsent is`reasonable. 10.3 Additional Consideration Payable to Lenox'• If Lessor: iv'es its consent to any Tr asfer, Lessor. shall,be entitle any:snich Traci Ter, with the Lessor's: participation. upped at a niaxitniti of foci` percent (4%) of gross prciceeds frOin the sale if. the Lae is assigned or otherwis arisferred or sold Within Luse {@'ars cane (1) throiugh'five (5} and:, five percent (5%). if tip sferred after.Lease-Tear. five (5).(`'Ttansfer Fee")L- esseeshall, it consideration of any Tr sfer, .010 e in: Lessees Gross revenues the aniottnt. S ib-Lessee's, sstgtiees or transfer "s : .°oss .eveniies Which `shall be listed separately on Lessee's .Annual Report, Assignees trarisl i'ee's rec&ds'shall lie kept in accordance with, . Article lV : Additiofygi;y,. Lessor res es the right: to exaxnirie _ttapgferee's books and:audit transferee's entire records in accordari with Article IV ofthis Lease; The Transfer fee .shall be perpetual and sha apply" to ;any sucebssive Transfer procured by -the tents of this Lease for as. long as this ease' is actin, including modifications and extensions; if any. :The a.cceptance.:by Lessor of:.the payment.:' of rent following any Transfer prohibited by this Article shall not be ;deemed o be consort by Lessor to any su.eh As:sxgntrient or Transfer,; nor,slaall the: same be deeriie a Wa'. er of anyright or remedy of Lessor hereunder: 10.E Definitions As used in this Article, the ter "Transfer" means: 1. any Total r partial sale, or assigt nient. of Lessee's business or Leasehold Estate o any. contract ox agreement to do any of the same, including by etater ae into a sublease, assi:grurient, : transfer agreement, concession ent, any traxasfer. -of ° more' than . foamy- e . percent (49%) 'of the stock of L see or of•the . toelc of any ()Miners other:thous an Owrtcr whose shares e ..pub1iely traded ' if the transfer results in a transfer of rindre than forty- , e percen (49%1'ofthe beneficial ownership of Lessee, 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 trad.ed. 0 or" means:. any person, firm, corporation or other entity which •owns, directly or indirectly, legally or bene icially,•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. "Owner whose shares are publicly traded" nieasis: 1. an Owner who has filed an 'effective registration statement with the Securities & Exchange. Cornmissiop (or its successor) with respect to the o any proceeds from 28 Draft Lease Agreement shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and 2. 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 theSecurities & Exchange Commission (or its successor) or is publicly traded over the counter. 1O.5 Acceptable 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. herefore, Lessee agrees that except as permitted pursuant to this Article X of this Lease, no ransfer may be made, suffered or created by the Lessee, or any Owner without the prior 'tten consent of the City Manager, which consent shall not be unreasonably withheld or delayed. The following Transfers shall be permitted hereunder without the written approv of the City Manager: (a) Any Transfer directly resulting fVorn the foreclosure of Lessee's Leasehold Estate, provided that such purchaser or grantee is an institutional investor (including a bank or 'other similar financial i titution) or an agent, designee or nominee of an institutional investor which wholly owned or controlled by an institutional investor, and that such purchaser or 4rantee within six (6) months after taking' possession of the Premises, shall have exit ed into an agreement for the management and operation of the Premises with an A ceptable Operator or is itself an Acceptable Operator; (b) the issuance of stoc or stock options to Lessee's directors, officers, or employees, provided the stool or stock options issued constitute, in the aggregate, less than fifteen percent (1 '%) of the issued and outstanding stock of Lessee; The Parties hereb acknowledge and agree that anything herein to the contrary notwithstanding, the "gng public" by Lessee, including, but not limited to, the filing of a registration statement th the Securities and Exchange Commission and/or the creation of one or more classes of sto c and the offering of shares of stock -to the public for purchase, shall not constitute a Transfer ereunder and shall not require the consent of the Lessor. Any copse to a Transfer shall not waive or abridge any of the Lessor's rights to consent. to a subsequent T. ansfer. Any Transfer made in violation of the terms hereof shall be null and void and of no ^.roe and effect. Any transferee must be an institutional investor (as provided above) or an Acceptable Operator in each such instance. 10.6 Notice of Transfer W` respect to any Transfer which must be approved by the City Manager, the Lessee shall giv or cause to be given to the Lessor written notice (including all information necessary for- theLessor to make an evaluation of the proposed Acceptable Operator according to the require oats of this Lease) of any Transfer of which Lessee, or its officers shall have know dge, not Less than thirty (30) days prior to any such proposed Transfer, and the Lessor - shall ithin thirty (30) clays of its receipt of such information, advise Lessee in writing if it shall con nt to same. If the Lessor shall not consent to a Transfer, the City Manager shall state the 29 Draft Lease Agreement reasons for such disapproval in his notice to Lessee..Ilthe .Lessor is not required to Transfer pursuant to the terms hereof, .the Lessee shall notify the Lessor in within thirty (30)'days after the date of Transfer,: In the event that City Com required .by this Lease', the City Manager: shall use die diligence' to pr Transfer. to,the City Coinnnission assoon as practicable and the triie fo shall be reasonably extended to provide sufficient tinge for preseritatio 10.7 Infornintto>&.as to Shareholders etc. nsent to a biting of same ssion approval is ent the request for erfonnanee by Lessor o the City commission. If-applicabie, lessee shall from time to time tl rou out the Lease Tenn; as the Lessor shall reasonably request, furnish the Lessor with a comPle statement, :subscribed •and sworn to by the President -;or Vice -President and the -Secretary or ssistant Secretary of the Lessee, setting forth (to the et -tent lcnown)•the full nernesand addre es of material holders of stock interests: in Lessee, and the extent :of their holdings; : and in. o went any. other parties have a material benefeial interest in such stock, their full tarries. d addresses arid the extent of such interest as determined or 'indicated by .;;the. records .of ossee Notwithstanding the'foregoing, the information required.by, this Section shall be .re•quired to. be furnished with respect to the shareholders of any iwner whose shares e publicly traded.,As used in this section; the term "material." :shall mean ownership of: not le than a ten (10%a) percont interest in Lessee.. 10.8 Effectuation of Permitted Tr insfers No. Transfer shall be effect e Unless and Until: (l-) all Rents; taxes, a ° essments, impositions, insurance, permitting and other charges required to be paid by the L see finder this Lease shall be paid by the Lessee tip to the date of transfer, and all other cave tits' and agreements to be kept and performed by the Lessee shall be substantially complied Zvi at the date of the Transfer, and () the entity t ` Which such Transfer is made,by'iiastriin ent in -writing reasonably satisfactory t+o the Olt ` Man :ger (s1.1bject to approval as; to legal•for'm by the``City Attorney) and in a fonri recordable mong the land records, shall, 'for itself and iiSy successors and assigns, and especially for. the b nefit of the Lessor, expressly assure all of the obligations of Lessee under this Leaser .agree/ o _be subject to . all conditions and restrictions. to which' Lessee is subject, including• the eY(litional guarantees required„ unider. Section I0.5 of this Lease; provided, however, that ny transferee shall not he :required to assume any personal: lability under. this Lease with r pect to any matter arising: p.or or. subsequent:to the period of such transferee's actual own ship, partial or whole, 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 o prejudice any other right or remedy available to the Lessor for default by Lessee). Nothing eroin shall : be. construed to :: relive or release the Lessee . from liability for the porton ice of all of the obligations of Lessee. raider this Lease, 10.9/ . Criteria for Consent for Transfer The Lessor may, at its. sole discretio.n,condition its consent to a permitted Assignment, Sublease or Transfer upon satisfaction of all. or any of the following conditions: 30 (1) Draft Lease Agreement The proposed entity to which the Leasehold is being assigned, transferred,or subed ("Transferee"), shall be an Acceptable Operator; (2) Transferee shall satisfy the qualification requirements unposed upon Less c' and set out in the original RPP; Transferee shall have no open permits, liens, fines, unsafe : ructures, or any open lawsuits; (4) The net assets of the Transferee immediately prior to th ransfer shall not be less than: (a) the net assets of the Transferor whose interest is ing transferred immediately prior to the Transfer; (b) the net assets of said Trans. ror on the Lease Date adjusted for inflation; •or (e) an amount reasonably nece^ ary to discharge Lessee's remaining obligations hereunder; (5) Such Transfer shall not adversely affect t quality and type of business operation which the Lessee has conducted theretofore; (6) Sueh Transferee, shall possess quifications for the Lessee's business substantially equivalent to Lessee or an Accept • .le Operator, or shall engage an Acceptable Operator and shall have demonstrated rp ognized experience in successfully operating such a business, including, without : itation, experience in successfully operating a similar quality business; (7) Such Transferee shall .agr - to continue to operate a business similar to the use conducted at the Premises pursuant o this Lease; (8) Such Transferee shal assune in writing, in a form acceptable to Lessor, all of Lessee's obligations hereuni F r, and Lessee shall provide Lessor with a copy of all documents pertaining to such , ransfer; (9) Transferee shall ain't to a credit check and other background cheeks as Lessor sees fit. Failure or refa:a1 to submit to said credit and background checks shall be an automatic clisqualificatie of the potential transferee; (3) (10) Lessee shal pay to the Lessor any due, but unpaid..1ent. 10.10 Liability of Lessee If a Tr y° sferee does not meet all of the criteria set forth in this Article, Lessor, at its sole option, may .require Lessee or Owner transferring such interest to remain liable under. this Lease for the perfr rtnance of all terms, including,. but not limited to, payment of Rent clue tiuzder this Lease. If y Transferee does meet the criteria set forth in this Artiele, Lessee shall be released from any cl all remaining liability and/or obligations set forth in this Lease from the effective date of s + oh Assignment or Transfer, but shall remain liable and responsible .as provided by this Agree -nt and applicable laws for perfottuance of duties including, without limitation, payment of rent ,.rior to the effective date of such transfer. 10.11 Acceptance of Rent from Transferee 31 Draft Lease Agreement The acceptance by Lessor of the payment of Merit fallowing 'any Transfer' rohibited by this Article shall not be deemed to be a eoriserit by'Lessor to any s1t61i Transfer;: nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder,.. 10.12 Transfers of the Lessor's Interest At the Lessee's request, Lessor shall provide the Lessee eopies of any an. 11 agreements or. contracts .pertaining to the total or partial sale,: assignment,`eonveyanee; ortgage, trust or power,. or .other, ttan.sfer in. any mode or .form of or with:tespect to the Less .es -reversionary or fee. interest in the:Y,renalses, orany part thereof, or any interest there or any contract or agreement to do•• any of the same, to, any purchaser, assignee, mertg 0, or trustee,. Lessor hereby agrees to incorporate the terms andconditions set forth in this ease .or in any agreement or contract with such. purchaser, assignee., mortgagee, or trusted.• 10.13 Mortgages of Leasehold Interest • 10.13.1 light to Mortgage. A11 rights ofLessee pl. .,p1edgeable, assignable or: transferable,, in Any stiecessor to, or ,assignee of, the zi result of 'voluntary assignment, force otherwise) shall hold or be entitled fully •as if named as stick party hereunder shall have or incur a previously, exercised or subs Lessee have any authority t scant to this Lease are mortgageable, cordance with the terms of this Lease, is of Lessee: hereunder (whether as the sure, assignment in lien of foreclosure or o exercise the rights of Lessee hereunder as erein : No party ;exercising 'rights as Lessee y liability for the acts: of any other party which uei tly shall exercise such rights. In no way shall mortgage the awnershij interest belonging to Lessor. 10.13.2 Re. uirements : for . M o rtgage, In addition to the requirements specified throtighout this. Lea ,., Lessee may `only pledge, hypotheeate, or otherwise • mortgage the Lease old Estate with the written permission of the City Manager, the permission for hiehshall not be unreasonably withheld:` 10.13.3 Notice. Inthe ent Lessor gives a notice of default under this Lease to Lessee, Lessor shall lso send a. copy of such notice to any holder of a Leasehold Mortgage, ? cividecl such holder or its. mortgagor shall have sent Lessor a notice informing t.<of the existence ofalich Leasehold:Mortgage and the name of the person o officer and the addresa to which copies of the. notices of defaultsare to be sent .each"Mortgagee t) Stich Mortgagee shall have an additional thirty (30) days: o cure any default that is capable of being eared with the payment of Trio y±, and -an. additional thirty (30) days 'for all .other ,defaults (and such additional titne, as to no -monetary defaults, as the Mortgagee in good faith and 1i. reasonable diligence either attempts to Cure such default or ooininences and ereafter 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 ail rent and additional rent is being paid to Lessor by Lessee or Mortgagee during the pendency of any foreclosure proceeding. The 32 Draft Lease Agreement foregoing requirements to give notice of default to a Mortgagee 'allow such Mortgagee an opportunity to cure such default shall not delay th xercise of self- help remedies by Lessor in the event of an emergency. 10.13.4 Rights of Mortgagees,. Once Lessor has received a ice as specified in the preceding section, then, from and after receipt of such otice: (1) No voluntary termination by Lessee of this ase shall be effective unless consented to in writing by such Mortgagee; d. any material .amendment or material modification of this Lease or the ercise by Lessee of any option to terminate this Lease without the written onsent of such Mortgagee shall be voidable as against such Mortgagee at ' option. If any Mortgagee shall fail to respond to any written consent under s section within thirty (30) days after the receipt by such Mortgagee of such ritten request (which written request shall make specific reference to this se on), the Mortgagee shall be deemed to have denied its consent to such requeyyNo notice required to be given to Lessee by Lessor shall be effective as to syfeh Mortgagee unless and until a copy thereof has been given to such Mortgagee (2) Lessor shall accept perfor rice of any and all of Lessee's obligations hereunder, including the obligation to pay rent, from any such Mortgagee and the performance of such obl ation by such. Mortgagee shall be deemed to have been a cure effected by Les e. Lessor hereby consents to the entry onto the Premises by any such Mortga e for the purpose of effecting the cure of any default by Lessee. In the event f a default by Lessee hereunder, any Mortgagee may affect the cure of such d 'ault by foreclosing its Mortgage, obtaining possession of the Promises and per rming all of Lessee's obligations hereunder. (3) If it shall be Promises to e Lessor shall if (a) such applicable Leaseh.ol moneta require witho ct while any obt pro de ault. Nothing herein contained shall be deemed to require the Mortgagee to ev,ntinue with any foreclosure or other proceedings, or, in the event such ortgagee shall otherwise acquire possession of the Premises, to continue such ossessiotr, if the .default in respect to which Lessor shall have given the notice shall be remedied. (4) Lessor agrees that in the event of the termination of this Lease by reason of any cessary for any such Mortgagee to obtain possession of the ect any such care of a default by Lessee under this Lease, then t eornmence any proceeding or action to terminate the Lease Term Mortgagee shall have informed Lessor within the grace period o such Mortgagee that such Mortgagee has taken steps to foreclose its Mortgage, to obtain possession of the Premises, (b.) the rent and all obligations of Lessee shall be paid and all other provisions and ents of this Lease which are capable of being observed and performed obtaining possession of the Premises are so observed and performed ny such foreclosure, other action or other remedy is being prosecuted by eh Mortgagee and for so long thereafter as such Mortgagee shall have ed possession of the Premises, and (c) such Mortgagee shall be diligently ecuting such foreclosure or cancellation and attempting to effect a cure of the 33 Draft Lease Ag eelent default'by Lessee or rejection of this Lease in.a banleruptoy pro eding effecting Lessee, and if Lessor has prior to such ,termination been., gwv written notice of the name and address of such Mortgagee, Lessor will ti nt " i to'a.new agreement for the Premises with any Mortgagee or a wholly owne4 ubsidiary of Mortgagee for the remainder of the Lease 'Term; effectiVe a o f e date•ef such termination., at the refit and upon the terins,.. optiona, provision covenants 'and agreements as herein 'contained, provided: Such Mortgagee shall snake written egiiest` upon Lessor for such new agreement., prier te or within . to (10) days. *after. the_ date of such termination and such'written req�. st is aecotnpamed by payment to Lessor of ali sums them. due to Lessor eunder; Such Mortgagee' or its nor nee shall pay .to Lessoi at the time of the execution and delivery of aid.ner�r'iease any and all sums which would at ' that tithe be due hereun r kit for such tetiiiination, That in i,he 1 event ere exists more than one Mortgagee, the first Mortgagee shall ve the ' fist,` :option to become Lessee under the provisions of this. s ection, with priority over the second Mortgagee. o Mortgagee come liable under. the 'agreements, terms, covenants or conditions'of this Lea•e winless and until it.becames theownerof the estate held by Lessee, ,A11 of the prow isions eon.'ned this Lease with respect to Leasehold Mortgage and the rights of Mortgagees shall suiry ve thetermination of this Lease' for such period of time as shall be necessary to effectuate the ghts granted to all Mortgagees by the provisions of this Lease. Nothing herein coat 'tied shall require any Mortgagee or its nominee to cure any default by Lessee hereunder,. unls Mortgagee aeeeptsassignment and assumption; however this shall not preclude the City fro- t seeking a judicial ienedy for any such losses or breaches of the Lease in a manner Consistent ith the.tethlis of this Lease:' Lessee s and local law codes, ordina pertaining to Premises o of, any Lea force, all, at Lessee's sole cost.ana expense, comply with all applicable Federal, State, and all , applicable permitting and regulatory, requirements; rules, regulations, ces, and written :policies now in forcer or whitb may hereafter be in force, Lessee or its use of the Premises, and shall faithfully observe in the use of the the performance of any alterations: (including, without limitation, the construction eholcl ][irxsprovetrients) all applicable laws now in °force or which may hereafter be in. 34 Draft Lease Agreement ARTICLE XII ENVIRONMENTAL LIABILITY 12.1 Definition of Teams thy/ For purposes of this Article XII the following terms shall have e meaning attributed, to then. herein: 1. "Hazardous Materials" means any toxic or hazardou substance, material, or waste, and any other contaminant, pollutant or constita t thereof, whether liquid, solid, semi -solid, sludge and/or gaseous, includi _ without limitation, chemicals, compounds, pesticides, petroleum products eluding crude oil and any fraction thereof, asbestos containing. materials or of r similar substances or materials which are regulated or controlled by, under, or p . scant to any federal, state or local statutes, laws, ordinances., codes, rules, regula "ons, orders or decrees including, but not limited to, all applicable laws. 2. "Environmental Laws" shall inc de all applicable laws, rules and ordinances, existing now or in the future du ' g the Term, as amended, modified, supplemented, superseded or replaced at any time during the Term, that govern or relate to: the existence, cleanup and/or re edy of contamination of property; the protection of the environment from spilled /deposited or otherwise emplaced contamination; the control of hazardous or xic substances or wastes; the use, generation, discharge, transportation, treatmen , removal or recovery. of Hazardous Materials; or otherwise regulating the impact human activities on the environment. 3.. "Costs" shall mean /ll costs incurred in connection with correcting any violations of any Environment `Laws and/or in connection with the clean-up of contamination on the Premises, 4. "Clean Up" s all mean any remediation and/or disposal of Hazardous Materials at or from the Pr miles which is ordered by any federal, state, or local environmental regulatory gen,cy. 1.2.2 Lessee's E. vironmental Covenant The Le .:ee 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, out or beneath the Promises or any portion thereof by the Lessee, its agents, employees, Contractors, licensees, or invitees except as may be customarily used and required to conduct L-,see's business or as may be used in compliance with Environmental Laws. Lessee shall not p trait any activities on the Premises that would violate Environmental Laws. If Lessee should b each this covenant, Lessee shall take all actions necessary to comply with all Enviro ental Laws and shall, at Lessee's sole cost and expense, perform any and all Clean Up. Lessee' obligation under this section shall survive the expiration or earlier termination of this Lease or a period of two (2) years. 12.3 Survival of Lessee's Obligations 3.5 Draft Lease Agreement The respective rights and obligations o.fLessor and. Lessee unde: is Article XII shall survive the expiration or terrninatiOn: of this. Lease for period of one ( year. ARTICLE XIII DAMAGE OR DESTRUCTION OF PMISES 13.1 Definitions For: the purposes of -'this Article XI1I the fs lowing wards shall have the meanings attributed'to tbern'in this Section (a) "Car ipletely Destro'ed" means the th traction of the safe, leasable Use or occupancy of a stiff stanlial portion: of the..'Pr; ises Under EthiS Lease which damage cannot reasonably:be repaired, restored o eplaced vri hin otxe hundred eighty (180) calendar days from the; date on vcihich the amage.00cced (b) "Partial Destruction" means any damage .to the P ernises •which" damage can reasonably l?o repaired, test.' ed or 'replaced within on huncxed eighty (180). calendar •°'.days from the :ate on whit the" dEth age' recurred.. -• 43.2. Pt t to Repair, In the event, of damag by fire or otherwise of the Premisesincluding any machinery, fixtures or equipment which :: e a part of the Premises, the Parties agree as follows: Destruction of the Prernises, within sixty. (60) calendar days of theable delay -and/or Force Majeure),• (I)the Lessee shall use the Gross ble, together with Lessee'sown funds (-lithe Gross Insurance Proceeds once and diligently pursue to t;oriipletian within: orie hundred eighty arr the date the damage occurred (subject to reasonable extension due to ays 'by Lessor in the repair,restoration, or teplaoement.. of the damaged or the Premises as required ni order :For the Lessee to eormrienee the restoration I i tho event of Part damage (subject: to, reaso Insurance Proceeds ava are insufficient) to co (180) ;calendar clays Force Maj:eure,ar d a.. destroyed portion o of the Leasehold destroyed portio remain in full f Iniproyements), the repair, restoration .or replaeernent :of the; damaged, or of the Leasehold`'Improvements ("Restoration Work"), and this Lease shall e and effect, with no abatement in Rent: In the vent the Premises are. Completely Destroyed at any time during Lease Term, Lessee, in it sole.: discretion, shall ;have the Dilation, to select whether to terminate this Lease within sixty 60) days of the damage. In theevent. the. Lessee shall determine not to terminate this Lease, I on at the Lessees sole: cost and. expense, (together .with Gross Insurance Proceeds available hr that purpose), Lesseeshall coaamieneo and diligently pursue to completion the Restoratisi Work, in. accordanae'with the provisions of Section:13,3 below, and Lessee shall corrrplet 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, restorat on, or replacement of the damaged or destroyed portion of the Premises as required in order or the Lessee to commence the restoration of the Leasehold Improvements), and this Lease shall remain in full force and effect, with no abatement its. Rent. Alternatively, the Lessee may -lect not to undertake the Restoration Work by :providing written notice to Lessor and in whi h event this Lease shall terminate, and the Lessee shall, at the Lessee's sole cost and 36 Draft Lease Agreement expense, (but using along with the Lessee's own funds, Gross Insurance Proceeds avalla l for that purpose) deliver possession of the Premises to Lessor free and clear of all debris Lessor and Lessee shall each be released thereby from any further obligations hereunder truing after the effective date of such termination, except that such release shall not appl o any Rent or other sums accrued or due, Lessee's obligations regarding surrender of the remises including the removal of debris, and environmental liability as provided fox in Articly IL 13-.3 Performance of Restoration Work In the event Lessee undertakes any Restoration Work in ceordance with the provisions of this Article, such Restoration Work by Lessee shall be sa tantially the same as possible to the condition that existed immediately prior to the damage, d shall be perfoinied in accordance with the provisions of Article V. applicable to the construe on of any Leasehold Improvements. Lessor hereby acknowledges and agrees that Lessee's o.irgatrons hereunder and the time periods set forth above are subject to Force Majeure, and reasonable extensions based on the severity of the damage. 13.4 No Additional Right to Terminate Except for the Lessee's right to termate this Lease in accordance with the provisions of Article XIII set forth herein, Lessee wa es 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, 13.5 Lessee's Right to Terminat If Lessee elects to exercise the option given under Subsection 13.2, to terminate this Lease, then any and all Gross In rrannce Proceeds paid for damage or destruction of the Premises shall be applied as follows: First toward debris reoval; and Second, toward the valance of the proceeds, if any, after payment of any Rent due, shall be paid, to the Part' s as the respective Rent shall be prorated based on the useful life of the Premises prio to the casualty event as compared to the remaining term of the Lease and any option p,- iads without consideration of the termination of the Lease as provided in this Section. 13.6 Payment for (Construction of Restoration Work Except as . erwise provided for in this Article XIII, all. Gross Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work to restore the Premises, and tl - Gross Insurance Proceeds shall be paid out, the Restoration Work shall be performed, an the Lessee shall make additional deposits with an escrow agent, if any are required, as m 3 y be applicable. 13.7 Golf ction of Insurance Proceeds 37 Draft fi Lease Agre ent The Lessor shall i i` i o event • be responsible for tb.e non -collection of: y:. insurance proceeds cinder this Lease but only for insurance money that shall come into its ► ds. 13.8 Unused Insurance Proceeds and Deposits In the event any Gross Insurance )'rooeeds or sums -deposit. Lessor in connection with the Restoration Work shall remain in the Lessor, if the Parties have agreed to allow the Lessor to completion of the Restoration Work, and if the Lessee shal Lease in respect of any matter or thing ofwlneh notice of then the re -maiming funds shallbe applied firsttoward balance paid to the Lessee, 14.1 Total Condemnation with . an -escrow: agent or bands of an escrow agent or d the insurance .proceeds until not then be in: default under this fanit.has been served oxi.:the Lessee, any.,unpaid Rent, • and • the remaining In theevent that all of the Premis (or such portion thereof as shall, 'in the good faith opinion of Lessor or Lessee,:render it ee nomieally unfeasible for its intended purpose) shall be taken. for any public purpose by the ri t of condemnation,. the exercise of the power of eminent domain or shall be 'conveyed by the .essor and Lessee acting jointly to avoid proceedings of such taking, the Rent pursuant to th`. Lease shall be prorated and paid by the Lessee to the date of taking or eonveyance in heir the eof, and this Lease shall terminate and become null and void as of the date of taking or sue conveyance. Any damages resulting to. Lessor and Lessee, respectively, and to their re;peetive interests in and to the Premises, the Leasehold Improvements, and in connec '•,'with:this. Lease. (Which_ amount of damages shall bo calculated based on the reinainirig.tern of the Lease and any option parcels without `consi,deration of the termination of the Lease =s provided in this Section), shall be separately determined and computed by the court ha ing jurisdiction and separate awards and judgments with respect to damages to Lessor and ssee,:respcetively,and to each of 'their respective interests, shall be made and entered 14.2 Partial Cond In the event ess than all of the Prexmises shall be taken for any public use or purpose by the right or the ex eise of the power of eminent domain, or shall be conveyed by the Lessor and Lessee acting jot ly to avoid proceedings of auch 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; cond'tior sand provisions hereunder shall be and remain in full force and effect as to the Premises nit so` taken or con eyed Lessee shall to the o tent the prooeeds of the Gross Condemnatio Award are made available to it, purse. t to the •toms -hereof, remodel, repair and restore the r airing portion of the Premises so that it shall be comparable to the Premises prior to the condo ation; provided, however, that in so doing, Lessee shall riot be required to expend more than - amount of any Goss Condemnation Award actually received by Lessee. -38 Draft Lease Agreement The Gross Condemnation Award allowed to Lessor and Lessee shall be paid t•4nd received by the Parties as follows: (a) There shall be paid to the Lessor the value of the portion of the lan o taken and Lessor's reversionary interest in the improvements so taken, ich land and reversionary improvements shall be valued as if unencumberedessor shall further be paid an amount by which the Rent has been reduced by the aking; (b) There shall be paid to the Lessee any amount by which -ssee's profits and value of Lessee's interest in the Lease and the Premises have bn reduced by the taking after any payment required by the Lease; (c) There shall be paid to the Lessee the amount re red to complete the remodeling and repairs to the Premises pursuant to (a) above; (d) The Lessor and Lessee shall be paid ortions of the balance of the Gross Condemnation Award or awards, if any, ) 'eh are allocable to and represented by the value of their respective interest in 'he Premises as found by the court in its condemnation award, 14.3 Adjustment of Rent 'Upon Partial T . dng In the event a part of the Premiss shall be taken for any public use or purpose by the exercise of the power of eminent clo in, or shall be conveyed by Lessor and Lessee acting jointly to avoid proceedings of such aking, then Rent pursuant to this Lease shall be paid by Lessee to the Date of Taking or con'eyance in lieu thereof, and after such date the Base Rent for the remainder of the Lease Term shall be reduced on an equitable basis and Percentage Rent shall continue at the same rate. 14.4 Deposit of Condemn don Award with Escrow Agent Unless the elfeet i f 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 Premises to a condemnation proceeding shall be deposited with an escrow agent selected by the Lessor o be disbursed for the cost of restoring the Premises. 14.5 Temporary aking In the ev-nt that all or .any portion of the Premises shall be taken by the right of condemnation 4r the exercise of the power of eminentdomain 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 s Lease) as though the temporary taking had not occurred except only to the extent that it may . e. prevented from so doing by the terms of the order of the authority which make the tempos taking or by the conditions resulting from the taking, including the loss of its possess of all or any part of the Premises. If the period of governmental occupancy extends beyon• the termination of the Lease Tenn, the Lessor shall be entitled to receive that portion of the oss Condemnation Award allocable to the period beyond the termination of the Lease To The amount of any Gross Condemnation Award payable to Lessee, on account of a 39 Draft Lease A cement temporary ta1 ing<ot all or any part ofthe Lessoholdlitnpro�renien s, shall bete ed a'part of the Lessee's Leasehold Estate for all purposes in this Lease. If the Gross Conde ation'Award does not separately determine the amount applicable, to:,the taking of the inter t of the Lessor in this Lease and in theLeaseheld Tinprovemients and if Lessor: and Lessees i1;not agree in writing as tothe: proportion ,of the award so . applicable to the respective P es, then.. Lessor and Lessee shall submit the matter; to the :Court on stipulation for the ptirpos of a judgment determinative of the interest of the Parties in accordance with the terms of this -Section.. ARTICLE': . PAYMENT OF TAXES, ASSESSMENTS 15.1 Payment of Taxes and impositions From .arid after the Lease'; date; . Le surcharged, levies, charges,• ass:essinetits, a fine, penalty, interest or costs are added f goveinmerital levies, charges, iinpositio the taxing authority prior to delinqu advised Lessee of its share of such the tax bill prior to delinquency. OTHER `I POSITIONS ee shall pay all ad'valorein 'and s�tmilar taxes, impositions levied against.tbe Premises before any r non-payment. All such ad valorem and 'similar taxes, s and assessments shall be payable by Lessee directly to y (without penalty) of such takes, provided that Lessor has xes and asscssrnerits in a wiittexi notice, inclticiirig a copy of 15.2 InstaIln ieni Payment of Ad Vali:Wein Taxes and Inipasitions. Lessee agrees that e Premises or any interest thereon is 'subject to dd valorein taxation. Lessee, at its option, may enroll in the Miami -Dade CountyAd Valorem Tax' Payment Plan. If by law, any • valorem taxes or other Impositions are payable or may, at the option, of the taxpayer, be paid n: installments (whether or not;interest shall accrue on the unpaid balance of the Imposition), e Lessee may pay the same (and any accrued interest on the unpaid balance of the lrnpositi.on , iir,`installments beforeany; fine, penalty interest :or cost is. added for the nonpayment of :a y it• al.Iment aril +interest Any .Imposition relating to a :fiscal period: of, the taxing aul orit , a part of which period is,ineluded before the Lease Date; and part of which is included after e Leas_ e Date shall be, adjusted as between the L essor,and'the Lessee as of the commencer at of the Lease Terni, sothat the Lessee shall pay that portion of the Imposition attributable o that part of the fiscal period included in the Lease Teen, land the Lessor shall pay the remaier, if applicable, Any Imposition relating to a fiscal period of the taxing authority, a. part of vytich period is _included within the Lease Term and a part of which is included in a period time after Lease Term shall. be adjusted as between the Lessor and the Lessee as of the tcrmintition of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part_af the fiscal period inchided in the Lease Terns, and the Lessor shall pay the . einainder, if applicable 1 .3 Payment in Liar of Taxes The .Lessee shall be responsible for .the following payments or for, payrnents. 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 40 Draft Lease Agreement initially equal to three thousand three hundred and seventy-six and 711100,11ars ($3,376.71) per year. The PILOT will increase on each anniversary of the Lease Date f a rate equal to three percent (3%). If Lessee is required to pay ad valorem taxes on th roperty, it shall not be required to pay the PILOT. 15.4 Proof of Payment The Lessee shall furnish to Lessor, within th'r1'y (30) days after the date whenever any Imposition is payable by or on behalf of the Less , official receipts of the appropriate taxing authority, photocopies or other proof satisfactoryyt,o the Lessor, evidencing the payment, 15.5 State -Owned Sovereignty Submerg. d Land In the event the Lessee wishes utilize the Premisesin a manner that would derive income directly or indirectly from the e of the State-owned sovereignty submerged lands, or otherwise is required to make paym is under applicable law, the Successful Proposer shall be solely responsible for all fees, costs .expenses, impositions, and payments due, ARTICLE XVI DEFAULT OF LESSEE 16.1 Lessee Default The occurrence q any one or more of the following events is deemed a "Lessee Default": a. If the essee defaults in the due and punctual payment of any installment of Rent, as when due and payable in. accordance with this Lease, and such default con 'nues for more than ten (10) days after the sum is due; b. E ept with respect to an event of Force Majeure, in the event Lessee shall cease toperate its business, unless in connection with alterations or renovations, for a eriod 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 Premises 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 rernovo, or -permits to be removed froin the Premises, except in the usual course of trade, a substantial portion of the Leasehold Improvements (furnishings, fixtures, and equipment) installed or placed upon the Premises by the Lessee during the Lease Term; 41 g Drat Lecue greement nix .the `event Lessee, before the expiiration of the Lease T ; and without the written., consent :'of Lessor, abandons the possession.. of reinises; . or rises the same for purposes other than :the purposes for which th atne are hereby leased or as otherwise permitted by:Lessor; and such default ntinues<for more than thirty (30) days after:written notice of the default fro e Lessor to the Lessee, In the event .an execution dr other legal 'process is evied upon the` goods; furniture, effects er otherpersdnal property. of Lessee 'ought On the Prennses, or upon the interest of Lesko :in .'this Lease, . and . e saie;.is not satisfied, 'clisssed or contested in good faith.within sixty (6 days from sttch l:evy, or h. Tit the event Lessee defaults• :in the tie performance or: observance of any Lease term, covenant, condition or pro 'sloe, other than the paym.entof Rend including without limitation failure to`'-- . ai. tain hisurance coverage ii effect, faihire 'to obtain per-niits:ar approvals _` quired by law, or failure to timely pay taxes, fees, surcharges, or other limbos tioris When r& uiied bylaw, midi such. default continues for more than thirty (3 Q) ays after written notice of the default `from the Lesson to • the Lessee, or stitch1' ger period 'as is i easoi ably necossaryto diligently ewe Stich default; Inability of Less Ito produce frna*ieial records under the eirentristances set forth in Article IV of this Lease . 16.2 Remedies of Lesso If any Lessee,. ?fault occurs, Lessor, shall have the right, after: the .expiration of the applicable cure perio , and at the sole discretion of Lessor, to terminate this Lease upon providing five (5) d . s written notice, An Event ofDefaultshall be deemed to have occurred at the expiration of seh five (5) day' period if the defaults has not been cured by the expiration of such five (5) da . period. Lessor ,may terminate' the Lease irrespective of :any suit or action brought by Les - e and the time period required for termination of this Lease Shall not be tolled by the filing 6 > a suit or action. • .dd. ionally, if any Event of Default occurs, Lessor niay,' at its :option, from time to time, without t hating ths .L,ease, re-enter and re let the Premises,`dr any part thereof, as the agent and for t1 . account of Lessee upon such terms anal ednditions as Lessor may deem advisable or satisfact ry, rli which e-veiit the rents fete reel On: such' re -letting shall be applied first to the expens s of such re :.letting and collection including ing butt riot limited to, necessary renovation and alters ails of the Premises, reasonable attc rney's fees, any real estate cointnissions paid, and ther fter° toward payment of all shills due or to becoixie due to Lessor"her'eunder, and if a suf' dent s ni. shall not be thus realized or scoured to pay such sums and other charges, at Le sor's option, Lessee shall pay Lessor any deficiency immediately upon, demand therefore, na tw;rthstandingthat Lessor inay have ieceived periodic rental in excess of the periodic rental ipulated in this Lease in previous or subsequent rental periods, and Lessor may bring an action herefore as such deficiency shall 'arise. N"othingherein, however, shall be construed to require Lessor to re-enter and re -lot the Premises in: any .event, Lessor shall not, in any event, be required to pay Lessee any surplus off any sumS received by Lessor on a re -letting of said. Premises in excess of the rent provided in this Lease, - 42 Draft Lease Agreement If any Event of Default occurs, Lessor shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, against Lessee for any acts, conduct or missions of Lessee, and to further obtain specific performance of any term, covenant or co. , ition of this Lease, including but not limited to the appointment of a receiver to operate L ee's business at the Premises. If any Event of Default occurs, Lessor shall have the right, at s option, to declare all Rent (or any portion thereof) for the entire remaining Lease Term, ' ' other indebtedness owing by Lessee to Lessor, if any, immediately due and payable witho . regard to whether possession of the Premises shall have been surrendered to or taken by L sor, and may commence action immediately th.ereupon and recover judgment therefore. If any Event of Default occurs, Lessor, in additia to other rights and remedies it may have, shall have the right to remove all or any par of Lessee's personal property from the Premises and any personal property removed be stored in any public warehouse or elsewhere at the cost of, and for the account of essee, and Lessor shall not be responsible for the care or safekeeping thereof whether in tr sport, storage or otherwise, and Lessee hereby waives any and all claim against Lessor for ss, destruction and/or damage or injury which may be occasioned by any ofthe aforesaid acts. No such re-entry or taking poss . sion of the Premises by Lessor shall be construed as an election on Lessor's part to terminate is Lease unless a written notice of such intention is given to Lessee. Notwithstanding any tele re -letting without termination, Lessor may at all times thereafter elect to terminate thi ease for such previous default. Any such re-entry shall be allowed by Lessee without hin ranee, and Lessor shall not be liable in damages for any such re- entry, or guilty of trespass or • orcible entry. It is expressly agreed that the forbearance on the part of Lessor in the institution of any suit or entry of j ,idgra t for any part of the Rent herein reserved to Lessor, shall not serve as a defense against nor pr • udice a subsequent action for such Rent. Lessen hereby expressly waives Lessee's right to claa merger or waiver of such subsequent action in any previous suit or in the judgment enter d therein. Furthermore, it is expressly agreed that claims for liquidated Base Rent and/or Per entage R.ent may be regarded by Lessor, if it so elects, as separate and independent cla', s capable of being separately assigned. Any a d all rights, remedies and options given in this Lease to Lessor shall be cumulative and in.addit`on to and without waiver of, or in derogation of, any right or remedy given to it under any 1, ws now or hereafter in effect. 16.3 /No Waiver by Lessor The waiver (either expressed or implied by law) by Lessor of any default of any term, co dition or covenant herein contained shall not be a waiver of any subsequent default of the s . e term or any other term, condition or covenant herein contained. The consent or approval -y 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 4 Draft Lease Agreement preceding, default by Lessee, of any term., covenant or condition of this Lease, or a ;w aiver of the right of Lessor to annul this Lease orto re-enter the'Premises or tore -let same. 16.4 . Late PayrrientFee Any rnstaihnent of Rent not :received within five (5) days a �'.r the due date shall be subject to: a late;payment fee Lessee shalt pay, in addition to the. pa, � ent then. duex_ five percent (5%) of the. amount chic ("Late Fee''), arid::in the event that elreelk, bank draft, order for payment,': or negotiable„ instr inaent: ;.given: to -Les&or for any s aynient cinder Lease shall. be dishonored for any reason whatsoever not attributable to Le or; Lessor, in addition:to the five (5%) percent Late Fee, shall. be entitled to make an ad r rnisttative charge to Lessee of One Hundred: and `:0/100 T t liars :($100,00), cr the actual.. c arge, to Lesser by: Lessor's' bank for dealing ' rith such dishonored` tender :whiehever. is gre. et: Jhi the event. that: it'shall be necessary for:Lessor to gcte more than: One (1) ii,Vritteri not to Lessee of any violation of this' Lease, diking the,terin'her"eof, Lessor'Shalt 'be entitled t Make an adiiiinistrative eharge'to Lessee of Twenty-five and 0/1.00.D6llats ($25.00) ;for ea ' such subsequent notice a'fter-the first notice, Lessee recognizes and agrees 'that the "eharg6 ' Lessor is entitled to make upon the conditions stated in .this 'section represent, at the time is Lease is inade,' a fair and reasonable estimate of the, costs ..of Lessor in the adininistratio of. the, Premises ;estatilt .from the events described herein which Costs are not cor template, or: included in any Rent or other charges provided to be paid by Lessee to Lessor in this Leas r . Any charges. becorning due under this .Section of this : Leases shall be added to and been' e due. with: the late :payment for which the charge was assessed, and: shall be colleotible• a . a part tliereOf. 16.5 Additional Guarantee ii. the event that Le;` eye defaults in accordance -With the terms of this Article, or otherWise fails to perform any eblt ton required by this Lease, which directly or indirectly cases Lessor to .suffer daxnages, an thereah'er Les -See fails to cure or remedy the respective default in accordance _to the ter .s of this Lease, Lessee's parent company, if any, and, Lessee's President shall asst xn.e resp ins bility as a personal guarantors (collectively 'Guarantee'), and shall pay the amotints duo or p rfon the obligation required, as applicable G'rtaratitor inay, at Lessor's option, bo joined any action or proceeding commenced by Les sor,against Lessee in connection .with and based. ..pen the fsilure of Lessee to perform. . 16.6 Re edies Cumulative o remedy eo,tiferred upon or reserved to the Lessor or the Lessee shall be considered oxolus° o of any other retnedy, :but shall be :cumulative and shall be in addition to every other renhe y given underthis Lease or existing at law or in equityor by statute; and every power and rem dy given by this Lease to the Lessor or the Lessee may be exercised from time to time and as ften a,s occasion inay arise or as may be deemed expedient by the Lessor or the Lessee. No d ay or omission of Lessor or Lessee. to exercise any right or power arising from any default all impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. 44 Draft Lease Agreement 16,7 Lessor Default, hi the event that Lessor shall .at any time be in default of the terms of t Lease and any such default shall continue fora. period of sixty (60) days after written notice t lessor, and Lessor shall not thereafter cure or commence to cure the default, Lessee shall hav the right at any time thereafter (but in no event shall be obligated) to cure such clefault for account of Lessor, and Lessor shall reimburse Lessee for any amount paid and any expen or contractual liability so incurred upon invoice, ARTICLE XVII ACCESS BY LESSO 17,1 Right of Entry Lessor and Lessor's agents shall have times upon reasonable prior written notice to when no notice is required) to examine the open and permit entry into the Premises at be necessary or permissible, Lessor or Le affecting the obligations and covenants be deemed or construed to i:mpos whatsoever, for the care, mainten otherwise herein specifically pro, 18.1 Loss and Dania Unless cause or agents, the Les (including witho furniture, irnpro the Premises, otherwise. L frcni fire, s part of the subsurfac Lessor s kept or shall subr the right to enter the Premises at all reasonable e Lessee (except in the case of an emergency e. If Lessee shall not be personally present to ny time, when for any reason an entry therein shall or's agents may enter the same without in any manner f this Lease. Nothing herein contained, however, shall upon Lessor any obligation, responsibility or liability ce or repair of the Premises or any part thereof, except as faded. ARTICLE XVIII AMAGE TO LESSEE'S PROPERTY by a negligent act or omission of Lessor or Lessor's officers, employees, or shall not be responsible for any damage to any property of Lessee limitation appliances, equipment, machinery,. stock, inventory, fixtures, onients, displays, decorations, carpeting and painting), or of others located on or for the loss of or damage to any property of Lessee, or of others by theft or ssor shall not be liable for any injury or damage to persons or Premises resulting oke, explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any emises or from the pipes, appliances or plumbing works or from the roof, street or or from any other place by dampness or by any other eausse of whatsoever nature. all not be liable for any patent or latent defect in the Premises. All property of Lessee stored on the Premises shall be so kept or stored at the risk of Lessee only and Lessee old Lessor harmless from any and_ all claims arising out of damage to same, including gallon claims by Lessee's insurance carriers. 45 ARTICLE XIX HOLDING OVER & SUCCESSORS 19.1 ITolcling Over Ili the event Lessee rein:dns in possessien.'.of the Pram after the expiration of the Lease Term, Les5ce;at the option of Lesser , shall be deemed t e occupying the Premises as a Lessee at sufferance at a monthly rental equal to two (2) ti the Base Relit and the Percentage Rent of the preceding Lease Year, payable during the la month of the Lease Tenn hereof, In addition, Lessee agrees to pay monthly' (a) enet vetf t12), of the taxes for the Premises based upon the total taxes;payable for the Lease Yoar h iatety prior to the Lease Year in which the expiration. occurs; (b) cost'ef insurance for whim Lessee would have been responsible if this Lease had been renewed on the samne`terms.co tain,ed herein; (c) all sales taxes assessed against such increasedrent, and (d) any and, all Add- onal Rent,otherwise payable by Lessee hereunder, Stich tenancy shall be•subjectto all the oth conditions, provisions and obligations of this Lease. Lessee's obligation to pay. any`reots or tins providedin this Lease shall 'survive the expiration or earlier teri ination of this Lease. Drcf Lease Agreement All rights, and liabiliti li.erein given to or imposed upon, the respective Parties hereto shall .extend to and bindthe everal respective hells, executors, administrators, ,successors,, and the assigns of the said. Par es; and if there shall be more than one Lessee, they shall be bound jointly and ,severally by he terms, eovenans: and agreements herein. Nothing contained in this Lease shall inanyma er restrict Lessor's right to assign. or encumber this Lease and, in the 'event Lessor setts its terest:in the Premises and the purchaser. assahines. Lessor's obligations and covenants, Lessors $.111 thereupon be relieved of all further obligations hereunder; ARTICLE XX EQUAL EMPLQYMENT OPPORTUNITIES e Lessee agrees that dung the Lease Term, (a) it Will not discriminate against any employ or ,applicant for employment because 'of race, creed, color, place of birth,religion, nation: origin, seasage, marital status, veteran and disability status and Will take definitive actio to assure that applicants ate employed and that erriplayecs are heated during employment without regard to race; creed; color, place of birth, religion, national origin, sex, age, marital atat s, veteran and disability status; •(b) post in conspicuous,places, available to employees and as plicants for; employment, notices,, the form of .whhich is to.be provided by the Lessor, setting • .ft th provisions for this nondiscrimination; clause; (o) in all solicitations or advertisements for mployees 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 46 Draft Lease Agre ent a notice, the form of which is to be provided by the Lessor, advising the union o .epresentative of the Lessee's commitment and posting copies • of tha notice in a conspicuous + aces available to employees and applicants for employment. 20.2 Community Small Business Enterprise Lessee shall work towards achieving Community Sm 1'I Business Enterprise .CCSBE") goals, employing the requirements of the Community Small usiness Enterprises set forth in the City of Miami Procurement Ordinance, codified in Chjt ter 18, Article III, City Code, as a model.; and shall try to attain,but not mandate, a pl or its achievement, which will strive to provide equal opportunity in hiring and promotin for Miami -Dade County certified CSBE companies, the disabled and veterans, Such plan all include a set of positive measures taken to insure utilization of CSBE companies when pra 'cable and nondiscrimination in .the work place as it relates to hiring, firing, training and pro Lion, 20.3 Non -Discrimination Lessee represents and warraxa- to the Lessor that it will comply with §18-188, §18-189 and § 18-190 of the City of Mi rCode incorporated herein. Lessee hereby represents and warrants that it shall not enga in discriminatory practices and shall not discriminate in connection with Lessee's use o e Premises on account of race, national origin, ancestry, color,. sex, religion, age, handicap,. ailial status, marital status or sexual orientation. Further, should the Lessee introduce or hav existing membership rules for patrons at the Premises, that it will comply with the non-discx'� ination provisions incorporated within §18-188, §18-189, §18-190, and §18-191 of the City q''Miami Code as incorporated herein by reference. ARTICLE XXI MISCELLANEOUS 21.1 Accord aid Satisfaction No pa ent by Lessee or receipt by Lessor of a lesser amount than the Rent or other amount due specified herein shall be deemed in satisfaction of any such amounts owed; nor shall any dorsement or statement on any check remitting partial payment or any letter aecompang any partial payment be deemed an accord andsatisfaction of Lessee's debt, Lessor m y accept such check or payment without prejudice to Lessor'sright to recover the balance o f such Rent or pursue any other remedy provided herein or by law. 2L2 Public Records Lessee shall additionally comply with Section 119.0701, Florida Statutes, including w° out limitation: (1) keep and maintain public records that ordinarily and necessarily would be gt-ired by the City to perform this service.; (2) provide the public with access to public records n the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt :or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet 47 Draft Lease Agreent all requirements for retaining public 'records and transfer, at no cost; to the City all blic records in its possession upon termination of this Agreement and destroy any chplic public records that are exempt or confidential and exempt from disclosures requireinents.4d, :(5) provide all electronically stored public records to the City in a format cam e 'ble with the City's information technology systems. 213 Ei tire Agreement This Lease and the Exhibits attached heroto and fa mga part thereof es if fully set forth herein constitute all of the covenants, pi`omrses„,.agr' rents,'' Conditions. and understandri gs between Lessor and Lessee: concerning the Preniis -cued 'there arc . no covenants` promises, conditions or understandings,:'either oral or W.titi. between -them other 'than those set forth herein. All reprosentations, eitherr.Oral or wrrtte rrrade betwcen the Parties.shall bar deemed to be merged 'into' this Lease 1`�To course of pr r.:dealrn.g bet Teen theliarties; or their officer's employees, agents or affiliates shall. be relev'nt or admissible to supple lent, explain or vary any of the ter nns' of this Lease. Acceptance a or acqui.escenee in, a course of performance rendered under this Or any priorj agreement betty en the Parties or their affiliates shall not be relevant or siliniss bles::to eleterriaine ihhe; nle< of any.-c.f the terms of:.'this Lease _;Except as herein otherwise providecl, no ;subsecliient • teration, change br addition to this Lease shall be binding upon Lessor ox Lessee unless reds ed to writing did, signed may the Parties Any ainendinents to. this: Lease must be approved wi the sane formalities as`were heed i `its' execution; `providing, however, -`that the City.Manag~ may1;adniiniistratively execute norm material (i.e noti-sthsta.tial) : amendments of the Lease in e .exercise of his professional discretion This Lease has been negotiated `"at 'arin's.leiigth" •y and betweenLesser and Lessees ieaela having the: opportunityto be represented by legal c net of its:choice and to negotiate the form and sibstarice of this Lease, and therefore, in ' onstraing the provisions of this Lease neither patty will be deemed disproportionately resp, sible for draftsmanship. 21.4 Independen Parties It is mind- stood and agreed. by the Parties hereto that this Lease 'does not create a fiduciary or o er relationship, between the Parties; other than as Lessor and Lessee or contracting p 'es, as:applicable :Leas n and,Lessee are and shall:<`be independent contracting parties and n+"s' gin this Lease is untended to make either party a general or special agent, joint -venturer„, p • er or employee ofthe other for any purpose. 21.5 Daces Any notice by the Parties required to be given must be served by certified mail return xecei t regIested, or by hand delivery, addressed. to Lessor or Lessee at: Ifto Lessor at: • ifto Lessee at - City Manager City of Miami 48 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 Draft Lease Agr ernent Attn: With copies to: With a copy to: City of Miami City Attorney Office of City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 3313.0 City of Miami Director, Department of Real Estate and .Asset Management 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Attn: All notices given hereunder sh'1i be effective and deemed to have been .given upon receipt by the party to which notice i. 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 dndeliverable, is evidenced by the return receipt or proof of deliver. Notwithstanding any other provision hereof, Lesser shall also have the right to give notice to Lessee in any other fanner provided by law. If there shall be more than one Lessee, any notice required or .perii fitted 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. 21,6 Captions and Section Numbers The captions/section numbers, and article numbers appearing in this Lease are inserted only for convenience and in no way -define, limit, construe, or describe the scope or intent of such sections or 9y idles of this Lease nor in any way affect this Lease. 21,7 Partial, validity If an teiui,_ covenant or condition of this Lease or the application thereof to any person or circums des. shall, to any extent, be -deemed invalid or unenforceable by a Court with jurisdictio , the remainder of this Lease shall not be affected thereby and each term, covenant or conditio . of this Lease shall be valid and enforceable to the fullest extent permitted by law, 21.8 stoppel Certificate Each party agrees that itwill, at any time and from time to time, within ten. (10) business day following. written notice by the requesting party specifying that it is given pursuant to this se Lion, execute, acknowledge and deliver to the requesting party a statement in writing c rtifying that this Lease is unmodified and in full force and effect (or if there have been ftodifxcations, that the same is in full force and effect and stating the i odifxcations), and the date o which the Base Rent, Percentage Rent and any other payments due hereunder from Lessee 49 Draft Lease Agree 'ern' have been paid in advance, if any, and stating whether or net. there. are defe s:or offsets claimed by the certifying party and whether or not to the best knowledge of ee fying party, the requesting party is in default in performance of any, covenant, agreement or ondition'contained in this Lease, and if so, specifying cacti such default of which cert.: 'ng 'party may have knowledge. The failure of the Certifying patty to execute, ackncwledand deliver to the requesting party a statement in accordance with the provisions of this Sect an within said ten C10)`business day.period,. shall constitute an acknowledgtiient by the call ng party,'whit may&e:'telied on by anyypersori holding or. proposing`ta aegqUire sn iiatefe in the Premises or any party thereof, that this Lease is Unmodified. and in fii.11 force and eff et and that all Rent ;and dttess have been fully paid to and including the respective clue dat iairnedtately preceding tb.a date of such notice, and. shall constitate., as to any person enti d as aforesaid to rely t poa such 'statement, a waiver of any defaults Which .t iaY exist prior to h0 date of such -notice It is agreed that nothing contained in the provisions of this Section shall constitute wailery;requesting party of any default in payment of rent or other 'eharg ( existing as of the date Of sitch'riotice acid, unless exptessly.consettted to in writing by req tingpariy and, certifying party shall still remain liable for the same There Will be a two indred fifty. $250 00) regulatory fee per Section l66.221, 'Bloiida Statutes for e�uc request made of Lessor for, each. Lstoppe1 Certificate requested,' payin.ent ire fii11 shill bade at the tine of the request No'Certificate shall be issued without payrne ii of the fee. 21.0 Waiver Failure on the paof either party to complain of any action or non -action on the part of the other, no matter ho long the same may continue, shall never be deemed to be a waiver by such party of any of i rights hereunder, Further, it is covenanted and agreed that, no waiver at anytime, of any of provisions hereof by either party. shall be, construed as a waiver of any of the other provision hereof, and that a waiver at any time of any Of the provisions hereof shall not be construed a waiver at ar y subsegiueriti time of the sate previsions The consent, or approval to or any action by either party requirir g:suel consent or approval' shall not be deemed to wai e or render unnccossary sixch consent or approval: to or of any subsequent similar act by such p Y y T :me is of* essence with respect to the performance of every provision of this Lease in which e ofperformanco is a factor. 21..:11. No Discrimination It is intended that the Premises shall be ,operated in: a manner whereby all customers, ie .loyees, licensees and invitees of the Lessee shall have the opportunity to obtain' all the g ods, services, accommodations, advantages, facilities and privileges of the Preinises without iscrirninatiori because of race, creed, dolor, 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, :•50. Draft Lease Agreement color, sex, age, national origin, ancestry, handicap or disability of such person oi.•oup of persons. 21.12 Governing Law, Venue, & Attorney's Fees It is the intent of the Parties hereto that all questions with sect to the construction of the Lease and the rights and the liabilities of the Parties hereto sh h be determined in accordance with the laws of Florida. Additionally, all disputes civil actio r legal proceeding arising out of or relating to this Lease shall be brought in the courts of cord in Miami -Dade County. Each party shall bear their own attorney's fees in civil actions etween them arising out of this Lease except the prevailing :party may be awarded by the c. in action for removal of the Lessee as provided by Florida Statute 83. 231, as amended or edified. 21.13 Waiver of Counterclaims Lessee shall not impose any pe issive counterclaim(s) for •damages in a summary proceeding or other action based on ter- ination or holdover, it being the intent of the Parties hereto that Lessee be strictly limited i such instances to bringing a separate action in the court of appropriate jurisdiction. The fo going waiver is a material inducement to Lessormalting, executing and delivering this Le e and Lessee's waiver of its right to counterclaim in any summary proceeding or other a-tron based on termination or holdover is done so knowingly, intelligently and voluntarily. 21.14 Waiver of Jury Tr' . 1 Lessor and Less F e hereby waive trial by jury in any action, proceeding or counterclaim brought by either of ' e Parties hereto against the other on, or in respect of, any matter whatsoever arising o t of or in anyway connected with this Lease, the relationship of Lessor and Lessee hereunder, d/or Lessee's use or occupancy of the Premises. 2:1.15 Quiet 1J oyment Suite to the terms of this Lease, upon the observance by the Lessee hereunder of all the terms, provi ons, covenants and conditions imposed upon the Lessee, the Lessor covenants to the Lessee at Lessee shall peaceably and quietly hold, occupy and enjoy the Premises for the Lease Ter without any interruption, disturbance or hindrance by the Lessor, its successors and assigns, r by persons claiming by, through or under the Lessor for the Premises leased herein, or by pars rzs with title superior to the Lessor, its successors and assigns. 21,161 Surrender of Possession Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof, tho' Lessee shall deliver to the Lessor possession of the Premises in good repair and condition, r/asonable wear and tear excepted. 51 any combination of two or more thereof) shall sign this Lease as Les Transfer assume the rights and obligations of the Lessee hereunder, individuals, corporations, partnerships or other business association or more thereof) to pay Rent and perform all other obligations h joint and several, and all notices, payxn.ents and agreements giy of such individuals, corporations, partnerships or other bus having been giveh to all of them.. 21.18 Third Party Beneficiary Nothing contained in this Lease shall the rights of third party beneficiary. 21.19 Radon Radon is a naturally 00CUU radioaotive gas that, when it has accumulated in a building in sufficientquantities, may pront health risks to persons who are exposed to it aver time. Levels . of Radon that exceed ' ecleral and , Stateguidelines have been. found in btuldings in Florida., :Additional information regarding Radon and Radon testing maybe obtained from your county public health unit. Draft f i Lease Agreement 21.17 Joint and Several Liability If two or more individuals, corporations, partnerships or other busing , or by virtue of a liability of each such or any combination of two °under shall be deemed to be or made by, with, or to any one ess associations shall be deemed as associations (or construed so as to confer upon::any other party 21.20 No Liability for et of other Party Lessee shall +t sign any contract or application for any license or permit or do anything that may result in ability to the Lessor for any indebtedness or obligation of Lessee, unless expressly provides herein or approved in writing by the Lessor. Except as expressly authorized in writing or a eed to herein, neither Lessor nor Lessee shall make any express or implied agreement, wa antes, guarantees or representations or incur any debt, or represent that their relationship is other than Lessor and. Lessee, for the management and operation of the Premises; neither Lessor nor Lessee shall be obligated by or have any liability under, any agreements or representat`•us made by the other that are not expressly authorized in writing, 1,essor reserves the right, its sole option, to refuse an agreement for any Federal, State or local grants and loans when th; acceptance of, same by either Lessor or Lessee may impose a hardship upon Lessor or include .bligations which extend beyond the Lease Tetra, 21.2 Rights, Privileges and Immunities; Covenants The Lessee shall have, and the Lessor. shall Billy cooperate in providing to the Lessee, for it use and enjoyment, all rights, privileges and immunities as shall from tune to time be granted afforded by Federal, State or local law to restaurant operators or proprietors. 21.22 Consents. 52 Draft LeaseAg etnent Wherever in this Lease the consent of one party is required for an act o he other party, unless otherwise specified, such consent shall not be unreasonably wi e1d, delayed or conditioned. The :Parties agree that each of the terms, covenants and cZditions hereof agreed to be observed or performed by each party shall constitute concurrent nditions of exchange, 53 Drrf .Lease Agreem nt IN WITNESS WHEREOF; Lessor and Lessee have executed this Lease the same to be executed, as of the date and year first above written. ATTEST By: Todd B. Hannon City Clerk LESSORa have caused CITY OF TAMI, a munioipal corporation of to : to of Florida Daniel J. Alfonso City Manager APPROVED AS TO IN URANCE APPROVED AS TO LEGAL FORM & REQUIREMENTS: CORRECTNESS: ByBy: ,A:n-MariG Sharpe, Director Victoria Mendez Risk M gement Department City Attorney 54 ATTESTED BY: By, By: Name Title Company Name Name Title Company Name ATTESTED BY: Draft .Lease Agreement LESSEE: INSERT LE SEE'S NAME Name of Authori ed Agent Title CORP RATE SEAL GUARANTOR: By: f PARENT 'COMPANY) Name of Authorized Agent Title By: CORPORATE SEAL itle Company Name 55 By:fPRESIDENT OF LESSEEI Name President Draft Leas ' Agreement EXIIIBIT A SURVEY/LEGAL DESCRIPTION OF P " ENTIS [to be inserted prior to execution 56 Draft Lease Agreement EXHIBIT B ANNUAL PERCENTAGE RENT STATEMENT [to be inserted prior to execution] 57 Draft Leas greetnent VXM13IT C ANNUAL GROSS REVINUE:npoRT [to be inserted prior to e,,tecuti 58 Drcafi.Lease Agreement EXHIBIT D MONTHLY GROSS REVENUE REPORT [to be inserted prior to execution] 59 Draft Leas Agreement i xrdarr LESSEE'S LEASEHOLD IMPROVEMENTS [to be inserted prior to execution] 60 Draft Tease ; reement EXHIBIT F PAYMENT & PERFORMANCE BOND [to be inserted prior to execution 61 Draft Lease Agjernent XTIT G CONr cTO .IN'SUI .A.NC.U+ REQUIREMENTS [to be inserted prior to execution] 62 Drcft Lease .Agreement EXHIBIT II LEASEHOLD INSURANCE REQUIREMENTS [to be inserted prior to execution] i