HomeMy WebLinkAboutExhibitLEASE
BETWEEN
THE CITY OF MIAMI
AND
RIVERCOW, LLC
FOR THE USE OF
A CERTAIN PORTION OF
THE CITY -OWNED PROPERTY LOCATED AT
8034 NE 2ND AVENUE
MIAMI FL. 33138
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
Section 1.1 Definitions
ARTICLE II LEASE OF LEASE AREA
Section 2.1 Lease of Lease Area
Section 2.2 Purpose of Use and Occupancy
Section 2.3 Suitability of Premises
Section 2.4 Satisfaction of Liens
ARTICLE III TERM
Section 3.1 Term of Lease
Section 3.2 Option to Renew
ARTICLE IV RENT
Section 4.1 Rent
Section 4.2 Security Deposit
ARTICLE V LEASEHOLD IMPROVEMENTS
Section 5.1 Lessee's Obligation to Provide and Fund Leasehold
Improvements
Section 5.2 Possession Date
Section 5.3 Contractor's Insurance
Section 5.4 Lessor's Premises to Remain Free of Liens
Section 5.5 Lessor Approval
ARTICLE VI CONDUCT OF BUSINESS BY LESSEE
Section 6.1 Use of Premises
Section 6.2 Signs
ARTICLE VII
Section 7.1
Section 7.2
Section 7.3
MAINTENANCE, REPAIR AND ALTERATION OF
LEASE AREA
Lessee's Maintenance Obligations
Lessee's Repair Obligation
Changes/Alterations
ARTICLE VIII INSURANCE AND INDEMNITY
Section 8.1
Section 8.2
Section 8.3
Section 8.4
Section 8.5
Section 8.6
Section 8.7
ARTICLE IX
Section 9.1
Section 9.2
ARTICLE X
Section 10.1
Section 10.2
ARTICLE XI
Section 11.1
ARTICLE XII
Section 12.1
Section 12.2
Section 12.3
Section 12.4
Section 12.5
Insurance on the Premises
Delivery of Insurance Policies
Adjustment of Loss
Insurer to be Approved -Premium Receipts
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
Transfers of the Lessor's Interest
COMPLIANCE WITH LAWS
Compliance With Laws
ENVIRONMENTAL LIABILITY
Definition of Terms
Lessee's Environmental Covenant
Representation by Lessor
Lessee's Indemnification
Survival of Lessee's and Lessor's Obligations
ARTICLE XIII DAMAGE OR DESTRUCTION OF PREMISES
Section 13.1 Definitions
Section 13.2
Section 13.3
Section 13.4
Section 13.5
Section 13.6
Section 13.7
Section 13.8
ARTICLE XIV
Section 14.1
Section 14.2
Section 14.3
Section 14.4
ARTICLE XV
Section 15.1
Section 15.2
Section 15.3
Section 15.4
Duty to Repair, Restore or Replace the Premises and Leasehold
Improvements after Damage
Performance of Restoration Work
No Right to Terminate
Lessee's Right to Terminate
Payment for Construction of the Restoration Work
Collection of Insurance Proceeds
Unused Insurance Proceeds and Deposits
EMINENT DOMAIN
Total Condemnation
Partial Condemnation
Adjustment of Rent Upon Partial Taking
Deposit of Condemnation Award with Escrow Agent
PAYMENT OF TAXES, ASSESSMENTS AND OTHER
IMPOSITIONS
Payment of Taxes and Impositions
Installment Payments of Ad Valorem Taxes and Impositions
Proof of Payment
Lessee's Right to Contest Impositions
ARTICLE XVI DEFAULT OF LESSEE
Section 16.1
Section 16.2
Section 16.3
Section 16.4
Section 16.5
Section 16.6
ARTICLE XVII
Section 17.1
Section 17.2
Lessee Default
Remedies of Lessor
No Waiver by Lessor
Late Payments
Remedies Cumulative
Lessor Default
ACCESS BY LESSOR
Right of Entry
Access Rights & Regulations
ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage
ARTICLE XIX HOLDING OVER, SUCCESSORS
Section 19.1 Holding Over
Section 19.2 Successors
ARTICLE XX MISCELLANEOUS
Section 20.1
Section 20.2
Section 20.3
Section 20.4
Section 20.5
Section 20.6
Section 20.7
Section 20.8
Section 20.9
Section 20.10
Section 20.11
Section 20.12
Section 20.13
Section 20.14
Section 20.15
Section 20.16
Section 20.17
Section 20.18
Section 20.19
Section 20.20
Section 20.21
Accord and Satisfaction
Entire Agreement
Independent Parties
Notices
Captions and Section Numbers
Partial Invalidity
Estoppel Certificate
Waiver
Time is of the Essence
No Discrimination
Governing Law
Waiver of Counterclaims
Waiver of Jury Trial
Quiet Enjoyment
Surrender of Possession
Joint and Several Liability
Third Party Beneficiary
Radon
No Liability for Act of other Party
Consents
Attorney's Fees
LEASE AGREEMENT
This LEASE AGREEMENT("Lease"), made this day of , 2020, by
and between the CITY OF MIAMI, FLORIDA ("Lessor"), a municipal corporation of the
State of Florida 'having its offices at 3500 Pan American Drive, Miami, Florida 33133
("Lessor" or "City") and RIVERCOW, LLC, a Florida limited liability company, having a
mailing address of 20815 NE 16th Avenue, Suite B17, Miami, Florida 33179, ("Lessee").
The Lessor and Lessee, together the "Parties," agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Any word contained in the text of this Lease shall be read as the singular or the
plural and as the masculine, feminine or neuter gender as may be applicable in the particular
context. More specifically, however, for the purposes of this Lease, the following words
shall have the meanings attributed to them in this Section:
1.1.1 "Additional Rent" means any and all additional sums, charges, or
amounts of whatever nature to be paid by Lessee in accordance with the provisions of this
Lease, whether or not such sums, charges or amounts are referred to as Additional Rent.
1.1.2 "Applicable Law(s)" means all laws, Florida Statutes, Codes, City and
Miami -Dade County Ordinances, orders, judgments, decrees and injunctions from courts
having jurisdiction over the Premises, rules, and requirements of State and local boards and
agencies with jurisdiction over the Premises, now existing or hereafter enacted, adopted,
foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the
Premises or any part of it.
1.1.3 "Assignment" refers to the complete transfer of the rights and obligations
of the Lessee under the Lease to a third party, whereupon the third party assignee becomes
the Lessee under the Lease and takes over all of the Lease Area and the rent and other
obligations associated with the Lease, thereby assuming the prior tenant's rights and
obligations.
1.1.4 "Assignee" refers to the third -party entity assuming the rights and
obligations of the Lessee or assignor or owner of the leasehold estate.
1.1.5 "Assignor" refers to the Lessee which is assigning its rights and
obligations under this Lease to a third -party entity. Unless released from liability from the
City pursuant to Section 10.8 of this Lease, which decision shall be conditioned on the
payment of the consideration at the time of Assignment set forth in Section 10.1(c) of this
Lease, the Assignor shall remain secondarily liable as a guarantor for the obligations under
the Lease, if the new Lessee (Assignee) defaults under the Lease.
1.1.6 "Business Days" means Monday through Friday, excluding legal
holidays in the City of Miami, Florida.
1.1.7 "Dedication" refers to such portions of the property commonly identified
as 8034 NE 2nd Avenue, Miami, Florida (Folio No. 01-3112-000-0030), which area is
presently being utilized as right-of-way, less the Lease Area.
1.1.8 "Force Majeure" means any period of delay which arises from or through
acts of God; explosion, sabotage, accident, riot, or civil commotion; act of war; fire or other
casualty; delays caused by the other party; and causes beyond the reasonable control of a
party.
1.1.9 "Gross Condemnation Award" means the actual amount of the award paid
in connection with or arising from the acquisition or other taking of all or less than all of
the Premises, as the case may be.
1.1.10 "Gross Insurance Proceeds" means the actual amount of insurance
proceeds paid following an insured casualty to the Leasehold Improvements.
1.1.11 "Impositions" means all assessments, including assessments imposed by
the City, 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. "
1.1.12 "Lease" means this Lease and any addendums thereto.
1.1.13 "Lease Area" shall refer to that certain property which shall be designated
for use by the Lessee, more particularly described in Exhibit "A" attached hereto and
incorporated.
1.1.14 "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.
1.1.15 "Leasehold Estate" means all of Lessee's right, title and interest as Lessee
in, to and under this Lease, the Lease Area and the Leasehold Improvements.
1.1.16 "Leasehold Improvements" means a description of
remodeling/renovation work to be done to the physical plant as described in Exhibit "B"
entitled "Schedule of Leasehold Improvements" and all furnishings or equipment
constituting fixtures to be installed in accordance with Section 5.1, and all other items and
improvements constituting fixtures to be installed or constructed thereafter, from time to
time during the Lease Term that are hereafter located upon the Lease Area.
1.1.17 "Leasehold Mortgage" means a mortgage, deed of trust, or other
instrument which constitutes, or any security interest given in connection therewith, which
together constitute an encumbrance or lien upon the Lessee's Leasehold Estate or any part
of it, or any related personal property, and Lessee's interest in the Leasehold Improvements
as security for any loan. The Leasehold Mortgage may never encumber or lien the fee
simple interest of the Lessor.
1.1.18 "Lease Term" means the period of time fixed in Section 3.1 and shall be
deemed to include the additional period of time fixed in Section 3.2 if Lessee exercises
Lessee's right to renew the Lease.
1.1.19 "Lease Year" means twelve (12) full consecutive months. The first Lease
Year shall begin on the Lease Date. If the Lease Date does not fall on the first day of the
month, the first Lease Year will commence on the first day of the following month. Each
succeeding Lease Year shall commence upon the anniversary date of the first Lease Year.
1.1.20 "Lessee" has the meaning ascribed to it in the opening paragraph of this
Lease as well as Lessee's successors and assigns.
1.1.21 "Minimum Base Rent" shall mean the annual Minimum Base Rent due and
payable by the Lessee on a monthly basis for the use of the subject Premises and shall have
the sum ascribed to it in Section 4.1.1.
1.1.22 "Parties" means the Lessor and Lessee.
1.1.23 "Permitted Use" means such uses identified in Section 2.2 herein.
1.1.24 "Premises" means the space more particularly described in Section 2.1
herein and Exhibit "A" attached herewith and incorporated herein by reference, known as
the "Little River Commerce Park," having an address of 8034 NE 2nd Avenue, Miami,
Florida. The term Premises shall have the same meaning as the phrase "Lease Area."
1.1.25 "Rent" means Minimum Base Rent and Additional Rent as defined
above.
1.1.26 "Rivercow Building" refers to such property and improvements situated
thereon immediately abutting the Lease Area to the North and West which is commonly
identified as 8032 NE 2nd Avenue, Miami, Florida (Folio No. 01-3112-002-0011).
1.1.27 "Sublease" means any lease (excluding this Lease), sublease, license,
concession or other agreement by which Lessee or any person or other entity claiming
under Lessee (including, without limitation, a Sub -lessee or sub -licensee) demises, leases,
subleases, licenses or sublicenses to or permits the use or occupancy by another person or
entity of any part of the Premises and Leasehold Improvements.
1.1.28 "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.
ARTICLE II
LEASE OF LEASE AREA
Section 2.1 Lease of Lease Area
The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby
leases from the Lessor the Lease Area, subject to the following terms and conditions, to
have and to hold the said lands, tenements and hereditaments, with all of the rights,
privileges and appurtenances, thereunto belonging or pertaining unto Lessee for the Lease
Term herein specified, unless this Lease shall be sooner terminated in a manner hereinafter
provided. The Lease Area is legally described more particularly in Exhibit "A" attached
herewith and incorporated herein by reference.
Lessee shall have all rights, privileges, easements and appurtenances, if any,
benefiting the Premises in, over and upon adjoining and adjacent public and private land,
highways, roads and streets reasonably required for ingress or egress to or from the Premises
by Lessee, its agents, servants, employees, contractors, customers and invitees and all others
related to Lessee's use and occupancy of the Premises.
Section 2.2 Purpose of Use and Occupancy
The Lessee will use and occupy the Premises for use as a public park and for the
enjoyment of the general public and the tenants, employees and invitees of the Rivercow Building
(the "Permitted Use"). The Land may also be used in support of the commercial activities situated
within the Rivercow Building, including, but not limited to, outdoor seating for food and/or alcohol
service establishments. Said uses are subject to compliance with all applicable laws, rules,
regulations, permits, licenses and similar approvals, beer, wine and liquor service with food
consumption.
Section 2.3 Suitability of Premises
Lessee acknowledges that neither the Lessor nor any of Lessor's officers,
representatives, or employees has made any representation or warranty with respect to the
Premises or Lease Area, or with respect to the suitability or fitness of the Premises or Lease
Area, for the conduct of Lessee's use or for any other purpose, except as set forth in this
Lease. The execution of this Lease by Lessee shall establish that the Lessee accepts the
condition of the Lease Area "AS IS", subject to the representations set forth in Section 2.4
herein or elsewhere in this Lease.
Section 2.4 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
Section 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.
Section 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 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 in bold capitalized large font letters 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
Minimum Base Rent will be adjusted as set forth in Section 4.1.2 below.
ARTICLE IV
RENT
Section 4.1 Rent
Commencing on the day that is two hundred and forty (240) days following the
Lease Date and on the first (lst) day of every calendar month thereafter during the
remainder of the Lease Term, Lessee hereby agrees to pay to the Lessor the Minimum Base
Rent and any Additional Rent due. If the first payment of Minimum Base Rent does not
fall on the first day of the month, the first payment shall be prorated based on the number
of days in such month.
4.1.1 Minimum Base Rent.
The Minimum Base Rent shall be One Thousand Six Hundred Dollars and No/100
($1,600.00) per month or Nineteen Thousand Two Hundred Dollars and No/100
($19,200.00) per year. The Minimum Base Rent shall be adjusted and increased annually
by the method described in Section 4.1.2 below upon the commencement of the second
Lease Year.
4.1.2 Minimum Base Rent Increase
Lessee agrees that the Minimum Base Rent shall be increased annually by three
percent (3%) upon the commencement of the second Lease Year.
4.1.3 Sales Tax
The Lessee shall be liable for the prevailing State of Florida Sales , Use or similar
Tax 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.
4.1.4 Manner of Payment
Lessee shall pay the Lessor the monthly Minimum Base Rent and any Additional
Rent 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
4.1.5 Fair Market Value
As required by Applicable Laws, the Lessor has determined that the Minimum Base
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.
Section 4.2 Security Deposit
Simultaneously upon the execution of this Lease by Lessee, the Lessee shall pay to
the Lessor a security deposit in the sum of Four Thousand Eight Hundred Dollars and
No/100 ($4,800.00)(the "Security Deposit"), to be held as security for performance by
Lessee of all obligations imposed under this Lease which Lessee is required to perform
during the Lease Term, and any extension thereof. The Security Deposit shall be in the
form of a cashiers check or its equivalent which funds may be commingled by Lessor with
its other funds. No interest shall be paid on the Security Deposit. For so long as the
Security Deposit has not been repaid by Lessor, it shall constitute an account payable by
Lessor to Lessee within thirty (30) days following termination of this Lease to the extent,
if any, that the Security Deposit has not been applied by Lessor as hereunder provided.
If an Event of Default shall occur with respect to any covenant duty, or obligation
of Lessee under this Lease, then the Security Deposit or any part thereof may be applied
by Lessor (but Lessor shall not be obligated to do so) to the damages sustained by Lessor
by reason of any such Event of Default or to indebtedness owing by reason of any failure
of Lessee to make any required monetary payment under this Lease. No such application
shall be construed as an agreement to limit the amount of Lessor's claim or as a waiver of
any damage or release of any indebtedness, and any claims of Lessor under this Lease not
recovered in full from the Security Deposit shall remain in full force and effect. At any
time or times when Lessor has made any such application of all or any part of the Security
Deposit, Lessor shall have the right (but not the obligation) at any time thereafter to request
in writing that Lessee pay to Lessor a sum or sums equal to the amounts so applied by
Lessor so that Lessor will always be in possession of a sum equal to the amount of the
Security Deposit stated above. Lessee shall make each such requested remittance within
thirty (30) days following such request from Lessor and each such remittance received by
Lessor shall thereupon constitute a part of the Security Deposit subject to the terms and
provisions thereof. Failure to make any such requested remittance within such thirty (30)
day period may be treated by Lessor as a failure by Lessee to make timely payment of rent
and as an Event of Default. In the event Lessee conveys or otherwise transfers the Lease
Area, Lessor's remittance of the Security Deposit or any remaining portion thereof to the
purchaser of the Lease Area shall release and relieve Lessor of any further obligation or
liability to Lessee with respect to the Security Deposit.
The Security Deposit shall be retained by the Lessor throughout the entire term of
this Lease and, if not utilized by Lessor as needed will be returned less interest, and less
allowable deductions, credits or setoffs by Lessor, within thirty (30) days following the
vacation and surrender of the Leased Area at the termination or expiration of this Lease,
inclusive of any validly exercised option period, as applicable.
ARTICLE V
LEASEHOLD IMPROVEMENTS
Section 5.1 Lessee's Obligation to Provide and Fund Leasehold Improvements
Within thirty (30) days of the Lease Date, Lessee, at its own cost and expense, shall
submit to Lessor for Lessor's approval (not to be unreasonably withheld, delayed, or
conditioned) its Plans (defined below) for the commencement and completion of the
construction of the Leasehold Improvements. The plans shall include: a layout of the Lease
Area, a lighting plan, a depiction of all fixtures to be added to Premises, typical display
technique, exterior signage plan if applicable, (collectively, the "Plans"). Within thirty
(30) days of receipt of the Plans, the Lessor shall give Lessee written notice of either,
Lessor's approval or Lessor's disapproval setting forth the reasons therefore. In the event
that Lessor disapproves the Plans, the Lessee shall within ten (10) business days of receipt
of the notice modify the Plans in accordance with the reasons set forth in Lessor's
disapproval notice. The modified Plans shall be resubmitted to Lessor for Lessor's final
review and approval, which shall be provided within thirty (30) days of receipt by the
Lessor of the modified Plans. If Lessor fails to respond within each of the thirty (30) day
time frame of Lessor's receipt of the Plans provided above, the Plans shall be deemed
approved by Lessor.
Lessee, at its sole cost and expense, shall complete construction, acquisition and
installation of the Leasehold Improvements.
Section 5.2 Possession Date
Lessor shall deliver possession of the Lease Area to Lessee and Lessee shall take
possession thereof on the Lease Date.
Section 5.3 Contractor's Insurance
The Lessee shall require every contractor performing any work pertaining to the
Leasehold Improvements to furnish certificates of insurance, including Builder's Risk
insurance, if applicable, to the reasonable satisfaction of the Lessor in accordance to
Exhibit "Cl" attached hereto. Copies of such certificates shall be furnished to the City of
Miami Risk Manager, 444 SW 2nd Av. 10th Floor, Miami, FL 33130. The City will be
named as an additional insured on such policies.
Section 5.4 Lessor's Premises to Remain Free of Liens
The Lessee shall make, or cause to be made, prompt payment of all money due and
legally owing to all persons doing any work, including subcontractors, or providing
supplies and equipment in connection with the construction, reconstruction or operation of
the Premises. The Lessee shall have no power or right to and shall not in any way encumber
the Lessor's fee simple interest in the Premises. If any liens shall at any time be filed
against the Premises, the Lessee shall upon acquiring knowledge of such lien promptly take
and diligently pursue a cause of action to have the same discharged or to contest in good
faith the amount or validity thereof and if unsuccessful in such contest, to have the same
discharged. Upon the Lessee's failure to do so, the Lessor, in addition to any other right
or remedy that it may have, may take such action as may be reasonably necessary to protect
its interest, and the Lessee shall be responsible for any and all reasonable costs incurred by
the Lessor in connection with such action, including all reasonable legal fees, costs and
expenses.
Section 5.5 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
Section 6.1 Use of Premises
Upon completion of the Leasehold Improvements, Lessee shall occupy the Lease
Area without delay, and covenants to continuously conduct its permitted business therein
throughout the Lease Term. Lessee shall use the Lease Area solely for the Permitted Use.
Lessee shall not use, permit or suffer the use of the Lease Area for any other business or
purpose without Lessor's prior written consent.
Section 6.2 Signs.
Lessee will not place or permit to be placed or maintained on the Premises, any
signage or advertising matter of any kind, without first obtaining Lessor's written approval
and consent. Such proposed signage shall be limited to: (i) signage identifying the Lease
Area as a public park; and (ii) the installation of a monument sign, as such term is defined
in Miami 21, identifying the Rivercow Building and such tenants that may be situated
therein. Lessor may withhold its approval of any signage for any reason or none. Lessee
further agrees that such signs approved by the Lessor, 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 LEASE AREA
Section 7.1 Lessee's Maintenance Obligations
Lessee, at its sole cost and expense, agrees to provide the necessary management
and labor to continuously maintain the Leasehold Improvements in the Lease Area,
including all operating equipment, utility services, and connections within the Lease Area.
Lessee, at its sole cost and expense, agrees to provide, janitorial and custodian services,
trash and garbage removal services, and any and all other related services necessary to have
the Lease Area, and the Leasehold Improvements remain in good, safe, code compliant and
sanitary condition and repair throughout the Lease Term. Lessee shall be responsible for
maintaining its equipment, fixtures, furnishings, and other personal property in good
condition and repair. All maintenance shall be at the Lessee's sole cost and expense and
will be subject to general inspection by the Lessor to insure a continuing quality of
maintenance and appearance and physical condition of the Lease Area commensurate with
maintenance, health, and safety standards established by the Lessor and Applicable Law.
Section 7.2 Lessee's Repair Obligation
Subject to the provisions of this Lease regarding casualty damage and condemnation
and except as otherwise provided for in this Lease, Lessee, at Lessee's sole cost and expense,
at all times during the Lease Term, shall make all repairs to the Leasehold Improvements,
including, without limitation any 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.
Section 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 Director of the Department of Real Estate
and Asset Management ("Director") is hereby authorized to give, and may not
unreasonably withhold or delay.
No approval by the Director of any changes or alterations shall relieve Lessee of
any obligation it may have at law to file the required documents with any department of
the City 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.
ARTICLE VIII
INSURANCE AND INDEMNITY
Section 8.1 Insurance on the Premises
In connection herewith, Lessee shall obtain and maintain or cause to be obtained
and maintained in full force and effect throughout the period of this Lease, the types and
amounts of insurance coverage set forth in Exhibits "Cl", and "C2" attached hereto and
incorporated herein by reference. If required by state, county, or city laws from time to
time for work conducted on or use of municipal properties, Lessee shall obtain and
maintain or cause to the obtained and maintained throughout or during the Lease Term, as
applicable, such types and amounts of payment, performance, maintenance, or restoration
bond(s) as shall be required to be reviewed and approved by the City's Risk Management
Department in coordination with Lessee's Risk Manager.
The Lessor reserves the right to reasonably amend the herein insurance
requirements by the issuance of a notice in writing to the Lessee, which amended insurance
requirements shall be subject to the reasonable approval by Lessee, which approval shall
not be unreasonably withheld.
Section 8.2 Delivery of Insurance Policies
All liability, workers' compensation and employer's liability policies shall be
maintained by the Lessee. Insurance company certificates evidencing the existence of all
of these policies of insurance shall be delivered to the Lessor. All policies of insurance
required to be provided and obtained shall provide that they shall not be amended or
canceled on less than thirty (30) days prior written notice to the Lessor and all insured and
beneficiaries of the policies shall contain waiver of subrogation rights endorsements, as
required below. The Lessor shall have no obligation to pay premiums or make
contributions to the insuring company or any other person or satisfy any deductible. On or
before the Lease Date and not less than thirty (30) days prior to the expiration date of any
policy required to be carried pursuant to this section, the Lessee shall deliver to the Lessor
the applicable respective policies 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 which indicates less coverage than
required does not constitute a waiver of the Lessee' s obligation to fulfill the insurance
requirements herein.
Section 8.3 Adjustment of Loss
Any Gross Insurance Proceeds recovered on account of any damage or destruction
by any casualty shall be made available for the payment of the cost of the reconstruction,
replacement or repairs. All of the Gross Insurance Proceeds plus the amount of any
deductible applicable to said damage or destruction shall be deposited by the insurance
company or by the Lessee (in the case of the deductible) with an escrow agent reasonably
acceptable to the City Manager, with instructions to the escrow holder that the escrow
holder shall disburse the funds to the Lessee, with notice thereof to the Lessor, as the work
of the reconstruction, replacement or repairs progresses upon certificates of the architect
or engineer supervising the work that the disbursements then requested, plus all previous
disbursements made from such Gross Insurance Proceeds, plus the amount of any
deductible, do not exceed the cost of the work already completed and paid for, and that the
balance in the escrow fund is sufficient to pay for the reasonably estimated cost of
completing the required work. The escrow holder shall be any bank mutually agreeable to
Lessor and Lessee. If the amount of the Gross Insurance Proceeds is less than the cost of
the required work, then Lessee shall pay the excess cost; and if the amount of the Gross
Insurance Proceeds is greater than the cost of the required work, then the excess shall be
paid to and belong to the Lessee.
Section 8.4 Insurer to be Approved -Premium Receipts
All policies of insurance of the character described in Sections 8.1 and 8.2 shall be
written by companies of recognized responsibility reasonably acceptable to the Lessor. On
request by Lessor, Lessee shall provide photocopies of receipts showing the payment of
premium for all insurance policies required to be maintained by this Lease.
Section 8.5 Indemnification of Lessor
Lessee agrees to indemnify, defend (at its own cost and expense), covenant not to
sue, and hold harmless the City, their respective officers, officials, and employees, in their
individual or official capacity (hereinafter collectively referred to as the
"INDEMNITEES") from and against any and all claims, liabilities, damages, or causes of
action of any nature arising out of, resulting from, or in connection with the Lessee's use
of the Premises and/or (ii) the direct or indirect performance or non-performance of this
Agreement, whether it is, or is alleged to be, directly or indirectly caused, in whole or in
part, by any act, omission, default, or negligence (whether active or passive) of the
Indemnitees, or any of them (except for the intentional, criminal or wrongful acts, or gross
negligence or willful misconduct committed by such Indemnitees), or (iii) the failure of
Lessee to comply with any of the provisions contained herein, or to conform to statutes,
ordinances, rules, regulations, conditions of approval, permits or requirements of the City,
or any governmental authority, federal or state, in connection with the procuring or
performance of this Agreement, including, without limitation all actions and omissions by
Lessee taken as a result of or in connection with this Agreement. This Indemnification
shall cover liabilities in tort, liabilities in contract, liabilities alleging statutory or regulatory
violations including, but not limited to claims resulting from noise, light, nuisance, traffic,
and/or liabilities derived from any other actions or omissions alleged to impact the quiet
enjoyment of residents, tenants, or commercial entities in the surrounding neighborhood,
or otherwise who reside within 1 mile of the leasehold. Developer expressly agrees that
this indemnification shall include all personnel of the City. In addition, Lessee expressly
agrees to indemnify, covenant not to sue, and hold harmless the Indemnitees, or any of
them, from and against all Liabilities which may be asserted by an employee or former
employee of Lessee, or any of its subcontractors, agents, representatives, or consultants as
provided above, for which Lessee' s liability to such employee or former employee would
otherwise be limited to payments under state Workers' Compensation or similar laws. This
Indemnification provision shall survive the expiration, termination, failure to renew, or
cancellation of this Agreement and shall continue in effect until the expiration of the
corresponding statute of limitations or the tolling Lessee shall protect and hold Lessor
harmless and pay all of Lessor's reasonable third party costs and attorney's fees approved
by Lessee' s insurance carrier, where applicable, and incurred by Lessor in connection with
such litigation, and any appeals thereof. Lessee shall also pay all of Lessor' s reasonable
third -party costs, expenses and reasonable attorneys' fees that may be incurred or paid by
Lessor in enforcing the covenants and agreements in this Lease inclusive of administrative,
litigation and appellate proceedings.
Section 8.6 Waiver of Subrogation
Lessee and Lessor waive all rights to recover against the each party for any damages
arising from any cause covered by any insurance carried by each party. Each party shall
cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all
policies of insurance carried in connection with the Premises, or any part thereof.
Section 8.7 Release of Lessor
The Lessee and its assignees, for and in consideration of the leasing and the demise
of the Premises to the Lessee, hereby release, remise and discharge the Lessor, its officers
and employees, of and from all claims, demands, actions, whether in law or in equity which
may be filed or asserted by the Lessee or its assignees for or on account of improvements
made and furniture, fixtures and equipment installed in the Premises, and from any and all
costs and expenses, of Lessee or its assignees in connection with this Lease, including, but
not limited to the development of the Premises and acquisition of the Leasehold
Improvements, which may result from an adverse judgment, order, decree or ruling from a
court of competent jurisdiction terminating or otherwise invalidating the Lease as a result
of a third party challenging the validity or legality of this transaction under the City Charter
or Code or the laws of the State of Florida, or arising out of the award of this Lease, or any
subsequent assignment of this Lease by the Lessee or its assignees (the "Claim").
ARTICLE IX
SERVICES AND UTILITIES
Section 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 Lease Area and the Leasehold Improvements, or any part
of it, at any time during the Lease Term, and the Lessee shall comply with all contracts
relating to any such services and will do all other things required for the maintenance and
continuance of all services as are necessary for the proper maintenance and operation of
the Lease Area and the Leasehold Improvements. The Lessee shall also at its sole expense
procure any and all necessary permits, licenses or other authorization required for the
lawful and proper installation and maintenance upon the Lease Area of wires, pipes,
conduits, tubes and other equipment and appliances for use in supplying any such utilities,
services or substitutes to the Lease Area.
Section 9.2 Lessor Not Liable for Failure of Utilities
The Lessor shall not be liable for any failure of water supply, sewer, gas or electric
current, or for any injury or damage to any person or the Premises caused by or resulting
water, gas or electricity which may leak or flow from the water or gas mains on to any part
of the Premises or the Leasehold Improvements. The Lessor shall not be required to make
any alteration to any service or utility system of the Premises on behalf of Lessee. Lessor
shall not be liable for temporary failure of services, and same shall not be deemed to
constitute actual or constructive eviction, nor entitle Lessee to any abatement or diminution
in rent payable under this Lease.
ARTICLE X
SUBLEASES, ASSIGNMENTS AND TRANSFERS
Section 10.1 Subleases, Assignments and Transfers
(a) Lessee shall not, at any time during the Lease Term, enter into (i)
any Sublease, license, concession, easement, or permit agreement with respect to the
Premises, or (ii) assign or transfer this Lease to any third party or parties other than Lessee,
its authorized agents, employees, contractors, invitees and visitors, which with respect to
having the effect of granting exclusive possession to the Premises and assigning the rent
and other obligations set forth in this Lease to any third party or parties (collectively, an
"Assignment"), without first procuring the prior written consent of Lessor (except as
otherwise permitted under this Article X). Any such attempted Assignment of the Premises
or Assignment of the Lease, without the Lessor's prior written consent, shall be void and
of no force or effect and shall not confer any interest or estate in the purported Assignment
or Transfer.
The provisions of this Article 10 constitute the sole means by which Lessee may
request Lessor's consent to an Assignment. The consent of Lessor shall not be
unreasonably withheld, conditioned or delayed.
It is agreed that all terms and conditions of this Lease shall extend to and be binding
on all Sub -lessees under any Assignment as may be approved by Lessor and shall be for a
period of time equal to or less than the Lease Term. Lessor reserves the right to directly
terminate the rights and interests of any Sub -lessee under any Assignment for any cause
for which Lessee's Leasehold Interest may be terminated.
Lessee shall reimburse to Lessor, as Additional Rent, all costs and expenses,
including third party attorneys' fees, which Lessor reasonably incurs by reason of or in
connection with an Assignment or Transfer, and all negotiations and actions with respect
thereto, such Additional Rent to be due and payable within thirty (30) days of receipt of a
statement of such costs and expenses from Lessor.
(b) Procedure for Assignment or Transfer.
Subject to the provisions of Section 10.1(a), should Lessee desire to Assign or
Transfer the Lease, Lessee shall, in each instance, give written notice of its intention to do
so to Lessor at least thirty (30) days prior to the effective date of any such proposed
Assignment or Transfer, specifying in such notice the nature of such proposed Assignment
or Transfer and the proposed date thereof and specifically identifying the proposed Sub-
lessee, assignee or transferee. Such notice shall be accompanied by a copy of the proposed
Assignment or Transfer agreement and any other documents or financial information
Lessor may reasonably require in order to make a determination as to the suitability of the
Sub -lessee, assignee or transferee. If requested by Lessor, Lessee shall provide to Lessor
copies of all Assignment or Transfer documents and amendments thereto. Lessor shall,
within thirty (30) days after its receipt of such notice of a proposed Assignment or Transfer
from Lessee, by mailing written notice to Lessee of its intent to do so, either (i) withhold
consent to the Assignment or Transfer, together with a detailed explanation for such denial,
or (ii) consent to such Assignment or Transfer upon the terms and subject to the conditions
provided for in this Article. Lessee acknowledges and agrees that the imposition of the
conditions described in this Article X as a condition of Lessor's consent is reasonable.
Section 10.2 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.
ARTICLE XI
COMPLIANCE WITH LAWS
Section 11.1 Compliance With Laws
Lessee shall, at Lessee's sole cost and expense, comply with all regulations and all
Applicable Laws now in force, or which may hereafter be in force, pertaining to Lessee or
its use of the Premises, and shall faithfully observe in the use of the Premises or in the
performance of any alterations (including, without limitation, the construction of the
Leasehold Improvements) all Applicable Laws now in force or which may hereafter be in
force. Lessee shall indemnify (and such indemnity will survive the termination or
expiration of the Lease for a period of three (3) years), defend and save Lessor harmless
from penalties, fines, costs, expenses, suits, liabilities, claims, or damages resulting from
Lessee's failure to perform its obligations in this Lease and/or for Lessee's failure to
comply with Applicable Laws .
ARTICLE XII
ENVIRONMENTAL LIABILITY
Section 12.1 Definition of Terms
For purposes of this Article XII the following terms shall have the meaning
attributed to them herein:
12.1.1 "Hazardous Materials" means any toxic or hazardous substance, material,
or waste, and any other contaminant, pollutant or constituent thereof, whether liquid, solid,
semi -solid, sludge and/or gaseous, including without limitation, chemicals, compounds,
pesticides, petroleum products including crude oil and any fraction thereof, asbestos
containing materials or other similar substances or materials which are regulated or
controlled by, under or pursuant to any federal, state or local statutes, laws, ordinances,
codes, rules, regulations, orders or decrees including, but not limited to, all Applicable
Laws.
12.1.2 "Environmental Laws" shall include, but shall not be limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendment and Reauthorization Act of 1986 ("Sara"), 42
U. S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and
subsequent Hazardous and Solid Waste Amendments of 1984, also known as the 1984
"RCRA" amendments, 42 U.S.C. §9601, et seq.; the Hazardous Material Transportation
Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as amended, 33 U.S.C. §1311, et seq.;
the Clean Air Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide, Fungicide,
and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the Emergency
Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or EPCRA"), as
amended, 42 U.S.C. §11001, et seq. (Title III of Sara); the Occupational Safety and Health
Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute,
including without limitation Chapters 252,255,376,403,442, Florida Statutes, as amended;
and the regulations promulgated thereunder, and any other local laws regulations,
including, but not limited to Chapter 24, Environmental Protection, of the Code of Miami-
Dade County, Florida, as all of the foregoing may be amended, modified, supplemented,
superseded or replaced at any time during the Term, that govern or relate to:
(i) The existence, cleanup and/or remedy of contamination of property;
(ii) The protection of the environment from spilled, deposited or
otherwise emplaced contamination;
(iii) The control of hazardous or toxic substances or wastes; or
(iv) The use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Materials.
12.1.3 "Costs" shall mean all costs incurred in connection with correcting any
violations of any Environmental Laws and/or in connection with the clean-up of
contamination on the Premises.
12.1.4 "Clean Up" shall mean any remediation and/or disposal of Hazardous
Materials at or from the Premises which is ordered by any federal, state, or local
environmental regulatory agency.
Section 12.2 Lessee's 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 Cafe Operations 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 legally required Clean Up. Lessee' s obligation under this section
shall survive the expiration or earlier termination of this Lease for a period of one (1) year.
Section 12.3 Representation by Lessor
The Lessor represents and warrants that no lawsuits, claims, legal or administrative,
have been brought against Lessor, in connection with the environmental condition of the
Premises as a result of the Lessor's or any prior lessee's use or occupancy of the Premises,
nor is Lessor aware of the existence of any Hazardous Materials thereon.
Section 12.4 Lessee's Indemnification
Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and
against any and all suits, actions, claims, regulatory actions, liabilities, penalties, losses,
injuries, and expenses, including attorney's fees, resulting from the death or injury to any
person, destruction or damage to property, or any other damages arising from or caused by
the presence, in or about the Premises, of any Hazardous Materials placed on or about the
Premises by Lessee, or its agents, employees or assignees, or at Lessee's direction, or by
Lessee's failure to comply with all applicable Environmental Laws.
Section 12.5 Survival of Lessee's and Lessor's Obligations
The respective rights and obligations of Lessor and Lessee under this Article XII
shall survive the expiration or termination of this Lease for a period of one (1) year.
ARTICLE XIII
DAMAGE OR DESTRUCTION OF PREMISES
Section 13.1 Definitions
For the purposes of this Article XIII, the following words shall have the meanings
attributed to them in this Section 13.1:
(a) "Completely Destroyed" means the destruction of the safe, leasable
use or occupancy of a substantial portion of the Premises or Lease
Area under this Lease which damage cannot reasonably be repaired,
restored or replaced within one hundred and eighty (180) calendar
days from the date on which the damage occurred.
(b) "Partial Destruction" means any damage to the Premises or the
Lease Area which damage can reasonably be repaired, restored or
replaced within one hundred eighty (180) calendar days from the
date on which the damage occurred.
Section 13.2 Duty to Repair, Restore or Replace the Premises and Leasehold
Improvements after Damage
In the event of damage by fire or otherwise of the Premises and/or the Lease Area
including any machinery, fixtures or equipment which are a part of the Lease Area, the
Parties agree as follows:
(i) In the event of Partial Destruction of the Premises or the
Lease Area, within sixty (60) calendar days of the damage (subject to reasonable delay
and/or Force Majeure), (i) the Lessee shall use the Gross Insurance Proceeds available for
that purpose, together with Lessee's own funds (if the Gross Insurance Proceeds are
insufficient) to commence and diligently pursue to completion within one hundred eighty
(180) calendar days from the date the damage occurred (subject to reasonable extension
due to Force Majeure or delays by Lessor in the repair, restoration, or replacement of the
damaged or destroyed portion of the Premises as required in order for the Lessee to
commence the restoration of the Leasehold Improvements), the repair, restoration or
replacement of the damaged or destroyed portion of the Leasehold Improvements
("Restoration Work"), and (ii) the Lessor shall, at its sole cost and expense, commence
and diligently pursue to completion within one hundred eighty (180) calendar days from
the date the damage occurred (subject to reasonable extension due to Force Majeure), the
repair, restoration, or replacement of the damaged or destroyed portion of the Premises,
including, without limitation, repair, maintenance and replacement to the City
Improvements, including, without limitation, the exterior and structural portions of the
building including the Lease Area, including the repair of foundations, floor slabs,
structural support, roof structure (including maintaining the roof and water tight condition)
and exterior walls (excluding the portion of the roof and window installed by the Lessee)
located in the Lease Area and the common utility lines to the point of connection with the
Lease Area; and this Lease shall remain in full force and effect, with no abatement in Rent.
(ii) In the event the Premises or the Lease Area are Completely
Destroyed at any time during Lease Years One (1) through Twenty-two (22) of the Lease
Term, and in Lease Years Twenty-three (23) through Twenty-seven (27), if the second
option has been exercised, within sixty (60) days of the damage, the Lessee, in its sole
discretion, shall have the option to select whether to terminate to terminate this Lease. In
the event the Lessee shall determine not to terminate this Lease, then (a) at the Lessee's
sole cost and expense, (together with Gross Insurance Proceeds available for that purpose),
Lessee shall commence and diligently pursue to completion the Restoration Work, in
accordance with the provisions of Section 13.3 below, and Lessee shall complete the
Restoration Work within twelve (12) months from the date the damage occurred (subject
to reasonable extension due to Force Majeure or delays by Lessor in the repair, restoration,
or replacement of the damaged or destroyed portion of the Premises as required in order
for the Lessee to commence the restoration of the Leasehold Improvements), and (b) the
Lessor shall, at its sole cost and expense, commence and diligently pursue to completion
within one hundred eighty (180) calendar days from the date the damage occurred (subject
to reasonable extension due to Force Majeure), the repair, restoration, or replacement of
the damaged or destroyed portion of the Premises, including, without limitation, repair,
maintenance and replacement to the City Improvements, including, without limitation, the
exterior and structural portions of the building including the Lease Area, including the
repair of foundations, floor slabs, structural support, roof structure (including maintaining
the roof and water tight condition) and exterior walls (excluding the portion of the roof and
window installed by the Lessee) located in the Lease Area and the common utility lines to
the point of connection with the Lease Area; and this Lease shall remain in full force and
effect, with no abatement in Rent. Alternatively, the Lessee may elect not to undertake the
Restoration Work by providing written notice to Lessor and in which event this Lease shall
terminate, and the Lessee shall, at the Lessee's sole cost and expense, (but using along with
the Lessee's own funds, Gross Insurance Proceeds available for that purpose) deliver
possession of the Lease Area to Lessor free and clear of all debris and Lessor and Lessee
shall each be released thereby from any further obligations hereunder accruing after the
effective date of such termination, except that such release shall not apply (aa) to any Rent
or other sums accrued or due (bb) Lessee's obligations regarding surrender of the Lease
Area including the removal of debris, and (cc) environmental liability as provided for in
Article XII.
(iii) In the event the Premises and/or the Lease Area are
Completely Destroyed at any time during Lease Years Twenty-three (23) or Twenty-four
(24), if the second option has not been exercised, and at any time during Lease Years
Twenty-eight (28), Twenty-nine (29) and Thirty (30), either Party, in its sole discretion,
shall have the right to terminate this Lease by giving written notice to the other Party within
ninety (90) days from the date the damage occurred. In the event this Lease is terminated
as provided above, the Lessee shall, at the Lessee's sole cost and expense, (but using along
with the Lessee' s own funds, Net Insurance Proceeds available for that purpose) deliver
possession of the Lease Area to Lessor free and clear of all debris and Lessor and Lessee
shall each be released thereby from any further obligations hereunder accruing after the
effective date of such termination, except that such release shall not apply (aa) to any Rent
or other sums accrued or due (bb) Lessee' s obligations regarding surrender of the Lease
Area including the removal of debris, and (cc) environmental liability as provided for in
Article XII.
Section 13.3 Performance of Restoration Work
In the event Lessee undertakes any Restoration Work in accordance with the
provisions of this Article, such Restoration Work by Lessee shall be substantially as
possible to the condition that existed immediately prior to the damage, and shall be
performed in accordance with the provisions of Article V applicable to the construction of
the initial Leasehold Improvements. Lessor hereby acknowledges and agrees that Lessee's
obligations hereunder and the time periods set forth above are subject to Force Majeure,
and reasonable extensions based on the severity of the damage. In the event Lessor
undertakes the repair, restoration, or replacement of the damaged or destroyed portion of
the Premises, including, without limitation, the roof, the foundations, the exterior walls, all
structural elements and the common utility lines to the point of connection with the Lease
Area, such restoration by Lessor shall be substantially as possible to the condition that
existed immediately prior to the damage, and shall be performed in accordance with the
provisions of Article V. Lessee hereby acknowledges and agrees that Lessor's obligations
hereunder and the time periods set forth above are subject to Force Majeure, and reasonable
extensions based on the severity of the damage.
Section 13.4 No Right to Terminate
Except for the Lessee's right to terminate this Lease in accordance with the
provisions of Subsections 13.2(ii)(b) and (iii), Lessee waives the provisions of any statute,
code or judicial decision which grants Lessee the right to terminate this Lease in the event
of damage or destruction of the Premises and/or the Lease Area.
Section 13.5 Lessee's Right to Terminate
If Lessee or Lessor elects to exercise the option given under Subsections 13.2(ii) or
(iii), respectively, to terminate this Lease, then any and all Gross Insurance Proceeds paid
for damage or destruction of the Lease Area shall be applied as follows:
(i) First toward debris removal; and
(ii) Second, toward the balance of the proceeds, if any, after
payment of any Rent due, shall be paid to the Parties as their respective shall be prorated
based on the useful life of the Premises prior to the casualty event as compared to the
remaining term of the Lease and any option periods without consideration of the
termination of the Lease as provided in this Section.
Section 13.6 Payment for Construction of the Restoration Work
Except as otherwise provided for in this Section 13, all Gross Insurance Proceeds
shall be applied by the Parties to the payment of the cost of the Restoration Work to restore
the Lease Area, and the Gross Insurance Proceeds shall be paid out, the Restoration Work
shall be performed, and the Lessee shall make additional deposits with an escrow agent, if
any are required, as may be applicable.
Section 13.7 Collection of Insurance Proceeds
The Lessor shall in no event be responsible for the non -collection of any insurance
proceeds under this Lease but only for insurance money that shall come into its hands;
providing, however that the Lessor will use its best efforts to obtain such insurance
proceeds, and disburse them accordingly.
Section 13.8 Unused Insurance Proceeds and Deposits
In the event any Gross Insurance Proceeds or sums deposited with an escrow agent
or Lessor in connection with the Restoration Work shall remain in the hands of an escrow
agent or the Lessor, if the Parties have agreed to allow the Lessor to hold the insurance
proceeds until completion of the Restoration Work, and if the Lessee shall not then be in
default under this Lease in respect of any matter or thing of which notice of default has
been served on the Lessee, then the remaining funds shall be applied first towards any
unpaid Rent, and the balance paid to the Lessee.
ARTICLE XIV
EMINENT DOMAIN
Section 14.1 Total Condemnation
In the event that all of the Lease Area (or such portion thereof as shall, in the good
faith opinion of Lessor or Lessee, render it economically unfeasible to effect restoration
thereof for its intended purpose) shall be taken for any public purpose by the right of
condemnation, the exercise of the power of eminent domain or shall be conveyed by the
Lessor and Lessee acting jointly to avoid proceedings of such taking, the Rent pursuant to
this Lease shall be prorated and paid by the Lessee to the Date of Taking or conveyance in
lieu thereof, and this Lease shall terminate and become null and void as of the Date of
Taking or such conveyance; and the amount of damages resulting to Lessor and Lessee,
respectively, and to their respective interests in and to the Lease Area, the Leasehold
Improvements, and in connection with this Lease (which amount of damages shall be
calculated based on the remaining term of the Lease and any option periods without
consideration of the termination of the Lease as provided in this Section), shall be
separately determined and computed by the court having jurisdiction and separate awards
and judgments with respect to damages to Lessor and Lessee, respectively, and to each of
their respective interests, shall be made and entered.
Section 14.2 Partial Condemnation
(a) In the event less than all of the Lease Area shall be taken for any
public use or purpose by the right or the exercise of the power of eminent domain, or shall
be conveyed by the Lessor and Lessee acting jointly to avoid proceedings of such taking,
and Lessee shall be of the good faith opinion that it is economically feasible to effect
restoration thereof, then this Lease and all the covenants, conditions and provisions
hereunder shall be and remain in full force and effect as to all of the Lease Area not so
taken or conveyed . Lessee shall to the extent the proceeds of the Gross Condemnation
Award are made available to it, pursuant to the terms hereof, remodel, repair and restore
the Lease Area so that it shall be comparable to the Lease Area prior to the condemnation,
taking into consideration the fact of the condemnation; provided, however, that in so doing,
Lessee shall not be required to expend more than the amount of any Gross Condemnation
Award actually received by Lessee.
(b) The Gross Condemnation Award allowed to Lessor and Lessee shall
be paid to and received by the Parties as follows:
(i) There shall be paid to the Lessor the value of the portion of
the land so taken and Lessor' s reversionary interest in the improvements so taken, which
land and reversionary improvements shall be valued as if unencumbered. Lessor shall
further be paid an amount by which the Rent has been reduced by the taking;
(ii) There shall be paid to the Lessee the amount required to
complete the remodeling and repairs to the Lease Area pursuant to (a) above;
(iii) The Lessor and Lessee shall be paid portions of the balance
of the Gross Condemnation Award or awards, if any, which are allocable to and represented
by the value of their respective interest in the Lease Area as found by the court in its
condemnation award.
Section 14.3 Adjustment of Rent Upon Partial Taking
In the event a part of the Lease Area shall be taken for any public use or purpose
by the exercise of the power of eminent domain, or shall be conveyed by Lessor and Lessee
acting jointly to avoid proceedings of such taking, then Rent pursuant to this Lease, shall
be paid by Lessee to the Date of Taking or conveyance in lieu thereof, and after such date
the Rent for the remainder of the Lease Area shall be reduced in the same proportion of the
percentage of space that is taken.
Section 14.4 Deposit of Condemnation Award with Escrow Agent
Unless the effect of a condemnation proceeding shall be to terminate this Lease by
operation of law or as provided in Section 14.2 above, any Gross Condemnation Award
made in respect to the Lease Area in a condemnation proceeding shall be deposited with
an escrow agent selected by the Lessor to be disbursed for the cost of restoring the Lease
Area.
ARTICLE XV
PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
Section 15.1 Payment of Taxes and Impositions
From and after the Lease Date, Lessee shall pay all Impositions levied against the
Lease Area before any fine, penalty, interest or costs are added for non-payment. All such
ad valorem and similar taxes, governmental levies, charges, impositions and assessments
shall be payable by Lessee directly to the taxing authority prior to delinquency (without
penalty) of such taxes, provided that Lessor has advised Lessee of its share of such taxes and
assessments in a written notice, including a copy of the tax bill prior to delinquency.
Section 15.2 Installment Payments of Ad Valorem Taxes and Impositions
Lessee agrees that to the extent the Lease Area or any interest thereon is subject to
ad valorem taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad
Valorem Tax Payment Plan.
If by law, any ad valorem taxes or other Impositions are payable or may, at the
option of the taxpayer, be paid in installments (whether or not interest shall accrue on the
unpaid balance of the Imposition), the Lessee may pay the same (and any accrued interest
on the unpaid balance of the Imposition), in installments before any fine, penalty, interest
or cost is added for the nonpayment of any installment and interest. Any Imposition relating
to a fiscal period of the taxing authority, a part of which period is included before the Lease
Date and part of which is included after the Lease Date shall be adjusted as between the
Lessor and the Lessee as of the commencement of the Lease 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.
Section 15.3 Proof of Payment
The Lessee shall furnish to Lessor, within thirty (30) days after the date whenever
any Imposition is payable by or in behalf of the Lessee, official receipts of the appropriate
taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the
payment.
Section 15.4 Lessee's Right to Contest Impositions
Anything herein to the contrary notwithstanding, Lessee shall have and retain the
right to appeal or contest by legal proceedings, or in such other manner as it may deem
suitable, any Imposition, (including but not limited to ad valorem taxes on the Lease Area
and the Leasehold Improvements), or any valuation in connection therewith, without the
consent of Lessor, even if the same ultimately results in the payment of any interest, costs
or penalties. In the event that Lessee contests any Imposition, Lessee shall immediately
notify the Director or his/her authorized designee of its intention to appeal said Imposition.
If at any time during the last Three (3) years of the Lease Term, Lessee shall contest
an Imposition, Lessee may defer payment of a contested item upon the condition that,
before instituting any such proceedings, Lessee shall furnish and keep in effect a surety
bond, cash deposit or other security satisfactory to the Director in an amount sufficient to
pay one hundred percent (100%) of the contested Imposition , with all interest on it and
costs and expenses, including reasonable attorneys" fees to be incurred in connection with
it. The legal proceedings herein referred to shall include appropriate proceedings to review
tax assessments and appeals from an order issued therein and appeals from any judgments,
decrees or orders. Any such contest shall delay the time periods set forth in Section 15.2
above.
Lessor agrees to pay such Impositions in a lump sum payment or on an installment
basis. Failure of the Lessee to pay such Impositions or any installment payment thereof
shall constitute a default under this Lease.
ARTICLE XVI
DEFAULT OF LESSEE
Section 16.1 Lessee Default
The occurrence of any one or more of the following events is deemed a "Lessee
Default":
(a) If the Lessee defaults in the due and punctual payment of any
installment of Rent, as and when due and payable in accordance with this Lease, and such
default continues for more than ten (10) days after the sum is due;
(b) 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;
(c) In the event an assignment for the benefit of creditors is made by
Lessee;
(d) In the event of an appointment by any court of a receiver or other
court officer of Lessee's Lease Area and such receivership is not dismissed or contested in
good faith within sixty (60) days from the date of such appointment;
(e) In the event Lessee removes, attempts to remove, or permits to be
removed from the Lease Area, except in the usual course of trade, a substantial portion of
the Leasehold Improvements (furnishings, fixtures, and equipment) installed or placed
upon the Lease Area by the Lessee during the Lease Term;
(f) In the event Lessee, before the expiration of the Lease Term, and
without the written consent of Lessor, abandons the possession of the Lease Area, or uses
the same for purposes other than the purposes for which the same are hereby leased or as
otherwise permitted by Lessor, and such default continues for more than thirty (30) days
after written notice of the default from the Lessor to the Lessee, In the event an execution
or other legal process is levied upon the goods, furniture, effects or other personal property
of Lessee brought on the Lease Area, or upon the interest of Lessee in this Lease, and the
same is not satisfied, dismissed or contested in good faith within sixty (60) days from such
levy; or
(g) In the event Lessee defaults in the due performance or observance
of any lease covenant or condition or provision, other than the payment of Rent, and such
default continues for more than thirty (30) days after written notice of the default from the
Lessor to the Lessee, or such longer period as is reasonably necessary to diligently cure
such default; or
Section 16.2 Remedies of Lessor
(a) If any Lessee Default occurs, Lessor shall have the right after the
expiration of the applicable cure period, at the option of Lessor, to terminate this Lease
upon providing fifteen (15) days written notice if the default has not been cured by the
expiration of such fifteen (15) day period. An Event of Default shall be deemed to have
occurred at the expiration of such fifteen (15) day period if the default has not been cured
by the expiration of such fifteen (15) day period.
(b) If any Event of Default occurs, Lessor shall have the right, at its
option, to declare all Rent (or any portion thereof) for the entire remaining Lease Term,
and other indebtedness owing by Lessee to Lessor, if any, immediately due and payable
without regard to whether possession of the Lease Area shall have been surrendered to or
taken by Lessor, and may commence action immediately thereupon and recover judgment
therefore.
(c) If any Event of Default occurs, Lessor, in addition to other rights
and remedies it may have, shall have the right to remove all or any part of Lessee's personal
property from the Lease Area and any personal property removed may be stored in any
public warehouse or elsewhere at the cost of, and for the account of Lessee, and Lessor
shall not be responsible for the care or safekeeping thereof whether in transport, storage or
otherwise, and Lessee hereby waives any and all claim against Lessor for loss, destruction
and/or damage or injury which may be occasioned by any of the aforesaid acts.
(d) No such re-entry or taking possession of the Lease Area by Lessor
shall be construed as an election on Lessor's part to terminate this Lease unless a written
notice of such intention is given to Lessee. Notwithstanding any such re -letting without
termination, Lessor may at all times thereafter elect to terminate this Lease for such
previous default. Any such re-entry shall be allowed by Lessee without hindrance, and
Lessor shall not be liable in damages for any such re-entry, or guilty of trespass or forcible
entry.
(e) Any Rent which may be due Lessor, whether by acceleration or
otherwise as herein provided in this Article, shall include Minimum Base Rent and any
other rents, costs and expenses denominated as Additional Rent in this Lease.
(f) Any and all rights, remedies and options given in this Lease to
Lessor shall be cumulative and in addition to and without waiver of, or in derogation of,
any right or remedy given to it under any laws now or hereafter in effect.
Section 16.3 No Waiver by Lessor
The waiver (either expressed or implied by law) by Lessor of any default of any
term, condition or covenant herein contained shall not be a waiver of any subsequent
default of the same or any other term, condition or covenant herein contained. The consent
or approval by Lessor to or of any act by Lessee requiring Lessor' s consent or approval
shall not be deemed to waive or render unnecessary Lessor's consent to or approval of any
subsequent similar act by Lessee. No re-entry hereunder shall bar the recovery of rents or
damages for the default or delay on the part of Lessor to enforce any right hereunder and
shall not be deemed a waiver of any preceding default by Lessee of any term, covenant or
condition of this Lease, or a waiver of the right of Lessor to annul this Lease or to re-enter
the Lease Area or to re -let same.
Section 16.4 Late Payments
Any installment of Rent not received within five (5 ) days after the due date shall
be subject to a late payment as provided in this Section 16.4. Lessee shall pay, in addition
to the payment then due, five (5%) percent of the amount due, compounded monthly,
inclusive of any already accrued late fee ("Late Fee"), and in the event that any check, bank
draft, order for payment , or negotiable instrument given to Lessor for any payment under
Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor, in
addition to the five (5%) percent Late Fee, shall be entitled to make an administrative
charge to Lessee of One Hundred and 0/100 Dollars ($100.00), or the actual charge, to
Lessor by Lessor's bank for dealing with such dishonored tender, whichever is more. Any
charges becoming due under this Section of this Lease shall be added to and become due
with the late payment for which the charge was assessed and shall be collectible as a part
thereof.
Section 16.5 Remedies Cumulative
No remedy conferred upon or reserved to the Lessor or the Lessee shall be
considered exclusive of any other remedy, but shall be cumulative and shall be in addition
to every other remedy given under this Lease or existing at law or in equity or by statute;
and every power and remedy given by this Lease to the Lessor or the Lessee may be
exercised from time to time and as often as occasion may arise or as may be deemed
expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee to exercise
any right or power arising from any default shall impair any right or power, nor shall it be
construed to be a waiver of any default or any acquiescence in it.
Section 16.6 Lessor Default.
In the event that Lessor shall at any time be in default in the observance or
performance of any of the covenants hereunder and any such default shall continue for a
period of sixty (45) days after written notice to Lessor (if such default is incapable of being
cured in a reasonable manner within sixty (60) days then if Lessor has not commenced to
cure the same within such sixty (60) day period and thereafter diligently prosecutes the same
to completion) and Lessor shall not thereafter cure the default, Lessee shall have the right at
any time thereafter (but in no event shall be obligated) to cure such default for the account
of Lessor, and Lessor shall reimburse Lessee for any amount paid and any expense or
contractual liability so incurred upon invoice; and in addition, Lessee shall be entitled at its
election, to exercise concurrently or successively, any one or more of the rights or remedies
in law or equity provided hereunder or under applicable law.
ARTICLE XVII
ACCESS BY LESSOR & PUBLIC
Section 17.1 Right of Entry
Lessor and Lessor's agents shall have the right to enter the Lease Area at all
reasonable times upon reasonable prior written notice to the Lessee (except in the case of
an emergency when no notice is required), to examine the same. If Lessee shall not be
personally present to open and permit entry into the Lease Area at any time when for any
reason an entry therein shall be necessary or permissible, Lessor or Lessor's agents may
enter the same without in any manner affecting the obligations and covenants of this Lease.
Nothing herein contained, however, shall be deemed or construed to impose upon Lessor
any obligation, responsibility or liability whatsoever, for the care, maintenance or repair of
the Lease Area or any part thereof, except as otherwise herein specifically provided.
Section 17.2 Access Rules & Regulations
Lessee shall create, establish, enforce, and implement rules and regulations
governing the use of the Lease Area as a public park, provided, however, that such rules
and regulations shall comply with all local, state and federal laws. Such rules and
regulations shall be reviewed and approved by the Lessor.
ARTICLE XVIII
DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage
Unless caused by a grossly negligent act or omission of Lessor or the Lessor's
officers, employees, or agents, the Lessor shall not be responsible for any damage to any
property of Lessee (including without limitation appliances, equipment, machinery, stock,
inventory, fixtures, furniture, improvements, displays, decorations, carpeting and
painting), or of others located on the Lease Area, nor for the loss of or damage to any
property of Lessee, or of others by theft or otherwise. Lessor shall not be liable for any
injury or damage to persons or Lease Area resulting from fire, smoke, explosion, falling
plaster, steam, gas, electricity, water, rain, or leaks from any part of the Lease Area or from
the pipes, appliances or plumbing works or from the roof, street or subsurface or from any
other place by dampness or by any other cause of whatsoever nature. Lessor shall not be
liable for any latent defect in the Lease Area. All property of Lessee kept or stored on the
Lease Area shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor
harmless from any and all claims arising out of damage to same, including subrogation
claims by Lessee's insurance carriers.
ARTICLE XIX
HOLDING OVER, SUCCESSORS
Section 19.1 Holding Over
In the event Lessee remains in possession of the Lease Area after the expiration of
the Lease Term, Lessee, at the option of Lessor, shall be deemed to be occupying the Lease
Area as a Lessee at sufferance at a monthly rental equal to two (2) times the Minimum
Base Rent and the Percentage Rent of the preceding Lease Year, payable during the last
month of the Lease Term hereof. In addition, Lessee agrees to pay monthly: (a) one -twelfth
(1/12) of the taxes for the Lease Area based upon the total taxes payable for the Lease Year
immediately prior to the Lease Year in which the expiration occurs; (b) cost of insurance
for which Lessee would have been responsible if this Lease had been renewed on the same
terms contained herein; (c) all sales taxes assessed against such increased rent, and (d) any
and all Additional Rent otherwise payable by Lessee hereunder. Such tenancy shall be
subject to all the other conditions, provisions and obligations of this Lease. Lessee's
obligation to pay any rents or sums provided in this Lease shall survive the expiration or
earlier termination of this Lease.
Section 19.2 Successors
All rights and liabilities herein given to, or 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 Lease Area and the
purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved
of all further obligations hereunder.
ARTICLE XX
MISCELLANEOUS
Section 20.1 Accord and Satisfaction
No payment by Lessee or receipt by Lessor of a lesser amount than the Rent herein
stipulated to be paid shall be deemed to be other than on account of the earliest stipulated
Rent, nor shall any endorsement or statement on any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and Lessor may accept
such check or payment without prejudice to Lessor's right to recover the balance of such
Rent or pursue any other remedy provided herein or by law.
Section 20.2 Entire Agreement
This Lease and the Exhibits attached hereto and forming a part thereof as if fully
set forth herein constitute all of the covenants, promises, agreements, conditions and
understandings between Lessor and Lessee concerning the Lease Area and there are no
covenants, promises, conditions or understandings, either oral or written, between them
other than as are herein set forth. Neither Lessor nor Lessor's agents have made nor shall
be bound to any representations with respect to the Lease Area except as herein expressly
set forth, and all representations, either oral or written, shall be deemed to be merged into
this Lease. No course of prior dealings between the Parties or their officer's employees,
agents or affiliates shall be relevant or admissible to supplement, explain or vary any of the
terms of this Lease. Acceptance of, or acquiescence in, a course of performance rendered
under this or any prior agreement between the Parties or their affiliates shall not be relevant
or admissible to 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.
Section 20.3 Independent Parties
It is understood and agreed by the Parties hereto that this Lease does not create a
fiduciary or other relationship between Lessor and Lessee, other than Lessor and Lessee or
contracting parties, as applicable. Lessor and Lessee are and shall be independent
contracting parties and nothing in this Lease is intended to make either Party a general or
special agent, joint venturer, partner or employee of the other for any purpose.
Section 20.4 Notices
Any notice by the Parties required to be given must be served by certified mail
return receipt requested, or by hand delivery, addressed to Lessor or Lessee at:
To Landlord:
With copy to:
To Tenant:
With copy to:
Department of Real Estate & Asset Management
City of Miami
444 S.W. 2nd Avenue, 3rd Floor
Miami, FL 33130
Attn: Daniel Rotenberg, Director
Office of the City Attorney
City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Attn: Victoria Mendez, Esq., City Attorney
Rivercow, LLC
20815 N.E. 16th Avenue, Ste. B17
Miami, FL 33179
Attn: Saul Levy, Manager
Berger Singerman LLP
1450 Brickell Avenue, 19th Floor
Miami, FL 33131
Attn: Javier E. Fernandez, Esq.
All notices given hereunder shall be effective and deemed to have been given upon
receipt by the party to which notice is being given, said receipt being deemed to have
occurred upon hand delivery or posting, or upon such date as the postal authorities shall
show the notice to have been delivered, refused, or undeliverable, is evidenced by the return
receipt or proof of deliver. Notwithstanding any other provision hereof, Lessor shall also
have the right to give notice to Lessee in any other manner provided by law. If there shall
be more than one Lessee, any notice required or permitted by the terms of this Lease may
be given by or to any one thereof, and shall have the same force and effect as if given to
all thereof.
Section 20.5 Captions and Section Numbers
The captions, section numbers, and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit, construe, or describe
the scope or intent of such sections or articles of this Lease nor in any way affect this Lease.
Section 20.6 Partial Invalidity
If any term, covenant or condition of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, the application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
Section 20.7 Estoppel Certificate
Each party agrees that it will, at any time and from time to time, within thirty (30)
business days following written notice by the requesting party specifying that it is given
pursuant to this section, execute, acknowledge and deliver to the requesting party a
statement in writing certifying that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect and stating the
modifications), and the date to which the Minimum Base Rent and any other payments due
hereunder from Lessee have been paid in advance, if any, and stating whether or not there
are defenses or offsets claimed by the certifying party and whether or not to the best
knowledge of certifying party, the requesting party is in default in performance of any,
covenant, agreement or condition contained in this Lease, and if so, specifying each such
default of which certifying party may have knowledge. The failure of certifying party to
execute, acknowledge and deliver to requesting party a statement in accordance with the
provisions of this Section within said thirty (30) Business day period and shall constitute
an acknowledgment by certifying party, which may be relied on by any person holding or
proposing to acquire an interest in the Premises or any party thereof or this Lease from or
through the other party, that this Lease is unmodified and in full force and effect and that
such rents have been duly and fully paid to and including the respective due dates
immediately preceding the date of such notice and shall constitute, as to any person entitled
as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to
the date of such notice. It is agreed that nothing contained in the provisions of this Section
shall constitute waiver by requesting party of any default in payment of rent or other
charges existing as of the date of such notice and, unless expressly consented to in writing
by requesting party and, certifying party shall still remain liable for the same. There will
be a two hundred fifty dollar ( $ 250.00) regulatory fee per 166.221, Fla. Stat. for each
request made of Lessor for each Estoppels Certificate Requested, payment in full shall be
made a the time of the request.
Section 20.8 Waiver
Failure on the part of either part of complain of any action or non -action on the part
of the other, no matter how long the same may continue, shall never be deemed to be a
waiver by such party of any of its rights hereunder. Further, it is covenanted and agreed
that no waiver at any time of any of the provisions hereof by either party shall be construed
as a waiver of any of the other provisions hereof, and that a waiver at any time of any of
the provisions hereof shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval to or of any action by either party requiring such
consent or approval shall not be deemed to waive or render unnecessary such consent or
approval to or of any subsequent similar act by such party.
Section 20.9 Time is of the Essence
Time is of the essence with respect to the performance of every provision of this
Lease in which time of performance is a factor.
Section 20.10 No Discrimination
It is intended that the Premises shall be developed so that all customers, employees,
licensees and invitees of the Lessees shall have the opportunity to obtain all the goods,
services, accommodations, advantages, facilities and privileges of the Lease Area without
discrimination because of race, creed, color, sex, age, national origin, ancestry, handicap
or disability of any kind. To that end, Lessee shall not discriminate in the conduct and
operation of its business in the Premises against any person or group of persons because of
the race, creed, color, sex, age, national origin, ancestry, handicap or disability of such
person or group of persons.
Section 20.11 Governing Law
It is the intent of the Parties hereto that all questions with respect to the construction
of the Lease and the rights and the liabilities of the Parties hereto shall be determined in
accordance with the laws of Florida and that all disputes arising hereunder shall be heard
and decided in Miami -Dade County, Florida.
Section 20.12 Waiver of Counterclaims
Lessee shall not impose any counterclaim or counterclaims for damages in a
summary proceeding or other action based on termination or holdover, it being the intent
of the Parties hereto that Lessee be strictly limited in such instances to bringing a separate
action in the court of appropriate jurisdiction. The foregoing waiver is a material
inducement to Lessor making, executing and delivering this Lease and Lessee's waiver of
its right to counterclaim in any summary proceeding or other action based on termination
or holdover is done so knowingly, intelligently and voluntarily.
Section 20.13 Waiver of Jury Trial
Lessor and Lessee hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the Parties hereto against the other on, or in respect of,
any matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Lessor and Lessee hereunder, Lessee's use or occupancy of the Lease Area
and/or any claim of injury or damage.
Section 20.14 Quiet Enjoyment
Subject to the terms of this Lease, upon the observance by the Lessee hereunder of
all the terms, provisions, covenants and conditions imposed upon the Lessee, the Lessor
covenants to the Lessee that the Lessee shall peaceably and quietly hold, occupy and enjoy
the Lease Area for the Lease Term without any interruption, disturbance or hindrance by
the Lessor, its successors and assigns, or by persons claiming by, through or under the
Lessor for the Lease Area leased herein, or by persons with title superior to the Lessor, its
successors and assigns.
Section 20.15 Surrender of Possession
Upon the expiration or earlier termination of the Lease pursuant to the provisions
hereof, the Lessee shall deliver to the Lessor possession of the Lease Area in good repair
and condition, reasonable wear and tear excepted.
Section 20.16 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 (or any combination of two or more thereof)
shall be deemed to have been given or made by, with or all of them.
Section 20.17 Third Party Beneficiary
Nothing contained in this Lease shall be construed so as to confer upon any other
party the rights of third party beneficiary.
Section 20.18 Radon
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of Radon that exceed Federal and State guidelines have been found in
buildings in Florida. Additional information regarding Radon and Radon testing may be
obtained from your county public health unit.
Section 20.19 No Liability for Act of other Party
Lessee shall not sign any contract, application for any license or permit or do
anything that may result in liability to the Lessor for any indebtedness or obligation of
Lessee, unless expressly provided herein or approved in writing by the Lessor. Except as
expressly authorized in writing, neither Lessor nor Lessee shall make any express or
implied agreement, warranties, guarantees or representations or incur any debt, or represent
that their relationship is other than Lessor and Lessee, unless otherwise agreed to herein
for the management and operation of the Lease Area and neither Lessor nor Lessee shall
be obligated by or have any liability under any agreements or representations made by the
other that are not expressly authorized as aforesaid. Lessor reserves the right, at its sole
option, to refuse an agreement for any Federal, State or local grants and loans when the
acceptance of same by either Lessor or Lessee may impose a hardship upon Lessor or
include obligations which extend beyond the Lease Term.
Section 20.20 Consents
Wherever in this Lease the consent of one party is required for an act of the other
party, unless otherwise specified, such consent shall not be unreasonably withheld, delayed
or conditioned.
The Parties agree that each of the terms, covenants and conditions hereof agreed to
be observed or performed by each party shall constitute concurrent conditions of exchange.
Section 20.21 Attorney's fees
In the event that any claim or action should arise out of this Agreement, each party
shall be responsible for it's own attorney's fees and costs.
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:
Arthur Noriega
City Manager
ATTEST:
By:
Todd B. Hannon
City Clerk
APPROVED AS TO INSURANCE APPROVED AS TO LEGAL
FORM
AND
REQUIREMENTS: CORRECTNESS:
By: By:
Ann -Marie Sharpe, Director
Risk Management Department
Victoria Mendez
City Attorney
LESSEE:
By: RIVERCOW, LLC, a Florida
limited
liability company
By: Jimmy Levy
Its: Manager
ATTESTED BY:
By: CORPORATE SEAL
Name
Title
Company Name
By:
Name
Title
Company Name
EXHIBIT "A"
LEASE AREA
Commence at the Southwest corner of Tract "A," DOBBS BUSINESS
CENTER, according to the plat thereof as recorded in Plat Book 53, Page
73, of the Public Records of Miami -Dade County, Florida, thence North
89°54'53" East, along the South line of Tract "A," a distance of 104.99 Feet,
to the Point of the Beginning, thence North, along the South and East line
of Tract "A", a distance of 51.60 Feet, thence North 89°54'53" East, along
the South line of Tract "A", a distance of 122.00 Feet, thence South, a
distance of 26.24 Feet, along the West Right -of -Way line of NE 2nd Avenue,
to a Point of Curvature, said curve concave to the Northwest and having its
elements a radius of 25.00 Feet and a central angle of 89°54'53", thence
Southerly, Southwesterly and Westerly for an arc distance of 39.23 Feet to
a Point of Tangency, then South 89°54'54" West, a distance of 97.04 Feet,
along the North Right -of -Way line of NE 80th Terrace, said line being 25.00
Feet North of the Center Line of NE 80th Terrace, to a Point of Beginning;
and having 6,161.53 Sq. Ft. +/- or 0.1414 Acres +/-.
EXHIBIT "B"
DESCRIPTION OF LEASEHOLD IMPROVEMENTS
Lessee anticipates making a substantial investment to improve the Leasehold. Anticipated
Leasehold Improvements may consist of, but are not limited to, the following enhancements:
• Installation of decorative pavers within the public walkways forming part of the park;
• Replacement of surfaces forming part of the elevated plaza within the park with new
surface finish or decorative pavers;
• Installation of trellis or comparable shade structures along northern edge of the park to
provide shade -protected seating within the park;
• Refinish of concrete benches forming northern edge of raised plaza area for the provision
of public seating;
• Planting of mature shade trees within the park plaza;
• Restoration of landscaping throughout park and within park planters;
• Installation of new lighting within the park plaza and around perimeter to ensure the
creation of a defensible public space for use by the public throughout the daytime and
evening; and
• Installation of new benches or other decorative seating to provide public places for repose
within the park.
A rendering of the proposed improvements is made part of this exhibit to illustrate the Lessee's
intent with respect to the proposed Leasehold Improvements. Approval of the final design for the
Leasehold Improvements shall be subject to the provisions of section 5.1 of the Lease.
EXHIBIT "Cl"
INSURANCE REQUIREMENTS
Commercial General Liability (Primary & Non Contributory)
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Personal and Advertising Injury
Products & Completed Operations
Damage to Rented Premises
Endorsements Required
City of Miami included as an Additional Insured
Premises & Operations Liability
Contingent Liability & Contractual Liability
II. Business Automobile Liability
$ 1,000,000
$ 2,000,000
$ 1,000,000
$ 1,000,000
$ 100,000
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit $ 300,000
Owned Autos/Scheduled Autos
Including Hired, Borrowed or Non -Owned Autos
Endorsements Required
City of Miami included as an Additional Insured
III. Business Personal Property
Causes of Loss: Special Form
Valuation: Replacement Cost
Business Income included
IV. Workers' Compensation
Limits of Liability
Statutory -State of Florida
V. Employers' Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
VI. Liquor Liability, where applicable
A. Limits of Liability
Each Occurrence
Policy Aggregate
$ 1,000,000
$ 1,000,000
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than
"Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All
policies and /or certificates of insurance are subject to review and verification by
Risk Management prior to insurance approval.
EXHIBIT "C2"
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -
CONSTRUCTION REQUIREMENTS LEASE AREA
Commercial General Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
Endorsements Required
City of Miami listed as an Additional Insured
Primary Insurance Clause Endorsement
Contingent and Contractual Liability
Premises/Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident
Endorsements Required
City of Miami listed as an additional insured
$ 1,000,000
$ 2,000,000
$ 1,000,000
$ 1,000,000
$ 1,000,000
III. Workers' Compensation
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
IV. Employers' Liability
B. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
V. Umbrella Policy (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 2,000,000
Aggregate $ 2,000,000
City of Miami listed as an additional insured
VI. Payment and Performance Bond $TBD
City of Miami Listed as Obligee
The above policies shall provide the City of Miami with written notice of cancellation
or material change from the insurer in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class
V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or
certificates of insurance are subject to review and verification by Risk Management prior
to insurance approval.
Little River Commerce Park
8034 NE 2nd Avenue
Miami, Miami Dade County, FL 33138
Prepared for:
Monique Finlay, MBA
City of Miami
444 SW 2 Avenue, 3rd Floor
Miami, FL 33130
Appraisal Report / 16-0140
Armada Appraisal &
Consulting Company