HomeMy WebLinkAboutCRA-R-24-0065 Exhibit AEXHIBIT "A"
LEASE AGREEMENT
By and Between
BLOCK 55 ORG OWNER, LLC
("Landlord")
and
Southeast Overtown/Park West Community Redevelopment Agency
("Tenant")
EXHIBITS
The following Exhibits are attached hereto and by this reference made a part hereof:
Exhibit "A"
Exhibit "A-1"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "D-1"
Exhibit "E"
Exhibit "F"
Exhibit "G"
Site Plan
Legal Description of the Land
Landlord's Work
Term Commencement Certificate
Tenant's Plans Approval Process
Permitted Signage
Intentionally Deleted
Exclusive/Prohibited Uses
Rules and Regulations
LEASE AGREEMENT
THIS LEASE, dated as of the of October, 2024 ("Effective Date") is made by and between BLOCK
55 ORG OWNER, LLC, a Florida limited liability company ("Landlord") and Southeast Overtown/Park West
Community Redevelopment Agency ("Tenant").
For and in the consideration of the mutual covenants and agreements herein stated, the parties hereto
covenant and agree as follows:
Article 1. Premises.
1.1 Landlord does hereby lease to Tenant and Tenant does hereby lease from Landlord those certain
premises containing approximately 1,000 leasable square feet, as shown crosshatched on Exhibit "A" (the
"Premises"), subject to and with the benefit of the terms, covenants and conditions of this Lease. The
Premises is situated on the ground floor of the eighteen (18) level mixed use building. (the "Building"). The
Premises are part of a project to be known as Block 55, which is located at the northwest corner of
Northwest 6th Street and Northwest 2nd Street in Miami, Florida, on that certain parcel of land (the "Land")
described on Exhibit "A-1" (the Building and other improvements and appurtenances constructed on the
Land are collectively referred to herein as the "Project"). The Project and the Premises are shown on the
multi -floor site plan on Exhibit "A" (the "Site Plan"). The Premises has an address of 249 N.W. 6th Street,
Miami, Florida 33136.
1.2 The Building will include:
(a) three (3) floors of retail and office space on the first (1st), sixth (6th) and seventh (7th)
floors with approximately 250,000 square feet of floor area in the aggregate (the "Commercial Component");
(b) eleven (11) floors of residential units on the eight (8th) floor and above, together with two
(2) dedicated lobbies on the first (1st) floor adjacent to N.W. 2nd Avenue and adjacent to N.W. 7th Street
(N.W 7th Street is also known as Sawyer's Walk) (the "Residential Component"); and
(c) four (4) levels of parking on the second (2nd), third 3rd), fourth (4th) and fifth (5th) levels
(the "Parking Component").
1.3 Landlord has advised Tenant that Landlord intends to convey the Parking Component of the Project
to a Community Development District (which is a special purpose governmental entity authorized by
Chapter 190 of the Florida Statutes (a "CDD")) or other governmental authority. For purposes of this Lease,
any CDD or other governmental authority to which the Parking Component is conveyed shall be referred to
as the "Parking CDD". In the event that Landlord elects to convey the Parking Component to the Parking
CDD, Landlord represents and warrants to Tenant that the Taxes (hereafter defined) attributable to the
Parking Component will be 100% abated such that no Taxes shall be shall be assessed against the Parking
Component while owned by the Parking CDD, and further represents and warrants that, were it not for the
conveyance of the Parking Component to the Parking CDD and the resulting abatement of Taxes applicable
to the Parking Component, Tenant's Pro Rata Share (hereafter defined) of Taxes allocable to the Parking
Component would be approximately $4.00 per square foot of the Premises annually. However, as part of
Landlord's conveyance of the Parking Component to the Parking CDD, Landlord will be required to finance
the cost of constructing the Parking Component in the form of bonds issued by the Parking CDD ("Bonds")
and such payment of the Bonds will take the form of assessments imposed by the Parking CDD upon the
Project (the "CDD Assessments").
1.4 Except as expressly set forth in this Lease, no rights, easements or licenses are acquired by Tenant
by implication or otherwise.
Article 2. Term.
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2.1 Although the obligations of the parties begin upon the Effective Date, the Initial Term, as defined
below, of this Lease shall commence on that date (the "Rent Commencement Date") which is the earlier of
(a) one hundred fifty (150) days after the earlier of (i) delivery by Landlord to Tenant of the Premises with
Landlord's Work, as described on Exhibit "B" attached hereto, being "substantially complete" (as defined in
Section 3.1) (the "Delivery Date") and (ii) the receipt by Tenant of all permits and approvals (collectively,
"Tenant's Permits") necessary to complete Tenant's Work (as defined in Section 3.1(b)), and (b) the date
Tenant actually commences to do business with the public in the Premises. Tenant shall provide Landlord
a permit set (final construction drawings) of plans and specifications for Tenant's Work, prepared by a
licensed architect or a licensed professional engineer, as the case may be ("Tenant's Plans") within the time
period set forth on Exhibit "D" ("Tenant's Plans Approval Process") and shall apply for permits and approvals
necessary to complete Tenant's Work within ten (10) days after Tenant's receipt of Landlord's approval of
Tenant's Plans.
2.2 The initial Term ("Initial Term") of this Lease shall expire ten (10) full Lease Years following the Rent
Commencement Date. For the purposes hereof, a "Lease Year" shall be the period commencing on the
Rent Commencement Date and ending on the day immediately preceding the first anniversary of the Rent
Commencement Date and thereafter, a Lease Year shall consist of successive periods of twelve (12)
calendar months. If the Rent Commencement Date is other than the first day of a calendar month, the first
Lease Year shall be the period of time from said Rent Commencement Date to the end of the month in
which the Rent Commencement Date occurs plus the following twelve (12) calendar months.
2.3 Within ten (10) days after either party's request, an Initial Term commencement certificate, in the
form attached hereto as Exhibit "C", shall be executed by both parties setting forth the Rent Commencement
Date, termination date and such other information as set forth therein.
Article 3. Construction.
3.1 (a) Landlord agrees that it shall, at its sole cost and expense, commence and pursue
Landlord's Work to completion in accordance with Exhibit "B", in a good and workmanlike manner and in
compliance with all applicable Laws (as defined in Section 8.1). The term "substantial completion" or
"substantially complete" as used herein shall mean the completion of Landlord's Work, with the exception
of any minor, immaterial punch -list items that are non-structural or cosmetic in nature and that will not, in
more than a de minimis manner, delay or interfere with Tenant's Work or the conduct of the Permitted Use
in the Premises. [IS LANDLORD'S WORK COMPLETE?]
(b) For purposes of this Lease, "Tenant's Work" shall be the construction of those
improvements in the Premises for a retail store and the installation of Tenant's Permitted Signage and
Personal Property (as hereinafter defined) all in material compliance with Tenant's Plans. Tenant will
commence Tenant's Work within five (5) days from the Delivery Date and receipt of any permits necessary
to perform Tenant's Work and diligently prosecute the same to completion.
3.2 (a) Landlord agrees to use commercially reasonable efforts to deliver the Premises to Tenant,
subject to events of Force Majeure and/or Tenant Delays (as defined and set forth below) on or about
August 1, 2024 (the "Anticipated Delivery Date").
(b) Landlord will be granted a day for day extension of the Anticipated Delivery Date if there
have been Tenant Delays or events of Force Majeure. A "Tenant Delay" means any delay in the Delivery
Date or the completion of Landlord's Work due to any of the following: (i) Landlord's agreement to any
written request by Tenant either that Landlord change the scope of Landlord's Work, or that Landlord delays
the commencement or completion of Landlord's Work to accommodate Tenant's Work in the Premises; or
(ii) Tenant's failure to furnish information or to respond to any request by Landlord or Landlord's
representatives for any approval within any time period prescribed in this Lease (including, but not limited
to, delivering Tenant's Plans to Landlord within the time period set forth in Section 2.1); or (di) any delay
resulting from Tenant's having taken possession of the Premises without Landlord's consent for any reason
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before substantial completion of the Landlord's Work; or (iv) any change by Tenant to the plans and
specifications for Landlord's Work after final approval thereof, except for changes required to meet
governmental regulations; or (v) any delay in Landlord's Work caused by the installation of Tenant's fixtures
and/or performance of any other part of Tenant's Work; or (vi) any delay resulting from Tenant's failure to
provide Landlord with the Tenant's Plans by the date required herein (less delays caused by an act of Force
Majeure as set forth hereinbelow); or (vii) any other act or omission by Tenant, its agents, employees,
contractor or subcontractors that delays Landlord's Work in more than a de minimis manner. Additionally,
as a condition precedent to the commencement of the Anticipated Delivery Date being delayed for a Tenant
Delay occurrence or an event of Force Majeure, Landlord must notify Tenant in writing within ten (10)
business days after the beginning of the occurrence of the Tenant Delay or event of Force Majeure. Such
notices must include specific details regarding the nature of the delay, the number of days the Landlord
believes have been delayed, and any actions the Tenant can take to cure or avoid further delay.
3.3 Tenant hereby represents and warrants to Landlord that Tenant has made its own investigation and
examination of all the relevant data relating to or affecting the Premises and is relying solely on its own
judgment in entering into this Lease; specifically, and without limitation, Tenant represents and warrants to
Landlord that Tenant has had an opportunity to measure the actual dimensions of the Premises and agrees
to the square footage figures set forth herein for all purposes of this Lease. The parties stipulate the square
footage of the Premises as set forth in the Lease is correct and shall be utilized notwithstanding the actual
square footage may differ.
Article 4. Fixed Rent.
4.1 Beginning on the Rent Commencement Date and continuing throughout the Term, but subject to
the terms of this Lease, Tenant agrees to pay to Landlord annual fixed rent ("Fixed Rent") as follows:
Rent Period
Annual Fixed Rent
Monthly Fixed Rent
Per Sq. Ft.
Year 1
$ 20,000.00
$ 1,666.67
$ 20.00
At the commencement of Year 2 and annually thereafter, the Fixed Rent shall increase by five percent (5%)
per annum.
4.2 All Fixed Rent shall be payable in advance, without demand, offset or abatement except as
expressly set forth otherwise in this Lease, in equal monthly installments on the first day of each calendar
month during the Term. Fixed Rent for any period which is for less than one (1) month shall be prorated
based upon the number of days in such month, and the monthly installment of Fixed Rent for any partial
calendar month occurring at the beginning of the Term shall be due and payable with the first full month's
installment of Fixed Rent. For each payment of Rent which is not received within ten (10) days of the due
date Tenant will also pay a late charge of five percent (5%) of the unpaid amount; provided, however, that
the imposition of the late charge will not (a) extend the date for payment or relieve Tenant of any obligation
to pay any sums required to be paid by Tenant under this Lease, or (b) be construed as a cure for any Event
of Default on the part of Tenant.
4.3 Fixed Rent and all other recurring charges payable by Tenant to Landlord hereunder are collectively
referred to herein as "Rent" and shall be paid to Landlord at the rent payment address for Landlord set forth
in Section 24.2 hereof.
4.4 Tenant shall also pay with each monthly installment of Fixed Rent the Florida State Sales Tax
imposed upon or with respect to the Rent payable hereunder pursuant to Florida Statutes, Chapter 212
(even though the taxing statute or ordinance may purport to impose same against Landlord) and as
otherwise required by Laws at the rates prescribed by the State of Florida, Department of Revenue (or
other applicable governmental authority charged with prescribing such rates).
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Article 5. The Common Areas.
5.1 The "Common Areas" of the Project shall consist of all interior and exterior portions of the Project
which are not designated as tenant spaces and are made available for the non-exclusive use of all
occupants of the Project and their respective customers, employees and invitees including, without
limitation, as applicable, all parking areas and facilities, driveways, roadways, entrances, exits, walkways,
sidewalks, shared loading areas, lighting facilities, traffic control signs and fences, package pickup stations,
elevators, escalators, interior common areas of the Project, courts and ramps, landscaped areas, retaining
walls, stairways, bus stops, sanitary systems and utility lines. Landlord hereby gives and grants to Tenant
during the Term, for the benefit of Tenant and Tenant's subtenants, licensees and concessionaires and their
respective employees, agents, customers and invitees, the non-exclusive irrevocable license (which license
may only be terminated by Landlord if this Lease is terminated in accordance with Article 17 for an Event
of Default) to use all of the Common Areas in common with Landlord and all other tenants and occupants
of the Commercial Component subject to all of the other terms of this Lease, including the CC&Rs and the
Rules and Regulations.
5.2 Landlord shall keep and maintain the Common Areas in good order, condition and repair. If the
Parking CDD owns the Parking Component, then the Parking CDD shall keep and maintain the Common
Areas of the Parking Component in good order, condition and repair as required herein. If the Parking CDD
owns the Parking Component, the Parking CDD may designate Landlord or other party to operate, maintain
and repair the Common Areas of the Parking CDD in the condition required herein. Except for particular
parking spaces and areas, if any, designated by Landlord from time to time for reserved parking (such as
"ATM" parking, "Take Out" or "Pick Up" parking, or "Customer Only" parking) or for specific tenant parking,
all parking in the Commercial Component will be on an unreserved, first come, first served basis.
Landlord will have the right (a) to enter into, modify and terminate easements and other agreements
pertaining to the use and maintenance of the Common Areas; provided, however, that such
modifications/terminations shall not increase any obligations of Tenant under this Lease or reduce any rights
of Tenant under this Lease; (b) for the least amount of time as is reasonably practical under the
circumstances, to temporarily close all or any portion of the Common Areas to such extent as may, in the
opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of any rights to any person
or to the public therein; (c) to temporarily close a portion of the Common Areas to perform any required
maintenance obligations required hereunder; (d) intentionally deleted; and (e) to do and perform such other
acts in and to the Common Areas as, in the exercise of good business judgment, Landlord will determine
to be advisable subject to the other terms and conditions of this Lease. If the amount, size or configuration
of any portion of the Common Areas will be diminished or changed, (i) this Lease will remain in full force
and effect, (ii) Landlord will not be subject to any liability, (di) Tenant will not be entitled to any compensation
or reduction of any Rent, and (iv) such diminution or change will not be deemed to be a constructive or
actual eviction. Furthermore, Tenant will have no rights in the roof or exterior of the building or buildings of
which the Premises constitute a part.
5.3 Landlord reserves the right at any time to (a) make or permit changes or revisions in the plan for
the Project, including additions or supplements to, and reductions, rearrangements, alterations or
modifications of, the Commons Areas and the building areas comprising the Project, (b) construct
improvements in, and make alterations of, the Project, including the right to construct areas for kiosks,
pushcarts and other displays in the Common Areas, (c) erect temporary scaffolds and similar aids to
construction on the exterior of the Project (excluding the Premises unless necessary to comply with the
maintenance obligations required of Landlord by this Lease); provided, however, that access to the
Premises will not be denied or, in more than a de minimis manner, impaired, (d) install, maintain, use, repair
and replace within the Premises pipes, ducts, conduits, wires and all other mechanical equipment serving
the Premises and other occupants of the Project; provided, however, that the same will be located so as to
cause a minimum of interference with Tenant's use of the Premises and shall only be located above the
ceiling, below the floor or along column lines, (e) convey portions of the Project to others; provided, however,
that no such conveyance will reduce the parking areas below the number of parking spaces required by
Law. In addition, Landlord will have the exclusive right to use the roof of the Building, the exterior side or
rear walls of the Building, for any reasonable purpose; provided, however, that such use will not encroach
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on the interior of the Premises, adversely interfere with Tenant's use of the Premises, and Landlord may
not place any advertising material/media on the windows of the Premises or storefront of the Premises.
While exercising any rights permitted pursuant to this Section 5.3, access to the Premises and Building
shall not be denied nor, in more than a de minimis manner, impaired. Tenant acknowledges that the Project
has been developed as a mixed use commercial project for the mutual use and enjoyment of its various
tenants and occupants, and, from time to time, such other tenants and/or occupants of the Project may
engage in such activities, including, without limitation, construction and/or renovation of their respective
premises, which activities may, from time to time, generate a reasonable amount of noise and/or vibrations
(that do not exceed any limits imposed by Laws) affecting portions of the Building, including, without
limitation, the Premises.
5.4 Landlord covenants and agrees that that with respect to the operation of the Parking Component:
(i) the Parking Component shall contain at least nine hundred (900) parking spaces; (ii) the Parking
Component will be operated on a pay for parking basis, provided that Tenant's customers and other
occupant's customers shall be given the first two (2) hours of parking free and thereafter may be charged
no more than the average hourly rate for other retail structured parking garages within one (1) mile of the
Project; and (iii) Tenant will at all times have not less than two (2) free parking passes for the Commercial
Component for use by its employees. Landlord may not provide more than fifty (50) free parking passes in
the Commercial Component for use by the employees of the Commercial Component tenants and
occupants and may not provide more than two hundred (200) free parking passes in the Commercial
Component to residents of the Residential Component. If Landlord conveys the Parking Component to the
Parking CDD, then the Parking Component will still be burdened with the obligations and restrictions set
forth in this Lease that relate to the Parking Component in an operating agreement, declaration of
easements, covenants and restrictions or similar instrument that legally binds and runs with the ownership
of the Parking Component such as, for example, a vertical subdivision or declaration of condominium.
Tenant may, to the extent permitted by applicable Laws, enforce such obligations and restrictions directly
against the Parking CDD (and any succession owner of the Parking CDD). The Parking CDD's ownership
of the Parking Component is merely a public financing device, and both Landlord and the Parking CDD will
retain the obligation to maintain, repair, replace, insure, manage and operate the Parking Component in
accordance with this Lease. Landlord may also install, or permit the installation of, cart corrals and costumer
pick-up parking spaces on each level of the Parking Component. Landlord may also install signage in
certain areas of the Parking Component that limits parking to two (2) hours or less in the parking spaces
labeled "Short Term Parking". Notwithstanding anything to the contrary contained in this Lease, Landlord
or the Parking CDD shall not be required to do anything that is a violation of Laws regarding the issuance
of municipal tax-free bonds for the financing of the Parking Component and Parking CDD improvements.
Article 6. INTENTIONALLY DELETED.
Article 7. Use.
7.1 Subject to those restrictions set forth on Exhibit "F" of this Lease and applicable Law, the Premises
may be used by Tenant for the retail sale apparel and related accessories during the Term (the "Permitted
Use"). Tenant may not change the use of the Premises to any other use without the prior written consent of
Landlord, which may be withheld in Landlord's sole discretion. Tenant acknowledges that the restrictions
set forth on Exhibit "F" are for the benefit of certain tenant(s) or other occupant(s) of the Commercial
Component, and further acknowledges that such tenant(s) and/or occupant(s) may enforce such
restrictions directly against Tenant in the event of Tenant's violation thereof. Landlord makes no
representation or warranty as to whether the Permitted Use is allowed under applicable Laws. Landlord
represents and warrants to Tenant that other than those restrictions set forth on Exhibit "F", there are no
restrictions on use that bind the Tenant or the Premises.
7.2 Tenant shall conduct business in the Premises under the trade name "
7.3 Tenant shall be required to open a retail store fully fixtured, stocked and staffed within sixty (60)
days after the Rent Commencement Date, subject to Force Majeure events as set forth in Section 25.15 of
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this Lease, the failure of which will constitute an Event of Default under this Lease if such failure is not cured
within thirty (30) days after Tenant's receipt of written notice from Landlord specifying such failure. Tenant
shall have such additional time as is reasonably necessary to cure such failure, provided that Tenant
diligently and continuously pursues the cure to completion. However, in no event shall such additional time
exceed ninety (90) days from the date of notice provided by Landlord. Thereafter, the Premises shall not
be required to be open for business, and if there is a cessation of business for a continuous period in excess
of ninety (90) days, Landlord shall thereafter have the right, until such time as the Premises have been
reopened for business, and as its sole remedy, to terminate this Lease by serving written notice of
termination on Tenant, which termination shall become effective on the thirtieth (30th) day following Tenant's
receipt of such termination notice. Landlord shall not be required to pay Tenant a termination fee or other
compensation. However, if the Premises reopen for business prior to the effective termination of this Lease,
then said notice shall be deemed null and void and the Lease shall continue in full force and effect as if
such notice had never been given. In the event of a termination hereunder, the parties hereto shall
automatically be released from any and all liability of whatever kind for the terminated portion of the
unexpired Term other than those liabilities existing prior to, or as of, the termination date or those that
expressly survive the expiration or earlier termination of this Lease. Nothing herein shall be deemed to
affect the obligation to pay Rent until the effective date of said termination by the Landlord. Periods of
temporary closing of the Premises (a) caused by rebuilding, remodeling (for up to sixty (60) days), and/or
repair provided such work is diligently and in good faith being pursued to completion; (b) due to casualty,
or condemnation; (c) force majeure events as set forth in Section 25.16; (d) consented to by Landlord; (e)
occurring during that period of time commencing thirty (30) days after Tenant has a signed letter of intent
to assign or sublet the Premises (to the extent Landlord consents to such assignment or subletting or such
assignment of subletting is permitted under Article 12 of this Lease) and continuing until such permitted
assignee or sublessee opens for business in the Premises (not to exceed one hundred eighty (180) days);
(f) from the Effective Date through Tenant's opening for business ({a} - {f} are referred to as "Permitted
Closures"); shall be exempted from the provisions of this Section and shall give the Landlord no right to
terminate as set forth herein.
7.4 Tenant will be open for business at the Premises for at least eight (8) hours per day for seven (7)
days per week.
7.5 On or before the tenth (10th) day after request by Landlord, Tenant shall submit to Landlord a
balance sheet, profit and loss statement, cash flow statement, sales tax returns, tax returns for Tenant's
most recent fiscal year and any other financial information reasonably requested by Landlord.
Article 8. Compliance with Laws.
8.1 Tenant shall, at its sole cost and expense, promptly comply with all Environmental Laws, laws,
statutes, ordinances, governmental or agency rules or regulations now in force or which may hereafter be
enacted or promulgated (collectively, "Laws") relating to Tenant's particular manner of use of, or method of
operation in, the Premises. Landlord shall have the sole responsibility for compliance, with all Laws relating
to the structural features of the Building and its ownership of the Project. Landlord shall have the sole
responsibility for compliance, with all Laws relating to the structural features of the Premises, except Tenant,
at its sole expense, shall have the sole responsibility for compliance with all Laws relating to any structural
features of the Premises which are altered by Tenant after the Delivery Date.
8.2 For purposes of this Lease, "Hazardous Substances" shall mean (a) any "hazardous substance"
as defined in the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.
§9602 et seq. as amended, (b) petroleum, petroleum products, natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas, and (c) any other substance or material that is deemed to be hazardous,
dangerous, toxic or a pollutant under any federal, state or local law, ordinance, rule or regulation
(collectively, "Environmental Laws"). Landlord represents and warrants that as of the Effective Date,
Landlord has not received written notice from any governmental authority citing the presence of any
Hazardous Substances on, under or at the Premises or Project in violation of any Environmental Laws.
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8.3 Landlord shall be responsible for and shall comply with all Environmental Laws with respect to the
presence or removal of Hazardous Substances from the Project; provided, however, that if the same was
installed by, stored, released, disturbed, introduced or brought on the Premises by Tenant, its agents,
employees, representatives, contractors or subcontractors (at any time during the Term, including in
connection with Tenant's Work), then Tenant, at its sole cost and expense, shall be solely responsible for
such compliance and removal. Tenant, its employees, agents, representatives, contractors, subcontractors
shall not sell, use, manufacture, process, handle, dispose, store or release into the environment in or around
the Premises or the Project any Hazardous Substance in violation of Environmental Law.
8.4 Landlord shall indemnify, defend and hold Tenant free and harmless from and against any and all
cost, claims, suits, causes of action, losses, injury or damage including, without limitation, bodily injury
(including death) as well as damage to property resulting from the presence of Hazardous Substances in
the Premises and/or the Project to the extent the same were installed by, stored or brought on the Premises
or the Project by Landlord or any of Landlord's agents, employees, representatives, contractors or
subcontractors. Tenant shall indemnify, defend and hold Landlord free and harmless from and against any
and all cost, claims, suits, causes of action, losses, injury or damage including, without limitation, bodily
injury (including death) as well as damage to property resulting from the presence of Hazardous Substances
in the Premises and/or the Project to the extent the same were installed by, stored or brought on the
Premises or the Project by Tenant, its agents, employees, representatives, subcontractors or contractors.
The indemnities set forth in this Article 8 shall survive expiration of this Lease.
Article 9. Alterations.
9.1 Subject to Article 22, subsequent to the completion of Tenant's Work, Tenant may make non-
structural alterations, changes, or improvements in or to the interior of the Premises as Tenant may deem
necessary in the operation of the Premises; provided always, that no work done by Tenant shall affect the
structural or exterior portions of the Building or any of the mechanical, electrical or plumbing systems
servicing any part of the Premises or the Building or adversely affect the value of the Project and Tenant
obtains Landlord prior written consent to such work, such consent not to be unreasonably withheld. Tenant
shall not make any exterior or structural alterations to the Premises without Landlord's written consent,
which consent may be withheld in Landlord's sole discretion with the parties acknowledging that changes
to Tenant's signage shall be controlled by Article 10 and not this Article 9. If, as a result of any exterior or
structural alterations made by Tenant without Landlord's consent, Landlord is required by Law to make any
improvements to the structural or exterior portions of the Building or upgrade or otherwise modify any of
the mechanical, electrical or plumbing systems serving any part of the Premises or the Building, Tenant will
be solely obligated to pay for all reasonable, actual, and documented costs and expenses associated with
such improvements, upgrades and modifications within thirty (30) days after Tenant's receipt of an invoice
for the same. Landlord expressly acknowledges and agrees that modifications to Tenant's exterior signage
shall be controlled by Article Section 10.
Tenant agrees that any repairs, alterations, replacements, other improvements or installations
made by Tenant to or upon the Premises shall be done in a good and workmanlike manner and in conformity
with all laws, ordinances and regulations of all public authorities having jurisdiction, that materials of good
quality shall be employed therein, that the structure of the Premises shall not be endangered or impaired
thereby.
9.2 Tenant's signs, trade fixtures, displays, furniture, furnishings, inventory, merchandise and
equipment (collectively, "Personal Property") shall remain the property of Tenant and may be removed from
the Premises at any time during the Term, provided that any damage caused by such removal shall be
repaired by Tenant at Tenant's sole cost and expense. Any alterations made by Tenant to the Premises
which are permanently attached to and made a part of the Premises shall become the property of Landlord
at the expiration of the Term. Notwithstanding the ownership of any alterations, additions or improvements
to the Premises, Tenant shall retain the right to depreciation deductions of all alterations, additions or
improvements made at Tenant's expense.
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9.3 At the expiration or earlier termination of this Lease, Tenant will (a) surrender the Premises to
Landlord broom cleaned reasonable wear and tear excepted, (b) inform Landlord of the combination to any
locks and remove all safes, if any, on the Premises, and (c) remove Tenant's Personal Property from the
Premises and repair any damage caused by such removal. If Tenant fails to perform any of its obligations
under subsection (a) or (c), Landlord will have the right (in its sole discretion), but not the obligation, to
perform such obligations on behalf of Tenant, without waiving or releasing Tenant from any obligation under
this Lease. If Landlord elects to perform any of the obligations of Tenant under subsection (a) or (c), then
within thirty (30) days of Tenant's receipt of an invoice for the same, Tenant will pay to Landlord all
reasonable, actual, and documented costs and expenses incurred by Landlord on behalf of Tenant, together
with interest thereon at the Interest Rate from the date such sums were paid by Landlord through the date
of repayment by Tenant. Landlord's rights and Tenant's obligations under this Section 9.3 will survive the
expiration or earlier termination of this Lease.
Article 10. Signs.
Tenant agrees that, throughout the Term, all of Tenant's signage will (a) be prepared professionally, (b) be
maintained in good condition and repair, (c) comply with all applicable Laws. Landlord acknowledges and
agrees that Tenant's prototypical signage satisfies the requirement set out in (a) above. Landlord agrees
that Tenant shall be entitled to (i) install on the exterior storefront of the Premises, at its sole cost and
expense, its trade name and logo sign in the colors, dimensions, location and other specifications set forth
on Exhibit "D-1" ("Permitted Signage"), (ii) install Tenant's standard medallion signs inside the Premises in
the storefront window (also shown on Exhibit "D-1 "), and (di) install its window band in the storefront window,
all of which are approved by Landlord. Tenant shall also have the right to install, at Tenant's sole cost and
expense, any professionally manufactured signs in or on the interior of the Premises; provided, however,
Tenant shall not use more than fifty percent (50%) of the storefront plate glass area for interior signage.
Article 11. Repairs and Maintenance.
11.1 Landlord shall maintain in good condition and repair (including any replacements thereof) the roof,
gutters, down spouts, floor slab, exterior walls (excluding all doors to the Premises), foundation, footings
and all structural portions (both interior and exterior) of the Building all plumbing and utility lines located
within the Premises (but only if such lines serve other tenant(s) in addition to Tenant), and all plumbing and
utility lines serving the Premises but located outside of the Premises or within the slab or foundation.
Landlord will not be responsible for any damage to improvements to the Premises or any property within
the Premises which are Tenant's responsibility to maintain caused by any roof leaks and, notwithstanding
anything in this Lease to the contrary, Landlord makes no representations, warranties or covenants
hereunder with respect to the moisture content of the Building foundation or floor slab of the Premises
beyond the Warranty Period. Subject to the waivers of subrogation set forth in this Lease, Landlord will not
be required to make any repairs or undertake any maintenance under this Article 11 where the same were
made necessary by the negligence or willful misconduct of Tenant or any of Tenant's agents, employees,
representatives, contractors or subcontractors. If a utility line exclusively serving the Premises and located
within the Premises is encased in the slab/foundation by Tenant, then Tenant shall be responsible for
maintaining the same. Furthermore (but subject to the waiver of subrogation provisions set forth in this
Lease), Landlord, at its sole cost and expense, will repair any damage to the Premises caused by the gross
negligence of Landlord or any of Tenant's agents, employees, representatives, contractors or
subcontractors.
11.2 Except for repairs, maintenance and replacements of common utility lines outside of the Premises
that service the Common Area, Landlord shall make all repairs required to be made by Landlord pursuant
to this Article at Landlord's sole cost and expense and not as a Common Area Cost.
11.3 Except for Landlord's Work and the representations and warranties expressly made by Landlord in
this Lease, Tenant will accept possession of the Premises in an "AS IS" "WHERE IS" condition and without
any representation or warranty, express or implied by law, by Landlord or its agents, and Landlord will not
perform any alterations in order to make the Premises suitable and ready for occupancy and use by Tenant.
Tenant, at its sole cost and expense, will maintain, repair and replace all interior and non-structural parts of
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the Premises in good condition and repair including, but not limited to, the HVAC system that exclusively
serves the Premises, all mechanical, electrical and plumbing systems exclusively servicing the Premises
that are not located in the slab or foundation (except that if a utility line exclusively serving the Premises
and located within the Premises is encased in the slab/foundation by Tenant, then Tenant shall be
responsible for maintaining the same), and all fixtures and equipment located in the Premises, exterior and
interior portions of all doors and lock sets, and door checks, interior windows, plate and window glass, floor
coverings, wall coverings, decorations, furniture, fixtures, equipment, appliances and other Personal
Property. The HVAC system that will exclusively serve the Premises will be a so-called "split system"
heating, ventilating and air- conditioning system. The air handler(s) portion of the HVAC system shall be
located in the Premises. Landlord shall assign to Tenant all guarantees or warranties for the HVAC system
on the Commencement Date. Tenant shall maintain a maintenance contract for the HVAC system
throughout the Term which shall include service visits at least two (2) times per calendar year. Furthermore
(but subject to the waiver of subrogation provisions set forth in this Lease), Tenant, at its sole cost and
expense, will repair any damage to the Premises or Building caused by the gross negligence of Tenant or
any of Tenant's agents, employees, representatives, contractors or subcontractors.
11.4 As part of its maintenance obligations under Section 11.3, Tenant will enter into an annual
maintenance contract with a Florida licensed and reputable HVAC company and the maintenance contract
will be similar to other maintenance contracts maintained by Tenant in the state of Florida. The HVAC
company will service and inspect the HVAC system as frequently as deemed necessary by such company
and will repair the HVAC system as needed. Within thirty (30) days after Landlord's request, Tenant will
furnish to Landlord, a copy of the most recent service report provided to Tenant by the HVAC company.
Within thirty (30) days after Landlord's request (which request may not be made prior to the Delivery Date
or more than once in any calendar year), Tenant will furnish to Landlord a copy of the HVAC maintenance
contract. Tenant shall provide a copy of the HVAC maintenance contract to Landlord within thirty (30) days
after the Rent Commencement Date. The fact that Tenant enters into a HVAC maintenance contract will not
limit Tenant's obligation to maintain and repair the HVAC system in accordance with this Section 11.2
throughout the Term. Landlord will assign the benefit of any warranty applicable to the HVAC system to
Tenant and Landlord shall enforce any non -assignable warranties and guarantees at Tenant's request on
behalf of Tenant.
11.5 If a false alarm (fire or burglar) is triggered as a result of Tenant's acts or omissions, as evidenced
by a written notice of an imposition of a fine or other monetary penalty from the fire department or alarm
monitoring company (which notice reasonably evidences Tenant's responsibility for such false alarm),
Tenant will reimburse Landlord for all actual and documented costs and expenses incurred by Landlord in
association with such false alarm. Such reimbursement will be payable by Tenant as additional rent within
thirty (30) days after Tenant's receipt of an invoice therefore and the notice from the fire department or
alarm monitoring company referenced above.
Article 12. Assignment and Subletting.
12.1 Tenant shall not assign this Lease or sublet the Premises or any part thereof without first obtaining
the written consent of Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed.
For purpose of this Lease, any direct or indirect transfer by operation of law or otherwise, of Tenant, or any
assignee or sublessee of any interest in Tenant, any assignee or sublessee (whether stock, partnership
interest or otherwise) shall be deemed an assignment of this Lease for purposes of this Section. It will be
reasonable for Landlord to withhold its consent to an assignment or sublease if, among other things, the
proposed assignee or subtenant (a) is not credit worthy based on Landlord's reasonable financial criteria
generally used by Landlord with respect to other comparable tenants in the Commercial Component; (b) is
not of a character or reputation or engaged in a business that is not consistent with the quality of the
Commercial Component; (c) does not have the necessary operating experience in Landlord's reasonable
business judgment; (d) is a tenant, subtenant or other occupant of any part of the Commercial Component,
(e) will, in Landlord's reasonable business judgment, materially increase Common Area Costs or increase
security concerns for the Project, (f) will cause a violation of any property or similar title restrictions affecting
the Commercial Component, or will cause a violation of another lease for space in the Commercial
9
Component or will give an occupant of the Commercial Component any right to terminate its lease or pay
reduced rent, (g) would cause a violation of any provision under this Lease, or (h) intends to use the
Premises for a use other than the Permitted Use and such proposed use of the Premises violates Exhibit
"F" or any then existing restriction on use of which Tenant has received prior notice in accordance with the
terms of this Section 12.1 or if the proposed use of the Premises is a retail use that is not customarily
located in first-class retail shopping centers in the Southeastern United States. Within fifteen (15) days after
request by Tenant, Landlord shall provide Tenant with a listing of all exclusives and restrictions on use then
currently in effect that bind the Commercial Component.
12.2 Consent by Landlord to any assignment or subletting will not relieve Tenant from any Rent
obligations under this Lease and such assignment or sublease must be in writing and signed by Tenant and
the assignee or subtenant, as the case may be, setting forth the entire consideration being given and
received, and consented to in writing by Landlord if consent is required under Article 12. Any consent to an
assignment or subletting will only be for the Permitted Use and for no other purpose without obtaining the
prior written consent of Landlord in each instance, which consent may be withheld or conditioned in
Landlord's sole discretion. The acceptance of any Rent from any person other than Tenant will neither be
deemed to be a waiver by Landlord of any of the provisions of this Lease nor be deemed to be consent by
Landlord to any assignment or sublease. If Landlord will consent to any assignment or sublease, (a) the
assignee will assume all obligations of Tenant under this Lease, (b) the subtenant will acknowledge that (i)
the sublease will be subject and subordinate to this Lease, and (ii) in the event of the termination of this
Lease, the subtenant will attorn to Landlord, and (c) neither Tenant nor any assignee nor any subtenant will
be relieved of any liability under this Lease or under the sublease, as applicable, in the Event of Default by
such assignee or subtenant, as the case may be, in the performance of any of the terms, covenants and
conditions of this Lease.
Article 13. Insurance.
13.1 Tenant shall, at Tenant's expense, obtain and keep in full force and effect during the Term the
following types of insurance in the amount specified:
(a) Commercial General Liability insurance for bodily injury or death to persons or damage to
property occurring within the Premises. Such insurance shall provide combined single. limit per occurrence
coverage of not less than One Million Dollars ($1,000,000) for property damage and bodily injury or death
of one or more persons. Such policy shall name Landlord and its designated agent (provided Landlord has
provided Tenant with the name and address of the designated agent) as an additional insured thereunder
and Tenant shall pay the amount of any so-called deductible applicable to any claim under such policy
involving Landlord and Tenant.
(b) Property Damage insurance for Tenant's trade fixtures, stock and other Personal Property
located on the Premises insured under a policy of insurance endorsed with Special (All -Risk) Causes of
Loss Form for the full replacement value thereof.
(c) Business interruption insurance in an amount equal to the Rent payable hereunder for a
period of not less than twelve (12) months;
(d) Builder's risk insurance during the course of Tenant's Work and any other alterations.
(e) Umbrella or Excess Liability coverage in amounts not less than $5,000,000 in excess of
the CGL insurance required in subsection (a) above; and
(f) Worker's Compensation Insurance in amounts not less than those required by applicable
Law.
Tenant's policies will (i) be non-contributing with and apply only as primary and not as excess to
any other insurance available to Landlord, and (ii) apply as if each named insured were the only named
insured and separately to each insured against whom claim is made or "suit" is brought. Within thirty (30)
10
days after Landlord's request, Tenant agrees that a copy of Tenant's insurance policies will be delivered to
Landlord.
13.2 If Tenant fails to procure the aforesaid insurance, Landlord shall have the option, after five (5)
business days' notice to Tenant, to obtain such insurance on behalf of Tenant, in which case Tenant shall
reimburse Landlord for the reasonable cost and expense thereof.
13.3 Throughout the Term, Landlord shall purchase and keep in force and effect:
(a) Commercial General Liability insurance against any liability arising out of the Commercial
Component and other portions of the Project owned by Landlord. Such insurance shall provide combined
single limit per occurrence coverage of not less than Two Million Dollars ($2,000,000) for property damage
and bodily injury or death of one or more persons, with endorsements for contractual liability. Landlord shall
pay the amount of any so-called deductible applicable to any claim under such policy involving Landlord
and Tenant.
(b) Property insurance based on the Commercial Property Form - Causes of Loss Special,
published by the Insurance Services Office or other equivalent "All Risk" coverage, including full collapse,
floor, and full water damage coverage (including back up of sewers or drains coverage), and including
coverage for loss arising from any increased cost of construction, contingent operations of building codes,
and related demolition and debris removal costs with extended coverage and vandalism endorsements for
the full replacement value thereof of the Building (excluding the leasehold improvements in the residential
units in the Residential Component).
Notwithstanding the Landlord's covenant herein and the Tenant's contribution to the cost of the
Landlord's insurance premiums as part of Common Area Costs, Tenant has no right to receive proceeds
from the Landlord's insurance policies.
13.4 The policies of insurance required of Landlord and Tenant pursuant to this Article shall be effected
under valid and enforceable policies issued by insurers of recognized responsibility licensed and admitted
to do business in the State of Florida and rated by Best's Insurance Reports (or any successor publication
of comparable standing) A-VII or better or the then equivalent of such rating. Each party hereto shall cause
to be issued to the other, upon request, certificates of insurance.
13.5 Nothing contained in this Article shall prohibit either party hereto from obtaining a policy or policies
of blanket insurance which may cover other property of such party, provided that any such blanket policy
(a) expressly allocates to the properties to be insured hereunder not less than the amount of insurance
required pursuant to this Lease, and (b) shall not diminish the obligations of such party so that the proceeds
from the blanket policy will be less than the proceeds that would be available if the required insurance was
obtained under policies separately insuring such risks.
Article 14. Indemnification and Waiver.
14.1 Tenant hereby agrees to indemnify and hold harmless Landlord and its agents, partners,
shareholders, directors, officers and employees from any claim by an unrelated third party in connection
with loss of life, personal injury and/or damage to tangible property (including reasonable attorneys' fees
and court costs) which may be imposed upon, incurred by, or asserted against Landlord by third parties
arising as a result of acts or omissions of Tenant, its agents, representatives, employees acting within the
scope of employment, contractors or subcontractors occurring within the Project for which Tenant is held
legally liable, subject either to the doctrines of contributory negligence or comparative negligence.
14.2 Notwithstanding anything in this Lease to the contrary, Tenant and Landlord hereby waive and
release any and all rights of recovery, whether arising in contract or tort, against the other, including their
agents, employees, agents, representatives, contractors and subcontractors, arising during the Term for
any and all loss or damage to any property located within or constituting a part of the Project (inclusive of
the Premises), which loss or damage arises from the perils that are insured against under each party's
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property insurance policies or could be insured against under the ISO Causes of Loss -Special Form
Coverage (formerly known as "all-risk"), including any deductible thereunder (whether or not the party
suffering the loss or damage actually carries such insurance, recovers under such insurance or self -insures
the loss or damage), or which right of recovery arises from any loss or damage that could be insured under
time element insurance, including without limitation loss of earnings or rents resulting from loss or damage
caused by such a peril. This mutual waiver is in addition to any other waiver or release contained in this
Lease. If there is a conflict between this Section and any other provision of this Lease, this Section shall
control. Landlord and Tenant shall cause each property insurance policy carried by either of them insuring
the Premises, the contents thereof, or the Project, to provide that the insurer waives all rights of recovery
by way of subrogation or otherwise against the other party hereto in connection with any loss or damage
which is covered by such policy or that such policy shall otherwise permit, and shall not be voided by the
releases provided for above.
Article 15. Utilities and Other Services.
15.1 Tenant shall pay for all gas, electricity, water and sewer charges, telephone service and all other
services and utilities supplied solely to the Premises and consumed by Tenant.
15.2 Landlord, at its expense and as part of Landlord's Work, shall use commercially reasonable efforts
to cause the Premises to be individually metered for each utility service and provide the service connections
at points mutually agreeable to Landlord and Tenant. If a utility does not allow or provide for separate
metering, Tenant will pay its share (without any surcharge by Landlord) of the consumption charges based
upon the ratio of the leasable square feet of the Premises to the total leasable square feet of all buildings
covered by the utility bill. In no event shall the cost of any utility or service exceed the amount Tenant would
pay if such utility or service were contracted for separately by Tenant or provided directly to Tenant by the
local public utility company serving the area in which the Project is located.
15.3 In the event of any failure or delay in utility supply, Landlord shall diligently pursue to restore such
utilities as soon as possible so as to minimize any interruption in Tenant's business at the Premises. In no
event will Landlord be liable for any damage to the Premises or property therein, loss of business, or
otherwise, unless, if (a) any interruption, modification or cessation of utility service shall occur due to the
gross negligence or willful misconduct of Landlord, (b) such disruption or interruption continues for more
than three (3) days, and (c) such disruption or interruption causes Tenant to cease operating its business
in the Premises, in which event Rent shall be abated until such interruption of the Premises is restored to
Tenant.
15.4 Landlord shall provide a "Shared Trash Compactor" in the ground floor location shown on Exhibit
"A" for use by Tenant and other tenants. Tenant shall not allow refuse, recycling materials or garbage
generated from the Premises to accumulate outside of the Premises except in the Shared Trash Compactor
area provided by Landlord. Landlord shall maintain, repair and replace the Shared Trash Compactor in
working order and condition. Landlord shall obtain and maintain an annual service contract that covers the
Shared Trash Compactor (the "Shared Trash Compactor Maintenance Contract"). If the Shared Trash
Compactor Maintenance Contract covers more than one trash compactor, then Landlord shall equitably
attribute a pro rata portion of the cost thereof to the Shared Trash Compactor based on the number of trash
compactors covered by such maintenance contract. Tenant shall reimburse Landlord on a not more than a
quarterly basis within sixty (60) days after receipt of Landlord's invoice for Tenant's pro -rate share of the
Shared Trash Compactor Maintenance Contract (which shall not include an administrative fee thereon
payable to Landlord), which pro rata share will be calculated based on the number of premises (including
the Premises) that from time to time use the Shared Trash Compactor. Such costs of the Shared Trash
Compactor Maintenance Contract shall not be included in Common Area Costs (provided that substantially
all other retail tenants within the Commercial Component that do not have exclusive use of a trash
compactor are obligated to pay such Shared Trash Compactor costs).
Article 16. Entry By Landlord.
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16.1 Landlord shall have the right, upon reasonable advance written notice to Tenant (except in the
event of an Emergency, in which case notice may be orally given to Tenant) and during regular business
hours (except in the event of an Emergency) to enter the Premises (a) to repair and inspect the same, and
(b) to show the Premises to prospective purchasers, lenders and (during the last one (1) year of the Term)
tenants.
Article 17. Default by Tenant.
17.1 The occurrence of any one or more of the following events shall constitute an "Event of Default" by
Tenant hereunder:
(a) The failure of Tenant to make any payment of Fixed Rent or any other Rent payment
required to be made by Tenant hereunder where such failure shall continue for a period of five (5) days
after Landlord provides written notice to Tenant that such payment is past due; or
(b) Tenant fails to observe or perform any of the other covenants, conditions and provisions of
this Lease to be observed or performed by Tenant, where such failure continues for a period of fifteen (15)
days after Landlord provides Tenant written notice thereof; provided, however, that if the nature of such
failure is such that more than fifteen (15) days are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commences such cure within said fifteen (15) day period and thereafter
diligently prosecutes such cure to completion within ninety (90) days of such notice, provided, however, that
no such failure shall be deemed a default if such failure is due to an event of Force Majeure; or
(c) Tenant (i) makes a general assignment for the benefit of creditors or will file a petition for
bankruptcy, reorganization, liquidation, dissolution or similar relief under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) rejects this Lease in any proceeding under
any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or
(d) A petition for bankruptcy, reorganization, liquidation, dissolution or similar proceeding is
filed against Tenant under any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect and the same is not discharged within forty-five (45) days of filing, or a trustee, receiver or liquidator
will be appointed for the property of Tenant, and the same is not vacated or set aside within forty-five (45)
days of the appointment; or
(e) Tenant fails to open the Premises for business as required under Section 7.5 of this Lease
within thirty (30) days after Tenant's receipt of notice of such failure (it being acknowledged and agreed that
the thirty (30) day notice referenced in this subpart (f) shall not be in addition to the notice and cure period
specified in subpart (b) above); provided, however, that no such failure shall be deemed a default if such
failure is due to an event of Force Majeure; or
(f) Tenant assigns this Lease or subleases the Premises, except as expressly permitted under
Article 12 of this Lease.
17.2 Upon the occurrence of an Event of Default under Sections 17.1(a), 17.1(b), 17.1(e) or 17.1(f) (it
being acknowledged that federal bankruptcy law shall control if there is an Event of Default under Sections
17.1(c) or 17.1(d)), Landlord may, at Landlord's election upon granting of a court order pursuant to an action
or proceeding at law:
(a) re-enter the Premises, and without terminating this Lease, at any time thereafter, re -let the
Premises and improvements, or any part(s) of them, for the account, and in the name of Tenant or
otherwise, all at prevailing market rates. Any re -letting may be for the remainder of the Term or for any
longer or shorter period (provided, however, that if Landlord enters into a new lease beyond the current
Term (but not including any Extension Terms, the commencement of which shall not have occurred prior to
such dispossession or removal), then Tenant shall only be responsible hereunder through the current Term).
Landlord shall be entitled to all rents from the use, operation or occupancy of the Premises or
improvements, and Tenant shall be liable for all documented, customary, reasonable, actual, and third-
13
party (i) costs to repair and restore the Premises to a leasable white box condition (excluding any such
costs for the ceiling or flooring), (ii) the unamortized brokerage fees incurred by Landlord in connection with
this Lease which shall be amortized on a straight line basis over the Initial Term, and (iii) attorney's fees
incurred in connection with dispossessing Tenant from possession of the Premises ("Reletting Costs"). If
the term of any re -letting is greater than the amount of time remaining on the then current Term (but not
including any Extension Terms, the commencement of which shall not have occurred prior to such
dispossession or removal), then the Reletting Costs referenced in part (i) above shall be reasonably
allocated throughout the entire re -letting term for purposes of determining such proportionate amount
applicable to be paid by Tenant (i.e. the Reletting Costs referenced in part (i) above shall be amortized on
a straight line basis over the entire re -letting term and Tenant shall only be responsible for the annual
amortization amount of such Reletting Costs occurring during the remainder of the then current Term of this
Lease). Tenant shall nevertheless pay to Landlord on the due dates specified in this Lease the equivalent
of all sums required of Tenant under this Lease reduced by the amount of rents and other charges collected
by Landlord on account of the new lease or leases of the Premises for each month of the period that would
otherwise have constituted the balance of the then current Term (not including any Extension Terms, the
commencement of which shall not have occurred prior to such dispossession or removal). Such deficiency
shall be paid by Tenant in monthly installments on the dates specified in this Lease for payment of Fixed
Rent, and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any
way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding.
Landlord shall have the right in lieu of collecting such deficiency in Rent each month as provided above, to
accelerate damages in an amount equal to the present value (as of the date of such termination) of the
difference between (i) Rent which would have become due through the expiration of the Term, or what
would have been such expiration but for any termination thereof (but not including any Extension Terms,
the commencement of which shall not have occurred prior to such dispossession or removal), and (ii) the
fair market rental value of the Premises over the balance of the then current Term (not including any
Extension Terms, the commencement of which shall not have occurred prior to such dispossession or
removal), determined on the date of such dispossession or removal, which liquidated and agreed final
damages shall be payable to Landlord in one lump sum within thirty (30) days following written demand
therefor (the foregoing are collectively referred to as the "Acceleration Damages"). For purposes of this
Section, "present value" shall be computed by discounting such amount to present worth at a discount rate
equal to four (4) percentage points above the discount rate then in effect at the Federal Reserve Bank
nearest to the location of the Project. Notwithstanding anything to the contrary contained herein, in no event
shall the Acceleration Damages exceed the Rent which would have been payable for the twelve (12) month
period following the determination of the Acceleration Damages. Upon payment of such Acceleration
Damages, Tenant shall receive a credit at the end of such twelve (12) month period, against any Rent
actually paid to Landlord by a replacement tenant during such twelve (12) month period. On each twelve
(12) month anniversary, subject to the Landlord making an accounting of the rents received by Landlord
from re -letting the Premises, Landlord shall be entitled to the Acceleration Damages coming due for the
next twelve (12) month period; or
(b) terminate this Lease and re-enter and take possession of the Premises and remove
Tenant's effects and hold the Premises, together with all additions, alterations and improvements thereto,
as if this Lease had not been made. All of Tenant's rights in the Premises shall terminate upon such
termination of this Lease. In the event of such termination, Tenant covenants to pay to Landlord all sums
that are due and payable through the date of such termination. In addition, Tenant shall be liable for
Reletting Costs. If the term of any re -letting is greater than the amount of time remaining on the then current
Term (but not including any Extension Terms, the commencement of which shall not have occurred prior to
such termination), then the Reletting Costs shall be reasonably allocated throughout the entire re -letting
term for purposes of determining such proportionate amount applicable to be paid by Tenant.
17.3 The rights and remedies of Landlord set forth in this Article shall be cumulative and not exclusive
of each other.
17.4 Landlord hereby waives any lien rights it may have against Tenant's Personal Property under
statute, common law or otherwise; provided, however, that Landlord will have no obligation for the
safekeeping of Tenant's Personal Property and if the same is not removed from the Premises, Landlord
14
may remove such Personal Property at the expense of Tenant. Landlord shall not have any right to
accelerate the Fixed Rent and other amounts payable hereunder (except as set forth in this Lease,
including, but not limited to Article 17.2).
17.5 Tenant will reimburse and pay to Landlord all reasonable, actual, and documented court costs and
attorneys' fees (as the same are determined in by the court in an action or proceeding at law) incurred by
Landlord in connection with Landlord's enforcement of its rights and remedies under this Lease in an action
or proceeding at law, within thirty (30) days after Tenant's receipt of an invoice therefor along with
documentation (in form and substance reasonably satisfactory to Tenant) substantiating such costs and
expenses. Landlord will reimburse and pay to Tenant all reasonable, actual and documented court costs
and attorneys' fees (as the same are determined in by the court in an action or proceeding at law) incurred
by Tenant in connection with Tenant's enforcement of its rights and remedies under this Lease in an action
or proceeding at law, within thirty (30) days after Landlord's receipt of an invoice therefor along with
documentation (in form and substance reasonably satisfactory to Landlord) substantiating such costs and
expenses.
17.6 Except as otherwise set forth to the contrary elsewhere in this Lease, no re-entry or taking
possession of the Premises by Landlord pursuant to this Article 17 of this Lease will (i) constitute a forfeiture
of any Rents payable by, or a waiver of any obligations of, Tenant under this Lease, or (ii) be construed as
an election on Landlord's part to accept a surrender of the Premises unless written notice of such intention
is given by Landlord to Tenant.
Article 18. Landlord's Right to Cure.
18.1 If Tenant defaults in performance of its repair and maintenance obligations under this Lease and
does not cure such default within thirty (30) days after written notice from Landlord (or does not within said
period commence and diligently proceed to cure such default) (or such shorter cure period as may be
specified otherwise in this Lease), Landlord, without waiver or prejudice to any other right or remedy it may
have under this Lease, shall have the right, at any time thereafter, to cure such default for the account of
Tenant. However, Landlord must provide written notice of its intent to cure the default at least five (5)
business days prior to commencing any such cure unless an Emergency exists. Tenant shall reimburse
Landlord for the reasonable, actual, and documented out-of-pocket expenses incurred by Landlord in
curing such default, plus an administrative fee of five percent (5%), payable as additional rent within thirty
(30) days of Tenant's receipt of a detailed and itemized invoice from Landlord. In the event of an Emergency,
Landlord may cure such a default by Tenant before the expiration of the cure period, but after giving such
written or oral notice to Tenant as is practical under all of the circumstances. Landlord shall act reasonably
in exercising such right and shall limit its actions to those reasonably necessary to address the Emergency.
Tenant reserves the right to review and contest any unreasonable or excessive charges resulting from such
actions.
Article 19. Casualty.
19.1 In the event the Premises and/or the Building are destroyed or damaged by fire, accident, the
elements or other casualty (a "Casualty"), to the extent that the cost to repair such damage or destruction
is less than fifty percent (50%) of the replacement cost of the improvements in the Project immediately prior
to such damage or destruction ("Partial Damage"), Landlord shall, within sixty (60) days after the occurrence
of such Partial Damage, deliver to Tenant a good faith estimate of the time needed to repair the Partial
Damage ("Damage Notice"). If Landlord estimates that the amount of time required to substantially
complete such repair and restoration will exceed twelve (12) months from the date of the damage, then
Landlord or Tenant shall have the right to terminate this Lease as of the date of such Casualty upon giving
written notice to the other at any time within thirty (30) days after delivery of the Damage Notice. If, however,
there is Partial Damage within the last twenty-four (24) months of the Initial Term or any Extension Term to
the extent that the cost to repair such damage or destruction is greater than thirty-three percent (33%) of
the replacement cost of the Premises or Building, either party shall have the right to terminate this Lease,
provided that written notice thereof is given to the other party not later than sixty (60) days after such Partial
Damage. If Landlord elects to terminate this Lease in accordance with this Section 19.1, then Tenant may
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elect to exercise an Extension Term by providing Landlord with an Extension Notice for any unexercised
Extension Term which is exercisable pursuant to Article 2 within thirty (30) days following such termination
notice from Landlord. If Tenant elects to submit such Extension Notice within such thirty (30) day period,
Landlord's termination notice will be null and void and Landlord will be obligated to repair and restore such
Partial Damage in accordance with this Section 19.1. Unless this Lease is terminated, Landlord agrees, at
its sole expense, to restore the Premises and/or the Building (excluding the leasehold improvements in the
residential units in the Residential Component) with reasonable dispatch (from the date insurance proceeds
are received by Landlord) to substantially the same condition as existed immediately prior to such damage
or destruction (with such modifications as shall be required in order to comply with applicable Law) and this
Lease shall remain in full force and effect. Tenant agrees that promptly after completion of such work by
Landlord Tenant will proceed with reasonable diligence and at Tenant's sole cost and expense to restore,
repair and replace Tenant's Personal Property. If Landlord fails to so complete the repairs within one
hundred eighty (180) days after the date Landlord receives insurance proceeds, Tenant shall have the right
and option, upon no less than thirty (30) days' prior notice to Landlord to terminate this Lease; provided,
however, should Landlord complete such restoration prior to the expiration of such thirty (30) day period,
Tenant's termination notice shall be deemed null and void and of no further force and effect, and this Lease
shall continue.
19.2 In the event the Premises and/or the Building are damaged or destroyed by a Casualty during the
Term to the extent that the cost to repair such damage or destruction is more than fifty percent (50%) of the
replacement cost of the improvements in the Building immediately prior to such damage or destruction
("Total Damage"), Landlord shall within sixty (60) days after the occurrence of such Total Damage, deliver
to Tenant a good faith estimate of the time needed to repair the Total Damage ("Total Damage Notice"). If
Landlord estimates that the amount of time required to substantially complete such repair and restoration
will exceed twelve (12) months from the receipt of permits, then Landlord or Tenant shall have the right to
terminate this Lease upon giving written notice to the other at any time within thirty (30) days after delivery
of the Total Damage Notice, in which event this Lease will terminate effective as of the date of the
occurrence of such Total Damage. If this Lease is not terminated, Landlord will repair or restore such Total
Damage (excluding the leasehold improvements in .the residential units in the Residential Component)
within twelve (12) months from receipt of permits from the date of the damage. Tenant agrees that promptly
after completion of such work by Landlord Tenant will proceed with reasonable diligence and at Tenant's
sole cost and expense to restore, repair and replace Tenant's Personal Property. If Landlord fails to so
complete the repairs within the earlier of: (i) twelve (12) months from receipt of permits, or (ii) within eighteen
(18) months after the date of such damage, Tenant shall have the right and option, upon no less than thirty
(30) days' prior notice to Landlord to terminate this Lease; provided, however, should Landlord complete
such restoration prior to the expiration of such thirty (30) day period, Tenant's termination notice shall be
deemed null and void and of no further force and effect, and this Lease shall continue.
19.3 If Landlord is required, or elects, to repair or restore the Premises pursuant to the provisions of this
Article 19, the Rent payable under this Lease for the period during which such repair or restoration continues
will be abated in proportion to the degree to which the Premises and Tenant's use of the Premises is
impaired and such abatement shall continue for the period ("Abatement Period") commencing with such
destruction or damage and ending with: (a) the completion by Landlord of such work of repair and/or
restoration as Landlord is obligated to do; and (b) the expiration of a reasonable period of time (not to
exceed ninety (90) days) necessary to enable Tenant to restore its Personal Property and re -fixture the
Premises and reopen for business, but said period of time shall be deemed to have ended if Tenant shall
reopen for business in the entirety of the Premises prior to the expiration thereof. Notwithstanding anything
to the contrary contained herein, if there is a Partial Damage or Total Damage and Tenant exercises
reasonable business judgment to discontinue the operation of business in the Premises there shall be a full
abatement Rent from the date Tenant discontinues the operation of business in the Premises until the
expiration of the Abatement Period. Except for the abatement of Rent, if any, Tenant will have no claims
against Landlord as a result of any Partial Damage or Total Damage.
19.4 Notwithstanding anything set forth in this Article 19 to the contrary, (a) Landlord will not be obligated
to commence any repairs until insurance proceeds are received by Landlord, and, subject to the following
paragraph, Landlord's obligation under this Lease will be limited to proceeds actually received by Landlord
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under any insurance policies which have not been required to be applied toward the reduction of any
indebtedness secured by any mortgage, (b) Landlord's obligations within the Premises under this Article 19
will be limited to restoring the Premises to substantially the same condition as existed prior to such damage
or destruction (with such modifications as shall be required in order to comply with applicable Law);
provided, however, that Landlord shall have no obligation to restore any alterations, changes or
improvements made to the Premises above and beyond the scope of Landlord's Work to the extent such
alterations, changes or improvements were made without Landlord's consent should Landlord's consent to
the same be required under this Lease, (c) Landlord will have no obligation to repair, replace or rebuild any
of Tenant's Personal Property, and (d) no damage or destruction to the Premises will allow Tenant to
surrender possession of the Premises or affect Tenant's obligation to pay Rent, except as provided in this
Article 19. Unless this Lease is terminated under this Article 19, Tenant will re -fixture all parts of the
Premises (which obligation shall be limited to proceeds actually received by Tenant under any insurance
policies), in a prompt and diligent manner. Tenant will use commercially reasonable efforts to give Landlord
prompt notice of any such damage or destruction to any portion of the Premises.
In the event any holder of a mortgage lien against the Project exercises a valid right pursuant to
the instruments creating or securing such mortgage, to apply the proceeds of any property insurance
payable to Landlord as the result of a Casualty, to the balance of the mortgage or for some purpose other
than the rebuilding of the Premises and/or Building, Landlord shall have the right to terminate this Lease by
written notice given to Tenant within thirty (30) days after Landlord's receipt of notice from the holder of
such mortgage lien that it has elected to apply the proceeds of the property insurance in the manner set
forth above (the "Notice of Insufficiency of Proceeds"). In the event Landlord fails to timely give the Notice
of Insufficiency of Proceeds, then it shall be deemed that such insurance proceeds are sufficient for
Landlord to discharge its obligations under this Article 19.
Article 20. Condemnation.
20.1 If any part of the Premises shall be taken under the power of eminent domain or a sale in lieu of
such taking, or a "substantial portion of the Common Areas" are so taken or sold, then either Landlord or
Tenant may, by giving written notice to the other party within sixty (60) days after such taking, terminate this
Lease which termination shall be effective thirty (30) days after the date of such termination and all Rent
shall be abated from and after such taking. A "substantial portion of the Common Areas" is defined to be
any of the following: (a) the loss of more than ten percent (10%) of the parking spaces in the Parking
Component if Landlord does not provide adequate substitute parking; or (b) vehicular access to or from the
Building is permanently altered as to adversely affect the flow of traffic to or from the Building and Landlord
does not provide adequate substitute access for such purpose that is reasonably satisfactory to Tenant. In
the event that Tenant does not have the right to terminate this Lease as aforesaid or if Tenant has such
right but elects not to exercise such right within the sixty (60) day period, then Landlord, at Landlord's sole
cost and expense, shall make such repairs and alterations as may be necessary to restore the Premises
and/or any other portion of the Common Areas as nearly as practicable to complete units of like quality and
character as existed just prior to such taking (with such modifications as shall be required in order to comply
with applicable Laws). The Rent from and after any such taking or sale shall be proportionately abated
based upon the extent and duration of any interference with Tenant's use and enjoyment of the Premises
occasioned by such taking or sale and any repairs or alterations resulting therefrom. In addition, the Rent
shall thereafter be proportionately reduced based on the reduced area of the and/or reduced utility of the
Commercial Component.
20.2 If twenty-five percent (25%) or more of the Building shall be taken under the power of eminent
domain or a sale in lieu of such taking, then Landlord may, by giving written notice to Tenant within sixty
(60) days of such taking, terminate this Lease (provided Landlord terminates the leases of all other tenants
in the Building), which termination shall be effective thirty (30) days after the date of such termination notice
and Tenant shall pay Rent through the date of such termination (subject to the abatement rights set forth in
the preceding paragraph).
20.3 Any condemnation award issued in connection with any such taking shall belong solely to the
Landlord. Notwithstanding the foregoing, Tenant shall have the right to claim any compensation as may be
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separately awarded or receivable by Tenant in Tenant's own right on account of any costs or loss Tenant
may suffer for the removal of its merchandise, furniture, fixtures or equipment, the loss of the unamortized
value of the improvements made pursuant to this Lease or any other element of special damage separately
recoverable by the Tenant, so long as such claim will not diminish or otherwise affect Landlord's
compensation or damages awarded for any taking. Landlord will not be liable to Tenant for any damages
which Tenant may suffer as a consequence of any taking.
20.4 Notwithstanding anything to the contrary contained herein, Landlord's right(s) to terminate this
Lease pursuant to this Article 20 is expressly conditioned on Landlord's termination of the lease(s) or
occupancy agreements of all other tenants in the Commercial Component. If Landlord exercises any
termination right provided for in this Article 20 and, within twelve (12) months from the termination of this
Lease, Landlord commences to lease, repair or restore the Building for the purpose of retail leasing,
Landlord must notify Tenant and offer Tenant the right to reinstate this Lease upon the same terms and
conditions set forth in this Lease (except that the lease term with respect to such reinstatement shall be for
a term of no less than five (5) years). Tenant shall respond to Landlord within thirty (30) days of receipt of
Landlord's notice, and if Tenant fails to respond within such thirty (30) day period, it shall be deemed that
Tenant has chosen not to reinstate the Lease. Landlord's obligation to notify Tenant and offer Tenant the
right to reinstate this Lease as set forth herein shall survive Landlord's termination of this Lease and remain
a contractual obligation of Landlord.
Article 21. Subordination.
21.1 Tenant hereby agrees that this Lease shall be automatically subordinate to the lien of any lender,
mortgagee, underlying landlord or other party whose title might presently be superior to the title of Landlord
which encumbers the Commercial Component as of the date of this Lease.
21.2 Tenant hereby agrees that this Lease shall be subordinate to the lien of any lender, mortgagee,
underlying landlord or other party whose title might hereafter become superior to the title of Landlord
subsequently placed upon the Commercial Component after the date of this Lease, (hereinafter referred to
as the "Subsequent Mortgagee"). In confirmation of such subordination, Tenant shall, within ten (10) days
of request, promptly execute a subordination agreement on Subsequent Mortgagee's standard form, if so
required.
Article 22. Liens.
22.1 Tenant shall not subject all or any part of the Project or Premises to any mechanic's, materialmen's
or other lien under the lien law of the state in which the Project is located. If, at any time, a lien or
encumbrance is filed or recorded against the Premises or the Project as a result of any act or omission of
Tenant or any of Tenant's agents, representatives, employees contractors or subcontractors, Tenant shall,
after receipt of written notice of such lien(s), cause such lien(s) to be removed within ten (10) days of receipt
of such notice, or if Tenant wishes to contest such lien(s), Tenant shall, within such ten (10) day period, post
a bond. If Tenant fails to act within such ten (10) day period, Landlord may take such steps as it deems
necessary to remove the lien(s), including settlement and payment thereof, and Tenant shall reimburse
Landlord upon demand for all reasonable, actual and documented costs and expenses incurred by Landlord
in connection therewith, including reasonable attorneys' fees and costs.
The Lease provides that Landlord's interest in the Premises and Project shall not be subject to liens
for improvements or work made or done by, through or under Tenant. In no event shall Landlord be liable
for or subjected to any mechanic's, materialmen's or laborers' liens for improvements or work done by or at
the insistence of Tenant or those claiming under it. In accordance with Florida Statutes Section 713.10, the
Lease expressly prohibits the subjecting of Landlord's interest in the Premises and the Project to any such
mechanic's, materialmen's or laborers' liens for improvement work made or done by or at the instance of
Tenant (or those claiming under Tenant) and all persons dealing with Landlord or Tenant are hereby put on
notice of this provision.
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Article 23. Quiet Enjoyment.
23.1 Provided Tenant performs the agreements, terms, covenants and conditions of this Lease on its
part to be kept and performed after all applicable notice and cure periods, Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises during the Term of this Lease without hindrance, molestation
or disturbance from Landlord or any person claiming through Landlord.
Article 24. Notices.
24.1 All notices required or permitted to be given hereunder shall be in writing and shall be delivered by
(a) personal delivery with acknowledgment of receipt, (b) United States mail, prepaid, for delivery by
registered or certified mail, return receipt requested, (c) reputable overnight courier service providing proof
of delivery, to the addresses for Landlord and Tenant set forth below, or (d) e-mail transmission, so long as
such transmission is followed within one (1) business day by delivery utilizing one of the methods described
in Section 24.1(a), Section 24.1(b), or Section 24.1(c). Notice shall be deemed delivered (i) upon date of
actual receipt or refusal to receive such Notice, if delivered in accordance with Section 24.1(a) or Section
24.1(b); (ii) one (1) business day after deposit with a reputable overnight courier service providing proof of
delivery, if delivered in accordance with Section 24.1(c); or (di) upon transmission, if delivered in accordance
with Section 24.1(d).
24.2 The initial addresses for Landlord and Tenant are set forth below:
Landlord:
Tenant:
Rent payments shall be mailed to:
Block 55 ORG Owner, LLC
c/o Swerdlow Group
2901 Florida Avenue, Suite 806
Coconut Grove, Florida 33133
Attn: Nick Swerdlow
Southeast Overtown/Park West Community
Redevelopment Agency
819 NW 2nd Avenue, 3rd Floor
Miami, Florida 33136
Attn:
Block 55 ORG Owner, LLC
c/o Swerdlow Group
2901 Florida Avenue, Suite 806
Coconut Grove, Florida 33133
Any party shall have the right from time to time and at any time, upon at least ten (10) days' prior written
notice delivered pursuant to the terms hereof, to change its respective address and to specify any other
address within the United States of America, provided said new address is not a post office box except that
Landlord's rent payment address may be a lockbox with a post office box address. The respective attorneys
for each party are authorized to give any notices, make any requests and send any other communications
under this Lease on behalf of their respective clients.
Article 25. Miscellaneous.
25.1 Landlord's Representations and Warranties. Landlord represents, warrants and covenants to
Tenant as of the date hereof that Landlord has the full right, power and authority to enter into this Lease.
25.2 Estoppel Certificate. Landlord and Tenant shall at any time and from time to time, within twenty (20)
days of written request therefor, execute, acknowledge and deliver to the other party a statement in writing:
(a) certifying that this Lease is unmodified and in full force and effect (or, if the Lease has been modified,
stating such modification); (b) the dates to which Fixed Rent and other charges have been paid; (c) whether,
to the best knowledge of the party signing said certificate, there are then existing any defaults hereunder
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upon the part of the other party hereto, or any events or conditions that would give a party the right to
terminate this Lease; (d) whether the signing party has any claims or counterclaims against the right to
terminate this Lease; (d) whether the signing party has any claims or counterclaims against the other party
hereto; and (e) the amount, if any, of any security deposit or prepaid rent. The failure by Tenant to deliver
or respond to a statement within the twenty (20) day time period hereunder shall be an Event of Default if
Tenant doesn't cure such failure within ten (10) days after receipt of a reminder notice from Landlord of
such failure.
25.3 Intentionally Omitted.
25.4 Brokerage. Landlord and Tenant each represent and warrant to the other that they have had no
conversations or negotiations with any broker, finder or similar person concerning the consummation of this
Lease or the leasing of the Premises to Tenant, other than Cushman & Wakefield of Florida, LLC
representing Landlord and Stiles Corporation, representing Tenant (collectively, the "Brokers"). Landlord
agrees to pay the Cushman & Wakefield of Florida, LLC pursuant to the terms of separate agreement.
Cushman & Wakefield of Florida, LLC shall pay pursuant to the terms of a separate
agreement between the Brokers. Landlord and Tenant each hereby indemnifies and holds the other
harmless from and against all loss, cost, liability, claim, damage and expense (including, without limitation,
court costs and reasonable attorneys' fees) incurred in connection with or arising out of any conversations,
negotiations or actions had by Landlord or Tenant, as the case may be, or anyone acting on behalf of
Landlord or Tenant, as the case may be, with any broker, finder or similar person other than the Brokers in
connection with this Lease.
25.5 Tenant's Authority. Tenant represents and warrants that Tenant has full right, power and authority
to enter into this Lease, and no approvals or consents of any other person or entity is required for this Lease
to be a valid and binding obligation of Tenant.
25.6 No Partnership. It is expressly understood that Landlord and Tenant are not partners, and Landlord
has no right, title or interest in the business of Tenant and Landlord has no right to represent or bind Tenant
in any respect whatsoever, and that nothing herein contained shall be deemed, held or construed as making
Landlord a partner or associate of Tenant, it being expressly understood that the relationship between the
parties hereto is, and shall at all times remain, that of Landlord and Tenant.
25.7 Protect Rules and Regulations. Landlord's rules and regulations for the Project applicable to the
occupants of the Commercial Component as of the Effective Date are attached as Exhibit "G" to this Lease
("Rules and Regulations"). To the extent the Rules and Regulations conflict with any provision contained in
the body of the Lease or any of the other exhibits to the Lease, the provisions in the Lease and/or the other
exhibits shall control. Such Rules and Regulations shall be uniformly applied and enforced without
discrimination among all tenants of the Commercial Component. Landlord may make modifications to the
rules and regulations, from time to time but such modifications shall not (a) interfere with Tenant's use and
enjoyment of the Premises in more than a de minimis manner, (b) increase any of Tenant's obligations, (c)
adversely impact in more than a de minimis manner any of Tenant's rights, set forth in this Lease, or (d)
limit or restrict the Permitted Use.
25.8 Waiver. The consent or waiver by Landlord or Tenant to any breach of any term, covenant, or
condition of this Lease shall not be construed as a consent or waiver of any other breach of the same or
any other term, covenant and condition of this Lease. No endorsement or statement on any check or letter
accompanying a check for payment of any sum due shall be deemed an accord and satisfaction, and
Landlord (or Tenant as the case may be) may accept such check or payment without prejudice to the
accepting party's right to recover the balance of such Rent or other payment or to pursue any other remedy
provided in this Lease. No agreement to accept a surrender of the Premises or this Lease other than at the
expiration or earlier termination of the Term in accordance with the terms of this Lease shall be valid unless
in writing signed by Landlord. The delivery of keys, abandonment of the Premises, and/or any attempt to
deliver possession of the Premises by Tenant to Landlord or any agent or employee of Landlord shall not
operate as a termination of this Lease or a surrender of the Premises, except to the extent permitted under
this Lease.
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25.9 Marginal Headings. The marginal headings and titles to the articles and sections of this Lease are
not part of the Lease and shall have no effect upon the construction or interpretation of any part thereof.
25.10 Successors and Assigns. "Tenant" is the entity named expressly herein as Tenant, but upon a
transfer, assignment or succession, such transferee or assignee shall be deemed "Tenant" hereunder, and
"Landlord" means the then -owner of the lessor's interest in this Lease. This Lease and the terms, covenants
and conditions contained herein shall inure to the benefit of, and will be binding upon, the heirs, executors,
administrators and, except as otherwise provided herein, successors and assigns of Landlord and Tenant.
In the event of a transfer by Landlord of its interest in this Lease then, so long as the transferee assumes
all liabilities and obligations under the Lease applicable to Landlord in writing, the transferor shall be
automatically released from all liability and obligations as Landlord accruing subsequent to the transfer.
25.11 No Recordation. Tenant may not record this Lease or any memorandum of lease.
25.12 Guaranty. Tenant shall cause Dannie Augustin and Genese Augustin to execute and deliver to
Landlord the Guaranty of Lease attached hereto as Exhibit "H".
25.13 No Construction Against Drafting Party. Landlord and Tenant acknowledge that each of them and
their counsel have had an opportunity to review this Lease and that this Lease will not be construed against
Tenant merely because Tenant has prepared it.
25.14 No Prior Agreements or Oral Modifications. This Lease contains all of the agreements of the parties
hereto. No other agreements or understandings, written or oral, shall be effective for any purpose or shall
diminish any of Tenant's rights herein granted or increase any of Tenant's obligations. No provision of this
Lease may be modified except by an agreement in writing signed by the parties hereto or their respective
successors. LANDLORD ACKNOWLEDGES THAT NO REPRESENTATION, WARRANTY, INDUCEMENT,
PROMISE OR AGREEMENT HAS BEEN MADE, ORALLY OR OTHERWISE, BY TENANT OR ANYONE
ACTING ON BEHALF OF TENANT, UNLESS SUCH REPRESENTATION, WARRANTY, INDUCEMENT,
PROMISE OR AGREEMENT IS EXPRESSLY SET FORTH IN THIS LEASE. LIKEWISE, TENANT
ACKNOWLEDGES THAT NO REPRESENTATION, WARRANTY, INDUCEMENT, PROMISE OR
AGREEMENT HAS BEEN MADE, ORALLY OR OTHERWISE, BY LANDLORD OR ANYONE ACTING ON
BEHALF OF LANDLORD, UNLESS SUCH REPRESENTATION, WARRANTY, INDUCEMENT, PROMISE
OR AGREEMENT IS EXPRESSLY SET FORTH IN THIS LEASE. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, EACH PARTY HEREBY EXPRESSLY WAIVES ANY CLAIM FOR FRAUD IN THE
INDUCEMENT.
25.15 Force Majeure. Excluding Section 25.3 (except as expressly provided for above), If either party
hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts
of God, labor disputes, civil commotion, war, fire or other casualty, inability to procure materials,
governmental regulations, statutes, ordinances, restrictions or decrees, or other causes beyond the control
of the party so obligated (financial inability excepted), the period for the performance of any such acts shall
be extended for a period equivalent to the period of such delay. The provisions of this Section 25.15 shall
not excuse the timely payment of any sums or rent to be paid by one party to the other under this Lease.
25.16 Covenants Running with the Land. All of the covenants of Landlord contained in this Lease shall
be covenants running with the land, and as such shall benefit the Premises and each person having any
leasehold interest therein derived through Tenant and bind each successive owner of any portion of the
Building and/or Project and each person having any interest derived therefrom.
25.17 Rule Against Perpetuities. If the Term of this Lease shall not have commenced within five (5) years
from the date of this Lease, this Lease shall thereupon become null and void and have no further force and
effect.
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25.18 Partial Invalidity. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in
no way affect, impair or invalidate any other provision hereof and such other provisions shall remain in full
force and effect.
25.19 Transmittal of Lease. This Lease is delivered to Landlord for examination only and does not
constitute an offer to lease, and this Lease shall become effective only upon the execution and unconditional
delivery thereof by both parties hereto.
25.20 Time. Time is of the essence as to the lawful performance of all duties and obligations set forth in
this Lease. All time periods in this Lease will be deemed to refer to calendar days unless the time period
specifically references business days. In the event the time for performance of any act under this Lease
falls on a Saturday, Sunday, or state or national holiday, such time will automatically be extended to the
next business day.
25.21 Intentionally Deleted
25.22 Holdover by Tenant. In the event Tenant remains in possession of the Premises after the expiration
of the Term or sooner termination of this Lease and without the execution of an extension or new Lease,
Tenant shall be deemed a Tenant at sufferance, subject to all the conditions of this Lease except that Fixed
Rent shall be a sum equal to two hundred percent (200%) of the Fixed Rent which was payable under this
Lease during the last full calendar month of the Term that immediately preceded the initial holdover
period. Nothing herein contained shall be deemed to permit Tenant to retain possession of the Premises
after the expiration of the Term or sooner termination of the Lease. Tenant shall defend, indemnify, and
hold Landlord harmless from any and all liabilities, loss, cost and expense of every kind suffered by Landlord
as a result of Tenant's holding over. The provisions of this paragraph shall survive the expiration of the
Term or sooner termination of the Lease.
25.23 Limitation on Liability. Any monetary obligation or liability whatsoever of the Landlord that may at
any time arise under or pursuant to this Lease or any obligation or liability that may be incurred by Landlord
pursuant to any other instrument, transaction, or undertaking contemplated hereby, shall be satisfied, if at
all, out of the Landlord's interest and estate in the Premises and the Project and the rents and proceeds
therefrom. However, if the Landlord's interest in the Premises or Project is transferred, the Landlord shall
remain liable for obligations accrued prior to the transfer and shall provide Tenant with reasonable
assurance that any future owner will assume such liabilities. No obligation or liability whatsoever arising
hereunder shall be personally binding on nor shall resort for the enforcement thereof be had to any other
property of the Landlord or the private property of any of its officers, directors, stockholders, members,
partners, employees, brokers, or affiliates, regardless of whether such obligation or liability is in the nature
of contract, tort or otherwise. However, nothing in this clause shall relieve Landlord from liability for claims
arising from its gross negligence, willful misconduct, or violation of applicable law. Notwithstanding anything
to the contrary in this Lease, in no event shall Landlord be liable for loss of business, consequential
damages or special damages arising out of any matter related to this Lease except where such damages
result directly from Landlord's gross negligence, willful misconduct, or failure to fulfill a material obligation
under the Lease.
25.24 Office of Foreign Asset Control Compliance. Tenant represents and warrants to Landlord that
Tenant is not a person with whom U.S. persons are restricted from doing business under regulations of the
Office of Foreign Asset Control of the U.S. Department of the Treasury (including those named on its
Specially Designated and Blocked Persons List) or under any statute, executive order (including the
September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental statutes, regulations, orders or
directives ("Blocked Person"). Tenant will not permit any portion of the Premises to be used, occupied or
operated by or for the benefit of any Blocked Person. Tenant agrees to Landlord's legal obligations (a) not
to do business with Blocked Persons, and (b) to freeze any assets of Blocked Persons which may come
into Landlord's possession. Tenant will defend, indemnify and hold harmless Landlord from and against any
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and all claims arising from or related to any breach of this Section by Tenant. Tenant will not assign this
Lease to a Blocked Person.
25.25 Applicable Law; Venue. This Lease will be construed according to the laws of the State of Florida
without application of conflicts of laws principles. Any legal action or proceeding arising out of this Lease
will be instituted in a court (federal or state) located in Miami -Dade County, Florida, which will be the
exclusive jurisdiction and venue. In addition, Landlord and Tenant waive any objection either may now or
hereafter have to the laying of venue of any legal action or proceeding in such courts, and further waive the
right to plead or claim that any legal action or proceeding brought in such courts has been brought in an
inconvenient forum. This provision will not be construed as a waiver of service of process in any action or
proceeding.
25.26 JURY WAIVER; COUNTERCLAIMS. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH (A) THIS LEASE, (B) THE RELATIONSHIP OF LANDLORD AND TENANT, (C)
TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR (D) THE RIGHT TO ANY STATUTORY
RELIEF OR REMEDY.
25.27 Future Declaration. Landlord may elect, at any time during the Term, to convert the Building or the
Project or any portion or portions thereof (including the Commercial Component) to condominium or
commercial ownership or other vertical subdivision or to an easement and operating agreement, declaration
or similar instruments (a "Declaration"), and Tenant shall consent and cooperate with the Landlord as
reasonably requested by Landlord in connection with a Declaration.
(A) The obligations of Landlord under this Lease shall, at Landlord's option, either (i) continue
to be performed and observed by Landlord as set forth herein, or (ii) shall have been assumed inwriting by
(x) the successor landlord with respect to obligations hereunder to be performed within the Premises, and
(y) ownership of the parcel or the board of managers or equivalent governing body of the condominium
association or vertical subdivision, with respect to obligation hereunder affecting the Building and the
Common Areas outside of the Premises; and
(B) The Lease shall be automatically subject and subordinate to any such Declaration, but in
the event of any conflict between the Declaration and this Lease, this Lease shall control. Tenant agrees,
upon thirty (30) days written request of Landlord, to execute a document reasonably required or requested
by Landlord to confirm the subordination of this Lease to the Declaration.
25.28 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same document. This Lease may also be executed in
duplicate, each of which shall be deemed an original. Facsimile or email copies of signatures will be binding
on the parties as if they were original signatures. The executed counterparts together shall be considered
an original and shall be binding on the Parties. The Parties will cooperate in exchanging original (non -
facsimile) signature pages with each other.
25.29 Radon. Florida law requires the following notice to be provided with respect to the contract for sale
and purchase of any building, or a rental agreement for any building: "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 health department."
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have entered into this Lease as of the day and year
first above written.
"LANDLORD"
BLOCK 55 ORG OWNER, LLC, a Florida limited liability
company
By: SG Manager, LLC, a Florida limited
liability company, its Manager
By:
Name:
Title:
"TENANT"
Southeast Overtown/Park West Community
Redevelopment Agency
By:
Name:
Title:
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