Commission Agreement with Cubiche 105, LLC 0/4-01.15b
KONIVER
STERNS TED �I GROUP
�i RETAIL REAL ESTATE&BROKERAGE
COMMISSION AGREEMENT
"OWNER": Miami Beach Redevelopment Agency
"PROPERTY": 1555 Washington Ave., Suites 1-3,Miami Beach, FL 33139
"RETAILER": Cubiche 105,LLC
The parties acknowledge that Koniver Stern Group, Inc. (hereinafter referred to as "KS" (Broker) has
introduced, the Miami Beach Redevelopment Agency (the "Owner") to Cubiche 105, LLC (the
"Retailer"), and in the event a lease or other occupancy agreement or arrangement (the "Lease") is
consummated with Retailer, or any affiliated or related entity of retailer, for all or any portion of the
Property described above, then the Owner agrees to pay a commission (the "Commission") to KS as
follows:
Amount of Commission: Three percent (3%) of the aggregate base rents, which shall accrue and be
due and payable during the primary term, pursuant to the below section
entitled "Payment Terms". There shall be no Commission due or payable
for any renewal terms. The estimated (subject to re-measurement and final
rent) total value of the commission is one hundred thirty-seven thousand
three hundred and eighteen dollars and 93/100 ($137,318.93) dollars, based
on the premises consisting of approximately 7,130 square feet, pursuant to
the Lease Commission Calculation to be attached hereto and incorporated
herein as Exhibit "A". In the event the square footage or rent payment is
adjusted, the total amount of the commission will be adjusted
proportionately. Any changes to the square footage shall be at the sole
discretion of Owner.
Payment Terms: The Commission shall be due as follows: twenty-five percent (25%) of the
Commission amount, in the amount of $34,329.73, shall be due within
thirty (30) days from execution of the Lease by both parties; twenty-five
percent (25%) of the total Commission amount, in the amount of
$34,329.73, shall be due: 1) within thirty (30) days from the date that
Retailer begins conducting business at the premises and 2) upon Owner's
receipt of the first month's rent payment (not including pre-paid rent which
is due upon lease execution).
The balance of fifty percent (50%) of the Commission amount, in the
amount of $68,659.46, shall be due and payable on the first day of the
Thirteenth month following Rent Commencement (20th month following
Lease Commencement), as said terms are defined under the Lease,
providing Retailer is not in noticed material default under the lease. If so,
the payment shall be due when the default is cured.
With respect to each Commission payment due hereunder, Broker shall
provide Owner with an invoice for said Commission payment and Owner
1665 Washington Avenue, Penthouse, Miami Beach, Florida 33139
Telephone (305) 532-6100 Fax (305) 532-6101
s h all pa y same when due and within thirty (30) days from receipt of said
invoice.
KS hereby discloses to Owner and Owner acknowledges that KS has acted solely as the a transaction
broker in connection with this matter and is not the agent of the Owner notwithstanding the Owner's
obligations to pay the Commission that may be due in accordance with the terms hereof.
Should any part of the Commission not be paid within thirty (30) days from the date same is due and
receipt of the invoice from Broker, said Commission payment shall accrue interest from the due date
thereof until paid at the maximum rate permitted by law. In the event that any party has to institute suit in
order to enforce the terms of this Commission Agreement, the prevailing party shall be entitled to collect
reasonable attorney's fees and court costs incurred at trial, appellate and post judgment collection efforts.
Each party hereby represents and warrants to the other party that they have full and complete right and
authority to enter into this Agreement, that all required action has been taken by it as is necessary to
authorize it to enter into this Agreement, that it is fully bound by the terms hereof, and that the person
executing this Agreement on its behalf is authorized to do so and does bind the undersigned hereto
without the joinder or further approval of any other person whomsoever. This Agreement shall be
binding upon and enforceable against and its benefits shall inure to each of the parties hereto and their
personal representatives, heirs, successors and assigns, and shall specifically survive any such sale, transfer
or assignment. The Owner shall remain liable for payment of all Commissions due hereunder
notwithstanding any sale, transfer or assignment of the Property unless specifically released by KS in
writing.
The existence of this agreement shall be reflected in the lease document.
Each of the undersigned acknowledge receipt of a copy of this Agreement and further acknowledges that
they have read it and understand it and agree to the terms contained therein. This Agreement shall be
construed and interpreted in accordance with Florida Law.
-
Owner: T 'is vch Redevelopment Agency ::oker: Konive rn G up
1
By: i : -
�,i hill," amine, Chairperson Print Name/Broker kJ°u '� �n
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DEC ��4 2015
Dl. 'e: Date: f i/D)/( c
Witness (print& sign) Witness (print& sign)
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DEC ttj
.2.82015 ? C� '•
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26
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Redevelopment Agen 0 Dote
'�1�Uttums\\��� General Counsel :,i r
Exhibit A
Lease Commission Calculation
Square Feet: 7,130
Rent PSF: $56
Increases: 3%
PSF Monthly Annual
Base Base Base
Year Rent Rent Rent
1 $56.00 $33,273.33 $399,280.00
2 $57.68 $34,271.53 $411,258.40
3 $59.41 $35,299.68 $423,596.15
4 $61.19 $36,358.67 $436,304.04
5 $63.03 $37,449.43 $449,393.16
6 $64.92 $38,572.91 $462,874.95
7 $66.87 $39,730.10 $476,761.20
8 $68.87 $40,922.00 $491,064.04
9 $70.94 -$42,149.66 -$505,795.96
10 $73.07 $43,414.15 $520,969.84
$4,577,297.73
Gross Commission Calculation
Aggregate Base Rent Rate Commission
$4,577,297.73 3.00% $137,318.93
Payment Installments
25% $34,329.73
25% $34,329.73
50% $68,659.47
$137,318.93
LANDLORD: Miami Beach Redevelopment Agency, a public
body corporate and politic
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Cubiche 105, LLC
1555 Washington Avenue, Suites 1-3
Miami Beach, FL 33139
DATE OF LEASE EXECUTION: DECEMBER 28
2015
ANCHOR SHOPS AT SOUTH BEACH
RETAIL LEASE
■
LEASE SUMMARY
The following is a summary of basic lease provisions with respect to the Lease. It is an integral
part of the Lease, and terms defined or dollar amounts specified in this Summary shall have the
meanings or amounts as stated, unless expanded upon in the text of the Lease and its Exhibits, which
are attached to and made a part of this Summary.
DECEMBER 28
1. Date of Lease Execution: , 2015.
2. "Landlord": Miami Beach Redevelopment Agency
The Executive Director shall be authorized to act on
behalf of Landlord. For purposes of managing this
Lease, the Tourism, Culture and Economic
Development Director shall be the Executive
Director's designee.
3. Landlord's Address: Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Office of Real Estate
with a copy to:
City of Miami Beach
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Legal Department
4. "Tenant": Cubiche 105, LLC
5. Tenant's Address: 1555 Washington Avenue, Suites 1-3
Miami Beach, FL 33139
6. "Guarantor": Cubiche 105, LLC(also see item 18 of this
Summary)
7. Guarantor's Address: 1555 Washington Avenue, Suites 1-3
Miami Beach, FL 33139
8. Premises(Section 1.1): 1555 Washington Avenue, Suites 1-3
Miami Beach, FL 33139
As shown on Exhibit"B"
9. Gross Rentable Area of
Premises(Section 1.1): Approximately 7,130 square feet under air condition
10. Gross Rentable Area of
Retail Space(Section 1.1): Approximately 20,639 rentable square feet
11. Tenant's Proportionate
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Share of Retail Space(Section 2.4): 34.55%
12. Gross Rentable Area of
Exterior Retail Space(Section 1.1): Approximately 585 square feet of exterior area,
adjacent to the portion of the Premises under air
condition, (excluded from the calculation of
Minimum Rent and Operating Expenses)
13. Permitted Use of
Premises (Section 3.1): Premises shall be used as an upscale dining
restaurant with, at tenant's option, Outdoor Dining
and Valet (and subject to section 3.1 and the
prohibited uses described in Exhibit"D" to the
Lease).
14. Term of Lease(Section 1.1): The Initial Lease Term shall commence January
15, 2015 ("Commencement Date"), and shall end
nine (9) years and three hundred and sixty four
(364) days following the Rent Commencement
Date, as defined below("Lease Expiration Date").
"Rent Commencement Date": The date Tenant
achieves Substantial Completion (as defined in
Section 5 of the Work Letter and Escrow
Agreement, attached hereto as Exhibit "E") or two
hundred and ten (210) days following the
Commencement Date,whichever occurs sooner.
"Renewal Options": Tenant, at its option, shall have
Two (2) renewal options for five (5) years each,
after the Lease Expiration Date of the Initial Lease
Term. Tenant must notify Landlord in writing, no
later than one hundred and eighty (180) days prior
to Lease Expiration Date of its intention of
exercising the Renewal Option(s). The Minimum
Rent and annual increases shall be adjusted to the
then current Fair Market Rent for each renewal
period.
15. "Minimum Rent"(Section 2.2):
MONTHLY PAYMENT
MONTHS ANNUAL MINIMUM RENT (PLUS SALES TAXI
Rent Commencement Date
$399,280.00 $33,273.33
next succeeding twelve
months*
* Commencing on the first anniversary of the Rent Commencement Date, and at the beginning of
each succeeding Lease Year (as defined in Section 2.1) thereafter during the Initial Lease Term
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and during the term of any subsequent Renewal Options, the Minimum Rent shall be increased
annually in increments of three(3%).
Effective at the commencement of each Renewal Option term, Tenant's Minimum Rent shall be
adjusted ("Renewal Option Rent Adjustment"), based upon the fair market rents in effect ("Fair
Market Rent").
The Fair Market Rent shall be determined by Landlord, by securing the opinion of an independent
and licensed appraiser which will be retained by the Landlord at the Landlord's expense and
discretion; Upon request from Tenant or Landlord, Landlord will secure a second opinion from a
second independent and licensed appraiser of the Fair Market Rent. A second Fair Market Rent
opinion procured at the Tenant's request will be retained by the Landlord at its discretion and at the
Tenant's sole expense. In such case, Fair Market Rent will then equal the average of the first and
second Fair Market Rent opinions. If Tenant exercises a Renewal Option, Tenant accepts the Fair
Market Rent amount for that Renewal Option.
Minimum Rent shall continue to be payable in monthly installments as otherwise described above
until Landlord notifies Tenant of the new monthly Minimum Rent installment amount. Landlord shall
attempt to so notify Tenant prior to the commencement of each adjustment date; however, failure of
Landlord to timely notify Tenant of the new monthly Minimum Rent installment amount shall not be
deemed a waiver by Landlord of the increased rental; the new monthly Minimum Rent amount (or
any portion not previously paid) shall be payable, retroactive to the commencement of the new
adjustment date, upon notification by Landlord to Tenant of the new monthly Minimum Rent
installment amount.
16. Percentage Rental (Section 2.3): N/A
17. Prepaid Rent(Section 2.2): $93,257.67 (including applicable sales tax) due
upon execution of Lease; to be applied to first and
last full month's Minimum Rent and Operating
Expenses due.
18. Security Deposit(Section 2.7): Tenant shall provide an irrevocable Letter of Credit,
from a bank acceptable to the Landlord, equal to
the first six (6) month's gross rent (i.e. Minimum
Rent and Operating Expenses), in the amount of
$231,047.65, upon lease execution. Additionally,
throughout the first year of rent payments, the three
(3) principals of Tenant (Janet Suarez, Luis Hoyos
and Juan Chipoco) shall provide an Unconditional
Guaranty, jointly and severally, equal to the first
three(3)month's gross rent(i.e. Minimum Rent and
Operating Expenses), in the amount of
$115,523.83, as further described in Exhibit "F"
(Unconditional Guaranty),. So long as Tenant has
not been in default of the Lease, after the first year
of rent payments, the Personal Guaranty shall be
null and void and the remaining Security Deposit
shall be the Letter of Credit, equal to the first six(6)
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month's gross rent (i.e. Minimum Rent and
Operating Expenses), in the amount of
$231,047.65. So long as Tenant has not been in
default of the Lease, after the second year of rent
payments, the Letter of Credit shall be reduced to
three(3)month's gross rent(i.e. Minimum Rent and
Operating Expenses), in the amount of
$115,523.83. For the remainder of the Lease Term
a security deposit equal to three (3) month's rent
shall remain in the custody of Landlord to
guarantee the Tenant's performance under the
Lease.
19. Operating Expenses (Section 2.4): Tenant's Proportionate share of Property Taxes,
Insurance and Common Area Maintenance("CAM")
on the Anchor Shops and Parking Garage.
OPERATING EXPENSES MONTHLY/ANNUAL
LEASE YEAR COST PER SQUARE FOOT* PAYMENT
1 $8.81 $5,234.61 /$62,815.30
2-End of Initial Lease Term See Note(*) See Note(*)
Renewal Periods See Note(*) See Note(*)
The Operating Expenses for the first Lease Year is comprise of the following figures:
Insurance $ 0.54 $320.85/$3,850.20
Taxes $ 7.44 $4,420.60/$53,047.20
CAM $ 0.83 $493.16/$5,917.90
Note (*) Beginning on the first anniversary of the Rent Commencement Date, and at the beginning
of each succeeding Lease Year thereafter, during the Initial Lease Term and during the term of any
subsequent Renewal Options, the Operating Expense payment shall be adjusted, on an annual
basis, to reflect Tenant's actual Proportionate share of Property Taxes, Insurance costs (including
insurance costs, determined at Landlord's sole discretion, under Landlord's self-insurance fund),
and CAM costs incurred by the Landlord during the previous Lease Year ("Operating Expense
Adjustment"). Simultaneously with this adjustment, Tenant shall be responsible for paying any
difference between the Proportionate Share of the estimated Operating Expenses paid by Tenant
during the previous Lease Year and the Proportionate Share owed by Tenant in connection with the
actual Operating Expenses for the previous Lease Year ("Operating Expense True-Up").
Controllable expenses, hereby defined as all expenses other than Property Taxes, Insurance and
utilities shall be capped at no more than a five percent (5%) increase above the previous Lease
Year's Controllable expenses.
The Operating Expense payment shall continue to be payable in monthly installments as otherwise
described above until Landlord notifies Tenant of the new monthly Operating Expense payment and
Operating Expense True-Up payment. Landlord shall attempt to so notify Tenant prior to the
commencement date or within 30 days of being requested by Tenant of each Operating Expense
Adjustment and Operating Expense True-Up amount; however, failure of Landlord to timely notify
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Tenant of said Operating Expense Adjustment/True-Up amounts shall not be deemed a waiver by
Landlord of the right to make said Operating Expense Adjustment/True-Up; the new Operating
Expense Adjustment or any sums due pursuant to the Operating Expense True-Up for the previous
Lease Year shall be payable, retroactive to the effective date of said adjustment date, upon
notification by Landlord to Tenant of the new monthly Operating payment amount and the total
True-Up amount due.
20. Comprehensive General
and Liquor Liability Insurance $1,000,000.00 per occurrence; $2,000,000 general
(Section 6.1): aggregate
21. Monthly Promotional Charge
(Section 13.1): N/A
22. Brokerts)(Section 14.12): Koniver Stern Group represents the Tenant
exclusively in this transaction
23. Estimated Completion Date for On or before 210 days from the Commencement
Tenant's Work(Section 5.1): Date
24. Trade Name(Section 3.1): Cubiche 105
25. Tenant's Minimum Hours of Operation
(Section 3.5): Sunday through Saturday
12 Noon— 10:00 P.M.
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THIS LEASE (the"Lease"), dated the 28 day of DECEMBER , 2015, is made between
the Miami Beach Redevelopment Agency, a public body corporate and politic (the "Landlord"), and
Cubiche 105, LLC,a Florida limited liability corporation(the"Tenant").
RECITALS:
A. The Landlord is the fee simple owner of a certain facility(the"Facility")containing
a municipal parking garage and appurtenances containing approximately eight hundred (800) parking
spaces (the"Garage") and certain retail space (the"Retail Space") located in an area bounded by
Washington and Collins Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade
County, Florida, as more particularly described in Exhibit"A," attached hereto and made a part hereof
(the"Land"). The Landlord is the fee simple owner of the Land and the Facility.
B. Landlord and Tenant desire to enter into this Lease for a portion of the Retail
Space, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:
ARTICLE I. TERM.
1.1 Grant: Term. In consideration of the performance by Tenant of its obligations under this
Lease, Landlord leases to Tenant, and Tenant leases from Landlord, for the Term, the "Premises." A
site plan showing the location of the Retail Space within the Facility is attached hereto and made a part
hereof as Exhibit"B.", and a site plan showing the location of the Premises within the Retail Space, is
attached hereto and made a part hereof as Exhibit"B-1." The gross rentable area of the Premises and
Retail Space are stipulated to be as shown on the Lease Summary. For all terms within this Lease
(excluding the calculation in connection with Tenant's Proportionate Share of Retail Space Operating
Expenses and in connection with the calculation of Minimum Rent), the definition of Premises shall
include the westerly adjacent exterior area to the Tenant's portion of the Retail Space ("Exterior Retail
Space"), measuring approximately 585 square feet, between the western façade of the Retail Space and
the westernmost property line of the Facility. Tenant shall not pay Minimum Rent or Operating Expenses
in connection with the use of the Exterior Retail Space; however, Tenant shall be solely responsible for all
maintenance, repairs and replacement expenses relating to the Exterior Retail Space, as more particularly
set forth in Section 5.3,as if said Exterior Retail Space were part of the Premises under air condition.
The"Term" of the Lease is the period from the Commencement Date as specified in the
Lease Summary, through the Expiration Date, as specified in the Lease Summary.
1.2. Landlord's Work. Tenant acknowledges and agrees that it is accepting possession of
the Premises in as-is condition and that, except as otherwise expressly hereinafter set forth, Landlord
has no obligation to furnish, render, or supply any money, work, labor, material, fixture, equipment, or
decoration with respect to the Premises. Notwithstanding the foregoing, Landlord shall perform
waterproofing and painting to portions of the exterior of the Facility.
ARTICLE II. RENT.
2.1 Covenant to Pay. Tenant shall pay to Landlord all sums due hereunder from time to
time from the Rent Commencement Date without prior demand, together with all applicable Florida
sales tax thereon; however, unless otherwise provided in this Lease, payments, other than Tenant's
regular monthly payments of Minimum Rent and Operating Expenses (as additional rent), shall be
7
payable by Tenant to Landlord within ten (10) days following written demand. All Minimum Rent,
Operating Expenses, or other charges that are required to be paid by Tenant to Landlord shall be
payable at Landlord's address indicated on the Lease Summary. Minimum Rent, Operating Expenses,
and other payments of additional rent(which is all sums payable to Landlord other than Minimum Rent
and Operating Expenses) for any "Lease Year" consisting of less than twelve(12) months shall be
prorated on a per diem basis, based upon a period of 365 days. "Lease Year" means the twelve(12)
full calendar months commencing on the Rent Commencement Date. However, the final Lease Year
may contain less than twelve(12) months due to expiration or sooner termination of the Term. Tenant
agrees that its covenant to pay rent and all other sums under this Lease is an independent covenant
and that all such amounts are payable without counterclaim, set-off, deduction, abatement, or reduction
whatsoever, except as expressly provided for in this Lease.
2.2 Minimum Rent. Subject to any escalation which may be provided for in this Lease,
Tenant shall pay Minimum Rent for the Term in the initial amount specified in the Lease Summary,
which, except for the first and last installment, shall be payable throughout the Term in equal monthly
installments in advance on the first day of each calendar month of each year of the Term, such monthly
installments to be in the amounts(subject to escalation)specified in the Lease Summary. The first and
last monthly installments of Minimum Rent shall be due upon lease execution. The Minimum Rent
described above shall be adjusted during the Term of this Lease as provided in the Lease Summary.
2.3. Percentage Rental. Intentionally Omitted.
2.4 Operating Expenses. Property Taxes: Insurance: and Common Area Maintenance
(CAM). Tenant shall remit together with regular monthly payments of Minimum Rent, its proportionate
share of estimated Operating Expenses for the Premises, as additional rent, and as determined by
Landlord, in its sole discretion and judgment, including Property Taxes, Insurance, and CAM, in
accordance with item 19 of the Lease Summary,and as more particularly described hereinafter.
Tenant's Proportionate Share means a fraction, the numerator of which is the square footage of
rentable space occupied by Tenant, as determined in item 9 of the Lease Summary, and the
denominator of which is the total square footage of rentable area in the Retail Space as determined in
item 10 of the Lease Summary.
Tenant agrees and understands that the costs incurred for Operating Expenses may increase or
decrease and, as such, Tenant's Proportionate Share of Operating Expenses shall increase or
decrease accordingly.
2.4.1 Property Taxes: Operating Expenses includes Tenant's Proportionate Share of
the Retail Space's pro-rata share of the Property Taxes for the Facility.
The term "Property Taxes" shall mean (i) the portion of real estate taxes, assessments, and
special assessments of any kind which may be imposed upon the Facility and (ii)any expenses
incurred by the Landlord in obtaining a reduction of any such taxes or assessments.
The term "Property Tax Year" shall mean the period of twelve (12) calendar months, beginning
on January 1st of each year.
Tenant shall pay its Proportionate Share of the Retail Space's pro-rata share of the Property
Taxes for the Facility, as determined by Landlord, in its sole discretion and judgement, based
upon the real estate tax bill for the Facility, by determining the ratio of the assessed taxable
value (as determined by the Miami-Dade County Property Appraiser's Office) that the Retail
Space has to the assessed taxable value of the Facility. If a Property Tax Year ends after the
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expiration or termination of the term of this Lease, the Property Tax Payment therefore shall be
prorated to correspond to that portion of such Property Tax Year occurring within the term of this
Lease.
2.4.2 Insurance. Operating Expenses shall also include Tenant's Proportionate Share
of the Retail Space's insurance costs for the Facility, as determined by the Landlord, in its sole
discretion and judgment, to be sufficient to insure and/or self-insure the Facility for hazard,
flood, windstorm, and liability insurance for the following calendar year. Tenant acknowledges
that Landlord may self-insure for any or all of Landlord's Insurance coverage's, including without
limitation liability insurance. The Retail Space's pro-rata share of the insurance cost shall be
determined, based upon the ratio that the replacement value of the Retail space has to the
replacement value of the Facility. This insurance coverage is in addition to the insurance
required pursuant to Article VI, which shall be obtained at Tenant's sole expense and
responsibility.
2.4.3 Common Area Maintenance ("CAM"). Operating Expenses shall also include
Tenant's Proportionate Share of the Retail Space's pro-rata share of the Facility's CAM (as
hereinafter defined) costs, as determined by Landlord, in its sole discretion and judgment, from
the Facility's CAM costs. The Retail Space's pro-rata share of the CAM costs shall be determine
based upon the ratio that the usable square feet of the Retail Space has to the usable square
feet of the Facility.
Common Area Maintenance ("CAM") shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the "Common Facilities" (as hereinafter
defined) and shall include, without limitation, water service to the Facility, sewer service to the
Facility, trash removal from the Facility, costs incurred for gardening and landscaping, repairing
and maintaining elevator(s), painting, janitorial services (except for areas within the Premises),
( )� P 9 janitorial ( P ),
lighting, cleaning, striping, policing, removing garbage and other refuse and trash, removing ice
and snow, repairing and maintaining sprinkler systems, water pipes, air-conditioning systems,
temperature control systems, and security systems,fire alarm repair and maintenance and other
equipment in the Common Facilities and the exterior and structural portions of the Facility,
paving and repairing, patching and maintaining the parking areas and walkways, and cleaning
adjacent areas, management fees and the Landlord's employment expenses to employees
furnishing and rendering any services to the common areas„ provided by Landlord for the
common or joint use and/or benefit of the occupants of the Facility, their employees, agents,
servants, customers and other invitees. CAM expenses shall not include expenses which, in the
Landlord's sole discretion, are capital expenses or CAM expenses which solely benefit the
Garage.
"Common Facilities" shall mean all Facility areas, spaces, equipment, as well as certain
services, available for use by or for the benefit of Tenant and/or its employees, agents,
servants, volunteers, customers,guests and/or invitees.
Tenant shall remit together with regular monthly payments of Minimum Rent, its proportionate share of
Operating Expense payments as determined in item 19 of the Lease Summary.
2.5 Payment of Personal Property Taxes: Sales Tax Reports. Tenant shall pay, when
due, all taxes attributable to the personal property, trade fixtures, business, occupancy, or sales of
Tenant or any other occupant of the Premises and to the use of the Retail Space by Tenant or such
other occupant. Tenant shall provide Landlord with copies of Tenant's sales tax reports provided to the
State of Florida, as and when such reports are provided to the State. Landlord shall have the right to
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disclose such reports to any person or entity having an interest or prospective interest in the Retail
Space.
2.6 Rent Past Due. If any payment due from Tenant shall be overdue more than five(5)
business days, a late charge of five(5%)percent of the delinquent sum may be charged by Landlord. If
any payment due from Tenant shall remain overdue for more than fifteen (15) days, an additional late
charge in an amount equal to the lesser of the highest rate permitted by law or one and one-
half(1 1/2%) percent per month (eighteen(18%) percent per annum)of the delinquent amount may be
charged by Landlord, such charge to be computed for the entire period for which the amount is overdue
and which shall be in addition to and not in lieu of the five(5%)percent late charge or any other remedy
available to Landlord.
2.7 Security Deposit. Landlord acknowledges receipt of a security deposit in the amount
specified on the Lease Summary to be held by Landlord, without any liability for interest thereon, as
security for the performance by Tenant of all its obligations under this Lease. Landlord shall be entitled
to commingle the security deposit with Landlord's other funds. If Tenant defaults in any of its
obligations under this Lease, Landlord may at its option, but without prejudice to any other rights which
Landlord may have, apply all or part of the security deposit to compensate Landlord for any loss,
damage, or expense sustained by Landlord as a result of such default. If all or any part of the security
deposit is so applied, Tenant shall restore the security deposit to its original amount within ten(10)days
of demand from Landlord. Subject to the provisions of Section 2.4, within thirty(30) days following
termination of this Lease, if Tenant is not then in default, the security deposit will be returned by
Landlord to Tenant.
Notwithstanding the foregoing, for purposes of the security deposit described in the Lease
Summary and the above paragraph, Tenant, at its option, shall have the right to post an irrevocable,
unconditional, and transferable Letter of Credit, which Letter of Credit from a bank acceptable to
Landlord or Landlord's designee. If Tenant delivers the Letter of Credit to Landlord, then Landlord will
return the cash security deposit promptly after Landlord's receipt of the Letter of Credit.
2.8 Landlord's Lien. To secure the timely construction and installation of all improvements
to the Premises by tenant and to secure the payment of all rent and other sums of money due and to
become due hereunder and the faithful performance of this Lease by Tenant, Tenant hereby gives to
Landlord an express first and prior contract lien and security interest on all property now or hereafter
acquired (including fixtures, equipment, chattels, and merchandise) which may be placed in the
Premises and also upon all proceeds of any insurance which may accrue to Tenant by reason of
destruction of or damage to any such property. Such property shall not be removed therefrom without
the written consent of Landlord until all arrearages in rental and other sums of money then due to
Landlord hereunder shall first have been paid; provided, Tenant may operate its business in the
ordinary course and the removal of merchandise from the Premises by customers of Tenant shall not
be a default under this Section. All exemption laws are hereby waived in favor of said lien and security
interest. This lien and security interest is given in addition to Landlord's statutory lien and shall be
cumulative thereto. Landlord shall, in addition to all of its rights hereunder, also have all of the rights
and remedies of a secured party under the Uniform Commercial Code as adopted in the State in which
the Premises is located. To the extent permitted by law, this Lease shall constitute a security
agreement under Article 9 of the Florida Uniform Commercial Code.
ARTICLE III. USE OF PREMISES.
3.1 Permitted Uses.
(a) Permitted Use. The Premises shall be used and occupied only as a upscale dining
restaurant, as specified in the Lease Summary. The business of Tenant in the Premises shall be
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carried on under the name specified in the Lease Summary and under no other name unless approved
P rY
by Landlord in writing. Tenant shall carry on its business on the Premises in a reputable manner and
shall not do, omit, permit, or suffer to be done or exist upon the Premises anything which shall result in
a nuisance,hazard, or bring about a breach of any provision of this Lease or any applicable municipal
or other governmental law or regulation, or would otherwise be inconsistent with a first-class retail
center or incompatible with an upscale restaurant space.Tenant shall observe all reasonable rules and
regulations established by Landlord from time to time for the Retail Space. The rules and regulations in
effect as of the date hereof are attached to and made a part of this Lease as Exhibit"C." Landlord will
provide a copy of any amendments to the rules and regulations at least seven(7) days prior to the
effective date of any such amendments.
(b) Outdoor Dining. Subject to the regulatory approval of the City of Miami Beach (the
"City") and (if approved) Tenant's compliance with all applicable laws, ordinances, rules, and
regulations including, without limitation, the City's Sidewalk Café Ordinance(as same may be amended
from time to time), Tenant shall be entitled to use an the Exterior Retail Space and Sidewalk Café area
adjacent to and fronting the Retail Space and Washington Avenue (as further determined by the City's
Public Works Director and Planning Department Director) for use as an Outdoor Dining Area. Tenant
acknowledges that any such Outdoor Dining area must be approved, and subject to annual renewal (for
purposes of seating for and serving of Tenant's customers) by the City pursuant to the City's Sidewalk
Café and other permit procedures, and shall not be as a matter of right under the Lease. Further, any
such Sidewalk Café Permit and exterior dining permit will be issued as a revocable license consistent
with other exterior dining and sidewalk café permits in the City, along with the standard fees and costs
associated with that Permit (in addition to the rent and other charges described in this Lease). The
installation and maintenance of the Outdoor Dining area shall be subject to the obligations imposed
upon Tenant in this Lease with respect to Tenant's use and occupancy of the Premises, including, but
not limited to,Articles III and V of the Lease.
(c) Valet. Subject to City's regulatory approval and (if approved)Tenant's compliance
with all applicable laws, ordinances, rules, and regulations as same may be amended from time to time.
Tenant shall be entitled to use an outside area nearly adjacent to and fronting the Retail Space (in
accordance with typical valet permit approvals as further determined by the City's Parking Director) for
use of a Valet operation ("Valet"). Tenant acknowledges that any such Valet use must be approved,
and subject to annual renewal (and only for purposes of serving Tenant's customers) by the City
pursuant to the City's Valet Permit procedures, and shall not be as a matter of right under the Lease.
Further, any such Valet Permit will be issued as a revocable license consistent with other valet permits
in the City, along with the standard fees and costs associated with that Permit (in addition to the rent
and other charges described in this Lease). Landlord shall not be obligated to provide or reserve any
parking spaces, or make any accommodations for Tenant's Valet operation. Tenant's installation and
maintenance of the Valet area and operation shall be subject to the obligations imposed upon Tenant in
this Lease with respect to Tenant's use and occupancy of the Premises, including, but not limited to,
Articles III and V of the Lease.
(d) Design Approval for Exterior Appurtenances and Permitted Uses. The design and
specifications of any and all equipment, furnishings, or facilities within the Exterior Retail Space,
exterior permitted use as a sidewalk café, or any other exterior appurtenance to this Lease shall be
submitted for Landlord's prior written approval and shall remain subject to Landlord's future design
criteria for the Facility, as may be adopted from time to time.
3.2 Compliance with Laws. The Premises shall be used and occupied in a safe, careful,
and proper manner so as not to contravene any present or future laws, rules, regulations, constitutions,
orders, ordinances, charters, statutes, codes, executive orders, and requirements of all governmental
authorities having jurisdiction over the Premises or any street, road, avenue, or sidewalk comprising a part
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of, or lying in front of, the Premises or any vault in or under the Premises(including, without limitation,any
of the foregoing relating to handicapped access or parking, the local building codes, and the laws, rules,
regulations, orders, ordinances, statutes, codes, and requirements of any applicable Fire Rating Bureau or
other body exercising similar functions), the temporary and/or permanent certificate or certificates of
occupancy issued for the Premises as then in force, and any and all provisions and requirements of any
property, casualty, or other insurance policy required to be carried by Tenant under this Lease. If due to
Tenant's use of the Premises repairs, improvements, or alterations are necessary to comply with any of
the foregoing, Tenant shall pay the entire cost thereof.
3.3 Skins.Tenant, at Tenant's expense, shall erect and maintain identification signage upon
the storefront of the Premises. The design and specification of such signage shall be subject to
Landlord's sign criteria as adopted from time to time and such design and specification (including
camera-ready artwork) shall be submitted for Landlord's prior approval. Except with the prior written
consent of Landlord,and subject to the requisite governmental approvals,Tenant shall not erect, install,
display, inscribe, paint, or affix any signs, lettering, or advertising medium upon or above any exterior
portion of the Premises or in or on Tenant's storefront or storefront window.
3.4 Environmental Provisions.
(a) Tenant shall not knowingly incorporate into, use, or otherwise place or dispose of
at the Premises or in the Retail Space (or allow others to incorporate into, use, or otherwise place or
dispose of at the Premises or in the Retail Space) any Hazardous Materials, as hereinafter defined,
unless (i)such Hazardous Materials are for use in the ordinary course of business(i.e., as with office or
cleaning supplies), (ii)notice of and a copy of the current material safety data sheet is provided to
Landlord for each such Hazardous Material (except for Hazardous Materials used by Tenant in the
ordinary course of business (i.e., as with office or cleaning supplies)), and (iii)such materials are
handled and disposed of in accordance with all applicable governmental laws, rules, and regulations. If
Landlord or Tenant ever has knowledge of the presence in the Premises or the Retail Space of
Hazardous Materials which affect the Premises, such party shall notify the other thereof in writing
promptly after obtaining such knowledge. For purposes of this Lease, "Hazardous Materials" shall
mean: (a)petroleum and its constituents; (b)radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid
containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines,
whichever are more stringent; (c)any substance, gas, material or chemical which is or may hereafter be
defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous
wastes," "pollutants or contaminants," "solid wastes," or words of similar import under any applicable
governmental laws, rules, and regulations including, but not limited to,the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. §9061 et sea.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. §1801, et gel; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. §6901, et sea.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. § 1251, et sea.; and Florida Statutes, Chapters 376 and 403; and (d)any other
chemical, material, gas, or substance, the exposure to or release of which is regulated by any
governmental or quasi-governmental entity having jurisdiction over the Retail Space or the operations
thereon.
(b) If Tenant or its employees, agents, or contractors shall ever violate the provisions
of Subsection (a), above, then Tenant shall clean-up, remove, and dispose of the Hazardous Material
causing the violation, in compliance with all applicable governmental standards, laws, rules, and
regulations and repair any damage to the Premises or Retail Space within such period of time as may
be reasonable under the circumstances after written notice by Landlord, provided that such work shall
commence not later than thirty(30) days from such notice and be diligently and continuously carried to
completion by Tenant or Tenant's designated contractors. Tenant shall notify Landlord of its method,
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time, and procedure for any clean-up or removal of Hazardous Materials under this provision; and
Landlord shall have the right to require reasonable changes in such method, time, or procedure or to
require the same to be done after normal business hours or when the Retail Space is otherwise closed
(i.e., holidays) if reasonably required for the protection of other tenants or occupants of the Retail
Space.
(c) Tenant agrees to defend, indemnify, and hold harmless Landlord, and the City of
Miami Beach (the"City") against any and all claims, costs, expenses, damages, liability, and the like,
which Landlord may hereafter be liable for, suffer, incur, or pay arising under any applicable
environmental laws, rules, and regulations and resulting from or arising out of any breach of the
covenants contained in this Section 3.4, or out of any act, activity, or violation of any applicable
environmental laws, rules, and regulations on the part of Tenant, its agents, employees, or assigns.
Tenant's liability under this Section 3.4 shall survive the expiration or any termination of this Lease.
3.5 Hours: Continued Occupancv. During the Term, Tenant shall conduct its business in
the Premises, at a minimum, on all days and during all hours established by Landlord from time to time
as store hours for the Retail Space. Tenant may conduct business on the Premises, in addition to the
foregoing times, in Tenant's reasonable judgment in order to maximize sales from the Premises, at
Tenant's sole expense. However, Landlord shall not be responsible for providing common area or
other services during such additional hours. Tenant shall open the whole of the Premises for business
to the public, fully fixtured, stocked, and staffed before the Estimated Completion Date set forth in
item 23 of the Lease Summary, and shall continuously, actively, and diligently carry on the business
specified in Section 3.1 on the whole of the Premises during the Term, during such minimum hours and
upon such days as set forth in item 25 of the Lease Summary, except when prevented from doing so by
force majeure. Tenant acknowledges that its continued occupancy of the Premises and the regular
conduct of its business therein are of utmost importance to neighboring tenants and to Landlord in the
renting of space in the Retail Space, the renewal of other leases therein, the efficient and economic
supply of services and utilities. Tenant acknowledges that Landlord is executing this Lease in reliance
thereupon and that the same is a material element inducing Landlord to execute this Lease. Tenant
shall not keep or display any merchandise on or otherwise obstruct the common areas and shall not
sell, advertise, conduct, or solicit business anywhere within the Retail Space other than in the
Premises. Tenant shall ship and receive supplies, fixtures, equipment, furnishings, wares, and
merchandise only through the appropriate service and delivery facilities provided by Landlord; and shall
not park its trucks or other delivery vehicles or allow suppliers or others making deliveries to or
receiving shipments from the Premises to park in the parking areas, except in those parts thereof as
may from time to time be allocated by Landlord for such purpose. Tenant shall maintain available a
substantial stock of goods, wares, and merchandise adequate to ensure successful operation of
Tenant's business, and shall employ and maintain sales and other personnel sufficient at all times for
proper service to customers.
3.6 Prohibited Uses. Notwithstanding any other provisions of this Lease, Tenant shall not
use the Premises nor permit them to be used for any of the following purposes: (A)for the sale by
Tenant, as its principal business purpose, of any merchandise which Tenant, in the course of its normal
business practice, purchases at manufacturers' clearances or purchases of ends-of-runs, bankruptcy
stock, seconds, or other similar merchandise; (B)for the sale of second-hand goods, war surplus
articles, insurance salvage stock, fire sale stock, merchandise damaged by or held out to be damaged
by fire, except merchandise damaged by fire or smoke occurring in the Retail Space, and then only for
thirty(30) days after the date of any such damage; (C)as an auction or flea market; (D)for a
bankruptcy sale or going-out-of-business sale or liquidation sale or any similar sale, unless Tenant is in
fact in bankruptcy or is going out of business or is in liquidation, in which case such sale shall not
continue beyond thirty(30) days; (E)a business primarily used for an order office, mail order office, or
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catalogue store; or(F)any business in which Tenant is engaged in intentionally deceptive or fraudulent
advertising or selling practices or any other act or business practice contrary to honest retail practices.
3.7 Intentionally Omitted.
3.8 Exclusive Use. INTENTIONALY OMITTED.
ARTICLE IV. ACCESS AND ENTRY.
4.1 Right of Examination. Landlord shall be entitled at all reasonable times and upon reasonable
written notice, not less than 24 hours (but no notice is required in emergencies)to enter the Premises to examine
them if Landlord reasonably believes that Tenant is not complying with any of its obligations hereunder; to make
such repairs, alterations, or improvements thereto as Landlord considers necessary or reasonably desirable; to
have access to underfloor facilities and access panels to mechanical shafts and to check, calibrate, adjust, and
balance controls and other parts of the heating,air conditioning, ventilating,and climate control systems. Landlord
reserves to itself(and others acting on behalf of Landlord including,without limitation, the City)the right to install,
maintain, use, and repair pipes, ducts, conduits, vents, wires, and other installations leading in,through, over, or
under the Premises and for this purpose, Landlord may take all material into and upon the Premises which is
required therefor. Tenant shall not unduly obstruct any pipes, conduits, or mechanical or other electrical
equipment so as to prevent reasonable access thereto. Landlord reserves the right to use all exterior walls and
roof area. Landlord shall exercise its rights under this Section, to the extent possible in the circumstances, in such
manner so as to minimize interference with Tenant's use and enjoyment of the Premises and Tenant's property.
4.2 Right to Show Premises. Landlord and its agents have the right to enter the Premises at all
reasonable times and upon reasonable written notice not less than 24 hours to show them to prospective
purchasers, lenders, or anyone having a prospective interest In the Retail Space, and, during the last six(6)
months of the Term (or the last six(6) months of any renewal term if this Lease is renewed), to show them to
prospective tenants. Landlord shall exercise its rights under this Section, to the extent possible in the
circumstances, in such manner so as to minimize interference with Tenant's use and enjoyment of the Premises
and Tenant's property.
ARTICLE V. INITIAL CONSTRUCTION; MAINTENANCE,REPAIRS.AND ALTERATIONS.
5.1. Tenant's Construction Obligations.
(a) Subject to the provisions hereof, Tenant shall, at its expense, cause the construction and
installation of all improvements to the Premises in accordance with Tenant's Plans, as hereinafter defined,and as
necessary to permit Tenant to occupy same and conduct normal business operations (such improvements being
referred to herein as ('Tenant's Work"). The plans for such improvements shall be submitted to the Landlord for
the Landlord's prior written consent, which will not be unreasonably withheld or delayed. Tenant covenants and
agrees that it will invest, or cause to be invested, no less than $500,000 in hard construction costs on/to the
Premises to insure that an upscale restaurant is constructed.
(b) All permanent (fixed) improvements to the Premises shall remain the property of the Landlord
upon termination of the Lease. Upon the lawful termination of the Lease, all personal property and trade fixtures
(excluding Landlord's Personalty as defined in Section 5.5) may be removed by the Tenant from the Premises
without damage to the Premises.
(c) Any damage to the existing finishes of the Retail Space shall be patched and repaired by Tenant,
at its expense, and all such work shall be done to Landlord's satisfaction. If any patched and painted area does
not match the original surface, then the entire surface shall be repainted at Tenant's expense.Tenant agrees to
indemnify and hold harmless Landlord, its agents, and employees from and against any and all costs, expenses,
damage, loss, or liability, including, but not limited to, reasonable attorneys'fees and costs, which arise out of, is
occasioned by, or is in any way attributable to the build-out of the Premises or any subsequent improvements or
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alterations by Tenant pursuant to this Lease. Tenant, at its expense, shall be responsible for the maintenance,
repair, and replacement of any and all items constructed by Tenant's contractor.
(d) Tenant shall not alter the existing fire alarm system in the Premises or the Retail Space.Tenant's
Plans shall include detailed drawings and specifications for the design and installation of Tenant's fire alarm (and
security)system(s)for the Premises. Such system(s)shall meet all appropriate building code requirements, and
the fire alarm system shall, at Tenant's expense, be integrated into Landlord's fire alarm system for the Retail
Space. (Landlord is not required to provide any security system.)Landlord's electrical contractor and/or fire alarm
contractor shall, at Tenant's expense, make all final connections between Tenant's and Landlord's fire alarm
systems. Tenant shall insure that all work performed on the fire alarm system shall be coordinated at the job site
with the Landlord's representative.
(e) Tenant will permit no liens to attach to the Premises arising from, connected with or related to the
construction of the improvements. Moreover, such construction shall be accomplished through the use of
licensed, reputable contractors who are acceptable to Landlord. Any and all permits and or licenses required for
the installation of improvements shall be the sole responsibility of Tenant.
(f) The above requirements for submission of plans and the use of specific contractors shall not
apply to improvements, maintenance or repairs which do not exceed $20,000.00, provided that the work is not
structural, and provided that it is permitted by applicable law.
5.1.1. Tenant's Construction Escrow and Guaranties. Following Lease execution, and issuance by
the City of Tenant's full building permit, and prior to commencement of construction,Tenant shall execute a Work
Letter and Escrow Agreement, in the form attached hereto and incorporated herein by reference as Exhibit "E",
including a cash deposit, in the amount of the cost of the work (as such amount is set forth in the construction
contract between Tenant and its General Contractor)for the build-out of the Premises for the intended Use, which
will be deposited into Tenant's attorney's escrow account to guarantee the diligent and timely prosecution of
construction. At its sole discretion, the Landlord may also require that Tenant's General Contractor(G.C.)furnish
Landlord and the City with a Construction Completion Guaranty, and/or require Tenant's G.C. to furnish a
Payment and Performance Bond (in a form reasonably acceptable to and approved by the Landlord),
guaranteeing the performance of the G.C. under the construction contract. The Landlord and the City shall be
named as a dual obligee under such Bond. Additionally, Tenant shall be required to purchase Builder's Risk
insurance coverage.
5.2 Maintenance and Repairs by Landlord. It is hereby acknowledged and agreed that Landlord
shall maintain and repair the base building, mechanical and electrical system, and
y roof and foundation 0 of the
Retail Space(excluding any repair obligations of Tenant, as set forth in Section 5.3).Tenant will notify in writing of
any necessary repairs that are the obligation of Landlord. Landlord shall not be responsible for any damages
caused to Tenant by reason of failure of any equipment or facilities serving the Retail Space or delays in the
performance of any work for which the Landlord is responsible to perform pursuant to this Lease.
Notwithstanding any other provisions of this Lease, if any part of the Retail Space is damaged or destroyed or
requires repair, replacement, or alteration as a result of the act or omission of Tenant, its employees, agents,
invitees, licensees, or contractors, Landlord shall have the right to perform same and the cost of such repairs,
replacement, or alterations shall be paid by Tenant to Landlord upon demand. In addition, if, in an emergency, it
shall become necessary to make promptly any repairs or replacements required to be made by Tenant, Landlord
may re-enter the Premises and proceed forthwith to have the repairs or replacements made and pay the costs
thereof. Upon demand, Tenant shall reimburse Landlord for the cost of making the repairs. Landlord shall
exercise its rights under this Section in a manner so as to minimize any disruption or interference with the
operation of Tenant's business and property.
5.3 Maintenance and Repairs by Tenant. Tenant shall, at its sole cost, repair and maintain the
Premises, all to a standard consistent with a first class retail center, with the exception of base building,
mechanical and electrical systems, roof and foundation, which are the obligation of the Landlord pursuant to this
Lease. Without limiting the generality of the foregoing, Tenant is specifically required to maintain and make
repairs to and replace as needed (i)the portion of any pipes, lines, ducts, wires, or conduits contained within the
15
Premises including, without limitation, interior electrical and interior plumbing repairs; (ii)windows, plate glass,
doors, and any fixtures or appurtenances composed of glass (including, without limitation, interior and exterior
washing of windows and plate glass and the installation of hurricane shutters as provided by the Landlord);
(iii)Tenant's sign; (iv)any heating or air conditioning equipment serving the Premises ("HVAC") (which shall
include,without limitation, a preventive maintenance HVAC service contract. Such service contract shall include,
without limitation,preventive HVAC maintenance no less than quarterly);and(v)the Premises or the Retail Space
when repairs to the same are necessitated by any act or omission of Tenant,or the failure of Tenant to perform its
obligations under this Lease. All repair and maintenance performed by Tenant in the Premises shall be
performed by qualified contractors or workmen designated or approved by Landlord, which approval shall not be
unreasonably withheld or delayed. At the expiration or earlier termination of the Term,Tenant shall surrender the
Premises to Landlord in as good condition and repair as Tenant is required to maintain the Premises throughout
the Term, reasonable wear and tear excepted. Tenant shall also furnish, maintain, and replace all electric light
bulbs, tubes, and tube casings located within or serving the Premises and Tenant's signage, during the tenancy,
all at Tenant's sole cost and expense.
5.4 Approval of Tenant's Alterations. Unless otherwise provided herein, No alterations(including,
without limitation, improvements, additions, or modifications to the Premises) shall be made by Tenant to the
Premises without Landlord's prior written approval, which, as to exterior or structural alterations may be withheld
in Landlord's sole discretion. Any alterations by Tenant shall be performed at the sole cost of Tenant, by
contractors and workmen approved by Landlord,which approval shall not be unreasonably withheld or delayed, in
a good and workmanlike manner, and in accordance with all applicable laws and regulations.
5.5 Removal of improvements and Fixtures. All leasehold improvements and fixtures (other than
unattached, movable trade fixtures including entertainment lighting, audio systems,furniture, chandeliers, which
can be removed without damage to the Premises) shall at the expiration or earlier termination of this Lease
become Landlord's property. Tenant may, during the Term, in the usual course of its business, remove its trade
fixtures, provided that Tenant is not in default under this Lease; and Tenant shall, at the expiration or earlier
termination of the Term, at its sole cost, remove such of the leasehold improvements (except for improvements
installed by Landlord prior to the Commencement Date) and trade fixtures in the Premises as Landlord shall
require to be removed and restore the Premises to the condition existing prior to such removal.Tenant shall at its
own expense repair any damage caused to the Retail Space by such removal. If Tenant does not remove its
trade fixtures at the expiration or earlier termination of the Term,the trade fixtures shall, at the option of Landlord,
become the property of Landlord and may be removed from the Premises and sold or disposed of by Landlord in
such manner as it deems advisable without any accounting to Tenant. Notwithstanding the foregoing, the trade
fixtures and appurtenances which were provided to the Tenant as part of this Lease including, but not limited to,
those items delineated in the attached Exhibit G, incorporated herein by reference, shall remain property of the
Landlord ("Landlord's Personalty") and Tenant shall return (or pay the value of) Landlord's Personalty upon
termination of this Lease, based upon the values set forth in Exhibit"G". If Landlord's Personalty is replaced by
Tenant during the Term of this Lease (as defined in Section 1.1)the UCC-1 shall apply to the replaced Landlord
Personalty. Landlord shall not have any obligation to replace or repair Landlord's Personalty. Additionally,
simultaneously with the execution of this Lease, Tenant agrees to execute the UCC-1 form attached hereto and
incorporated herein as Exhibit G-1.
5.6 Liens. Tenant shall promptly pay for all materials supplied and work done in respect of the
Premises by, through, or under Tenant so as to ensure that no lien is recorded against any portion of the Retail
Space or against Landlord's or Tenant's interest therein. If a lien is so recorded, Tenant shall discharge it
promptly by payment or bonding. If any such lien against the Retail Space or Landlord's interest therein is
recorded and not discharged by Tenant as above required within fifteen(15) days following written notice to
Tenant, Landlord shall have the right to remove such lien by bonding or payment and the cost thereof shall be
paid immediately from Tenant to Landlord. Landlord and Tenant expressly agree and acknowledge that no
interest of Landlord in the Premises or the Retail Space shall be subject to any lien for improvements made by
Tenant in or for the Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant,
such liability being expressly prohibited by the terms of this Lease. In accordance with applicable laws of the
State of Florida, Landlord has filed in the public records of Dade County, Florida, a public notice containing a true
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and correct copy of this paragraph, and Tenant hereby agrees to inform all contractors and material suppliers
performing work in or for or supplying materials to the Premises of the existence of said notice.
5.7 Utilities. Tenant shall pay to Landlord, or to utility company, as applicable, all gas, electricity,
water, sewer,and other utility charges applicable to the Premises as separately metered. Tenant shall, at its own
cost, install, maintain and repair, as required, its electrical meter for the Premises. In addition,Tenant's electrical
equipment and lighting shall be restricted to that equipment and lighting which individually does not have a rated
capacity and/or design load greater than the rated capacity and/or design load of the Retail Space. If Tenant's
consumption of electrical services exceeds either the rated capacity and/or design load of the Retail Space, then
Tenant shall remove the equipment and/or lighting to achieve compliance within ten(10) days after receiving
written notice from Landlord,or such equipment and/or lighting may remain in the Premises,so long as(a)Tenant
shall pay for all costs of installation and maintenance of submeters, wiring, air-conditioning, and other items
required by Landlord, in Landlord's reasonable discretion, to accommodate Tenant's excess design loads and
capacities.
ARTICLE VI. INSURANCE AND INDEMNITY.
6.1 Tenant's Insurance.Tenant shall, throughout the Term(and any other period when Tenant is in
possession of the Premises),maintain at its sole cost the following insurance:
(A) All risks property insurance, containing a waiver of subrogation rights which Tenant's
insurers may have against Landlord and against those for whom Landlord is in law responsible including, without
limitation, its directors, officers, agents, and employees, and (except with respect to Tenant's chattels). Such
insurance shall insure property of every kind owned by Tenant in an amount not less than the full replacement
cost thereof(new), with such cost to be adjusted no less than annually. Such policy shall include as additional
insureds Landlord and its affiliates and any mortgagee of'Landlord, the City, and any mortgagee of the Landlord in
connection with a mortgage on the Facility and shall not have a coinsurance penalty provision.
(B) Comprehensive general liability insurance on an occurrence basis, including products
and completed operations, contractual liability property damage, bodily injury and personal and advertising injury
for vehicles while in the Tenant's care, custody and control. Such policy shall contain Inclusive limits per
occurrence of not less than the amount specified in the Lease Summary; provide for severability of interests; and
include as additional insureds Landlord and its affiliates and any mortgagee of Landlord, the City, and any
mortgagee of Landlord in connection with a mortgage on the Facility.
(C) Worker's compensation and employer's liability insurance in compliance with applicable
legal requirements.
(D) Business interruption Insurance, sufficient to insure Tenant for no less than one(1) full
year of loss of business,with the Landlord named thereon as loss payee to the extent permitted by applicable law.
(E) If beer, wine, liquor, or any other alcohol is being served at any time during the Lease
term within the Premises, Liquor liability insurance is required. Such policy shall contain inclusive limits per
occurrence of not less than the amount specified in the Lease Summary; provide for severability of interests; and
include as additional insureds Landlord and its affiliates and any mortgagee of Landlord, the City, and any
mortgagee of Landlord in connection with a mortgage on the Facility.
(F) Any other form of insurance which Tenant or Landlord, acting reasonably, requires from
time to time in form, in amounts, and for risks against which a prudent tenant would insure, but in any event not
less than that carried by comparable retail establishments in Dade County,Florida.
All policies referred to above shall: (i)be taken out with insurers licensed to do business in
Florida,with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to Landlord;(Ii)be in a
form reasonably satisfactory to Landlord; (iii)be non-contributing with, and shall apply only as primary and not as
excess to any other insurance available to Landlord or any mortgagee of Landlord; (iv)contain an undertaking by
17
the insurers to notify Landlord by certified mail not less than thirty(30) days prior to any material change,
cancellation,or termination,and(v)with respect to Subsection(A),contain replacement cost,demolition cost,and
increased cost of construction endorsements. Certificates of insurance on Landlord's standard form or, if required
by a mortgagee, copies of such insurance policies certified by an authorized officer of Tenant's insurer as being
complete and current, shall be delivered to Landlord promptly upon request. If Tenant fails to take out or to keep
in force any insurance referred to in this Section 6.1, or should any such insurance not be approved by either
Landlord or any mortgagee, and Tenant does not commence and continue to diligently cure such default within
two (2) business days after written notice by Landlord to Tenant specifying the nature of such default, then
Landlord has the right, without assuming any obligation in connection therewith, to effect such insurance at the
sole cost of Tenant and all outlays by Landlord shall be paid by Tenant to Landlord as additional rent without
prejudice to any other rights or remedies of Landlord under this Lease. Tenant shall not keep or use in the
Premises any article which may be prohibited by any fire or casualty insurance policy in force from time to time
covering the Premises or the Retail Space. Landlord represents that Tenant's permitted use doesn't violate any
policy carried by the Landlord.
Within twelve (12) days from the Date of Lease Execution, Tenant shall provide Landlord with the
required insurance certificates, endorsements or applicable policy language required under this Section. Failure
to obtain or maintain said required insurance coverages shall not waive the Tenant's obligation to provide them.
Landlord reserves the right to require complete certified copies of all required insurance policies, including
endorsements required by these specifications, at any time. Compliance with the requirements in this Section 6
shall not relieve the Tenant of his liability and obligation under this Section 6 or under any other Section of this
Lease.
6.2 Loss or Damage. Tenant acknowledges that the Landlord will be performing any maintenance
and repairs required of Landlord hereunder. Landlord shall not be liable for any death or injury arising from or out
of any occurrence in, upon,at,or relating to the Retail Space or damage to property of Tenant or of others located
on the Premises or elsewhere in the Retail Space, nor shall it be responsible for any loss of or damage to any
property of Tenant or others from any cause, unless such death, injury, loss, or damage results from the gross
negligence or willful misconduct of Landlord. Without limiting the generality of the foregoing, Landlord shall not be
liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, falling ceiling
tile, falling fixtures, steam, gas, electricity, water, rain, flood, or leaks from any part of the Premises or from the
pipes, sprinklers, appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of the Retail
Space or from the street or any other place or by dampness, or by any other cause whatsoever, unless resulting
from the gross negligence or willful misconduct of Landlord. Tenant agrees to indemnify Landlord and hold it
harmless from and against any and all loss(including loss of Minimum Rent and additional rent payable in respect
to the Premises), claims, actions, damages, liability, and expense of any kind whatsoever (including attorneys'
fees and costs at all tribunal levels), unless caused by the gross negligence or willful misconduct of Landlord,
arising from any occurrence in, upon, or at the Premises, or the occupancy, use, or improvement by Tenant or its
agents or invitees of the Premises or any part thereof, or occasioned wholly or in part by any act or omission of
Tenant its agents,employees,and invitees or by anyone permitted to be on the Premises by Tenant.
6.3 Waiver of Subrogation. Landlord and Tenant each hereby waives on behalf of itself and its
insurers (none of which shall ever be assigned any such claim or be entitled thereto due to subrogation or
otherwise)any and all rights of recovery,claim, action, or cause of action, against the other, its agents, officers,or
employees, for any loss or damage that may occur to the Premises, or any improvements thereto or the Retail
Space, or any improvements thereto, or any personal property of such party therein, by reason of fire, the
elements, or any other causes which are, or could or should be insured against under the terms of the standard
fire and extended coverage insurance policies referred to in this Lease, regardless of whether such insurance is
actually maintained and regardless of the cause or origin of the damage involved, including negligence of the
other party hereto, its agents, officers, or employees. Landlord (except with respect to losses for which Landlord
self-insures)and Tenant shall each obtain from their respective insurers,an endorsement under all policies of fire,
theft, public liability, worker's compensation, and other insurance (excluding with respect to losses for which
Landlord self-insures) maintained by either of them at any time during the term hereof insuring or covering the
Retail Space or any portion thereof or operations therein, a waiver of all rights of subrogation which the insurer of
one party might have against the other party; however, this provision applies regardless of whether or not
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Landlord or Tenant receive a waiver of subrogation endorsement from the other. Tenant shall indemnify, defend,
and hold harmless the Landlord and the City against any loss or expense, including reasonable attorneys' fees
(appellate or otherwise) resulting from the failure to obtain such waiver. As permitted by law and subject to the
limitations on Landlord's liability set forth in Section 768.28, Florida Statutes, Landlord shall indemnify, defend, and
hold harmless the Tenant against any loss or expense, including reasonable attorneys' fees (appellate or
otherwise)resulting from the failure to obtain such waiver.
ARTICLE VII. DAMAGE AND DESTRUCTION.
7.1 Damage to Premises.Tenant acknowledges that if the Premises are partially or totally destroyed
due to fire or other casualty, any repairs to or rebuilding of the damaged portions of the Retail Space will be
performed by Landlord and in any event only to the extent that Landlord is required to repair or rebuild the Retail
Space. If Landlord repairs or rebuilds, Rent shall abate proportionately to the portion of the Premises, if any,
rendered untenantable from the date of destruction or damage until the repairs have been substantially
completed. Upon being notified that the repairs have been substantially completed, Tenant shall diligently
perform all other work required to fully restore the Premises for use in Tenant's business, in every case at
Tenant's cost and without any contribution to such cost by Landlord, whether or not Landlord has at any time
made any contribution to the cost of supply, installation, or construction of leasehold Improvements in the
Premises. Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the
operation of its business within the Premises to the extent practicable. If all or any part of the Premises shall be
damaged by fire or other casualty and the fire or other casualty is caused by the fault or neglect of Tenant or
Tenant's agents,guest,or invitees,rent and all other charges shall not abate.
7.2 Termination for Damage. Notwithstanding Section 7.1, if damage or destruction which has
occurred to the Premises or the Retail Space is such that in the reasonable opinion of Landlord such
reconstruction or repair cannot be completed within one hundred twenty(120) days of the happening of the
damage or destruction, Landlord or Tenant may, at its option, terminate this Lease on notice to the other given
within thirty(30) days after such damage or destruction and Tenant shall immediately deliver vacant possession
of the Premises in accordance with the terms of this Lease.
In addition, if Landlord undertakes the reconstruction or repair, and does not complete same within
nine(9) months after the date of the fire or other casualty (subject to the time required to prepare plans for
reconstruction, to obtain building permits,to receive distribution of insurance proceeds,and to complete the likely
contract bidding process and all other relevant factors, but not to exceed an additional ninety(90) days), then
Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within thirty(30) days
after the expiration of such nine(9)month period(or as extended), whereupon both parties shall be relieved of all
further obligations hereunder,except as otherwise expressly set forth herein.
ARTICLE VIII. ASSIGNMENT.LEASES.AND TRANSFERS.
8.1 Transfer by Tenant. Tenant shall not enter into, consent to, or permit any Transfer, as
hereinafter defined, without the prior written consent of Landlord in each instance, which consent may not be
unreasonably withheld. For purposes of this Lease, "Transfer"means an assignment of this Lease in whole or in
part; a sublease of all or any part of the Premises;any transaction whereby the rights of Tenant under this Lease
or to the Premises are transferred to another;any mortgage or encumbrance of this Lease or the Premises or any
part thereof or other arrangement under which either this Lease or the Premises become security for any .
indebtedness or other obligations; and if Tenant is a corporation or a partnership, the transfer of a controlling
interest (greater than 50%) in the stock of the corporation or partnership interests, as applicable provided
transfers to family members and transfers to third parties of less than 50% of the stock of the Tenant are
permitted without Landlord consent. If there is a permitted Transfer, Landlord may collect rent or other payments
from the transferee and apply the net amount collected to the rent or other payments required to be paid pursuant
to this Lease but no acceptance by Landlord of any payments by a transferee shall be deemed a waiver of any
provisions hereof regarding Tenant. Notwithstanding any Transfer, Tenant shall not be released from any of its
obligations under this Lease. Landlord's consent to any Transfer shall be subject to the further condition that if the
Minimum Rent and additional rent pursuant to such Transfer exceeds the Minimum Rent and additional rent
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payable under this Lease, the amount of such excess shall be paid to Landlord. If, pursuant to a permitted
Transfer, Tenant receives from the transferee, either directly or indirectly, any consideration other than Minimum
Rent and additional rent for such.Transfer, either in the form of cash, goods, or services, Tenant shall, upon
receipt thereof, pay to Landlord an amount equivalent to such consideration. Landlord acknowledges that any
proceeds received in connection with the sale of Tenant's business (which sale shall include a corresponding
assignment of this Lease)shall belong exclusively to the Tenant and/or its principals).
ARTICLE IX. DEFAULT.
9.1 Defaults. A default by Tenant shall be deemed to have occurred hereunder, if and whenever:
(i)any Minimum Rent is not paid within 5 days from written notice or written demand for payment has been made
by Landlord; (ii)any other additional rent is in arrears and is not paid within five(5)days after written demand by
Landlord;(iii)Tenant has breached any of its obligations in this Lease(other than the payment of rent)and Tenant
fails to remedy such breach within thirty(30)days(or such shorter period as may be provided in this Lease), or.if
such breach cannot reasonably be remedied within thirty(30)days(or such shorter period),then if Tenant fails to
immediately commence to remedy and thereafter proceed diligently to remedy such breach, in each case after
notice in writing from Landlord; (iv)Tenant becomes bankrupt or insolvent; (v)any of Landlord's policies of
insurance with respect to the Retail Space are canceled or adversely changed as a result of Tenant's use or
occupancy of the Premises; or (vi)the business operated by Tenant in the Premises shall be closed by
governmental or court order for any reason.
9.2 Remedies. In the event of any default hereunder by Tenant, then without prejudice to any other
rights which it has pursuant to this Lease or at law or in equity, Landlord shall have the following rights and
remedies,which are cumulative and not alternative:
(A) Landlord may cancel this Lease by notice to Tenant and retake possession of the
Premises for Landlord's account, or may terminate Tenant's right to possession of the Premises without
terminating this Lease. In either event,Tenant shall then quit and surrender the Premises to Landlord. If Landlord
terminates Tenant's right to possession of the Premises without terminating this Lease, Tenant's liability under all
of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any re-entry,
repossession, or disposition hereunder.
(B) Landlord may enter the Premises as agent of Tenant to take possession of any property
of Tenant on the Premises, to store such property at the expense and risk of Tenant or to sell or otherwise
dispose of such property in such manner as Landlord may see fit without notice to Tenant. Re-entry and removal
may be effectuated by summary dispossess proceedings, by any suitable action or proceeding, or otherwise.
Landlord shall not be liable in any way in connection with its actions pursuant to this Section, to the extent that its
actions are in accordance with law.
(C) If Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under Subsection(A)above, Tenant shall remain liable(in addition to accrued liabilities)to the extent
legally permissible for all rent and all of the charges Tenant would have been required to pay until the date this
Lease would have expired had such cancellation not occurred. Tenant's liability for rent shall continue
notwithstanding re-entry or repossession of the Premises by Landlord. In addition to the foregoing, Tenant shall
pay to Landlord such sums as the court which has jurisdiction thereover may adjudge as reasonable attorneys'
fees with respect to any successful lawsuit or action instituted by Landlord to enforce the provisions of this Lease.
(D) Landlord may relet all or any part of the Premises for all or any part of the unexpired
portion of the Term of this Lease or for any longer period, and may accept any rent then attainable; grant any
concessions of rent, and agree to paint or make any special repairs, alterations, and decorations for any new
tenant as it may deem advisable in its sole and absolute discretion. Landlord shall be under no obligation to relet
or to attempt to relet the Premises,except as expressly set forth below and/or to the extent required by applicable
law.
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(E) If Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under Subsection(A) above, and Landlord so elects, the rent hereunder shall be accelerated and
Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the
remainder of the Term (reduced to present value using a discount factor equal to the stated prime lending rate on
the date of Tenant's default by Landlord's then existing mortgagee or, if there is no mortgagee, by Citibank, N.A.,
New York). Prior to or following payment in full by Tenant of such discounted sum promptly upon demand,
Landlord shall use good faith efforts to relet the Premises. If Landlord receives consideration as a result of a
reletting of the Premises relating to the same time period for which Tenant has paid accelerated rent, such
consideration actually received by Landlord, less any and all of Landlord's cost of repairs, alterations, additions,
redecorating, and other expenses in connection with such reletting of the Premises,shall be a credit against such
discounted sum, and such discounted sum shall be reduced if not yet paid by Tenant as called for herein, or if
Tenant has paid such discounted sum,such credited amount shall be repaid to Tenant by Landlord(provided said
credit shall not exceed the accelerated amount).
(F) Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the
account of Tenant and to enter upon the Premises for such purposes. No notice of Landlord's intention to perform
such covenants need be given Tenant unless expressly required by this Lease. Landlord shall not be liable to
Tenant for any loss or damage caused by the reasonable acts of Landlord in remedying or attempting to remedy
such default and Tenant shall pay to Landlord all expenses incurred by Landlord in connection with remedying or
attempting to remedy such default. Any expenses incurred by Landlord shall accrue interest from the date of
payment by Landlord until repaid by Tenant at the highest rate permitted by law.
9.3 Costs. If Landlord or Tenant has to enforce the terms of this Lease, the prevailing party shall be
entitled to collect all costs incurred by the prevailing party, including attorneys'fees and costs at all tribunal levels.
In addition,upon any default by Tenant,Tenant shall be also liable to Landlord for the expenses to which Landlord
may be put in re-entering the Premises; repossessing the Premises; painting, altering, or dividing the Premises;
combining the Premises with an adjacent space for any new tenant; putting the Premises in proper repair;
protecting and preserving the Premises by placing watchmen and caretakers therein; reletting the Premises
(including attorneys' fees and disbursements, marshall's fees, and brokerage fees, in so doing); and any other
expenses reasonably incurred by Landlord.
9.4 Additional Remedies: Waiver. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereinafter provided by law. All rights and remedies shall be
cumulative and non-exclusive of each other. No delay or omission by Landlord in exercising a right or remedy
shall exhaust or impair the same or constitute a waiver of,or acquiescence to, a default.
9.5 Default by Landlord. In the event of any default by Landlord,Tenant's exclusive remedy shall be
an action for damages or injunction, but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall have a period of thirty(30)days following the date of such notice
in which to cure such default (provided, however, that if such default reasonably requires more than thirty(30)
days to cure, Landlord shall have a reasonable time to cure such default, provided Landlord commences to cure
within such thirty(30) day period and thereafter diligently prosecutes such cure to completion). Notwithstanding
any provision of this Lease, Landlord shall not at any time have any personal liability under this Lease. In the
event of any breach or default by Landlord of any term or provision of this Lease,Tenant agrees to look solely to
the equity or interest then-owned by Landlord in the Retail Space, and in no event shall any deficiency judgment
be sought or obtained against Landlord. It is expressly understood that the obligations of Landlord under this
Lease are solely corporate obligations, and that, except for conversion,fraud, or willful misconduct, no personal
liability will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, or
employees, as such, of the Landlord, or of any successor corporation, or any of them, under or by reason of the
obligations, covenants, or agreements of Landlord contained in this Lease or implied therefrom; and, except for
conversion, fraud, or willful misconduct, that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer, director, or employee, as such, or under or by reason of the obligations, covenants or
agreements contained in this Lease or implied therefrom are expressly waived and released as a condition of,
and as a consideration for,the execution of this Lease.
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ARTICLE X. ESTOPPEL CERTIFICATE:SUBORDINATION.
10.1 Estoppel Certificate. Within ten(10)days after written request by Landlord,Tenant shall deliver
in a form supplied by Landlord, an estoppel certificate to Landlord as to the status of this Lease, including whether
this Lease is unmodified and in full force and effect(or, if there have been modifications, that this Lease is in full
force and effect as modified and identifying the modification agreements); the amount of Minimum Rent and
additional rent then being paid and the dates to which same have been paid;whether or not there is any existing
or alleged default by either party with respect to which a notice of default has been served, or any facts exist
which, with the passing of time or giving of notice, would constitute a default and, if there is any such default or
facts, specifying the nature and extent thereof; and any other matters pertaining to this Lease as to which
Landlord shall request such certificate. Landlord, and any prospective purchaser, lender, or ground lessor shall
have the right to rely on such certificate.
10.2 Subordination: Attornment. This Lease and all rights of Tenant shall be subject and
subordinate to any and all mortgages, security agreements, or like instruments resulting from any financing,
refinancing, or collateral financing (including renewals or extensions thereof), and to any and all ground leases,
made or arranged by Landlord of its interests in all or any part of the Retail Space,from time to time in existence
against the Retail Space, whether now existing or hereafter created. Such subordination shall not require any
further instrument to evidence such subordination. However, on request, Tenant shall further evidence its
agreement to subordinate this Lease and its rights under this Lease to any and all documents and to all advances
made under such documents. The form of such subordination shall be made as required by Landlord, its lender,
ground lessor, the City. Tenant shall, if requested by Landlord, or a mortgagee, owner, or purchaser, or by any
person succeeding to the interest of such mortgagee,owner,or purchaser, as the result of the enforcement of the
remedies provided by law or the applicable instrument held by Landlord, such mortgagee, owner, or purchaser,
automatically attorn to and become the tenant of Landlord or any such mortgagee, owner, purchaser, or
successor-in-interest, without any change in the terms or other provisions of this Lease; provided, however, that
Landlord, said mortgagee, owner, purchaser, or successor shall not be bound by (a)any payment of rent or
additional rent for more than one(1)month in advance,or(b)any security deposit or the like not actually received
by Landlord, such mortgagee, owner, or purchaser, or successor, or (c)any amendment or modification in this
Lease made without the consent of Landlord, such mortgagee, owner, purchaser, or successor, or (d)any
construction obligation, free rent, or other concession or monetary allowance, or(e)any set-off, counterclaim, or
the like otherwise available against Landlord, or(f)any act or omission of any prior landlord (including Landlord).
Upon request by Landlord, said mortgagee, owner, or purchaser, or successor, Tenant shall execute and deliver
an instrument or instruments confirming its attornment.
Notwithstanding the foregoing, any such subordination of this Lease shall be conditioned on the Landlord
obtaining a nondisturbance agreement in favor of Tenant from all mortgagees and ground lessors regarding any
financings or other leases entered into by Landlord with respect to the Retail Space,and no subordination shall be
effective without a corresponding nondisturbance agreement.
ARTICLE XI. CONTROL OF RETAIL SPACE BY LANDLORD.
11.1 Use and Maintenance of Common Areas. Tenant and those doing business with Tenant for
purposes associated with Tenant's business on the Premises, shall have a non-exclusive license to use the
common areas for their intended purposes during normal business hours in common with others entitled thereto
and subject to any rules and regulations imposed by Landlord. Landlord shall use reasonable efforts to keep the
common areas in good repair and condition and shall clean the common areas when necessary. Tenant
acknowledges that any common areas of the Retail Space shall at all times be under the exclusive control and
management of Landlord. For purposes of this Lease,"common areas"shall mean those areas,facilities, utilities,
improvements, equipment, and installations of the Retail Space which serve or are for the benefit of tenants of
more than one component of the Retail Space and which are not designated or intended by Landlord to be leased,
from time to time, or which are provided or designated from time to time by Landlord and/or the City for the benefit
or use of all tenants in the Retail Space,their employees,customers,and invitees, in common with others entitled
to the use or benefit of same. Tenant acknowledges that the Garage portion of the Facility is not a part of the
Retail Space, and that Tenant has no right or license to use the Garage pursuant to this Lease. Any use by
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Tenant or its invitees of the Garage is subject to the rules and regulations in connection therewith imposed by
Landlord (or successor owner) and/or the operator of the Garage. No portion of the garage is under Landlord's
control or supervision, and Landlord shall not be liable for any damage to automobiles of any nature whatsoever
to,or any theft of, automobiles or other vehicles or the contents thereof,while in or about the Garage.
11.2 Alterations by Landlord. Landlord and/or the City may (but shall not be obligated to) (i)alter,
add to, subtract from, construct improvements on, re-arrange, and construct additional facilities in, adjoining, or
proximate to the Retail Space; (ii)relocate the facilities and improvements in or comprising the Retail Space or
erected on the Land; (iii)do such things on or in the Retail Space as required to comply with any laws, by-laws,
regulations, orders, or directives affecting the Land or any part of the Retail Space;and (iv)do such other things
on or in the Retail Space as Landlord and/or the City, in the use of good business judgment determines to be
advisable, provided that notwithstanding anything contained in this Section 11.2, access to the Premises shall be
available at all times. Landlord shall not be in breach of its covenants for quiet enjoyment or liable for any loss,
costs, or damages, whether direct or indirect, incurred by Tenant due to any of the foregoing; provided, Landlord
shall exercise its rights under this Section in a manner so as to minimize any disruption or interference with the
operation of Tenant's business and property.
ARTICLE XII. CONDEMNATION.
12.1 Total or Partial Taking. If the whole of the Premises, or such portion thereof as will make the
Premises unusable for the purposes leased hereunder, shall be taken by any public authority under the power of
eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease as of the
day possession or title shall be taken by such public authority, whichever is earlier ("Taking Date"), whereupon
the rent and all other charges shall be paid up to the Taking Date with a proportionate refund by Landlord of any
rent and all other charges paid for a period subsequent to the Taking Date. If less than the whole of the
Premises, or less than such portion thereof as will make the Premises unusable for the purposes leased
hereunder,the Term shall cease only as to the part so taken as of the Taking Date,and Tenant shall pay rent and
other charges up to the Taking Date, with appropriate credit by Landlord(toward the next installment of rent due
from Tenant)of any rent or charges paid for a period subsequent to the Taking Date. Minimum Rent and other
charges payable to Landlord shall be reduced in proportion to the amount of the Premises taken.
12.2 Award. All compensation awarded or paid upon a total or partial taking of the Premises or Retail
Space including the value of the leasehold estate created hereby shall belong to and be the property of Landlord
without any participation by Tenant; Tenant shall have no claim to any such award based on Tenant's leasehold
interest. However, nothing contained herein shall be construed to preclude Tenant, at its cost, from
independently prosecuting any claim directly against the condemning authority in such condemnation proceeding
for damage to, or cost of removal of, stock, trade fixtures, furniture, and other personal property belonging to
Tenant and for Tenant's moving expenses; provided, however, that no such claim shall diminish or otherwise
adversely affect Landlord's award or the award of any mortgagee.
ARTICLE XIII. PROMOTION.
13.1 Promotional Fund: Merchants'Association. Intentionally Omitted.
ARTICLE XIV. GENERAL PROVISIONS.
14.1 Delay. Whenever a period of time is herein prescribed for the taking of any action by Landlord or
Tenant, as applicable, Landlord or Tenant, as applicable, shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, or governmental laws, regulations, or restrictions in the nature of a prohibition or
moratorium, or any bona fide delay beyond the reasonable control of Landlord or Tenant, as applicable. The
foregoing shall not apply to any payments of money due under this Lease.
14.2 Holding Over. If Tenant remains in possession of the Premises after the end of the Term without
having executed and delivered a new lease or an agreement extending the Term, there shall be no tacit renewal
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of this Lease or the Term, and Tenant shall be deemed to be occupying the Premises as a Tenant from month to
month at a monthly Minimum Rent payable in advance on the first day of each month equal to twice the monthly
amount of Minimum Rent payable during the last month of the Term, and otherwise upon the same terms as are
set forth in this Lease,so far as they are applicable to a monthly tenancy.
14.3 Waiver; Partial Invalidity. If Landlord excuses or condones any default by Tenant of any
obligation under this Lease, this shall not be a waiver of such obligation in respect of any continuing or
subsequent default and no such waiver shall be implied. All of the provisions of this Lease are to be construed as
covenants even though not expressed as such. If any provision of this Lease is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Lease and the remaining provisions of this
Lease shall remain in force and bind the parties as though the illegal or unenforceable provision had never been
included in this Lease.
14.4 Recording. Neither Tenant nor anyone claiming under Tenant shall record this Lease or any
memorandum hereof in any public records without the prior written consent of Landlord.
14.5 Financial Records. Landlord shall have the right to periodically review Tenant's financial
records and statement of operations no more than once per year.
14.6 Notices. Any notice, consent, or other instrument required or permitted to be given under this
Lease shall be in writing and shall be delivered in person, or sent by certified mail, return receipt requested, or
overnight express mail courier, postage prepaid,addressed(i)if to Landlord,at the address set forth in the Lease
Summary; and (ii)if to Tenant, at the Premises or, prior to Tenant 's occupancy of the Premises, at the
address(es) set forth on the Lease Summary. Any such notice or other instruments shall be deemed to have
been given and received on the day upon which personal delivery is made or, if mailed,then forty-eight(48)hours
following the date of mailing. Either party may give notice to the other of any change of address and after the
giving of such notice, the address therein specified is deemed to be the address of such party for the giving of
notices. If postal service is interrupted or substantially delayed, all notices or other instruments shall be delivered
in person or by overnight express mail courier.
14.7 Successors; Joint and Several Liability. The rights and liabilities created by this Lease extend
to and bind the successors and assigns of Landlord and the heirs, executors, administrators, and permitted
successors and assigns of Tenant. No rights, however, shall inure to the benefit of any transferee unless such
Transfer complies with the provisions of Article VIII. If there is at any time more than one Tenant or more than
one person constituting Tenant, their covenants shall be considered to be joint and several and shall apply to
each and every one of them.
14.8 Captions and Section Numbers. The captions, section numbers, article numbers, and table of
contents appearing in this Lease are inserted only as a matter of convenience and in no way affect the substance
of this Lease.
14.9 Extended Meanings. The words"hereof,""hereto,""hereunder,"and similar expressions used in
this Lease relate to the whole of this Lease and not only to the provisions in which such expressions appear. This
Lease shall be read with all changes in number and gender as may be appropriate or required by the context.
Any reference to Tenant includes, when the context allows, the employees, agents, invitees, and licensees of
Tenant and all others over whom Tenant might reasonably be expected to exercise control. This Lease has been
fully reviewed and negotiated by each party and their counsel and shall not be more strictly construed against
either party.
14.10 Entire Agreement; Governing Law; Time. This Lease and the Exhibits and Riders, if any,
attached hereto are incorporated herein and set forth the entire agreement between Landlord and Tenant
concerning the Premises and there are no other agreements or understandings between them. This Lease and
its Exhibits and Riders may not be modified except by agreement in writing executed by Landlord and Tenant.
This Lease shall be construed in accordance with and governed by the laws of the State of Florida. Time is of the
essence of this Lease.
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14.11 No Partnership. The parties hereby acknowledge that it is not their intention under this Lease to
create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership, or
agency relationship. Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this
Lease, whether based on the calculation of rental or otherwise, shall be construed or deemed to create, or to
express an intent to create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or
agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this Section
shall survive expiration of the Term.
14.12 Quiet Enlovment. If Tenant pays rent and other charges and fully observes and performs all of
its obligations under this Lease, Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the
Term without interruption or interference by Landlord or any person claiming through Landlord.
14.13 Brokerage. Landlord and Tenant each represent and warrant one to the other that except as set
forth in the Lease Summary, neither of them has employed any broker in connection with the negotiations of the
terms of this Lease or the execution thereof. Landlord and Tenant hereby agree to indemnify and to hold each
other harmless against any loss, expense, or liability with respect to any claims for commissions or brokerage
fees arising from or out of any breach of the foregoing representation and warranty. Landlord recognizes the
broker(s)specified in the Lease Summary as the sole broker(s)with whom Landlord has dealt in this transaction
and agrees to pay any commissions determined to be due said broker(s).
14.14 Radon Notice. Chapter 88-285, Laws of Florida, 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 GAS: Radon is a naturally occurring radioactive gas that,when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county public health unit.
14.15 Execution. This Lease has been submitted for discussion purposes only and shall not be
deemed an offer by either party to the other to enter into this Lease unless and until this Lease shall have been
executed by both parties,indicating their acceptance of the terms and conditions contained herein.
14.16 PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD,
SERVICE ARTICLES OR PLASTIC STRAWS. Pursuant to Section 82-7 of the City Code, as may be amended
from time to time, effective August 2, 2014, the City has prohibited the use of expanded polystyrene food service
articles by City Contractors, in connection with any City contract, lease, concession agreement or Special event
permit. Additionally, pursuant to Section 82-385 of the City Code, as may be amended from time to time, no
polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food service articles can
be provided to sidewalk café patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene is more
particularly defined as blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical
materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to,
fusion of polymer spheres (expandable bead foam), injection molding, foam molding, and extrusion-blown
molding(extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls,cups, containers, lids, trays,coolers, ice chests,
and all similar articles that consist of expanded polystyrene.
Tenant agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food service articles at
the Premises or in connection with this Lease. Tenant shall ensure that all vendors operating in the Premises
abide by the restrictions contained in this Section 14.16. A violation of this Section shall be deemed a default
under the terms of this Lease.This Subsection shall not apply to expanded polystyrene food service articles used
for prepackaged food that have been filled and sealed prior to receipt by the Tenant or its vendors.
25
L\ .
r with Section 46-92 (c) of the City
Additionally, Tenant agrees to comply (and ensure compliance by its vendors) t Se ( ) y
Code, which states that it is unlawful for any person to carry gay expanded polystyrene product onto any beach or
into any park within the City or for any business to provide plastic straws with the service or delivery of any
beverage to patrons on the beach.
14.17 TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
EXECUTED as of the day and year first above written.
Vn l%I
ATTEST: ?�:� •'. i LANDLORD:
•
* •: ��'e ``'` i MIAMI BEACH REDEVELOPMENT A_ a ublic
INCORP ORATED: $ body corporate and politic
de AyzmII^''��r'I, y:
,, /RAFAEL E. GRA�A°�`�
ETARY PHILIP LEVINE, CH�►IRM .,'�
1r' DEC 2 4 2015
/
DEC 282015
(Print Name)
ATTEST: TENANT:
CUBICHE 105, LLC
74-- -
�. By: l 0 r
Name/Title: L tar .17 2-.' 11_-
N()AAA 'moo`.
(Print Name)
APPROVED AS TO
FORM & LANGUAGE
L/L sl & R E ECUTION
Print Name '��
Redevelopment Agency; . Date
General Counsel
F:\ATTO\TORG\ASSET1Anchor Shops\Bar-B-Cue Beach\Cubiche 105 Lease City Final 11-30-2015
26
EXHIBIT"A"
Legal Description
Lots 8, 9, 10, 11, 12 and 13, Block 57, Fisher's First Subdivision of Alton Beach, according to the Plat
thereof, as recorded in Plat Book 2, Page 77 of the Public Records of Dade County, Florida, together
with all of 16th Street(Avenue"C"), less and except the following described parcel:
BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of Alton Beach Plat;
thence North 88° 0' 53" East along the South line of said Block 54, a distance of 443.08 feet, to the
Southeast corner of said Block 54; thence South 07° 35'04"West, a distance of 96.26 feet, to a point of
cusp with a tangent curve concave to the Southwest; thence along the arc of said curve to the left,
having a radius of 25.00 feet and a central angel of 90°00' 00", an arc distance of 39.27 feet, to a point
of tangency; thence North 82° 24' 52" West, a distance of 24.75 feet; thence South 88° 00' 53" West
along a line 8.00 feet North of and parallel with, as measured at right angles to the North line of Block
57 of said plat, a distance of 382.18 feet to a point on the Easterly Right-of-Way line of Washington
Avenue; thence North 01° 59' 11" West along said Easterly Right-of-Way line, a distance of 62.00 feet
to the Southwest corner of said Block 54 and the Point of beginning.
Said lands lying and being in the City of Miami Beach and containing 65,910 square feet(1.5131 Acres)
more or less.
)(\
EXHIBIT"B"
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Site Plan for Premises
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EXHIBIT"C"
RULES AND REGULATIONS
1. Security. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Retail Space, any persons occupying, using, or entering the same, or any
equipment, furnishings, or contents thereof, and Tenant shall comply with Landlord's reasonable
requirements relative thereto.
2. Return of Keys. At the end of the Term, Tenant shall promptly return to Landlord all
keys for the Retail Space and Premises which are in the possession of Tenant. In the event any
Tenant fails to return keys, Landlord may retain $100.00 of Tenant's security deposit for locksmith work
and administration.
3. Repair, Maintenance,Alterations, and Improvements.Tenant shall carry out Tenant's
repair, maintenance, alterations, and improvements in the Premise_s only during times agreed to in
advance by Landlord and in a manner which will not interfere with the rights of other Tenant's in the
Retail Space.
4. Water Fixtures. Tenant shall not use water fixtures for any purpose for which they are
not intended, nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting
from such misuse by Tenant shall be paid for by Tenant.
. 5. Personal Use of Premises. The Premises shall not be used or permitted to be used for
residential, lodging, or sleeping purposes or for the storage of personal effects or property not required
for business purposes.
6. Heavy Articles. Tenant shall not place in or move about the Premises without
Landlord's prior written consent any safe or other heavy article which in Landlord's reasonable opinion
may damage the Premises, and Landlord may designate the location of any such heavy articles in the
Premises.
7. Bicycles, Animals. Tenant shall not bring any animals or birds into the Retail Space,
and shall not permit bicycles or other vehicles inside or on the sidewalks outside the Retail Space
except in areas designated from time to time by Landlord for such purposes.
8. Deliveries. Tenant shall ensure that deliveries of supplies, fixtures, equipment,
furnishings, wares, and merchandise to the Premises are made through such entrances, elevators, and
corridors and at such times as may from time to time be designated by Landlord, and shall promptly
pay or cause to be paid to Landlord the cost of repairing any damage in the Retail Space caused by
any person making improper deliveries.
9. Solicitations. Landlord reserves the right to restrict or prohibit canvassing, soliciting, or
peddling in the Retail Space.
10. Food and Beverages. Only persons approved from time to time by Landlord may
prepare, solicit orders for, sell, serve, or distribute foods or beverages in the Retail Space, or use the
common areas for any such purpose. Except with Landlord's prior written consent and in accordance
with arrangements approved by Landlord, Tenant shall not permit on the Premises the use of
equipment for dispensing food or beverages or for the preparation, solicitation of orders for, sale,
serving, or distribution of food or beverages.
11. Refuse. Tenant shall place all refuse in proper receptacles provided by Tenant at its
expense in the Premises or in receptacles (if any) provided by Landlord for the Retail Space, and shall
keep sidewalks and driveways outside the Retail Space, and lobbies, corridors, stairwells, ducts, and
shafts of the Retail Space,free of all refuse.
12. Obstructions. Tenant shall not obstruct or place anything in or on the sidewalks or
driveways outside the Retail Space or in the lobbies, corridors, stairwells, or other common areas, or
use such locations for any purpose except access to and exit from the Premises without Landlord's
prior written consent. Landlord may remove at Tenant's expense any such obstruction or thing caused
or placed by Tenant(and unauthorized by Landlord)without notice or obligation to Tenant.
13. Proper Conduct. Tenant shall not conduct itself in any manner which is inconsistent
with the character of the Retail Space as a first quality retail center or which will impair the comfort and
convenience of other Tenant's in the Retail Space.
14. Emplovees. Agents. and Invitees. In these Rules and Regulations, "Tenant" includes
the employees, agents, invitees, and licensees of Tenant and others permitted by Tenant to use or
occupy the Premises.
15. Pest Control. In order to maintain satisfactory and uniform pest control throughout the
Retail Space, Tenant shall engage for its own Premises and at its sole cost, a qualified pest
extermination contractor either designated or approved by Landlord, who shall perform pest control and
extermination services in the Premises at such intervals as reasonably required or as may be directed
by Landlord.
EXHIBIT"D"
Prohibited Uses
1. In no event may the primary business at the Premises be a cocktail lounge.
2. In no event may the primary business at the Premises be the sale of clothing sold under the
following brand names: Dolce & Gabbana; Versace Jeans Couture; B.C.B.G.; Diesel; Replay; Polo
Sport; Polo Jeans; and Ralph Lauren; and shoes sold under the following brand names: Charles
David; Calvin Klein; Kenneth Cole; SoHo Shoes;Via Spiga; and Milano.
3. In no event may the primary business at the Premises engage in the sale of custom or
designer jewelry.
4. In no event may the primary business at the Premises engage in the sale of swimwear, beach
attire or related accessories.
5. In no event may the primary business at the Premises be the sale of athletic and/or other
types of sporting footwear, retail apparel and related general merchandise.
1
EXHIBIT"E"
WORK LETTER AND ESCROW AGREEMENT
THIS WORK LETTER AND ESCROW AGREEMENT(this "Work Letter") is attached to
and made a part of that certain Lease (the "Lease"), dated this 28 day of DECEMBER
2015, by and between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate
and politic (the, "Landlord"), and CUBICHE 105, LLC, a Florida limited liability company
("Tenant") and ZARCO, EINHORN SALKOWSKI & BRITO, P.A. ("Escrow Agent"). The terms
and provisions of the Lease are hereby incorporated into this Work Letter by reference. In the
event of any inconsistencies between this Work Letter and the Lease, the provisions of this
Work Letter shall control. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Lease. The term "Landlord" as used herein, refers to the
Miami Beach Redevelopment Agency ("RDA"), acting in its proprietary capacity as owner and
landlord and not in its governmental capacity.
In consideration of the execution of the Lease, the mutual covenants and conditions
hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Landlord,Tenant and Escrow Agent agree as follows:
I. CONSTRUCTION OF TENANT'S WORK; TENANT DEPOSIT:
1. Building Shell; Construction of Tenant's Work. The terms of the Lease contemplate
that Landlord shall deliver the Premises to Tenant with improvement previously made by the
prior Tenant in "As Is" condition and, subject to the terms, covenants and conditions set forth in
this Work Letter, Tenant shall build-out, construct and/or install, at Tenant's sole cost and
expense, such walls, partitions, fixtures and other improvements in and to the Premises as
Tenant deems necessary or desirable in order to make the Premises suitable for Tenant's
intended use (the "Tenant's Work"). This Work Letter sets forth the agreement of Landlord and
Tenant with respect to the construction and/or installation of the Tenant's Work, and all ancillary
matters connected therewith and Tenant's deposit into escrow of certain funds, the
disbursement of which is governed hereby.
2. Tenant Deaosit. Simultaneously with execution of this Work Letter, Tenant shall
deposit with Escrow Agent the sum of Five Hundred Thousand Dollars ($500,000.00) (the
"Tenant Construction Fund") to be paid as follows simultaneously with execution hereof, receipt
of which Escrow Agent hereby acknowledges. Escrow Agent shall give written notice to
Landlord promptly after receipt of the Tenant Construction Fund. Failure of Tenant to make the
Tenant Construction Fund on or before the date when due shall constitute a default by Tenant
under this Work Letter and under the Lease and shall entitle Landlord to exercise all remedies
available thereunder or at law or in equity for Tenant's default. The Tenant Construction Fund
shall be held and disbursed by Escrow Agent in accordance with the terms of this Work Letter to
pay actual Hard Costs of constructing the Tenant's Work. In no event, however, shall any
portion of the Tenant Construction Fund be used to pay any"Soft Costs." As used herein, "Hard
Costs" shall mean direct contractor costs of labor, material, equipment, services, and profit.
Soft Costs shall include, without limitation, architectural, engineering and legal fees; costs of
financing, insurance, bonding, and security; impact fees; utility hook-up fees; costs of permits;
pre-construction and post-construction expenses, and all other costs that are not direct costs of
construction. All Soft Costs shall be paid as and when due from Tenant's own funds other than
the Tenant Construction Fund.
1
3. No Unused Tenant Construction Fund. Upon final completion of the Tenant's
Work, and payment of the unpaid hard costs for such Tenant's Work, Tenant shall not have the
right to receive any unused portion of the Tenant Construction Fund, if any. Any unused
portion of the Tenant Construction Fund after completion of the Tenant's Work shall be
deemed forfeited to Landlord as Additional Rent. Tenant recognizes and agrees that Tenant
has committed to expend not less than Five Hundred Thousand Dollars ($500,000.00)
towards Hard Costs of construction of the Tenant's Work. Tenant's failure to do so within two
hundred ten (210 ) days from the Commencement Date (as defined in item 14 of the Lease
Summary) of the Lease shall (a) constitute a default by Tenant under the Lease and entitle
Landlord to exercise all remedies available under the Lease or this Work Letter or at law for
Tenant's default; and (b) result in forfeiture to Landlord of any unexpended portion of the
Tenant Construction Fund as Additional Rent under the Lease.
4. Services: Landlord's Inspection. During build-out of the Tenant's Work, Tenant
shall be responsible for procuring, at its own cost and expense, any and all utilities or services
necessary in connection therewith. Tenant shall be responsible for the cost of any additional
security which may be required as a result of Tenant's construction of the Tenant's Work, which
costs are Soft Costs and may not be paid out of the Tenant Construction Fund.
5. Delay in Substantial Completion. Tenant shall not commence construction of
Tenant's Work until the date specified by Landlord ("Start Date") to Tenant in written notice,
which date shall not exceed ten (10) days from the occurrence of all the following (1)The date
Tenant provides the deposit under the Lease, (2) receipt of escrow letter from Escrow Agent
evidencing the deposit of the Tenant Construction Fund, and (3) all approvals of all insurance
requirements under the Lease and this Work Letter and Escrow Agreement Tenant shall use its
best efforts to Substantially Complete the Tenant's Work in accordance with the Tenant's
Construction Drawings (as hereinafter defined), not later than the Estimated Completion Date.
The"Estimated Completion Date"shall be 210 days after the Commencement Date (as defined
in item 14 of the Lease Summary). "Substantial Completion" shall mean the date that(i) a final
Certificate of Occupancy has been issued for the Premises and (ii) the Tenant's Work is
sufficiently complete so as to allow Tenant to occupy the Premises for the purpose of
conducting its business therein.
6. Landlord's Disclaimer. Notwithstanding the issuance of any approvals or consents
by the Landlord, Landlord has no obligation or responsibility whatsoever for the adequacy, form
or content of the Tenant's Construction Drawings, any contract, any change order, or any other
matter incident to the Premises or the construction of the Tenant's Work. Any inspection of the
Premises or the Tenant's Work shall be for Landlord's protection only and shall not constitute
any assumption of responsibility to Tenant or anyone else with regard to the condition,
construction, maintenance or operation of the Premises or the Tenant's Work or relieve Tenant
of any of Tenant's obligations. Tenant shall select all surveyors, architects, engineers,
contractors, materialmen and all other persons or entities furnishing services or materials to the
Premises. Landlord has no duty to supervise or to inspect the Premises or the construction of
the Tenant's Work or any duty of care to Tenant or any other person to protect against, or
inform Tenant or any other person of, the existence of negligent, faulty, inadequate or defective
design or construction of the Tenant's Work. Landlord shall not be liable or responsible for any
defect in the Premises or the Tenant's Work, the performance or default of Tenant, Tenant's
Architect or Engineer, Contractor, or any other party, or for any failure to construct, complete,
protect or insure the Tenant's Work, or for the payment of costs of labor, materials or services
supplied for the construction of the Tenant's Work, or for the performance of any obligation of
Tenant whatsoever. Nothing, including acceptance of any document or instrument, shall be
2
ki\C\
construed as a representation or warranty, express or implied, to any party by Landlord.
Inspection shall not constitute an acknowledgment or representation by Landlord that there has
been or will be compliance with the Tenant's Construction Drawings or applicable laws and
governmental requirements or that the construction is free from defective materials or
workmanship. Inspection whether or not followed by notice of default shall not constitute a
waiver of any default then existing, or a waiver of Landlord's right in its proprietary capacity,
thereafter to insist that the Tenant's Work be constructed in accordance with the Tenant's
Construction Drawings, applicable laws, and governmental requirements. Landlord's failure to
inspect shall not constitute a waiver of any of Landlord's rights under the Lease or Work Letter
or at law or in equity. Tenant agrees that it shall be solely responsible for supervising the
construction of the Tenant's Work, and Landlord shall have no obligation to provide any such
administrative or management services.
II. TENANT'S CONSTRUCTION DRAWINGS; BUDGET; DISBURSEMENT OF TENANTS
CONTRIBUTION FUND:
1. Contents of Tenant's Construction Drawings. The Tenant's Work shall be
completed in accordance with Tenant's Plans and Tenant's Construction Drawings as approved
by Landlord, except subject to written change orders approved, in advance, by Landlord or
Landlord's designee(as designated in item 2 of the Lease Summary).
2. Tenant's Architect: Tenant's Engineers. Tenant shall employ a licensed architect
approved by Landlord ("Tenant's Architect") in preparation of the Tenant Plans and Tenant's
Construction Drawings, which shall be prepared and sealed in such a manner as may be
required for the issuance of a building permit. All engineering drawings (the "Engineering
Drawings"), shall be prepared by engineer(s)approved by Landlord ("Tenant's Engineers").
3. Modification of Tenant's Construction Drawings. Once approved, except as
provided in Article IV, Section 10 hereof, no changes in, or revisions or additions to, the
Tenant's Plans and Tenant's Construction Drawings may be made without the prior written
approval of Landlord. Tenant shall provide Landlord with computerized architectural drawings
("CAD")of the Tenant's Plans and Tenant's Construction Drawings on disk. Upon completion of
the Tenant's Work, Tenant shall provide Landlord with "as-built" plans both in blue print form
and in CAD form.
4. Construction Budget. Tenant shall cause Contractor to prepare a detailed budget
setting forth the total cost and expenses for construction of the Tenant's Work in accordance
with the Tenant's Construction Drawings, which budget shall reflect actual Hard Costs of
construction of not less than $500,000 and shall be subject to the approval of Landlord (the
"Budget"). In the event that, at any time during construction of the Tenant's Work, the amount
remaining in Tenant Construction Fund is not, in the opinion of Landlord, sufficient to complete
the Hard Costs of the Tenant's Work, Tenant agrees to contribute a sum equal to the deficiency
("Tenant's Excess") into the Tenant Construction Fund. The Escrow Agent shall not be entitled
to disburse any portion of the Tenant Construction Fund until Tenant shall have deposited the
Tenant's Excess into the Tenant Construction Fund.
5. Disbursement of Tenant Construction Fund. Tenant agrees that in connection with
any request for disbursement of the Tenant Construction Fund, Tenant shall comply with each
of the requirements set forth in Article V hereof. Tenant further agrees to provide Landlord and
Escrow Agent with proof of compliance prior to disbursement of any portion of the Tenant
Construction Fund.
3
01/4\
III. CONTRACTOR; CONSTRUCTION CONTRACT; PERFORMANCE BOND; BUILDING
PERMITS:
1. Contractor. The Contractor employed by Tenant shall be subject to Landlord's
approval, which shall not be unreasonably withheld ("Contractor") and shall enter into a
construction contract with Tenant ("Construction Contract"). The construction contract shall
indemnify the Landlord in connection with any liability/damages arising out of said construction
contract and construction work. The Contractor shall be responsible for obtaining all necessary
permits and approvals, which expense shall be a Soft Cost and shall not be paid for out of the
Tenant Construction Fund. All construction performed by the Contractor shall be done in
accordance with, and subject to, each of the terms, covenants and conditions set forth herein.
In addition thereto, Tenant shall advise the Contractor, and all subcontractors, materialmen and
suppliers that no interest of Landlord in the Premises,the Building or the Project shall be subject
to liens to secure payment of any amount due for work performed or materials installed in the
Premises.
2. Building Permits. Prior to commencing any work, Tenant shall obtain, at its sole
cost and expense, and shall furnish copies to Landlord, of all building and other permits required
to construct the Tenant's Work. The cost for such building and other permits are Soft Costs and
may not be paid out of the Tenant Construction Fund.
3. Performance Bond. Tenant shall require its Contractor to provide unconditional
performance and payment bonds covering the total value of the Tenant's Work issued by a
surety acceptable to Landlord. Said bonds shall be issued for each subcontractor, contractor or
materialman furnishing material or providing labor or services to the Premises and shall (i)name
Landlord as an additional obligee, (ii) be in an amount, in form and content, and issued by
sureties, satisfactory to Landlord and (iii) be in compliance with all applicable laws. The cost of
the performance and payment bond premiums are Soft Costs and may not be paid from the
Tenant Construction Fund.
IV. TENANT'S COVENANTS WITH RESPECT TO CONSTRUCTION OF THE TENANT'S
WORK:
Tenant hereby covenants and agrees with Landlord as follows:
1. Construction. (i) Prior to the commencement of construction of the Tenant's Work,
to record a Notice of Commencement in the Public Records of Miami-Dade County, Florida, and
to post a certified copy thereof in the Premises, in accordance with the requirements of Florida
Statutes, Chapter 713, and to designate Landlord as one of the parties to receive a copy of all
notices to owner, (ii) to cause the Tenant's Work to be constructed in accordance with the
Tenant's Construction Drawings and all applicable Laws (as defined in Article IV, Section 15
hereof), (iii) to do no act that would relieve Contractor from its obligations to construct the
Tenant's Work according to the Tenant's Construction Drawings, and (iv) to make no
amendments, other than modifications or change orders as may be permitted hereunder, to the
Tenant's Construction Drawings without the prior written consent of Landlord.
2. Aareement of Contractor to Complete Construction: Aareement of Tenant's
Architect. To promptly furnish Landlord with the written agreement of Contractor, acceptable to
Landlord, that, in the event of a default by Tenant hereunder or under the Lease or under the
terms of the construction contract between Tenant and its Contractor (the "Construction
Contract"), Contractor will, at the written request of Landlord, continue performance pursuant to
4
the Construction Contract, until completion of construction of the Tenant's Work, provided
Contractor is reimbursed for all work done subsequent to Landlord's request for Contractor to
complete construction. Tenant shall also furnish Landlord with the written agreement of
Tenant's Architect and Tenant's Engineer, that, following a default by Tenant hereunder or
under the Lease, (i) Landlord shall be entitled to the use and benefit of the Tenant's
Construction Drawings and (ii)Tenant's Architect and Engineer will continue performance under
its agreement with Tenant, for the benefit of Landlord, upon request therefor by Landlord,
provided that Landlord pays Tenant's Architect and Tenant's Engineer for all services rendered
by Tenant's Architect and Tenant's Engineer after Landlord's request. Landlord, at its sole
option, shall be entitled to use the Tenant Construction Fund to pay amounts owed to
Contractor, Tenant's Architect and/or Tenant's Engineer pursuant to this paragraph, and Escrow
Agent shall promptly disburse the funds to Landlord upon Landlord's request.
3. Insurance,. To obtain and deliver to Landlord prior to the commencement of
construction of the Tenant's Work, all insurance or evidence of all insurance required under the
Lease and, in addition thereto, the following (all of which are Soft Costs and may not be paid for
out of the Tenant Construction Fund):
(a) Builder's Risk Insurance. Builder's risk insurance,with a deductible of not
more than $5,000.00, that shall (i) name Landlord, as an additional insured, (ii) provide
coverage equal to the highest insurable value of the Tenant's Work (but in no event less than
the contract price under Construction Contract), and (iii) be in such form and issued by such
companies as shall be approved by Landlord. The originals or certified copies of such policies,
together with appropriate endorsements thereto, including, but not limited to, the written
agreement by the insurer or insurers therein to give Landlord thirty(30)days prior written notice
of intention to cancel or amend, shall be promptly delivered to Landlord; said insurance
coverage to be kept in full force and effect at all times during construction of the Tenant's Work.
(b) Statutory Employer Liability and Workman's Compensation Insurance. A
certificate or certificates from an insurance company reasonably acceptable to Landlord,
confirming that Tenant and Contractor have obtained statutory worker's compensation and
employer's liability coverage in an amount not less than required by law, without allowance for
any exemption thereunder.
(c) Automobile Insurance. Business and Automobile Liability with minimum
limits of One Million and No/100 Dollars ($1,000,000.00) per occurrence combined single limit
for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form
no more restrictive than the latest edition of the Business Automobile Liability Policy, without
restrictive endorsements, as filed by the Insurance Services Office and must include: (1)Owned
Vehicles, (2)Hired and Non-Owned Vehicles; and (3)Employers' Non-Ownership.
Any policy of insurance herein required shall contain a contractual liability endorsement
covering indemnity and defense obligations of Tenant and such other coverage as may
reasonably be required by Landlord. Such policy will among other things, make specific
reference to the Lease and Work Letter. Any policy obtained by Tenant insuring against loss by
physical damage to any portion of the Tenant's Work or to materials to be incorporated in the
Tenant's Work or covering Tenant's or its contractor's tools, supplies, machinery or equipment
shall contain an endorsement providing that the insurer waives its rights of subrogation against
Landlord and any other named or additional insured. Nothing in this Section shall give or create
in any third party any claim or right against Landlord, except that which may exist irrespective of
this Section.
5
I
The insurance required hereunder may be contained in one or more policies. Prior to
commencement of any construction,Tenant shall furnish to Landlord certificates or copies of
policies showing that the insurance is in force and that the premiums due thereunder shall have
been paid and that the subcontractors of Contractor,and such other persons as Tenant may
direct are named as insured persons jointly with Contractor in respect of any loss covered. The
certificates or policies shall provide that the insurance may not be canceled, terminated or
modified without thirty(30)days advance written notice thereof to Landlord.
In the event of any failure of Tenant to furnish and maintain insurance required
hereunder, Landlord, at its option and without waiving the default of Tenant, shall have the right
to obtain such insurance for, and in the name of, Tenant. In such event Tenant shall pay the
cost thereof upon demand and shall furnish all information required by the insurance carrier.
4. In addition to the foregoing insurance, Tenant shall, prior to commencement of
construction, provide or cause to be provided to Landlord from each subcontractor performing
services or furnishing labor at the Premises (1) general liability insurance, with limits of One
Million and No/100 Dollars ($1,000,000.00) per occurrence and Two Million and No/100 Dollars
($2,000,000.00) in the aggregate and (2)automobile insurance in form and content and in such
amount as Landlord may require.
5. Subrogation. The terms of insurance policies referred to in Section IV Subsection 3
(c) and Subsection 4 shall preclude subrogation claims against Tenant, Landlord and their
respective officers, employees and agents.
6. Insurance Cooperation. To cooperate with Landlord in obtaining for Landlord the
benefits of any insurance policy or other proceeds lawfully or equitably payable to it in
connection with the transactions contemplated hereby and the collection of any indebtedness or
obligation of Tenant to Landlord incurred hereunder.
7. Commencement and Completion of Construction. Tenant shall diligently pursue
construction to completion, in accordance with (i) the Tenant's Construction Drawings, (ii) all
applicable Laws, and (iii) such reasonable rules and regulations as Landlord may impose from
time to time to ensure the orderly construction of the Tenant's Work and to minimize disruption.
Tenant shall pay all Soft Costs from Tenant's own funds and not from the Tenant Construction
Fund and supply such sums of money and perform such duties as may be reasonably
necessary to complete the construction of the Tenant's Work on or before the Estimated
Commencement Date pursuant to the Tenant's Construction Drawings and in full compliance
with all of the terms, covenants and conditions of this Agreement (the "Completion Date").
Tenant shall satisfy all liens, claims, or assessments (actual or contingent)asserted against the
Premises, the Building or the Project, for any material, labor, or other items furnished in
connection with the construction of the Tenant's Work, and shall comply with the Florida
Mechanics' Lien Law, Chapter 713, Florida Statutes. In connection with the construction of the
Tenant's Work, Tenant shall comply or cause Tenant's Contractor to comply with all
construction, use, building, zoning, and other similar requirements of any governmental
authority having or asserting jurisdiction over the Premises, or the Project. Upon request by
Landlord, Tenant will provide evidence of satisfactory compliance with all of the foregoing to
Landlord. In the event any lien shall be filed (whether properly or improperly) against the
Premises, or the Project, it shall be removed, satisfied or transferred to bond by Tenant within
ten (10) days. Tenant's failure to do so within the ten (10) day period shall be a default
hereunder and under the Lease, and (i) Escrow Agent shall have no further right to make any
disbursement to Tenant hereunder from the Tenant Construction Fund, and (ii) Landlord shall
be entitled to avail itself of all rights and remedies provided for hereunder or under the Lease.
6
01/4\
8. Right of Landlord to Inspect Premises. To permit Landlord, and Landlord's
employees and Landlord's consultants, if any, and their representatives and agents, to enter
upon the Premises and to inspect the Tenant's Work and all materials to be used in the
construction thereof; and to cooperate and cause Contractor to cooperate with Landlord and its
employees, representatives and agents during those inspections; provided, however, that this
provision shall not be deemed to impose upon Landlord any obligation to undertake such
inspections.
9. Correction of Defects. To promptly correct any material defect in the Tenant's
Work, or any departure from the Tenant's Construction Drawings not approved by Landlord or
permitted hereunder. The advance of any portion of the Tenant Construction Fund shall not
constitute a waiver of Landlord's right to require compliance with this covenant.
10. Approval of Change Orders. To permit no deviations in excess of $1,000.00 per
change or $5,000.00 in the aggregate, from the Tenant's Construction Drawings, without the
prior written approval of Landlord. No change(s) shall be permitted unless and until such
change(s) shall have been approved in writing by the Landlord in accordance with Article II,
Section 3 hereof.
11. Notification of Claims by Subcontractors and Materialmen. To advise Landlord
monthly and in writing, if Tenant receives any Notice to Owner, written or oral, from any laborer,
subcontractor, or materialman in connection with any labor or materials furnished in the
construction of the Tenant's Work.
12. Further Acts. To do and execute all and such further lawful and reasonable acts,
documents, and assurances for the better and more effective carrying out of the intent and
purpose of this Agreement, as Landlord shall reasonably require from time to time.
13. Architect's Opinion. To furnish to Landlord upon request, the written opinion of
Tenant's Architect, in form and content reasonably satisfactory to Landlord, certifying, that,
based on inter alia, (i) Architect's preparation of the Tenant's Construction Drawings, (ii)
Architect's supervision and inspection of construction of the Tenant's Work, (iii) all applicable
Laws, and (iv)Architect's professional knowledge and judgment: that(a)the Tenant's Work has
been constructed in accordance with the Tenant's Construction Drawings, and in compliance
with all Laws, (b) the proposed Tenant's Work can be constructed in accordance with the
Tenant's Construction Drawings (including written change orders approved by Landlord) for a
cost that does not exceed the price set forth in the Construction Contract; and (c) the amount
remaining in the Tenant Construction Fund is sufficient to pay for all unpaid Hard Costs of
Construction.
14. Certificate of Occupancy. To obtain and furnish to Landlord a copy of a final
certificate of occupancy, or such other certificate or approval required by any governmental
agency to insure that the Tenant's Work has been finally completed and that Tenant can occupy
the Premises.
15. Florida Building Laws. Tenant and Contractor shall comply with all applicable
provision of the Florida Building Codes Act, as amended from time to time, the Miami-Dade
County Building and Zoning Code, as amended from time to time, and all other applicable laws,
rules, ordinances and building or zoning codes(collectively, the"Laws").
16. Smoke. Alcohol. Drugs and Arms Free Site. Tenant acknowledges that the
Premises and the Project shall be designated as a smoke, alcohol, drug and arms free site (the
7
•
"Project Designation"). Tenant covenants to observe said Project Designation and to cause
Contractor and all other contractors, subcontractors and materialmen employed in the
construction of the Tenant's Work to comply with said restrictions. Violation of the Project
Designation by Tenant, Contractor or any contractor, subcontractor or materialman employed in
the construction of the Tenant's Work shall constitute a material default of the Lease. In
addition to all other rights and remedies of Landlord hereunder, in the event of a violation of the
Project Designation by any contractor, subcontractor or materialman, Landlord shall have the
right to cause Tenant to terminate the contractor, subcontractor or materialman causing such
violation. In order to facilitate the enforcement of this provision, Tenant agrees to include
language in its contract with Contractor, and any other third party, provisions (i) requiring the
Contractor and third party and any of their contractors, subcontractors and materialmen to
observe said Project Designation and (ii) permitting the Tenant to terminate any contractor,
subcontractor or materialman who fails to observe said Project Designation. Tenant agrees to
immediately advise Landlord of any violation of the Project Designation.
17. Parking; Location of Construction Dumosters and Storage Trailers; Temporary
Bathroom Facilities. Landlord shall have the right to specify the location for the placement of
construction dumpsters and storage trailers used by Tenant and/or its Contractor in the
construction of the Tenant's Work. Landlord shall also have the right to specify the parking
spaces used by Contractor and all other contractors, subcontractors and materialmen.
Contractor shall be solely responsible for arranging parking for all workers at an off-site location
(not within the Project). Tenant shall, at its own cost and expense (which shall be part of Soft
Costs), provide temporary bathroom facilities and off-site parking for the contractors,
subcontractors and materialmen engaged in the construction of the Tenant's Work.
18. Maintenance of Premises during Construction. Tenant agrees to undertake the
removal of construction related trash on or about the Premises on a daily basis. In the event
that Tenant fails to comply with the foregoing, Landlord shall have the right, but not the
obligation, to undertake such trash removal and any expenses incurred by Landlord in
connection therewith shall be payable by Tenant(as Soft Costs)within five(5)days after receipt
of an invoice from Landlord.
V. DISBURSEMENT OF TENANT CONSTRUCTION FUND:
Subject to compliance with and fulfillment of each and every of the terms,covenants and
conditions set forth herein, Escrow Agent shall make disbursements out of the Tenant Construction Fund,
up to the full amount of the Tenant Construction Fund, in accordance with this Work Letter and the
following procedures:
1. Request for Payment. At such time as Tenant shall desire to obtain a disbursement
of any portion of the Tenant Construction Fund for Hard Costs of Tenant Improvement costs,
Tenant shall complete, execute and deliver to Escrow Agent and Landlord a request for an
advance on a form of draw request approved by Landlord. Such draw request shall include, but
not be limited to,the following information:
(a) a reasonably detailed breakdown of the total amount then being requested,
identifying each contractor, subcontractor, supplier or materialman to be paid, the amount to be paid to
each such contractor,subcontractor, supplier or materialman, and the work done by each such person or
entity for which payment is being requested;
(b) a copy of all bills, invoices or statements for which payment is being
requested must be attached to the draw request;
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(c) waivers or releases or liens for all work performed to the date of the
draw request, from each contractor, subcontractor, materialman or supplier performing work or
supplying materials to the Premises, must be attached to the draw request;
(d) a statement by Tenant that Tenant or Tenant's Architect has inspected all
work for which payment is being requested, that, based upon Tenant's Architect's inspection of the work,
such work complies in all material respects with the Tenant's Construction Drawings and applicable Laws
(subject to minor"punch list".items set forth on such certificate),and that Tenant authorizes and approves
the payment to each contractor, subcontractor,supplier or materialman shown on the draw request, in the
amount set forth in such draw request;
(e) a certification by Tenant that:
(i) all outstanding claims for labor, materials and fixtures in
connection with the Tenant's Work have been paid in full as of the
date of the draw request, or will be paid in full from the proceeds
of the draw then being requested;
(ii) there are no mechanics, materialmen or other liens filed in the
public records against the Premises, the Building or the Project,
arising from or out of the construction of the Tenant's Work;
(iii) Tenant has complied with all of Tenant's obligations, and is not in
default, as of the date thereof, under the Lease, the Work Letter or
the Construction Contract;
(iv) all insurance policies required hereunder and under the Lease are
in full force and effect;
(v) all funds previously disbursed by Landlord from the Tenant
Construction Fund have been applied in accordance with the prior
draw request;
(vi) the undisbursed portion of the Tenant Construction Fund is sufficient to
complete construction of the Tenant's Work in accordance with the
Budget, the Construction Contract, the Tenant's Construction Drawings,
and applicable Laws;and
(vii) there have been no changes in the Tenant's Construction
Drawings other than those made pursuant to change orders
permitted hereunder or those changes that are less than the
required amount to receive approval.
(f) such other and further information as Landlord may reasonably request.
2. Architect's Certification. Each draw request for Tenant's Work costs shall be
accompanied by the written certification of Tenant's Architect, certifying that, based on (i)
Architect's preparation of the Tenant's Construction Drawings, (ii) Architect's supervision and
inspection of construction of the Tenant's Work, (iii) all applicable Laws, and (iv) Architect's
professional knowledge and judgment:
(a) all Tenant's Work constructed as of the date of the draw request have been
constructed in accordance with the Tenant's Construction Drawings and in accordance with all applicable
Laws(subject only to minor"punch list"items set forth in such certificate);
9
tt.X.
(b) (i)neither Tenant nor Tenant's Contractor is in default under the Construction
Contract (but such statement shall not be deemed a waiver of any claim Tenant may have or assert
against Contractor), and (ii) each contractor, subcontractor, materialman or supplier performing work on
or supplying materials to the Premises in connection with the Tenant's Work has been paid in full for all
work done or materials supplied, up to the date of Tenant's Architect's certification, except for amounts to
be paid from the draw then being requested;
(c) all work for which Tenant is seeking disbursement from the Tenant
Construction Fund,as reflected in the draw request, has been incorporated into the Premises;and
(d) the funds remaining in the Tenant Construction Fund are sufficient to pay for
all Hard Costs required to complete the Tenant's Work.
3. Conditions Precedent to Each Disbursement. At no time and in no event shall
Escrow Agent be obligated or permitted to disburse funds from the Tenant Construction Fund:
(a) if any default or Event of Default hereunder or under the Lease or
Construction Contract shall have occurred and remain uncured; or
(b) if the Premises shall have been damaged by fire or other casualty
and Landlord shall not have received insurance proceeds, sufficient in the reasonable judgment
of Landlord, to effect the restoration of the Tenant's Work in accordance with the Tenant's
Construction Drawings (and Tenant has failed to,make arrangements satisfactory to Landlord
for the payment of such insurance insufficiency); or
(c) if there shall be any mechanics' liens or other liens in connection with
construction of the Tenant's Work, filed in the public records against the Premises, the Building
or the Project which have not been released or transferred to bond; or
(d) if the warranties and representations of Tenant set forth herein, and, if
applicable, in the Lease or in the Construction Contract, are false or untrue in any material
respect as of the date of such advance; or
(e) if Tenant shall have failed to comply with and perform all of its
obligations under this Work Letter or shall have failed to deliver to Landlord all documentation
required hereunder; or
(f) if a Notice of Commencement has not been filed and posted as
required by Article IV, Section 1 hereof; or
(g) if the funds remaining in the Tenant Construction Fund are insufficient
to pay all Hard Costs to complete the Tenant's Work in accordance with the Tenant's
Construction Drawings and all Laws.
4. Retainage. All disbursements from the Tenant Construction Fund shall be subject
to the following retainages:
(a) Ten percent(10%)of that portion of each draw,or such lesser percent
as may be approved by Landlord, which is applicable to payments to be made under the
Construction Contract, unless such retainage has already been deducted from the draw
request. Retainage relating to amounts due under subcontracts shall be released by Escrow
Agent for each subcontractor when the subcontractor has completed its contract to the
satisfaction of the Contractor and Landlord.
10
‘X.
(b) The final construction disbursement, equal to no less than 5% of the
highest balance of the Tenant Construction Fund, shall be withheld by Escrow Agent, and shall
be disbursed along with all other retainages under this Section, only upon compliance with the
following requirements(in addition to the requirements for all other disbursements):
(i) Receipt by Landlord and Escrow Agent of satisfactory evidence of
final completion of the Tenant's Work, substantially in accordance
with the Tenant's Construction Drawings, and the approval of such
completion by local governmental authorities, including, but not
limited to, a final certificate of occupancy issued by the
appropriate governmental authority.
(ii) Receipt by Landlord of satisfactory "as-built" plans, in both blue
print and CAD form, registered with the City of Miami Beach
Building Department reflecting the completed Tenant's Work.
(iii) Receipt by Landlord of the Contractor's Affidavit for Final Payment
which shall include waivers of lien from Contractor and all
subcontractors, materialmen and suppliers employed by
Contractor or Tenant. Said documents shall be in form and
substance reasonably satisfactory to Landlord.
(iv) The written certification from Tenant's Architect that the Tenant's
Work has been Substantially Completed in accordance with the
Tenant's Construction Drawings and all applicable Laws,
specifying in detail any outstanding, minor"punch list" items to be
completed.
(v) Certificate of Occupancy
(vi) Certificate of Completion
(vii) Delivery and completion of all materials, documents, files, and
requisites in accordance with any and all terms and conditions
contained herein this Work Letter.
4. Notice. Frequency and Place of Disbursements. All draw requests for work
performed or materials supplied to the Premises (for which payment has not theretofore been
made), together with Tenant's Architect's Certificate and all other information and
documentation required under this Work Letter, shall be submitted to Landlord and Escrow
Agent by Tenant not later than the twenty fifth(25th)day of the month. Provided that(a)Tenant
has complied with all of the terms, covenants and conditions set forth in this Work Letter, and
(b) the Architect's Certificate and Tenant's draw request are true and correct in all material
respects, and (c) Landlord has not objected in writing to the proposed disbursement, Escrow
Agent shall disburse the funds requested in the draw request (or such portion thereof as
permitted by this Work Letter) not more than ten (10) Business Days after receipt of the draw
request and supporting documentation from Tenant. Unless otherwise approved by Landlord,
Escrow Agent shall only be permitted to disburse funds from the Tenant Construction Fund one
(1)time each calendar month; provided, however, that Landlord shall not unreasonably withhold
its approval of a request by Tenant that Escrow Agent disburse funds from the Tenant
Construction Fund at times other than as set forth hereinabove in this Section 4, in the event of
a bona fide emergency (such as, by way of illustration, but not limitation, to avert a possible
11
work stoppage by the Contractor or a subcontractor), provided that (i) such disbursement
request otherwise complies with all of the requirements of this Work Letter, and(ii)no more than
four(4)such emergency requests need be considered by Landlord.
5. Disbursements. Landlord shall have the right, but not the obligation, to require
Escrow Agent to make all disbursements from the Tenant Construction Fund (i) directly to
Tenant, or(ii)jointly to Tenant and Contractor.
VI. DEFAULT:
1. Defaults. In addition to the Events of Default set forth in the Lease, the following
shall also be deemed to be Events of Default under the Lease:
(a) If there is any default or Event of Default under the Construction Contract
that arises by reason of the failure of Tenant to pay any sum of money due under the
Construction Contract, and such default is not cured within five (5) days following receipt by
Tenant of written notice alleging such default; or
(b) If Tenant shall fail to make, not later than thirty(30)days prior to the date
when due, the payment of premiums on any policy of insurance required hereunder, and such
failure is not cured within five(5)days of receipt by Tenant of written notice alleging such failure;
or
(c) Any other defaults hereunder, or under the Construction Contract or the
Lease, involving the failure of Tenant to pay monetary sums hereunder or thereunder(including
payment of all Soft Costs), and such failure continues for five(5)days after receipt by Tenant of
written demand therefor by Landlord; provided, however, that a good faith, bona tide dispute
between Tenant and the Contractor or other payee for amounts allegedly due under the
Construction Contract or other contract shall not, by itself, be considered an Event of Default
hereunder, so long as Tenant is diligent and in good faith attempting to resolve such dispute.
ro
(d) If any lien for labor, material, taxes or otherwise shall be filed against the
Premises, the Building or the Project, on account of Tenant's work, and such lien is not
removed, satisfied or transferred to bond as required under Article IV, Section 7 of this Work
Letter.
(e) If construction of the Tenant's Work shall be abandoned and not be
resumed at such time as may be reasonably necessary to complete construction by the
Estimated Commencement Date, unless such cessation is due to acts of God, strike or
unavailability of materials; ■
(f) Any other default under this Work Letter that is not cured within thirty(30)
days after Tenant's receipt of notice of default from Landlord; provided, however, in the event
such default cannot reasonably be cured within the thirty (30) day period, said period shall be
extended for such additional period as may be reasonably required in order to cure such default
(not to exceed an additional 30 days), so long as Tenant acts with reasonable diligence during
and after the thirty(30)day period in attempting to cure the default; or
(g) If the total amount paid by Tenant for Hard Costs of constructing the
Tenant's Work is less than $500,000.
12
VII. REMEDIES OF LANDLORD:
Upon the occurrence of any one or more of the Events of Default set out in Section VI
hereof, or any default or Events of Default under the Lease, Landlord shall at its option be
entitled, in addition to and not in lieu of the remedies provided for in the Lease, exercise any of
the following remedies:
1. Default Constitutes Default Under Lease. Tenant agrees that the occurrence of
such Event of Default shall constitute a Default under the Lease, thereby entitling Landlord (i)to
exercise any of the various rights and remedies provided, including, but not limited to, the
acceleration of all rents, payments and other amounts due under the Lease, and (ii)
cumulatively to exercise all other rights, remedies, options and privileges provided by law or in
equity(unless stipulated to the contrary in the Lease).
2. Right of Landlord to Assume Possession and Complete Construction. Tenant
agrees, upon the request of Landlord,to vacate the Premises and permit Landlord:
(a) to enter into possession;
(b) to perform or cause to be performed any and all work and labor necessary to
complete the Tenant's Work in accordance with the Tenant's Construction Drawings, or in such other
manner as Landlord may elect in its sole discretion;
(c) to employ security watchmen to protect the Premises; and
(d) to receive from Escrow Agent immediately upon demand that portion of the
Tenant Construction Fund not previously disbursed (induding any retainage) to be applied first to the
extent necessary to complete construction of the Tenant's Work in accordance with the Tenant's
Construction Drawings, or in such other manner as Landlord may elect, and if the completion requires a
larger sum than the remaining undisbursed portion of the Tenant Construction Fund, to disburse such
additional funds, all of which funds so disbursed to Landlord shall be deemed to have been disbursed to
Tenant. If Landlord proceeds under this subparagraph (d), all portions of the Tenant Construction Fund
that are not used to pay for completion of construction shall not be retained by Landlord as Additional
Rent. Landlord, shall have the right, but not the obligation, to take all actions necessary in connection
therewith, including, but not limited to, the following: To use any funds of Tenant which may be held in
deposit and any funds which may remain unadvanced hereunder for the purpose of completing the
Tenant's Work in the manner called for by the Tenant's Construction Drawings, or in such other manner
as Landlord may elect;to make such additions and changes and corrections in the Tenant's Construction
Drawings which shall be necessary or desirable to complete the Tenant's Work in a manner acceptable to
Landlord; to employ such contractors, subcontractors, agents, engineers, architects, and inspectors as
shall be required for said purposes; to pay, settle, or compromise all existing or future bills and claims
which are or may be liens against said Premises; to execute all applications and certificates in the name
of Tenant which may be required by any construction contract and to do any and every act with respect to
the construction of the Tenant's Work which Tenant may do in its own behalf. Landlord shall also have
power to prosecute and defend all actions or proceedings in connection with the construction of the
Tenant's Work and to take such action and require such performance as it deems necessary. In
accordance therewith, Tenant hereby assigns and quit-claims to Landlord all sums to be advanced
hereunder, including any remaining Tenant Allowance and any retainage and any sums paid hereunder to
Landlord.
13
3. Additional Remedy. In lieu of exercising its rights under paragraph 2, Landlord
may receive from Escrow Agent immediately upon demand all funds remaining in the Tenant
Construction Account and apply them towards Landlord's damages for Tenant's breach of the
Lease.
VIII. ESCROW AGENT PERFORMANCE OF DUTIES:
1. Escrow Agent agrees to perform the duties of Escrow Agent under this Work
Letter and to hold and disburse the Tenant Construction Fund strictly in accordance with the
provisions hereof.
2. In performing any of its duties under this Agreement, or upon the claimed failure
to perform its duties hereunder, Escrow Agent shall not be liable to anyone for damages, losses
or expenses which may occur as a result of Escrow Agent's so acting, or failing to act; except,
however, Escrow Agent shall be liable for damages arising out of its willful default or gross
negligence under this Agreement. Accordingly, Escrow Agent shall not incur any such liability
with respect to (i) any good faith act or omission upon advice of counsel given with respect to
any questions relating to the duties and responsibilities of Escrow Agent hereunder, or (ii) any
good faith act or omission in reliance upon any document, including any written notice or
instructions provided for in the Agreement, not only as to its due execution and to the validity
and effectiveness of its provisions but also as to the truth and accuracy of any information
contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been
signed or presented by the proper person or persons and to conform with the provisions of this
Agreement.
14
‘.)\\\
IN WITNESS WH •e Work Letter has been made and executed as of the date
set forth below_ �r 8 ����
�v............�, iii
Dated: As set fort 1•• e•• ••. �
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Attest: % * : --"P"--401.16%,INCORP ORATED: *
MIAMI BEACH REDE , 1,n T AGENCY
• Name: S,
�.'Avt- t — , Title:
P Name C �.�l�,�--; , , ,
DEC 282015
Print Name
TENANT:
CUBICHE 105, LLC, a Florida limited
liability compan C/k
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By:
Name: ._
Print Name N ov-NA 0■ Title: £1wn be./_._
Print ► y L Si-c(
ESCROW AGENT:
ZARCO, EIN RN RN SALKOWSKI & BRITO,
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Nam z: i7. .
Print Name . WAN +-- Title:
•
ant N. •- "(A- e " ea
APPROVED AS TO
FORM & LANGUAGE
8(MEWUTION
Redevelopment Agenc Date
General Counsel ) .
15
EXHIBIT"F"
GUARANTY
UNCONDITIONAL GUARANTY,
THIS UNCONDITIONAL GUARANTY(the"Guaranty") is made as of this 22 day
of DECEMBER., 2015, by Janet Suarez, Luis Hoyos, and Juan Chipoco, jointly and severally, (the
"Guarantors"), in favor of MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate
and politic (the "Landlord"), and is executed pursuant to that certain Anchor Shops at South
Beach Retail Lease, dated DECEMBER 28 , 2015 (the "Lease"), between Landlord and
CUBICHE 105, LLC., a Florida limited liability corporation (the "Tenant"). The Lease is with
respect to those certain Premises, as defined in the Lease, located in Anchor Shops at South
Beach, having a physical address of 1555 Washington Avenue, Suites 1-3, Miami Beach, FL
33139 (the "Premises"). All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
FOR VALUE RECEIVED, the receipt whereof is hereby acknowledged, in
consideration of, and as an inducement to Landlord's entering into the Lease with Tenant, the
undersigned Guarantors, in consideration of the benefits to flow to the Tenant and to the
undersigned as stockholder, officer, and/or director of said Tenant, do hereby irrevocably and
unconditionally guarantee to Landlord the full and faithful performance of all of the obligations,
duties and liabilities of the Tenant under that certain Lease for the Premises, in the amount of
$115,523.83, from the Commencement Date through the end of the first Lease Year(as"Lease
Year" is defined in the Lease)(the"Guaranty Term"), so long as Tenant has not been in default
under Lease during the duration of the Guaranty Term. Should Tenant commit a default under
the the terms of the Lease during the Guaranty Term, the Guaranty Term shall thereafter be
extended through and including the end of the Initial Lease Term (as "Initial Lease Term" is
defined in the Lease).
This Guaranty is a guarantee of payment and not of collectability is not in any way
conditional or contingent and constitutes a valid obligation of Guarantors, and shall not be
terminated, affected or impaired by reason of the assertion by Landlord against Tenant of any of
the rights and remedies reserved to Landlord pursuant to the provisions of the Lease. The
validity of this Guaranty shall not be terminated, affected or impaired by reason of any action
which Landlord may take or fail to take against Tenant or by reason of any waiver of or failure to
enforce any of the rights or remedies reserved to Landlord in the Lease or for any other cause
or circumstance whatsoever, including but not limited to any subletting of the Retail Space,
assignment of the Lease or waiver of any breach by the Tenant
This liability of Guarantors hereunder shall be primary and independent of the
obligations of Tenant, and Landlord may proceed against Guarantors without commencing any
action against Tenant. Landlord shall not be required to make any demand upon or pursue and
exhaust any of its rights or remedies against Tenant, before, simultaneously with, or after
enforcing its rights or remedies against Guarantors under this Guaranty; and Guarantors agree
that Landlord may enforce any or all of its remedies hereunder at such time or times or in such
manner as it shall deem appropriate.
1
This Guaranty shall remain and continue in full force and effect during the Guaranty
Term, notwithstanding any modification, amendment, renewal or extension of the Lease or any
provision thereof and notwithstanding any assignment of interest therein.
The Guarantors consent to all of the terms and provisions of the Lease, as the same
may be from time to time hereafter amended, and expressly waive (i) any and all notices of
proof of non-payment, non-performance or non-observance by Tenant of any covenant or
provision of the Lease, (ii) any and all demands, notices, rights or remedies of any kind which
may be required to be given or which may inure to the benefit or a Guarantors under applicable
law, and (iii)any and all notices of default or events of default hereunder or under the Lease.
Landlord and Guarantors agree that in any action or proceeding brought by either
Landlord or Guarantors against the other on any matters whatsoever arising out of, under, or by
virtue of this Guaranty ("Legal Proceeding"), Landlord and Guarantors shall and do hereby
waive trial by jury. In addition, the venue, in connection with any such Legal Proceeding, shall
be in Miami-Dade County, Florida. Should it become necessary to enforce the terms and
conditions of this Guaranty, the prevailing party shall be entitled to collect court costs and
attorney's fees in connection with said prosecution, including any appeals resulting from said
Legal Proceeding.
Following the expiration of the Guaranty Term, upon written request by Tenant, the
original of this Guaranty shall be marked as "cancelled" and returned to Guarantors. This
Guaranty shall inure to the benefit of Landlord, its heirs, executors, successors and assigns and
shall bind the heirs, executors, successors and assigns of Guarantors.
EXECUTED as of the day and year first above written, to be effective as of the date of
the Lease.
GUARANTORS:
gI
Jan;t.uarez
STATE OF FLORIDA )
)ss:
MIAMI-DADE COUNTY )
The foregoing instrument was acknowledged before me this of,--day of 4.0 Q.t X ,
2015 by trans su ca r e v' personally known to me or
produced a valid driver's license as id-ntific-f•
y `t1- 51 4111 /-W1-10�, I
= ,2_ ublic, State of Florida
PaY,,,,,,, MARIA JAKONIUK
Notary Public-State of Florida
My Comm.Expires Jan 9,2417
Commission it.
EE 63 ant� erne:
My commission expir .,,q; y Assn.
°, Bonded Through Natonal Notary,��1FOF F��� ._a,
11111111 .. ���
2
.. i ) ' oil
' 4)ej
_■11.11H6All
.' oy•s 'Am..-
. STATE OF FLORIDA )
)ss:
MIAMI-DADE COUNTY )
The foregoing instrument was acknowledged before me this `aa day of <bE .ber ,
2015 by to V 1 o€ ✓' , personally known to me or
produced a valid driver's license as identification.
s &ll Q1-1Q -C)
MARIA JAKONIUK Vii' i'"°'
��•,,,av Pue,,, l�
a°w�i,('c+'� Notary Public-St3'A of Flnrid2
•: i :• My Comm.Expired ltar4OR •lie, tats of Florida
,N r�r�_` Commission#EE 863721
%° ,,,,� Bonded Through Natiorr�i , • ' -•
-,,,- ar -a-yrs-a -yr- -or sr -s- TI -...- j • 0
My commission expires:
Juan Chipoco
STATE OF FLORIDA )
)ss:
MIAMI-DADE COUNTY )
The foregoing instrument was acknowledged before me this a`—day of �ec.�Enn 41Pr ,
S n p personally known 2015 by c�t� Cl���c� p a y wn to me or
produced a valid driver's license as identification.
G191043S6ZobLk-® o. , •.,/
_. . -- _., v ., ' Ott Ct `
MARIA JAKONIUK
o ---t-(/'-- Notary Public-$eta iRP,o' . 4 , State of Florida
a# ,�►•;•_ My Comm.Expires Jan ,
. i4 t1. •
?;9,_lc_ ;; Commission 0� 6 21
°;,;�,'` Bonded Through Na i o ? .
My commission expires:
•
3
EXHIBIT"G"
LANDLORD'S PERSONALTY
Cost per
Item Description Quantity Unit Total
1 Hand Sink 1 $75.00 $75.00
2 Metro Shelving 2 $75.00 $150.00
3 Pictures(No Charge) 3 $0.00 $0.00
4 Ice Bin Cocktail Station 1 $300.00 $300.00
5 Ice Bin 1 $200.00 $200.00
6 Ice Bin 1 $200.00 $200.00
7 Ice Bin 1 $200.00 $200.00
8 Cocktail Mixing Station 1 $650.00 $650.00
9 Ice Bin 1 $200.00 $200.00
10 Triple Undercounter Bar Sink 1 $450.00 $450.00
11 Metro Shelving 1 $75.00 $75.00
12 Floor Safe 1 $250.00 $250.00
13 Dishwashing pot sink and drain board 1 $500.00 $500.00
14 Metro Shelving 5 $75.00 $375.00
15 Walk in cooler 1 $7,500.00 $7,500.00
16 Walk in Freezer 1 $6,500.00 $6,500.00
17 Hand Sink 1 $75.00 $75.00
18 Metro Shelving 2 $75.00 $150.00
19 Convection Oven 1 $3,000.00 $3,000.00
20 Triple E-leet ie Gar C ay ro
0700 $ 850:00
21 Gas Salamander 1 $1,500.00 $1,500.00
aa e I 40 $880:00
2.3. 48LRadient_Ghaf_gfejleF
4 89040 $800=00
24 Six-bumer--steye-afid-eveo 1 $80040 $800:00
25 Stainless pick up station with heaters and storage 1 $800.00 $800.00
26 Hood without exhaust 1 $2,000.00 $2,000.00
27 Hood 7'with ansul system 1 $5,000.00 $5,000.00
28 Hood 8'with ansul system 1 $5,400.00 $5,400.00
29 Hood 10'with ansul system 1 $8,000.00 $8,000.00
30 Hood for smoker 1 $5,000.00 $5,000.00
31 Pot and pan sink 1 $600.00 $600.00
32 Hand sink 1 $75.00 $75.00
33 Work table and sneeze guard 1 $800.00 $800.00
r r
34 Ice Machine
1 $4,000.00 $4,000.00
35 Drain board and hose 1 $350.00 $350.00
36 Server station stainless table 1 $200.00 $200.00
37 Dump sink 1 $125.00 $125.00
38 Triple sink with double drain boards 1 $750.00 $750.00
39 Cocktail Station 1 $450.00 $450.00
40 24" Ice Bin 1 $175.00 $175.00
41 6'Cocktail Station w.Speed Racks 1 $750.00 $750.00
42 Floor Safe 1 $300.00 $300.00
TOTAL $57,125.00
'1/4.X
,
t..,
t„A V 1
1 .—°--% 1 __ HAND SINK 1 775.00
.\? ifs..1:
2-- METRO SHELVING 75.00 PER UNIT
K1 imb..14 ,.. r,;J
'
litJ..,i.OY... a sf
J
3. J • .3w PICTUREA
rf
'.
',.. PICTURE B
r?
'ICTURE C
ICE BIN COCKTAIL STATION 300.00
5 ICE BIN 200.00
7\X
I '
6 ICE BIN 200.00
•
ICE BIN 200.00
• - COCKTAIL MIXING STATION 650.00
t. - I
i_._.1 _--_ jo
9 ICE BIN 200.00
L , ft".
rill 24.
1' TRIPLE UNDERCOUNTER BAR SINK 450.00
1TJ ,
imor_ 1 ,
=wr
11 -_ METRO SHELVING 75.00
12 s =-- %' FLOOR SAFE 250.00
\X
13P-z-- DISHWASHING POT SINK AND DRAIN BOARD 500.00
gi lk, 11-)-411 till
nr -, 9
1' h METRO SHELVING 75.00 PER UNIT
-i. 1
i - 0, 1----‘ -4, it-rj.
, - . ,
,' -....-.,- i
15 WALK IN 2 YEARS AGO 7500.00
ice, - �,
I'
ii, L. •td. 4,
WALK IN FREZZER
' •4 P ^
17;--/f I:_:- *4 HAND SINK 75.00
r ii. i 1
iii ,.. --iiiiqi.
1= 4 - METRO SHELVING 75.00 PER UNIT
;-,
1'' - '_ti.=?CONVECTION OVEN 3000.00
20 -2 .. .
21-".�y' - �, `. GAS SALAMANDER 1500.00.
'Ill-Z--- ------.../i-l:•-
IF,
A.,
2i zillH ' • ' • • • .
•
=ir,'
2 _ TAINLESS PICK UP STATION WITH HEATERS AND .
STORAGE 800.00 •
\,X
eft
26.'' y� HOOD WITHOUT EXHAUST 2000.00
27. -�-- HOOD 7'WITH ANSUL SYSTEM 5000.00
28. HOOD 8'WITH ANSUL SYSTEM 5400.00
Oki 1
29 J HOOD 10'WITH ANSUL SYSTEM 8000.00
-
30. .-?' HOOD FOR SMOKER 5000.00
ALL HOODS HAVE CHASES AND EXHAUST FANS ON ROOF OF GARAGE IN
GREAT CONDITION WHEN INSTALLED WAS OVER 150,000.00
31 POT AND PAN SINK 600.00
\ki(
L. ,ti- IIIV'-- 1
32 HAND SINK 75.00
ter- i a
RI— .
33. --- `WORK TABLE AND SNEEZE GUARD 800.00
-11-'11111111111
34. I XCELLENT ICE MACHINE PRODUCES 1200LBS PER
DAY 4000.00
4.: , ;Nab ,
.. ,,..
35. DRAIN BOARD AND HOSE 350.00
t ---------4,-- -
36 - ERVER STATION STAINLESS TABLE 200.00
is i— 1.--... ®tea r .
'!,:h
i ►-
37 1 DUMP SINK 125.00
so
t'
38. TRIPLE SINK WITH DOUBLE DRAIN BOARDS AND
SPEEDRAIL 750.00
39. - OCKTAIL STATION 450.00
40 ►4" ICE BIN 175.00
•
41 6 FOOT COCKTAIL STATION WI SPEED RACKS 750.00
42. FLOOR SAFE 300.00
i
EXHIBIT"G-1"
UCC-1
•
\\
STATE OF FLORIDA UNIFORM COMMERCIAL CODE
FINANCING STATEMENT FORM
A.NAME&DAYTIME PHONE NUMBER OF CONTACT PERSON
Max Sklar,Director,305.673.7000
B.Email Address
•
C.SEND ACKNOWLEDGEMENT TO:
Name Max Sklar,Tourism,Culture&Economic Development Director
Address Cityof Miami Beach
Address 1700 Convention Center Drive
City/State/Zip Miami Beach,FL 33139
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
I. DEBTOR'S EXACT FULL LEGAL NAME—INSERT ONLY ONE DEBTOR NAME(la OR I b)-Do Not Abbreviate or Combine Names
1.a ORGANIZATION'S NAME
Cubiche 1435,LLC.
l.b INDIVIDUAL'S SURNAME " FIRST PERSONAL NAME ; ADDITIONAL NAME(S)/INITIAL(S) SUFFIX
1.c MAILING ADDRESS Line One
1555 Washington Avenue This space not available.
• MAILING ADDRESS Line Two CITY • STATE POSTALCODE COUNTRY
Suites 1-3 ,Miami Beach FL 33139 US
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME—INSERT ONLY ONE DEBTOR NAME(2a OR 2b)—Do Not Abbreviate or Combine Names
' 2.a ORGANIZATION'S NAME
2.b INDIVIDUAL'S SURNAME ' FIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) SUFFIX
2.c MAILING ADDRESS Line One
This space not available.
MAILING ADDRESS Line Two CITY STATE POSTAL CODE COUNTRY
•
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)—INSERT ONLY ONE SECURED PARTY(3a OR 3b)
3.a ORGANIZATION'S NAME
City of Miami Beach
• 3.b INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONAL NAMES)/INITIAL(S) SUFFIX
3.c MAILING ADDRESS Line One
Attention: Tourism,Culture and Economic Development Directs This space not available.
MAILING ADDRESS Line Two CITY STATE POSTALCODE _ COUNTRY
1700 Convention Center Drive Miami Beach I FL 33139 US
4.This FINANCING STATEMENT covers the following collateral:
(SEE.LIST ATTACHED AS EXHIBIT A)
5.ALTERNATE DESIGNATION(if applicable) lid LESSEE/LESSOR U CONSIGNEE/CONSIGNORU BAILEEBAILOR
E:1 AG LIEN U NON-UCC FILING 0 SELLER/BUYER
6.Florida DOCUMENTARY STAMP TAX-YOU ARE REQUIRED TO CHECK EXACTLY ONE BOX
0 A41 documentary stamps due and payable or to become due and payable pursuant to s.201.22 F.S.,have been paid.
JJFlorida Documentary Stamp Tax is not required.
7.OPTIONAL FILER REFERENCE DATA
STANDARD FORM-FORM UCC-I(REV.05/2013) Filing Office Copy Approved by the Secretary of State,State of Florida
EXHIBIT"A" (to UCC-1)
LANDLORD'S PERSONALTY
Item Description Quantity
1 Hand Sink 1
2 Metro Shelving 2
3 Pictures(No Charge) 3
4 Ice Bin Cocktail Station 1
5 Ice Bin 1
6 Ice Bin 1
7 Ice Bin 1
8 Cocktail Mixing Station 1
9 Ice Bin 1
10 Triple Undercounter Bar Sink 1
11 Metro Shelving 1
12 Floor Safe 1
13 Dishwashing pot sink and drain board 1
14 Metro Shelving 5
15 Walk in cooler 1
16 Walk in Freezer 1
17 Hand Sink 1
18 Metro Shelving 2
19 Convection Oven 1
20 Triple El__tric Gac Frye rs 4
21 Gas Salamander 1
High Heat Griddle 4
2.3 443RaeliaRt_char_sfeller
24 Six burne stove and even 4
25 Stainless pick up station with heaters and storage 1
26 Hood without exhaust 1
27 Hood 7'with ansul system 1
28 Hood 8'with ansul system 1
29 Hood 10'with ansul system 1
30 Hood for smoker 1
31 Pot and pan sink 1
32 Hand sink 1
33 Work table and sneeze guard 1
34 Ice Machine 1
35 Drain board and hose 1
36 Server station stainless table 1
37 Dump sink 1
38 Triple sink with double drain boards 1
39 Cocktail Station 1
40 24"Ice Bin 1
41 6'Cocktail Station w.Speed Racks 1
42 Floor Safe 1