655-2021 RDA RESOLUTION NO. 655-2021
A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), FOLLOWING A DULY
ADVERTISED PUBLIC HEARING, ACCEPTING THE RECOMMENDATION OF
THE CITY'S FINANCE AND ECONOMIC RESILIENCY COMMITTEE, AND
• APPROVING AND AUTHORIZING THE CHAIRPERSON AND SECRETARY TO
EXECUTE A NEW LEASE AGREEMENT BETWEEN THE RDA (LANDLORD)
AND THE MIAMI BEACH CHAMBER OF COMMERCE (TENANT) FOR USE OF
APPROXIMATELY 721 SQUARE FEET OF GROUND FLOOR RETAIL SPACE
AT THE ANCHOR SHOPS GARAGE, LOCATED AT 100 16TH STREET, SUITE
NO. 6, MIAMI BEACH, FLORIDA, FOR AN INITIAL TERM OF ONE (1) YEAR,
RETROACTIVELY COMMENCING ON JANUARY 1, 2021, WITH TWO (2)
ADDITIONAL ONE-YEAR RENEWAL TERMS, AT THE RDA'S OPTION.
WHEREAS, as a result of the Miami Beach Convention Center Renovation Project, the
Visitor Center of the Miami Beach Chamber of Commerce (MBCC) had to relocate to the
northeasterly 935 square feet area of the Pennsylvania Garage retail space, which has a total of
7,655 square feet, located at 1661 Pennsylvania Avenue (Penn Garage Space); and
WHEREAS, Moonlighter Fablab, Inc. d/b/a Moonlighter Makerspace (Moonlighter)
executed a lease with the City and the Miami Beach Redevelopment Agency (collectively,
Landlord) for use the remaining 6,720 square feet of the Penn Garage Space (Moonlighter
Space), for an initial term of three (3) years, commencing upon the City providing Moonlighter
with possession of the Moonlighter Premises, with two (2) one-year renewal terms; and
WHEREAS, Moonlighter has not been able to take possession of the Moonlighter Space,
in that, due to the combined use of the Penn Garage Space, the City would have to install a
devising wall to separate the spaces and modify the existing kitchen equipment and related
systems, for an approximate cost of $80,000; or, in the alternative, Moonlighter would have to
secure a zoning change of use (to light industrial) in order to share the Penn Garage Space with
MBCC; and
WHEREAS, the Miami Beach Redevelopment Agency(RDA)currently has approximately
721 square feet of vacant ground floor retail space at the Anchor Shops Garage, located at 100
16th Street, Suite No. 6, Miami Beach, Florida (the "Space"); and
WHEREAS, on February 19, 2021, the Finance and Economic Resiliency Committee
(FERC)recommended approving a new lease agreement with MBCC for use of the Space, based
upon the following essential terms:
Premises: 100 16th Street, Suite 6 Miami Beach, Florida 33139
Size: Approximately 721 square feet
Term: One (1)year term, commencing on January 1, 2021 and ending on
December 31, 2021, with two (2) successive one-year renewal
terms, at the option of the RDA.
Rental Rate: $1.00 annually
Operating Expenses: Tenant shall pay its proportionate share of Property Taxes,
Insurance, and Common Area Maintenance for the Anchor Shops
and Parking Garage. $8.81/sq. ft. per year- $529.34 per Month.
Termination Option: The City reserves the right, through its City Manager, to terminate
the Lease Agreement, at any time, without cause and without
liability to the City, upon providing Tenant with ninety(90)days prior
written notice.
WHEREAS, based upon the foregoing, the Executive Director hereby recommends
accepting the recommendation of the Finance and Economic Resiliency Committee, and
approving a new lease agreement with MBCC, in the form attached to this Resolution as Exhibit
"1»
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRPERSON AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY(RDA), that the Chairperson
and Members of the RDA, following a duly advertised public hearing, hereby accept the
recommendation of the City's Finance and Economic Resiliency Committee, and approve and
authorize the Chairperson and Secretary to execute a new lease agreement between the RDA
(landlord) and the Miami Beach Chamber of Commerce (tenant) for use of approximately 721
square feet of ground floor retail space at the Anchor Shops Garage, located at 100 16th street,
Suite No. 6, Miami Beach, Florida, for an initial term of one (1)year, retroactively commencing on
January 1, 2021, with two (2) additional one-year renewal terms, at the RDA's option.
PASSED AND ADOPTED this •21 day of ilea) 2021.
i<270,
Dan Gelber, Chairperson
ATTEST:
cf dAcq._,
Rafael E. Granado, S cretary
KCORP ORATEDj'
.• ,,p;.,
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Redevelopment Agenc Date
General Counsel
%0it
Redevelopment Agency -RDA 1.
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, Interim City Manager
DATE: April 21, 2021
10:00 a.m. Public Hearing
SUBJECT:A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), FOLLOWING A DULY
ADVERTISED PUBLIC HEARING, ACCEPTING THE RECOMMENDATION
OF THE CITY'S FINANCE AND ECONOMIC RESILIENCY COMMITTEE,
AND WAIVING, BY 517TH VOTE, THE FORMAL COMPETITIVE BIDDING
REQUIREMENT IN SECTION 82-39(A) OF THE CITY CODE, FINDING
THAT THE PUBLIC INTEREST WOULD BE BETTER SERVED BY
WAIVING SUCH CONDITION;AND APPROVING AND AUTHORIZING THE
CHAIRPERSON AND SECRETARY TO EXECUTE A NEW LEASE
AGREEMENT BETWEEN THE RDA (LANDLORD)AND THE MIAMI BEACH
CHAMBER OF COMMERCE (TENANT) FOR USE OF APPROXIMATELY
721 SQUARE FEET OF GROUND FLOOR RETAIL SPACE AT THE
ANCHOR SHOPS GARAGE, LOCATED AT 100 16TH STREET, SUITE NO.
6, MIAMI BEACH, FLORIDA, FOR AN INITIAL TERM OF ONE (1) YEAR,
RETROACTIVELY COMMENCING ON JANUARY 1, 2021, WITH TWO (2)
ADDITIONAL ONE-YEAR RENEWAL TERMS,AT THE RDA'S OPTION.
RECOMMENDATION
The City Manager recommends that the Mayor and City Commission approve the Resolution.
BACKGROUND/HISTORY
The Miami Beach Redevelopment Agency (RDA) currently has 721 square feet of vacant
ground floor retail space at the Anchor Shops, located at 100 16th Street, Suite No. 6, Miami
Beach, Florida (Space). This Space is part of a project which has a parking garage and
approximately 19,776 square feet of ground floor retail space (collectively, Anchor Garage and
Shops), located on 16th Street, between Collins Avenue and Washington Avenue. The prior
tenant, Art Connection, had operated a custom jewelry store for a period of twenty (20) years;
however, due to the material financial impact that the pandemic had on the business, the tenant
opted not to renew the lease, which expired on November 11, 2020. Art Connection had been
paying $8.81 per square foot ($529.34 per month) at the time its lease expired. Pursuant to a
Lease Agreement dated May 11, 2017, the City and the RDA, the Visitor Center of the Miami
Beach Chamber of Commerce (MBCC) has been housed in the northeasterly 935 square feet
area of the Pennsylvania Garage retail space, located at 1661 Pennsylvania Avenue, where it
Page 2641 of 2709
had previously been relocated during the renovation of the Miami Beach Convention Center.
That Lease Agreement expired on December 31, 2018 and was extended on a month to month
basis. Juxtaposed to this area, the space is shared by the Moonlighter Fablab Makerspace
(Moonlighter), where a proposed STEAM (Science, Technology, Engineering, Arts and Math)
program will be hosted. Moonlighter executed a lease for a term of three (3)years, commencing
on date the City delivers possession of the Premises; however, they have not been able to
move into their area as it would require a change of use (i.e., Light Industrial) for their portion of
the Retail Space.
ANALYSIS
On February 19, 201 the Finance and Economic Resiliency Committee considered an item
entitled: DISCUSS A LEASE AGREEMENT BETWEEN THE MIAMI BEACH
REDEVELOPMENT AGENCY, A PUBLIC BODY CORPORATE AND POLITIC (RDA),
(LANDLORD),AND THE MIAMI BEACH CHAMBER OF COMMERCE,A FLORIDA NOT-
FOR-PROFIT CORPORATION (TENANT) FOR APPROXIMATELY 721 SQUARE FEET
OF GROUND FLOOR RETAIL SPACE AT THE ANCHOR SHOPS GARAGE, LOCATED
AT 100 16TH STREET, SUITE NO. 6, MIAMI BEACH, FLORIDA, FOR A PERIOD OF
ONE (1) YEAR, WITH SUCCESSIVE ONE-YEAR RENEWAL TERMS AT THE OPTION
OF THE CITY, RETROACTIVELY COMMENCING ON JANUARY 1, 2021 AND ENDING
ON DECEMBER 31, 2021 and recommended in favor of executing a new lease with the Miami
Beach Chamber of Commerce for the use of the space based upon the following essential
terms: Premises: 100 16th Street, Suite 6 Miami Beach, Florida 33139 Size:
Approximately 721 square feet Term: One (1)year
term, commencing on January 1, 2021 and ending on December 31, 2021, with successive
one-year renewal terms at the option of the City, for a period not to exceed three (3) years.
Rental Rate: $1.00 annually Operating Expenses: Tenant shall pay its
proportionate share of Property Taxes, Insurance, and Common Area Maintenance for the
Anchor Shops and Parking Garage. $8.81/sq. ft. per year - $529.34 per Month. Termination
Option: The City reserves the right, through its City Manager, to terminate the Lease
Agreement, at any time, without cause and without liability to the City, upon providing Tenant with
ninety(90)days prior written notice. Currently, the MBCC Visitor Center does not have an active
lease agreement with the City. The Visitor Center of the Miami Beach Chamber of Commerce
(Tenant) is slated to be permanently housed at the Miami Beach Convention Center
Headquarter Hotel. During the remainder of the construction, and in since Moonlighter has not
been able to take possession of the space in light of this requirement, and the space is currently
available, and in order to accommodate the Moonlighter and MBCC the executive director
recommended relocating the Visitor Center to the Anchor Shops space, as depicted in Exhibit
B of the Lease (Floor Plan), attached hereto until such time as the MBCC Hotel is constructed.
SUPPORTING SURVEY DATA
N/A
CONCLUSION
In consideration of the foregoing, the following a duly advertised public hearing, the executive
director recommends that the Chairperson and Members of the Miami Beach Redevelopment
Agency accept the recommendation of the City's Finance and Economic Resiliency
Committee, and waive by 5/7th vote, the formal competitive bidding requirement in Section 82-
39(a) of the City Code, finding that the public interest would be better served by waiving such
Page 2642 of 2709
condition; and approve and authorize the Chairperson and Members of the Miami Beach
Redevelopment Agency to execute a new lease agreement between the Miami Beach
Redevelopment Agency (Landlord) and Miami Beach Chamber of Commerce (Tenant), having
an initial term of One (1)year with successive one-year renewal terms at the option of the RDA,
for a period not to exceed three (3)years
Applicable Area
Not Applicable
Is this a"Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
No No
Strategic Connection
Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality
entertainment destination.
Legislative Tracking
Property Management
ATTACHMENTS
Description
❑ Reso
❑ Agreement
Page 2643 of 2709
LANDLORD: Miami Beach Redevelopment Agency, a public body
corporate and politic
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Miami Beach Chamber of Commerce
1920 Meridian Ave, 3rd Floor
Miami Beach, Florida 33139
DATE OF EXECUTION: , 2021
ANCHOR SHOPS AT SOUTH BEACH
RETAIL LEASE
14
so i EXHIBIT
M
1 1
is0_
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.
1. Date of Lease Execution: , 2021.
2. "Landlord": Miami Beach Redevelopment Agency
3. Landlord's Address: Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Real Estate Division
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": Miami Beach Chamber of Commerce
5. Tenant's Address: 1920 Meridian Ave, 3rd Floor
I ' Miami Beach, Florida 33139
6. "Guarantor": N/A
7: Guarantor's Address: N/A
8. Premises (section 1.1): 100 16th Street—Suite#6
Miami Beach, Florida 33139
As shown on Exhibit"B"
9. Gross Rentable Area of
Premises(section 1.1): Approximately 721 square feet.
10. Gross Rentable Area of
Retail Space (section 1.1): Approximately 20,500 rentable square feet
11. Tenant's Proportionate
Share (section 2.4): 3.517%
12. Permitted Use of Premises (section 3.1): Premises shall be used by Tenant solely for the purpose(s)
of providing brochures, maps, tourism information,
guidance, and general assistance with questions or issues
regarding Greater Miami and the Beaches (subject to the
prohibited uses described in Exhibit to the Lease).
2
13. Term of Lease(section 1.1): One (1)year term, commencing on January 1, 2021 and
ending on December 31, 2021, with two (2) successive
one-year renewal terms at the option of the Landlord
The City reserves the right,through its Executive Director,
to terminate the Lease, at any time, without cause and
without liability to the Landlord, upon providing Tenant
with ninety(90) days prior written notice.
14. "Minimum Rent" (section 2.2):
MONTHLY PAYMENT
MONTHS ANNUAL MINIMUM RENT (PLUS SALES TAX)
Rent Commencement Date- N/A
next succeeding twelve months* $1.00
15. Percentage Rental (section 2.3): N/A
16. Prepaid Rent(section 2.2): None
17. Security Deposit(section 2.7): None
18. Cost Pass-Throughs (CAM) (section 2.4): Tenant shall pay on the first day of each month, its
proportionate share of Property Taxes, Insurance,
Common Area Maintenance on the Anchor Shops and
Parking Garage, in the amount of$8.81/sq.ft. per year-
$529.34 per Month for the initial year and subject to
adjustment by Landlord on an annual basis thereafter.
19. Comprehensive General
Liability Insurance(section 6.1): $1,000,000.00 per occurrence; $2,000,000.00 general
aggregate
20. Trade Name (section 3.1): Miami Beach Chamber of Commerce
21. Broker(s) (Section 14.12): None
3
THIS LEASE (the"Lease"), dated the day of , 2021, is made between the Miami Beach
Redevelopment Agency, a public body corporate and politic (the "Landlord"), and Miami Beach Chamber of
Commerce a Florida not-for-profit 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, located in the City of Miami Beach, Miami-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, as well as the location of the Premises within the Retail Space,
is attached hereto and made a part hereof as Exhibit"B." The gross rentable area of the Premises and Retail Space
shown on the Lease Summary do not represent accurate measurements of the square footage contained in the
Premises or the Retail Space, but are mere estimates.
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.
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
shall be payable by Tenant to Landlord within ten (10)days following written demand. All rent 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 and additional rent(which is all sums payable to Landlord other than Minimum Rent)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 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. Intentionally Omitted.
4
2.3. Percentage Rental. Intentionally Omitted.
2.4 Operating Costs; Taxes. Tenant shall remit together with regular monthly payments of Minimum
Rent, its proportionate share of Common Area Maintenance (CAM) payments as provided in Section 18 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 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. Intentionally Omitted
2.8 Landlord's Lien. To secure the timely construction and installation of all improvements to the
Premises by tenant, if applicable,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 Use. The Premises shall be used and occupied only for the sale of retail of goods or
services as specified in the Lease Summary. The business of Tenant in the Premises shall be carried on under the
name specified in the Lease Summary and under no other name unless approved 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 retail uses ancillary to a first-class convention center
hotel. 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. Tenant shall display such name as Landlord may from
time to time designate for the Retail Space in its stationery used upon the Premises, and in material which is given,
5
visible, or available to customers of Tenant.Tenant shall promote such name in any advertisements or promotional
material published or initiated by Tenant in regard to its business from the Premises. The names for the Retail
Space and the project of which the Retail Space is a part, which Landlord may from time to time adopt, and every
name or mark adopted by Landlord in connection with the Retail Space shall be used by Tenant only in association
with the business carried on in the Premises during the Term and Tenant's use thereof shall be subject to such
reasonable regulation as Landlord may from time to time impose.
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 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 Signs. 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, 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. Landlord's signage criteria is attached hereto and
made a part hereof as Exhibit"E."
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 seq.; the Hazardous Materials Transportation Act,
as amended,49 U.S.C.§ 1801,et seq.;the Resource Conservation and Recovery Act,as amended,42 U.S.C.§6901,
et seq.;the Federal Water Pollution Control Act,as amended,33 U.S.C.§ 1251, et seq.;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
6
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, 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 Occupancy. The Demised Premises may be open for operation seven (7)days a
week, with hours of operation being as follows:
Hours of Operation: Sunday-Saturday: 9:00 AM to 5:00 PM
Nothing herein contained shall be construed to authorize hours contrary to the laws governing such operations.Any
change in the days and/or hours of operation shall require the prior written consent of the City Manager; provided,
however, that in no event shall the hours of operation extend earlier than 7:00 AM, or later than 11:00 PM
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 within 60 days of the Execution Date, unless otherwise approved in writing by
Landlord, 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 hours and upon such days as are herein required, 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
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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 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.
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, if applicable, 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.
(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 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
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
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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.
(g) Landlord acknowledges that the prior tenant of the Premises has made improvements and had
signage installed prior to the execution of this Lease Agreement, and as such, said improvements and signage are
acceptable to Landlord, to the extent that same were properly permitted, and done in compliance with all applicable
building codes, and any other Municipal, County, State and Federal laws.
5.2 Maintenance and Repairs by Landlord. It is hereby acknowledged and agreed that Landlord shall
maintain and repair the foundations and all structural components of the Retail Space. 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 Agency Landlord pursuant to this Lease.
Without limiting the generality of the foregoing,Tenant is specifically required to maintain and make repairs to(i)the
portion of any pipes, lines, ducts,wires, or conduits contained within the Premises; (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 monthly); 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 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, all at Tenant's sole cost and expense.
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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 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.
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 Miami-Dade County, Florida, a public notice containing a true 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 Responsibilities for Utilities (not included within Operating Expenses).
Tenant is solely responsible for, and shall promptly pay when due all charges for electricity, gas, cable, telephone,
internet,janitorial garage service and any other utility service provided to the Demised Premises, including, without
limitation, all hook-up fees and impact fees, NOT included as an Operating Expense. In addition to other rights and
remedies hereinafter reserved to Landlord, upon the failure of Tenant to pay for such utility services when due,
Landlord may elect, at its sole discretion, to pay same, whereby Tenant agrees to promptly reimburse Landlord
upon demand.
In no event, however, shall Landlord be liable, whether to Tenant or to third parties, for an interruption or failure in
the supply of any utilities or services to the Demised Premises.
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)incorporating
a standard New York mortgagee endorsement(without contribution). 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
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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.
(B) Comprehensive general liability insurance. 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) 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
and reasonably 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 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.
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.
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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 and Tenant shall each obtain from their respective insurers, under all policies of
fire, theft, public liability, worker's compensation, and other insurance 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, and Landlord and
Tenant shall each indemnify,defend,and hold harmless the other 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%)
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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 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 notice or 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.
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(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.
(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. Tenant shall pay to Landlord on demand all costs incurred by Landlord, including attorneys'
fees and costs at all tribunal levels, incurred by Landlord in enforcing any of the obligations of Tenant under this
Lease. 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.
9.5.1 The failure of the Landlord to perform any of the covenants, conditions and agreements of
this Lease which are to be performed by the Landlord and the continuance of such failure for a period of thirty(30)
days after notice thereof in writing from Tenant to the Landlord (which notice shall specify the respects in which
Tenant contends that the Landlord failed to perform any such covenant, conditions and agreements)shall constitute
a default by the Landlord, unless such default is one which cannot be cured within thirty (30) days because of
circumstances beyond the Landlord's control, and the Landlord within such thirty (30) day period shall have
commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults.
However, in the event the Landlord fails to perform within the initial thirty(30)day period provided above, and such
failure to perform prevents Tenant from operating its business in a customary manner and causes an undue
hardship for Tenant, then such failure to perform (regardless of circumstances beyond its control) as indicated
above, shall constitute a default by the Landlord.
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9.5.2 Tenant's Rights on Default.
If an event of Landlord's default shall occur, Tenant, to the fullest extent permitted by law, shall have the right and
option to terminate this Lease and all of its obligations hereunder by giving written notice of such election to
Landlord, and shall further have the right to pursue any actions at law or suits in equity to obtain damages resulting
from Landlord's default. Any action for damages for breach of contract shall not exceed the Limitation of Liability
amount set forth in Section 13.18. Notwithstanding anything in this Section 9.5.2 or the Lease, in the event of a
default by Landlord, Tenant hereby agrees and acknowledges that in no event shall Landlord be liable for any
incidental, indirect, special or consequential damages, including without limitation loss of revenue and lost profits,
of Tenant which may be alleged as a result of Landlord's default.
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 overleases 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.
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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 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. GENERAL PROVISIONS.
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13.1 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.
13.2 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 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.
13.3 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.
13.4 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.
13.5 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 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.
13.6 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.
13.7 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.
13.8 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.
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13.9 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.
13.10 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.
13.11 Quiet Enjoyment. 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.
13.12 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).
13.13 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.
13.14 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.
13.15 TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
13.16 Prohibitions Regarding Sale or Use of Expanded Polystyrene Food Service Articles, Single-Use
Plastic Beverage Straws, and Single-Use Plastic Stirrers.
(A) Tenant hereby agrees and acknowledges that, pursuant to Section 82-7 of the City Code, as may be
amended from time to time, Tenant shall not sell, use, provide food in, or offer the use of expanded polystyrene
food service articles (as defined in City Code Section 82-7) in the Premises. A violation of this section shall be
deemed a default under the terms of this Lease. Notwithstanding the above,this section shall not apply to expanded
polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by
Tenant.
(B) Additionally, Tenant agrees and acknowledges that, pursuant to Section 82-8 of the City Code, as may be
amended from time to time,Tenant shall not sell, use, provide food in, or offer the use of single-use plastic beverage
straws or single-use plastic stirrers(as defined in City Code Section 82-8)in the Premises.A violation of this section
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shall be deemed a default under the terms of this Lease. Notwithstanding the above, the requirements of Section
82-8 shall not restrict Tenant from providing a beverage with, or offering the use of, a single-use plastic beverage
straw or single-use plastic stirrer to an individual with a disability or medical condition that impairs the consumption
of beverages without a single-use plastic beverage straw or single-use plastic stirrer.
(C) As additional consideration for this Lease, separate and apart from the requirements of Sections 82-7 and
82-8 of the City Code, Tenant agrees:
i. not sell, use, provide food in, or offer the use of expanded polystyrene food service articles in the
Premises. A violation of this section shall be deemed a default under the terms of this Lease.
Notwithstanding the above, this section shall not apply to expanded polystyrene food service articles
used for prepackaged food that have been filled and sealed prior to receipt by Tenant; and
ii. not sell, use, provide food in, or offer the use of single-use plastic beverage straws or single-use plastic
stirrers in the Premises. A violation of this section shall be deemed a default under the terms of this
Lease. Notwithstanding the above, Tenant shall be permitted to providing a beverage with, or offering
the use of, a.single-use plastic beverage straw or single-use plastic stirrer to an individual with a
disability or medical condition that impairs the consumption of beverages without a single-use plastic
beverage straw or single-use plastic stirrer.
13.17 Tenant's Compliance with Florida's Public Records Law. Tenant shall comply with Florida Public
Records law under Chapter 119, Florida Statutes, as may be amended from time to time.
(A) The term"public records"shall have the meaning set forth in Section 119.011(12), which means all
documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software,
or other material, regardless of the physical form, characteristics, or means of transmission, made or received
pursuant to law or ordinance or in connection with the transaction of official business of the City.
(B) Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets the definition of
"Contractor"as defined in Section 119.0701(1)(a), the Tenant shall:
Keep and maintain public records required by the City to perform the service;
Upon request from the City's custodian of public records, provide the City with a copy of the requested
records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the
cost provided in Chapter 119, Florida Statutes or as otherwise provided by law;
Ensure that public records that are exempt or confidential and exempt from public records disclosure
requirements are not disclosed, except asauthorized by law, for the duration of the contract term and following
completion of the Agreement if the Tenant does not transfer the records to the City;
Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the
Tenant or keep and maintain public records required by the City to perform the service. If the Tenant transfers all
public records to the City upon completion of the Agreement, the Tenant shall destroy any duplicate public records
that are exempt or confidential and exempt from public records disclosure requirements. If the Tenant keeps and
maintains public records upon completion of the Agreement, the Tenant shall meet all applicable requirements for
retaining public records.All records stored electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information technology systems of the City.
(C) Request for Records; Noncompliance.
A request to inspect or copy public records relating to the City's contract for services must be made directly
to the City. If the City does not possess the requested records, the City shall immediately notify the Tenant of the
request, and the Tenant must provide the records to the City or allow the records to be inspected or copied within
a reasonable time.
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Tenant's failure to comply with the City's request for records shall constitute a breach of this Agreement,
and the City, at its sole discretion, may: 3 unilaterally terminate the Agreement; (2) avail itself of the remedies set
forth under the Agreement; and/or(3)avail itself of any available remedies at law or in equity.
A Tenant who fails to provide the public records to the City within a reasonable time may be subject to
penalties under s. 119.10.
(D) Civil Action.
If a civil action is filed against a Tenant to compel production of public records relating to the City's contract
for services, the court shall assess and award against the Tenant the reasonable costs of enforcement, including
reasonable attorneys'fees, if:
i. The court determines that the Tenant unlawfully refused to comply with the public records request
within a reasonable time; and
ii. At least 8 business days before filing the action, the plaintiff provided written notice of the public
records request, including a statement that the Tenant has not complied with the request, to the
City and to the Tenant.
A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to the
Tenant at the Tenant's address listed on its contract with the City or to the Tenant's registered agent. Such notices
must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail,
with postage or shipping paid by the sender and with evidence of delivery,which may be in an electronic format.
A Tenant who complies with a public records request within 8 business days after the notice is sent is not
liable for the reasonable costs of enforcement.
(E) IF THE TENANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE TENANT'S
DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
13.18 Limitation of Liability.
The Landlord desires to enter into this Lease only if in so doing the Landlord can place a limit on its liability for any
cause of action for money damages due to an alleged breach by the Landlord of this Lease, so that its liability for
any such breach never exceeds the sum of one hundred($100.00)Dollars.Tenant hereby expresses its willingness
to enter into this Lease with Tenant's recovery from the Landlord for any damage action for breach of contract to
be limited to a maximum amount of$100.00. Accordingly, and notwithstanding any other term or condition of this
Lease, Tenant hereby agrees that the Landlord shall not be liable to Tenant for damage in an amount in excess of
$100.00 for any action or claim for breach of contract arising out of the performance or non-performance of any
obligations imposed upon the Landlord by this Lease. Nothing contained in this Section or elsewhere in this Lease
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is in any way intended to be a waiver of the limitation placed upon the City of Miami Beach's liability as set forth in
Florida Statutes, Section 768.28.
13.19 Inspector General Audit Rights.
(a) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has established the Office of
the Inspector General which may, on a random basis, perform reviews, audits, inspections and investigations on all
City contracts, throughout the duration of said contracts. This random audit is separate and distinct from any other
audit performed by or on behalf of the City.
(b) The Office of the Inspector General is authorized to investigate City affairs and empowered to review past,
present and proposed City programs, accounts, records, contracts and transactions. In addition, the Inspector
General has the power to subpoena witnesses, administer oaths, require the production of witnesses and monitor
City projects and programs. Monitoring of an existing City project or program may include a report concerning
whether the project is on time, within budget and in conformance with the contract documents and applicable law.
The Inspector General shall have the power to audit, investigate, monitor, oversee, inspect and review operations,
activities, performance and procurement process including but not limited to project design, bid specifications,
(bid/proposal) submittals, activities of the Tenant, its officers, agents and employees, lobbyists, City staff and
elected officials to ensure compliance with the contract documents and to detect fraud and corruption. Pursuant to
Section 2-378 of the City Code, the City is allocating a percentage of its overall annual contract expenditures to
fund the activities and operations of the Office of Inspector General.
(c) Upon ten(10)days written notice to the Tenant,the Tenant shall make all requested records and documents
available to the Inspector General for inspection and copying. The Inspector General is empowered to retain the
services of independent private sector auditors to audit, investigate, monitor,oversee,inspect and review operations
activities, performance and procurement process including but not limited to project design, bid specifications,
(bid/proposal)submittals,activities of the Tenant its officers,agents and employees,lobbyists,City staff and elected
officials to ensure compliance with the contract documents and to detect fraud and corruption.
(d)The Inspector General shall have the right to inspect and copy all documents and records in the Tenant's
possession, custody or control which in the Inspector General's sole judgment, pertain to performance of the
contract, including, but not limited to original estimate files, change order estimate files, worksheets, proposals and
agreements from and with successful subcontractors and suppliers, all project-related correspondence,
memoranda, instructions, financial documents, construction documents, (bid/proposal) and contract documents,
back-change documents, all documents and records which involve cash, trade or volume discounts, insurance
proceeds, rebates, or dividends received, payroll and personnel records and supporting documentation for the
aforesaid documents and records.
(e)The Tenant shall make available at its office at all reasonable times the records, materials, and other
evidence regarding the acquisition (bid preparation) and performance of this Agreement, for examination, audit, or
reproduction, until three (3) years after final payment under this Agreement or for any longer period required by
statute or by other clauses of this Agreement. In addition:
If this Agreement is completely or partially terminated, the Tenant shall make available records
relating to the work terminated until three(3)years after any resulting final termination settlement;
and
ii. The Tenant shall make available records relating to appeals or to litigation or the settlement of
claims arising under or relating to this Agreement until such appeals, litigation, or claims are finally
resolved.
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(f) The provisions in this section shall apply to the Tenant, its officers, agents, employees, subcontractors and
suppliers. The Tenant shall incorporate the provisions in this section in all subcontracts and all other agreements
executed by the Tenant in connection with the performance of this Agreement.
(g) Nothing in this section shall impair any independent right to the City to conduct audits or investigative
activities. The provisions of this section are neither intended nor shall they be construed to impose any liability on
the City by the Tenant or third parties.
13.20 E-Verify
(a) Tenant shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-Verify
Statute"), as may be amended from time to time. Pursuant to the E-Verify Statute, commencing on January 1,
2021,Tenant shall register with and use the E-Verify system to verify the work authorization status of all newly hired
employees during the Term of the Agreement. Additionally, Tenant shall expressly require any subcontractor
performing work or providing services pursuant to the Agreement to likewise utilize the U.S. Department of
Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the
subcontractor during the contract Term. If Tenant enters into a contract with an approved subcontractor, the
subcontractor must provide the Tenant with an affidavit stating that the subcontractor does not employ, contract
with, or subcontract with an unauthorized alien. Tenant shall maintain a copy of such affidavit for the duration of
the Agreement or such other extended period as may be required under this Agreement.
(b) Termination Rights.
(i) If the City has a good faith belief that Tenant has knowingly violated Section 448.09(1), Florida
Statutes, the City shall terminate this Agreement with Tenant for cause, and City shall thereafter have or owe no
further obligation or liability to Tenant.
(ii) If the City has a good faith belief that a subcontractor has knowingly violated Section (a), but the
Tenant otherwise complied with such section, the City will promptly notify the Tenant and order the Tenant to
immediately terminate the Agreement with the subcontractor. Tenant's failure to terminate a subcontractor shall
be an event of default under this Agreement, entitling City to terminate the Tenant's contract for cause.
(c) A contract terminated under the foregoing Subsections (b)(i) or(b)(ii) is not in breach of contract
and may not be considered as such.
(d) The City or Tenant or a subcontractor may file an action with the Circuit or County Court to
challenge a termination under the foregoing Subsections (b)(i)or(b)(ii) no later than 20 calendar days after the
date on which the contract was terminated.
(e) If the City terminates the Agreement with Tenant under the foregoing Subsection (b)(i), Tenant
may not be awarded a public contract for at least 1 year after the date of termination of this Agreement.
(f) Tenant is liable for any additional costs incurred by the City as a result of the termination of this
Agreement under this section.
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EXECUTED as of the day and year first above written.
ATTEST: LANDLORD:
MIAMI BEACH REDEVELOPMENT AGENCY,
a public body corporate and politic
By: By:
Rafael E. Granado, Secretary Dan Gelber, Chairman
By:
Witness
Print Name
ATTEST: TENANT:
MIAMI BEACH CHAMBER OF COMMERCE
a Florida not-for-profit corporation
By: By:
Witness
Print Name Print Name
Title
By:
Witness
Print Name
APPROVED AS TO
FORM & LANGUAGE
& FOR XECUTION
Redevelopment Agenc Date
23 General Counsel
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.
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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 Premises 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 mayprepare, 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. Employees, 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 engage in the sale of food, alcoholic and non-
alcoholic beverage items.
2. 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.
3. In no event may the primary business of the Premises be the sale of clothing, for men, women, and
juniors, resort wear, souvenirs, and designer shoes.
It is not the intent of Prohibited Uses to limit Tenant's Permitted Use, but to limit direct competition, consolidation of
merchandise, services, and business image between tenants. It is understood there may be some items or item
categories available in multiple locations at the Retail Space, but there shall not be comparable categories along
with a similar display of business image.
EXHIBIT"E"
Landlord's Signage Criteria
Tenant Sign Standards—16th Street and Washington Avenue Frontages
Tenant signage is to be located in the 6'-0"wide transom panel above the entrance doors to each space.
One 15amp 110volt AC electrical circuit has been provided at the designated sign location above the entrance
doors for illuminated tenant signage. The area of the sign shall not exceed twenty(20)square feet.
Three (3)tubular aluminum mounting rails are provided on the transom framing, in front of the glass line.The
tenant sign shall mount to the rails and shall be composed of individual letters, symbols, or decorative elements.
The individual letters are encouraged to be neon illuminated.
No box signs are allowed so as to maintain maximum transparency of the storefront line.
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Receiving Door Signs
Each store shall have a sign identifying their receiving door, adjacent to the latch side of the door. Tenant
shall provide acid etched aluminum panel with blind studs, silicone cemented to the wall at 5'-O" above
the finished floor. Tenant name copy shall be acid-etched and paint filled.
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