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/202_2_ F-f 71 L
LANDLORD: Miami Beach Redevelopment Agency,a public body
corporate and politic
1700 Convention Center Drive
Miami Beach,Florida 33139
TENANT: Collins 1560,LLC
1560 Collins Avenue •
Suite 1-2
Miami Beach,FL 33139
DATE OF EXECUTION: March 23 ,2023
ANCHOR-SHOPS-AT SOUTH-BEACH
i . REl`AILLEASE
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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: March 23 ,2023.
2. °Landlord": Miami Beach Redevelopment Agency
3. Landlord's Address: Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach,Florida 33139
Attention:Asset Management 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": Collins 1560,LLC,a Florida limited liability company
5. Tenant's Address: 1560 Collins Avenue,Suite 1-2
Miami,FL 33139
6. "Guarantor": Miroslav Banjac and Marie F.Pena
7. Guarantor's Address: Collins 1560, LLC
1131 Collins Ave
Miami,FL 33139
8. Premises(section 1.1): 1560 Collins Avenue,Suite 1 and 2
Miami Beach,FL 33139
As shown on Exhibit"B"
9. Gross Rentable Area of Interior
Premises(section 1.1): Approximately 2.697 square feet.
10. Gross Rentable Area of
Retail Space(section 1.11: Approximately 20,500 rentable square feet
11. Tenant's Proportionate
Share(section 2.4): 13.156%of Gross Rentable Area of Retail Space
12. Outdoor Concession Area
(Section 1.1) Tenant may be permitted to use the sidewalk area,
adjacent to a portion of the Premises,for outdoor seating.
subject to the prior written approval of the Executive
Director, as well as all other required governmental
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approvals; Tenant shall be required to execute a
Concession Agreement for such use; and the additional
square footage shall be subject to an initial Concession
• Fee equal to $30.00 per square foot, with 3% annual
• increases during the Term,plus applicable sales tax.
• 13. Permitted Use of
•
• Premises(section 3.1): Premises shall be used as a fine dining restaurant, (and
•
subject to the prohibited uses described in Exhibit"D"to
•
the Lease).
•
14. Term of Lease(section 1.11: Lease Term is nine (9) years and 272 Days from the
• Commencement Date.
•
•
"Commencement Date": The date Landlord delivers
• premises to the Tenant.
•
"Rent Commencement Date": the earlier of: 1) one
hundred and eighty (180) days from Commencement
•
• Date;or 2)the date any portion of the Premises opens for
business.
Rent and Additional Rent Abatement Period: During
Months 2—7 from the Commencement Date("Minimum
• Rent and Additional Rent Abatement Period"), Tenant
shall not be required to pay the monthly Minimum Rent or
any Additional Rent payment(as such term is defined in
subsection 2.1 of the Lease)that would otherwise be due
during the Minimum Rent and Additional Rent Abatement
Period.
Rent Abatement Period: During Months 8—18 from the
Commencement Date("Rent Abatement Period"),Tenant
• shall not be required to pay the monthly Minimum Rent
payment, the Percentage Rent payment or any
Concession Fee payment that would otherwise be due;
however, Tenant shall be required to pay the monthly
Operating-Expense payment.
"Renewal Options":None
15. • "Minimum Rent"(section 2.2):
ANNUAUMONTHLY
MONTHS COST PER SQAURE FOOT PAYMENT
(PLUS SALES TAX)
Year 1-Rent Commencement $75 per Square foot $202,275.00!$16,856.25
Date plus sales tax plus sates tax
Year 2—End of Lease Term See Note(') See Note(')
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•
•
'Commencing on the first anniversary of the Rent Commencement Date,and at the beginning of each succeeding
• year thereafter during the Term of the Lease(a Lease Year.as defined in section 2.1), the Minimum Rent shall be
increased annually in increments of three percent(3%).
•
16. Percentage Rental(section 2.31: Six Percent (6%) of Natural Breakpoint (as described in
Section 2.3)
17. Prepaid Rent(section 2.21: $21,302.93, due upon execution of Lease; to be applied
to first full month Rent due.
18. Security Deposit(section 2.7): $40,005.50(due upon execution of Lease).
19. Operating Expenses(section 2.4): Proportionate share of Property Taxes,Common Area
Maintenance and Insurance on the Anchor Shops and
• Parking Garage.
COMMON AREA MAINTENANCE(CAM) ANNUAL/MONTHLY
LEASE YEAR COST PER SQUARE FOOT' PAYMENT
1 $14.00 per Square foot $37.758.00/$3,146.50 per
plus sales tax month
plus sales tax
2-End of Lease See Note(') See Note(')
Note (') Beginning on the first anniversary of the Rent Commencement Date, and at the beginning of each
succeeding Lease Year thereafter, during the Term. the Operating Expense payment shall be adjusted, on an
annual basis,to reflect Tenant's actual Proportionate share of Property Taxes.Insurance costs(including insurance
costs,determined at Landlord's sole discretion,under Landlord's self-insurance fund),and CAM costs incurred by
the Landlord during the previous Lease Year ("Operating Expense Adjustment"). Simultaneously with this
adjustment,Tenant shall be responsible for paying any difference between the Proportionate Share of the estimated
Operating Expenses paid by Tenant during the previous Lease Year and the Proportionate Share owed by Tenant
in connection with the actual Operating Expenses for the previous Lease Year("Operating Expense True-Up").
The Operating Expense payment shall continue to be payable in monthly installments as otherwise described above
until Landlord notifies Tenant of the new monthly Operating Expense payment and Operating Expense True-Up
payment. Landlord shall attempt to so notify Tenant prior to the commencement date or within 30 days of being
requested by Tenant of each Operating Expense Adjustment and Operating Expense True-Up amount; however,
failure of Landlord to timely notify Tenant of said Operating Expense Adjustment/True-Up amounts shall not be
deemed a waiver by Landlord of the right to make said Operating Expense Adjustment/True-Up;the new Operating
Expense Adjustment or any sums due pursuant to the Operating Expense True-Up for the previous Lease Year
shall be payable, retroactive to the effective date of said adjustment date, upon notification by Landlord to Tenant
of the new monthly Operating payment amount and the total True-Up amount due.
20. Comprehensive General
Liability Insurance(section 6.1): $1,000,000.00 per occurrence;$2,000,000.00 general
aggregate
21. Trade Name(section 3.1): Lime Tree Cafe
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22. Broker(s)(section 16.12): CBRE,Inc.represents the Landlord exclusively in this
transaction and the Tenant represents themselves.
CBRE,Inc.shall be paid a commission by Landlord,in
accordance with the Professional Services Agreement
between the Landlord and CBRE,dated October 24,2017.
23. Tenant's Hours of Operation
(section 3.5) The Hours of Operation Shall be daily 8am—2am subject to
City ordinances Any change in the hours of operations shall requin
the prior written approval of the Executive Director or designee.
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THIS LEASE(the"Lease"),dated the 23 day of March ,2023, is made between the Miami Beach
Redevelopment Agency, a public body corporate and politic (the "Landlord"), and Collins 1560, LLC. a Florida,
limited liability company d/b/a Lime Tree Café (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 16w 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.
C. The Executive Director's designee shall be the contract manager designated by the
Landlord to administer this Lease.The Executive Director's designee shall be the City of Miami Beach Director of
the Asset Division of the Facilities and Fleet Management Department.
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 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,a portion of the Retail Space("Premises").A site
plan showing the location of the Retail Space within the Facility,as well as the location of the Premises,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 Premises does not extend beyond the interior footprint of the
Premises. Use of the sidewalk area, adjacent to a portion of the Premises, may be permitted for outdoor seating
("Outdoor Concession Area"), subject to approval by the Executive Director, in the Executive Director's sole
discretion,as evidenced from a Concession Agreement executed by the Landlord and Tenant, and provided that
Tenant secures the requisite approvals from the City of Miami Beach.Tenant shall only operate any approved use
of the Outdoor Concession Area as an ancillary use to the Premises and only during the hours of operation of the
Premises.
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 11. 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
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•
•
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 Rent
• Commencement Date. However, the final Lease Year may contain less than twelve(12)months due to expiration
or sooner termination of the Term.Tenant agrees that its covenant to pay rent and all other sums under this Lease
is an independent covenant and that all such amounts are payable without counterclaim, set-off, deduction,
abatement,or reduction whatsoever,except as expressly provided for in this Lease.
2.2 Minimum Rent/Concession Fee.
(A) Minimum Rent. Subject to any escalation which may be provided for in this Lease,Tenant
shall pay Minimum Rent for the Term in the initial amount specified in the Lease Summary,which, except for the
first installment,shall be payable throughout the Term in equal monthly installments in advance on the first day of
each calendar month of each year of the Term, such monthly installments to be in the amounts (subject to
escalation) specified in the Lease Summary. The first monthly installment of Minimum Rent shall be due upon
execution of the Lease by Landlord and Tenant, to be applied on the Rent Commencement Date in accordance
with paragraph 17 of the Lease Summary. The Minimum Rent described above shall be adjusted during the Term
of this Lease as provided in paragraph 15 of the Lease Summary.
(B) Concession Fee. In connection with the approval of the use of an Outdoor Concession
Area,Tenant will be required to execute a Concession Agreement with Landlord,which Concession Agreement,in
part,will require Tenant to pay,as Additional Rent,a Concession Fee,which has been established as of the Rent
Commencement Date to be$30.00 per square foot of the Outdoor Concession Area,which rate is thereafter subject
to escalation, simultaneously with the Minimum Rent payment, in increments of three percent(3%) each Lease
Year during the Term, plus applicable sales tax..
2.3 Percentage Rent. In addition to monthly Minimum Rent payments,Tenant shall pay to Landlord,
as Additional Rent,an annual Percentage Rent payment,equal to six percent(6%)of Tenant's Gross Receipts that
exceed Tenant's Natural Breakpoint of six percent(6%)during a given Lease Year. The Natural Breakpoint for the •
first Lease Year is Three Million,Three Hundred Seventy-One Thousand Two Hundred and Fifty and 001100 Dollars
($3,371,250.00), although Tenant shall not owe Percentage Rent for the first Lease Year, in light of the fact that
Minimum Rent is abated for such period of time.For the calculation of Percentage Rent for any partial Lease Year,
the total monthly Minimum Rent actually paid during such partial Lease Year and the actual Gross Receipts during
such period shall be used to determine the Percentage Rent for a partial Lease Year and the Breakpoint shall be
proportionally adjusted to reflect the length of such partial Lease Year on the basis of a 365-day Lease Year.The.
Term Gross Receipts as used herein shall include all receipts,whether collected or accrued from the Premises and
any approved Outdoor Concession Area including, without limitation. receipts from the sale of food, beverage,
alcoholic beverages, merchandise, rental of space,or from any other source whatsoever.The Natural Breakpoint
as referred to herein,shall mean the annual Minimum Rent for the Lease Year divided by the stated percent rate of
six percent(6%). The Natural Breakpoint, and correspondingly the Percentage Rent payment amount, shall be
adjusted annually, effective with each Minimum Rent adjustment as described in paragraph 15 of the Lease
Summary. The Percentage Rent payment for each Lease Year and each partial Lease Year shall be due and
payable within sixty(60)days at the end of each Lease Year.
2.4 Operating Expenses (Property Taxes; Insurance; and Common Area Maintenance
(CAM)). Tenant shall remit together with regular monthly payments of Minimum Rent, as Additional Rent, its
proportionate share of estimated Operating Expenses for the Premises, as determined by Landlord, in its sole
discretion and judgment,including Property Taxes, Insurance,and CAM,in accordance with item 19 of the Lease
Summary. The approved Outdoor Concession Area shall be excluded for purposes of calculating Tenant's
proportionate share of the Operating Expenses.
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
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with copies of Tenant's Sales and Use Tax Return"Form DR-15CS or DR-15EZ"filed with the Florida Department
of Revenue reporting Gross Receipts made from the Premises during the preceding calendar month.
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%%) percent per month (eighteen(18%)
percent per annum)of the delinquent amount may be charged by Landlord,such charge to be computed for the
entire period for which the amount is overdue and which shall be in addition to and not in lieu of the five(5%)percent
late charge or any other remedy available to Landlord.
2.7 Security Deposit. Landlord acknowledges receipt of a security deposit in the amount specified on
the Lease Summary to be held by Landlord,without any liability for interest thereon,as security for the performance
by Tenant of all its obligations under this Lease. Landlord shall be entitled to commingle the security deposit with
Landlord's other funds. If Tenant defaults in any of its obligations under this Lease, Landlord may at its option,but
without prejudice to any other rights which Landlord may have,apply all or part of the security deposit to compensate
Landlord for any loss, damage,or expense sustained by Landlord as a result of such default. If all or any part of
the security deposit is so applied, Tenant shall restore the security deposit to its original amount on demand of
Landlord,within ten(10)days.
If Tenant is not in default of the Lease,as defined in Article IX,and Tenant is current on all rental payments
with no monies past due,then Landlord shall return to Tenant the Security Deposit,in the amount of S40,005.50,
within thirty(30)days following termination of this Lease.
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.
2.9 Inspection and Audit.
(A) Tenant shall maintain its financial records pertaining to its operations pursuant to
this Lease,and records with respect to the Percentage Rent required pursuant to Section 2.3 during the Term,and
for a period of three(3)years following the expiration or termination of the Lease. Such records shall be open and
available to the Landlord, as deemed necessary by the Executive Director or the Executive Director's designee,
upon ten(10)business days'written notice that the Landlord desires to review said records. Tenant shall maintain
accurate receipt-printing cash registers or a like alternative which will record and show the payment for every sale
made or service provided. Tenant shall also maintain such other records as would be required by an independent
CPA in order to audit a statement of annual Gross Receipts and profit and loss statement pursuant to generally
accepted accounting principles. Tenant shalt maintain its records relating to the operation of the Premises within
Miami-Dade County,Florida.
(S) The Executive Director or Executive Director's designee shall be entitled to audit Tenant's
records pertaining to its operations during the Term as often as it deems reasonably necessary throughout the Term
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of this Lease, and within the three(3)year period following the expiration or termination of the Lease. Landlord
shall be responsible for paying all costs associated with such audits,unless the audit(s)reveals a deficiency of five
percent(5%)or more in Tenant's statement of Gross Receipts for any Lease Year audited,in which case the Tenant
shall pay Landlord,within thirty(30)days of the audit being deemed final(as specified below),the cost of the audit
and a sum equal to the amount of the deficiency revealed by the audit,plus interest as required pursuant to Section
2.6. These audits are in addition to periodic audits by the City of Resort Tax collections and payments,which are
performed separately. Nothing contained within this Section shall preclude the City's audit rights for Resort Tax
collection purposes.
(C) Tenant shall submit,at the end of each Lease Year during the Term,an annual statement
of Gross Receipts,in a form consistent with generally accepted accounting principles. Additionally,such statement
shall be accompanied by a report from an independent CPA.
•
ARTICLE III. USE OF PREMISES.
3.1 Permitted Use. The Premises shall be used and occupied only for the operation of an upscale
restaurant,subject to the prohibited uses described in Exhibit"D"to the Lease,as specified in the Lease Summary,
which use may include an Outdoor Concession Area,subject to Tenant securing the approval of Landlord and any
applicable regulatory approvals. The primary use of the Premises shall be for,the operation of an upscale
restaurant. As such,all seats on the Premises and on any approved Outdoor Concession Area shall remain eligible
for food service during all hours of operation.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 within 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 commercial restaurant or incompatible with commercial uses ancillary to a first-class
convention center hotel.Tenant shall observe all rules and regulations established by Landlord 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,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,
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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
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. 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 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;provided, however,that Tenant
does not to exceed the approved hours of operation set forth in paragraph 23'of the Lease Summary 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 in accordance
with the Lease Summary, unless otherwise approved in writing by Landlord, and shall continuously, actively, and
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• 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;
(DJ for a bankruptcy sale or going-out-of-business sale or liquidation sale or any similar sale, unless Tenant is in
fact In bankruptcy or is going out of business or is in liquidation,in which case such sale shall not continue beyond
thirty(30) days; (E)a business primarily used for an order office, mail order office,or 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 (G) tenant shall not offer or sell Hookahs, (H)
Cigarettes or CBD products.
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.
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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 Premises or 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 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
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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 commercial restaurant,with the exception of base building,
mechanical and electrical systems,roof and foundation,which are the obligation of the Landlord. 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 including,without limitation, interior plumbing
and electrical installations, (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 if 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.
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 ten(10)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
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Tenant hereby agrees to inform all contractors and material suppliers performing work in or for or supplying
materials to the Premises of the existence of said notice.
5.7 Utilities.Tenant shall pay to Landlord,or as Landlord directs, all gas,electricity,water,trash, pest
control and other utility charges applicable to the Premises as separately metered. Tenant shall, at its own cost,
install, maintain and repair, as required, its electrical meter for the Premises. In addition, Tenant's electrical
equipment and lighting shall be restricted to that equipment and lighting which individually does not have a rated
capacity and/or design load greater than the rated capacity and/or design load of the Retail Space. If Tenant's
consumption of electrical services exceeds either the rated capacity and/or design load of the Retail Space,then
Tenant shall remove the equipment and/or lighting to achieve compliance within ten(10)days after receiving written
• notice from Landlord, or such equipment and/or lighting may remain in the Premises, so long as (a)Tenant shall
•
pay for all costs of installation and maintenance of submeters,wiring,air-conditioning,and other items required by
Landlord,in Landlord's reasonable discretion,to accommodate Tenant's excess design loads and capacities;and
• (b)Tenant shall pay to Landlord,within thirty(30)days after rendition of a bill, the cost of the excess consumption
of electrical service at the rates charged to Landlord by Florida Power&Light,which shall be in accordance with
any applicable laws.
ARTICLE VI. INSURANCE AND INDEMNITY.
6.1 Tenant's Insurance. The Tenant shall maintain the below required insurance in effect prior to
awarding the Lease and for the duration of the Agreement. The maintenance of proper insurance coverage is a
material element of the Agreement and failure to maintain or renew coverage may be treated as a material breach
of the Agreement,which could result in withholding of payments or termination of the Agreement.
(A) Worker's Compensation Insurance for all employees of the vendor as required by Florida
Statute 440,and Employer Liability Insurance for bodily injury or disease.Should the Tenant be exempt from this
Statute,the Tenant and each employee shall hold the City harmless from any injury incurred during performance
of the Agreement.The exempt Tenant shall also submit(i)a written statement detailing the number of employees
and that they are not required to carry Workers'Compensation insurance and do not anticipate hiring any additional
employees during the term of this Agreement or(ii)a copy of a Certificate of Exemption.
(B) Commercial General Liability Insurance on an occurrence basis. including products and
completed operations, property damage, bodily injury and personal & advertising injury with limits no less than
$1,000,000 per occurrence,and$2,000,000 general aggregate.
(C) All-Risk property and casualty insurance, written at a minimum of eighty (80%)
percent of replacement cost value and with replacement cost endorsement, covering all leasehold improvements
installed in the Demised Premises by or on behalf of Tenant and including without limitation all of Tenant's personal
property in the Demised Premises(including,without limitation, inventory,trade fixtures,floor coverings, furniture,
and other property removable by Tenant under the provisions of this Agreement).
(D) Liquor Liability Insurance on an occurrence basis,including property damage,bodily injury
and personal&advertising injury with limits no less than$1,000.000 per occurrence.(Required,if necessary.)
(E) 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.
6.2 Additional Insured. City of Miami Beach must be included by endorsement as an additional insured
with respect to all liability policies(except Professional Liability and Workers'Compensation)arising out of work or
operations performed on behalf of the contractor including materials, parts,or equipment furnished in connection
with such work or operations and automobiles owned,leased,hired or borrowed in the form of an endorsement to
the contractor's insurance.
6.3 Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not
be cancelled,except with notice to the City of Miami Beach c/o EXIGIS Insurance Compliance Services.
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6.4 Waiver of Subrogation. Vendor agrees to obtain any endorsement that may be necessary to affect
• the waiver of subrogation on the coverages required. However, this provision applies regardless of whether the
City has received a waiver of subrogation endorsement from the insurer.
•
• 6.5 Acceptability of Insurers. Insurance must be placed with insurers with a current A.M.Best rating of
•
A:VII or higher. If not rated,exceptions may be made for members of the Florida Insurance Funds(i.e.FWCIGA,
FAJUA). Carriers may also be considered if they are licensed and authorized to do insurance business in the State
of Florida:
•
6.6 Verification of Coverage. Tenant shall furnish the City with original certificates and amendatory
endorsements, or copies of the applicable insurance language,effecting coverage required by this contract. All
certificates and endorsements are to be received and approved by the City before work commences. However,
failure to obtain the required documents prior to the work beginning shall not waive the Contractor's obligation to
provide them. The City reserves the right to require complete,certified copies of all required insurance policies,
including endorsements,required by these specifications,at any time.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
c!o EXIGIS Insurance Compliance Services
P.O.Box 4668—ECM#35050
New York,NY 10163-4668
Kindly submit all certificates of insurance,endorsements,exemption letters to our servicing agent,EXIGIS,
at: Certificates-miamibeachriskworks.com
6.7 Special Risks or Circumstances. The City of Miami Beach reserves the right to modify these
requirements,including limits,based on the nature of the risk,prior experience.insurer,coverage,or other special
circumstances.
6.8 Compliance with the foregoing requirements shall not relieve the Tenant of his liability and
obligation under this section or under any other section of this agreement.
6.9 Loss or Damage:Indemnification.
(A) 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, plumbing works (outside of the Premises), roof, or
subsurface of any floor or ceiling of the Retail Space or from the street or any other place or by any other cause
whatsoever,unless resulting from the gross negligence or willful misconduct of Landlord.
Notwithstanding the foregoing paragraph,in no event shall Landlord or the City be liable,whether
to Tenant or to third parties,for an interruption or failure in the supply of any utilities or services to the Premises,or
for any damage to person or property arising from a force majeure event,environmental concerns,theft,vandalism,
HVAC malfunction, sprinklers,appliances, plumbing works within the Premises. windows,dampness, the bursting
or leaking of water pipes,any act or omission of Tenant,or its employee,agent,contractor,invitee,guest.assignee.
or sub-tenant or occupant of the Premises or of any other person,or otherwise. Additionally,all personal property
placed or moved into the Premises will be at the sole risk of Tenant.
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(B) Tenant shall indemnify,defend and hold harmless Landlord and the City of Miami Beach
from and against any and all losses(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
(1)any occurrence in,upon,or at the Premises,(2)the occupancy,use,or improvement by Tenant,or its employee,
agent,contractor, invitee,guest,assignee, or sub-tenant of the Premises or any part thereof,(3)wholly or in part
by any act or omission of Tenant or its employee, agent, contractor, invitee, guest, assignee, sub-tenant or by
anyone permitted to be on the Premises by Tenant;(4) any misuse, neglect or unlawful use of the Premises by
Tenant or its employee, agent,contractor, invitee,guest, assignee. or sub-tenant; or(5)any breach,violation, or
non-performance of any undertaking of Tenant under this Lease.
(C) No Waiver of Sovereign Immunity. Nothing contained In this Section or elsewhere in this
Lease is in any way intended to be a waiver of the limitation placed upon the Landlord and the City's liability as set
forth in Florida Statutes Section 768.28.
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
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obligations;and if Tenant is a corporation or a partnership,the transfer of a controlling interest(greater than 50%)
in the stock of the corporation or partnership interests, as applicable provided transfers to family members and
transfers to third parties of less than 50%of the stock of the Tenant are permitted without Landlord consent. If there
Is a permitted Transfer,Landlord may collect rent or other payments from the transferee and apply the net amount
collected to the rent or other payments required to be paid pursuant to this Lease but no acceptance by Landlord of
any payments by a transferee shall be deemed a waiver of any provisions hereof regarding Tenant. Notwithstanding
any Transfer,Tenant shall not be released from any of its obligations under this Lease.Landlord's consent to any
Transfer shall be subject to the further condition that if the Minimum Rent and Additional Rent pursuant to such
Transfer exceeds the Minimum Rent and Additional Rent 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
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such sums as the court which has jurisdiction thereover may adjudge as reasonable attorneys'fees with respect to
any successful lawsuit or action instituted by Landlord to enforce the provisions of this Lease.
(D) Landlord may relet all or any part of the Premises for all or any part of the unexpired portion
of the Term of this Lease or for any longer period,and may accept any rent then attainable;grant any concessions
of rent,and agree to paint or make any special repairs,alterations, and decorations for any new tenant as it may
deem advisable in its sole and absolute discretion. Landlord shall be under no obligation to relet or to attempt to
relet the Premises,except as expressly set forth below.
(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. In the event of any default by Landlord,Tenant's exclusive remedy shall be
an action for damages or injunction,but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity,and Landlord shall have a period of thirty(30)days following the date of such notice
in which to cure such default;provided,however,that if such default reasonably requires more than thirty(30)days
to cure. Landlord shall have a reasonable time to cure such default, provided Landlord commences to cure within
such thirty(30) day period and thereafter diligently prosecutes such cure to completion). Notwithstanding any
provision of this Lease, 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 or loss of profits of Tenant which may be alleged as a result of Landlord's default, and Landlord's
maximum liability shall be as provided in section 9.6.
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9.6 Limitation of Landlord's Liability. 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$10,000.00. 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$10,000.00.Accordingly,and notwithstanding
any other term or condition of this Lease,Tenant hereby agrees that the Landlord shall not be liable to the Tenant
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for damages in an amount in excess of$10,000.00,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 paragraph or elsewhere in this Lease is in any way intended to be a waiver of the limitation placed upon the
Landlord's liability as set forth in Section 768.28.Florida Statutes.
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 Minimum Rent or Additional Rent for more than one(1)
month in advance,or(b)any security deposit or the like not actually received by Landlord,such mortgagee,owner,
or purchaser, or successor, or (c)any amendment or modification in this Lease made without the consent of
Landlord, such mortgagee, owner, purchaser, or successor, or(d)any construction obligation, free rent, or other
concession or monetary allowance,or(e)any set-off,counterclaim,or the like otherwise available against Landlord,
or(f)any act or omission of any prior landlord (including Landlord). Upon request by Landlord, said mortgagee,
owner, or purchaser, or successor, Tenant shall execute and deliver an instrument or instruments confirming its
attornment.
Notwithstanding the foregoing, any such subordination of this Lease shall be conditioned on the Landlord
obtaining,a nondisturbance agreement in favor of Tenant from all mortgagees and ground lessors regarding any
financings or other leases entered into by Landlord with respect to the Retail Space,and no subordination shall be
effective without a corresponding nondisturbance agreement.
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ARTICLE Xl. CONTROL OF RETAIL SPACE BY LANDLORD.
11.1 Use and Maintenance of Common Areas. Tenant and those doing business with Tenant for
purposes associated with Tenant's business on the Premises,shall have a non-exclusive license to use the common
areas for their intended purposes during normal business hours in common with others entitled thereto and subject
to any rules and regulations imposed by Landlord.Landlord shall use reasonable efforts to keep the common areas
in good repair and condition and shall clean the common areas when necessary.Tenant acknowledges that any
common areas of the Retail Space shall at all times be under the exclusive control and management of Landlord.
For purposes of this Lease,"common areas"shall mean those areas,facilities,utilities,improvements,equipment,
and installations of the Retail Space which serve or are for the benefit of tenants of more than one component of
the Retail Space and which are not designated or intended by Landlord to be leased, from time to time,or which
are provided or designated from time to time by Landlord and/or the City for the benefit or use of all tenants in the
Retail Space, their employees, customers, and invitees, in common with others entitled to the use or benefit of
same.Tenant acknowledges that the Garage portion of the Facility is not a part of the Retail Space,and that Tenant
has no right or license to use the Garage pursuant to this Lease. Any use by 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 shalt 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.
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ARTICLE XIII. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES.SINGLE-USE PLASTIC BEVERAGE STRAWS,AND SINGLE-USE PLASTIC STIRRERS.
13.1 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.
13.2 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 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:
13.3 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:
(A) 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
• (B) 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.
ARTICLE XIV. TENANT'S COMPLIANCE WITH FLORIDA'S PUBLIC RECORDS LAW.
14.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida Statutes,as may be
amended from time to time.
14.2 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.
14.3 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:
(A) Keep and maintain public records required by the City to perform the service;
(B) 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;
(C) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed, except as authorized 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:
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(D) 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.
14.4 Request for Records; Noncompliance.
(A) 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.
(B) 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:(1)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.
(C) Tenant who fails to provide the public records to the City within a reasonable time may be
subject to penalties under s. 119.10.
14.5 Civil Action.
(A) 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 attomeys'fees,if
(1) The court determines that the Tenant unlawfully refused to comply with the public
records request within a reasonable lime;and
(2) 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.
(B) A notice complies with subparagraph (A)(2) 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.
(C) 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.
14.6 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:
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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
ARTICLE XV. INSPECTOR GENERAL AUDIT RIGHTS.
15.1 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.
15.2 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.
15.3 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.
15.4 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.
15.5 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 Lease,for examination,audit, or
reproduction, until three(3)years after final payment under this Lease or for any longer period required by statute
or by other clauses of this Lease. In addition:
(A) If this Lease 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
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(B) The Tenant shall make available records relating to appeals or to litigation or the settlement
of claims arising under or relating to this Lease until such appeals, litigation,or claims are finally resolved.
15.6 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 Lease.
15.7 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.
ARTICLE XVI. GENERAL PROVISIONS.
16.1 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.
16.2 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.
16.3 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.
16.4 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.
16.5 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.
16.6 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
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constituting Tenant, their covenants shall be considered to be joint and several and shall apply to each and every
one of them.
16.7 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.
16.8 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.
16.9 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
16.10 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.
16.11 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.
16.12 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).
16.13 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.
16.14 No Discrimination.Tenant hereby agrees hereby agrees to comply with City of Miami Beach Human
Rights Ordinance, as codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment (including independent contractors), housing, public accommodations, public
services, and in connection with its membership or policies, because of actual or perceived race, color, national
origin, religion, sex, intersexuality, sexual orientation, gender identity, familial and marital status, age, ancestry,
height, weight, hair texture and/or hairstyle, domestic partner status, labor organization membership, familial
situation, political affiliation, or disability
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16.15 Execution. This Lease has been submitted for discussion purposes only and shall not be deemed
an offer by either party to the other to enter into this Lease unless and until this Lease shall have been executed by
both parties, indicating their acceptance of the terms and conditions contained herein.
16.16 TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
[SIGNATURE PAGE TO FOLLOW]
•
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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
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3/28/2023 I 1:18 PM EDT
Date:
ATTEST. TENANT.
COLLINS 1560, LLC, a Florida limited liability company
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Witness Banjac, Miroslav, President
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APPROVED AS I
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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"), fess 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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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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EXHIBIT"8
Sate Plan of Retail Space and location of Premises
16TH ST
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404 IA*H O' .
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.017
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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$300.00 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. 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
11. 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.
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12. 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.
13. 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.
14. 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.
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EXHIBIT"D"
Prohibited Uses
1 In no event may the primary business at the Premises engage in the operation of a cocktail lounge.
2. In no event may the primary business of the Premises engage in the operation of a Cuban or latin cuisine.
II 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.
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EXHIE8I1 "E"
Landlord's Signage Criteria
Tenant Sign Standards- t6"'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 I 5amp 110volt AC electrical circuit has been provided at the designated sign location above the entrance
doors for illuminated tenant stgnage.The area of the sign shall not exceed twenty(20)square feet.
Three(3)tubular aluminum mounting rails are provided on the transom framing, ;n front of the glass line The
tenant sign shall mount to the rails and shall oe 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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WORK LETTER AND ESCROW AGREEMENT
THIS WORK LETTER AND ESCROW AGREEMENT (this 'Work Letter") is attached to
and made a part of that certain Lease (the "Lease"), dated this 23 day of March
2023, by and between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate
and politic(collectively, "Landlord"), and COLLINS 1560, LLC, a Florida limited liability company
("Tenant')and Milosevic Law, P.A. ("Escrow Agent"). The terms and provisions of the Lease are
hereby incorporated into this Work Letter by reference. In the event of any inconsistencies
between this Work Letter and the Lease, the provisions of this Work Letter shall control. All
capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the
Lease.
In consideration of the execution of the Lease, the mutual covenants and conditions
hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Landlord, Tenant and Escrow Agent agree as follows:
CONSTRUCTION OF TENANT'S WORK; TENANT DEPOSIT.
1. Building Shell; Construction of Tenant's Work. The terms of the Lease
contemplate that Landlord shall deliver to Tenant the Premises, with improvements previously
made by the prior tenant in "As Is" condition. Subject to the terms, covenants and conditions set
forth in this Work Letter, Tenant shall build-out, construct and/or install, at Tenant's sole cost and
expense,such walls, partitions,fixtures and other improvements in and to the Premises as Tenant
deems necessary or desirable in order to make the Premises suitable for Tenant's intended use
(the 'Tenant's Work"). This Work Letter sets forth the agreement of Landlord and Tenant with
respect to the construction and/or installation of the Tenant's Work, and all ancillary matters
connected therewith and Tenant's deposit into escrow of certain funds, the disbursement of which
is governed hereby.
2. Tenant Deposit. Simultaneously with execution of this Work Letter, Tenant shall
deposit with Escrow Agent the sum of Three Hundred Thousand Dollars ($300,000.00) (the
"Tenant Construction Fund") to be paid as follows simultaneously with execution hereof, receipt
of which Escrow Agent hereby acknowledges. Escrow Agent shall give written notice to landlord
promptly after receipt of the payment required by subparagraph (b). Failure of Tenant to make
the deposit required by subparagraph(b)on or before the date when due shall constitute a default
by Tenant under this Work Letter and under the Lease and shall entitle Landlord to exercise all
remedies available thereunder or at law or in equity for Tenant's default.The Tenant Construction
Fund shall be held and disbursed by Escrow Agent in accordance with the terms of this Work
Letter to pay actual Hard Costs of constructing the Tenant's Work. In no event, however, shall
any portion of the Tenant Construction Fund be used to pay any "Soft Costs". As used herein,
'Hard Costs' shall mean direct contractor costs of labor, material, equipment, services, impact
fees, contractor overhead and profit. As used herein, "Soft Costs' shall mean all costs of the
Tenant's Work other than Hard Costs. Soft Costs include, without limitation, architectural,
engineering and legal fees; costs of financing, insurance, bonding, and security; utility hook-up
fees; costs of permits; pre-construction and post-construction expenses, and all other costs that
are not direct costs of construction All Soft Costs shall be paid as and when due from Tenant's
own funds other than the Tenant Construction Fund.
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3. No Unused Tenant Construction Fund. Upon final completion of the Tenant's
Work, and payment of the unpaid hard costs for such Tenant's Work, Tenant shall have no right
to receive any unused portion of the Tenant Construction Fund, if any. Any unused portion of the
Tenant Construction Fund after completion of the Tenant's Work shall be deemed forfeited to
Landlord as Additional Rent. Tenant recognizes and agrees that Tenant has committed to expend
not less than Three Hundred Thousand Dollars ($300,000.00) towards Hard Costs of
construction of the Tenant's Work. Tenant's failure to do so shall(a)constitute a default by Tenant
under the Lease and entitle Landlord to exercise all remedies available under the Lease or this
Work Letter or at law for Tenant's default; and (b) result in forfeiture to Landlord of any
unexpended portion of the Tenant Construction Fund as Additional Rent under the Lease.
4. Services; Landlord's Inspection. During build-out of the Tenant's Work, Tenant
shall be responsible for procuring, at its own cost and expense, any and all utilities or services
necessary in connection therewith. Tenant shall be responsible for the cost of any additional
security which may be required as a result of Tenant's construction of the Tenant's Work, which
costs are Soft Costs and may not be paid out of the Tenant Construction Fund.
5. Delay in Substantial Completion. Tenant shall not commence construction of
Tenant's Work until the date specified by Landlord("Start Date')to Tenant in written notice,which
Start Date shall not be provided until the occurrence of the following:(1)The date Tenant provides
the deposit under the Lease;(2)receipt of escrow letter from Escrow Agent evidencing the deposit
of the Tenant Construction Fund; and (3) all approvals of all insurance requirements under the
Lease and this Work Letter("Estimated Commencement Date"). Tenant shall use its best efforts
to Substantially Complete the Tenant's Work in accordance with the Tenant's Construction
Drawings(as hereinafter defined), not later than the Estimated Completion Date. The"Estimated
Completion Date" shall be 16 months days after the Lease Commencement Date (as defined in
item 14 of the Lease Summary. "Substantial Completion" shall mean the date that (i) a final
Certificate of Occupancy has been issued for the Premises and (ii) the Tenant's Work is
sufficiently complete so as to allow Tenant to occupy the Premises for the purpose of conducting
its business therein.
6. Landlord's Disclaimer. Notwithstanding the issuance of any approvals or consents
by the Landlord, Landlord has no obligation or responsibility whatsoever for the adequacy, form
or content of the Tenant's Construction Drawings, any contract, any change order, or any other
matter incident to the Premises or the construction of the Tenant's Work. Any inspection of the
Premises or the Tenant's Work shall be for Landlord's protection only and shall not constitute any
assumption of responsibility to Tenant or anyone else with regard to the condition, construction,
maintenance or operation of the Premises or the Tenant's Work or relieve Tenant of any of
Tenant's obligations. Tenant shall select all surveyors, architects, engineers, contractors,
materialmen and all other persons or entities furnishing services or materials to the Premises.
Landlord has no duty to supervise or to inspect the Premises or the construction of the Tenant's
Work nor any duty of care to Tenant or any other person to protect against, or inform Tenant or
any other person of, the existence of negligent, faulty, inadequate or defective design or
construction of the Tenant's Work. Landlord shall not be liable or responsible for any defect in
the Premises or the Tenant's Work, the performance or default of Tenant, Tenant's Architect or
Engineer, Contractor,or any other party, or for any failure to construct, complete, protect or insure
the Tenant's Work, or for the payment of costs of labor, materials or services supplied for the
construction of the Tenant's Work,or for the performance of any obligation of Tenant whatsoever.
Nothing, including acceptance of any document or instrument, shall be construed as a
representation or warranty, express or implied, to any party by Landlord. Inspection shall not
constitute an acknowledgment or representation by Landlord that there has been or will be
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compliance with the Tenant's Construction Drawings or applicable laws and governmental
requirements or that the construction is free from defective materials or workmanship. Inspection
whether or not followed by notice of default shall not constitute a waiver of any default then
existing, or a waiver of Landlord's right thereafter to insist that the Tenant's Work be constructed
in accordance with the Tenant's Construction Drawings, applicable laws, and governmental
requirements. Landlord's failure to inspect shall not constitute a waiver of any of Landlord's rights
under the Lease or Work Letter or at law or in equity. Tenant agrees that it shall be solely
responsible for supervising the construction of the Tenant's Work, and Landlord shall have no
obligation to provide any such administrative or management services.
II. TENANT'S CONSTRUCTION DRAWINGS; BUDGET; DISBURSEMENT OF TENANT'S
CONTRIBUTION FUND:
1. Contents of Tenant's Construction Drawings. The Tenant's Work shall be
completed in accordance with Tenant's Plans and Tenant's Construction Drawings as approved
by Landlord pursuant to Article V of the Lease.
2. Tenant's Architect; Tenant's Engineers. Tenant shall employ a licensed architect
approved by Landlord ("Tenant's Architect") in preparation of the Tenant Plans and Tenant's
Construction Drawings,which shall be prepared and sealed in such a manner as may be required
for the issuance of a building permit. All engineering drawings(the"Engineering Drawings"), shall
be prepared by engineer(s) approved by Landlord ("Tenant's Engineers").
3. Modification of Tenant's Construction Drawings. Once approved, except as
provided in Article IV, Section 10 hereof, no changes in, or revisions or additions to, the Tenant's
Plans and Tenant's Construction Drawings may be made without the prior written approval of
Landlord. Tenant shall provide Landlord with computerized architectural drawings ("CAD") of the
Tenant's Plans and Tenant's Construction Drawings on disk. Upon completion of the Tenant's
Work, Tenant shall provide Landlord with"as-built" plans both in blueprint form and in CAD form.
4. Construction Budget. Tenant shall cause Contractor to prepare a detailed budget
setting forth the total cost and expenses for construction of the Tenant's Work in accordance with
the Tenant's Construction Drawings, which budget shall reflect actual Hard Costs of construction
of not less than $300,000.00 and shall be subject to the approval of Landlord (the "Budget"). In
the event that, at any time during construction of the Tenant's Work, the amount remaining in
Tenant Construction Fund is not, in the opinion of Landlord, sufficient to complete the Hard Costs
of the Tenant's Work, Tenant agrees to contribute a sum equal to the deficiency ("Tenant's
Excess") into the Tenant Construction Fund. The Escrow Agent shall not be entitled to disburse
any portion of the Tenant Construction Fund until Tenant shall have deposited the Tenant's
Excess into the Tenant Construction Fund.
5. Disbursement of Tenant Construction Fund, Tenant agrees that in connection with
any request for disbursement of the Tenant Construction Fund, Tenant shall comply with each of
the requirements set forth in Article V hereof. Tenant further agrees to provide Landlord and
Escrow Agent with proof of compliance prior to disbursement of any portion of the Tenant
Construction Fund.
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Ill. CONTRACTOR; CONSTRUCTION CONTRACT; PERFORMANCE BOND; BUILDING
PERMITS:
1. Contractor. The Contractor employed by Tenant shall be subject to Landlord's
approval, which shall not unreasonably be withheld ("Contractor") and shall enter into a
construction contract with Tenant("Construction Contract"). The Contractor shall be responsible
for obtaining all necessary permits and approvals, which expense shall be a Soft Cost and shall
not be paid for out of the Tenant Construction Fund. All construction performed by the Contractor
shall be done in accordance with, and subject to,each of the terms,covenants and conditions set
forth herein. In addition thereto, Tenant shall advise the Contractor, and all subcontractors,
materialmen and suppliers that no interest of Landlord in the Premises,the Building or the Project
shall be subject to liens to secure payment of any amount due for work performed or materials
installed in the Premises.
2. Building Permits. Prior to commencing any work, Tenant shall obtain, at its sole
cost and expense, and shall furnish copies to Landlord, all building and other permits required to
construct the Tenant's Work. The cost for such building and other permits are Soft Costs and
may not be paid out of the Tenant Construction Fund.
3. Performance Bond. Tenant shall require its Contractor to provide unconditional
performance and payment bonds covering the total value of the Tenant's Work issued by a surety
acceptable to Landlord. Said bonds shall be issued for each subcontractor, contractor or
materialman furnishing material or providing labor or services to the Premises and shall(i)name
Landlord as an additional obligee,(ii)be in an amount,in form and content,and issued by sureties,
satisfactory to Landlord and (iii) be in compliance with all applicable laws. The cost of the
performance and payment bond premiums are Soft Costs and may not be paid from the Tenant
Construction Fund.
IV. TENANT'S COVENANTS WITH RESPECT TO CONSTRUCTION OF THE TENANT'S
WORK:
Tenant hereby covenants and agrees with Landlord as follows:
1. Construction. (I)Prior to the commencement of construction of the Tenant's Work,
to record a Notice of Commencement in the Public Records of Miami-Dade County, Florida, and
to post a certified copy thereof in the Premises, in accordance with the requirements of Florida
Statutes, Chapter 713, and to designate Landlord as one of the parties to receive a copy of all
notices to owner, (ii) to cause the Tenant's Work to be constructed in accordance with the
Tenant's Construction Drawings and all applicable Laws (as defined in Article IV, Section 15
hereof),(iii)to do no act that would relieve Contractor from its obligations to construct the Tenant's
Work according to the Tenant's Construction Drawings, and (iv)to make no amendments, other
than modifications or change orders as may be permitted hereunder,to the Tenant's Construction
Drawings without the prior written consent of Landlord.
2. Agreement of Contractor to Complete Construction; Agreement of Tenant's
Architect. To promptly furnish Landlord with the written agreement of Contractor, acceptable to
Landlord, that, in the event of a default by Tenant hereunder or under the Lease or under the
terms of the construction contract between Tenant and its Contractor (the "Construction
Contract"), Contractor will, at the written request of Landlord, continue performance pursuant to
the Construction Contract, until completion of construction of the Tenant's Work, provided
Contractor is reimbursed for all work done subsequent to Landlord's request for Contractor to
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complete construction. Tenant shall also furnish Landlord with the written agreement of Tenant's
Architect and Tenant's Engineer, that, following a default by Tenant hereunder or under the
Lease, (i) Landlord shall be entitled to the use and benefit of the Tenant's Construction Drawings
and (ii) Tenant's Architect and Engineer will continue performance under its agreement with
Tenant, for the benefit of Landlord, upon request therefor by Landlord, provided that Landlord
pays Tenant's Architect and Tenant's Engineer for all services rendered by Tenant's Architect
and Tenant's Engineer after Landlord's request. Landlord, at its sole option, shall be entitled to
use the Tenant Construction Fund to pay amounts owed to Contractor, Tenant's Architect and/or
Tenant's Engineer pursuant to this paragraph, and Escrow Agent shall promptly disburse the
funds to Landlord upon Landlord's request.
3. Insurance. To obtain and deliver to Landlord prior to the commencement of
construction of the Tenant's Work, all insurance or evidence of all insurance required under the
Lease and, in addition thereto, the following (all of which are Soft Costs and may not be paid for
out of the Tenant Construction Fund):
(a) Builder's Risk Insurance. Builder's risk insurance, with a deductible of not
more than $5,000.00, that shall (i) name Landlord, as an additional insured, (ii) provide coverage
equal to the highest insurable value of the Tenant's Work (but in no event less than the contract
price under Construction Contract), and (iii) be in such form and issued by such companies as
shall be approved by Landlord. The originals or certified copies of such policies, together with
appropriate endorsements thereto, including, but not limited to, the written agreement by the
insurer or insurers therein to give Landlord thirty(30)days prior written notice of intention to cancel
or amend,shall be promptly delivered to Landlord;said insurance coverage to be kept in full force
and effect at all times during construction of the Tenant's Work.
(b) Statutory Employer Liability and Workman's Compensation Insurance. A
certificate or certificates from an insurance company reasonably acceptable to Landlord,
confirming that Tenant and Contractor have obtained statutory worker's compensation and
employer's liability coverage in an amount not less than required by law, without allowance for
any exemption thereunder.
(c) Automobile Insurance. Business and Automobile Liability with minimum
limits of One Million and No/100 Dollars($1,000,000.00) per occurrence combined single limit for
Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no
more restrictive than the latest edition of the Business Automobile Liability Policy, without
restnctive endorsements, as filed by the Insurance Services Office and must include: (1)Owned
Vehicles, (2) Hired and Non-Owned Vehicles; and (3) Employers' Non-Ownership.
Any policy of insurance herein required shall contain a contractual liability endorsement
covering indemnity and defense obligations of Tenant and such other coverage as may
reasonably be required by Landlord. Such policy will among other things, make specific reference
to the Lease and Work Letter. Any policy obtained by Tenant insuring against loss by physical
damage to any portion of the Tenant's Work or to materials to be incorporated in the Tenant's
Work or covering Tenant's or its contractor's tools,supplies, machinery or equipment shall contain
an endorsement providing that the insurer waives its rights of subrogation against Landlord and
any other named or additional insured. Nothing in this Section shall give or create in any third
party any claim or right against Landlord, except that which may exist irrespective of this Section.
The insurance required hereunder may be contained in one or more policies. Prior to
commencement of any construction, Tenant shall furnish to Landlord certificates or copies of
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policies showing that the insurance is in force and that the premiums due thereunder shall have
been paid and that the subcontractors of Contractor,and such other persons as Tenant may direct
are named as insured persons jointly with Contractor in respect of any loss covered. Tenant shall
provide Landlord with notice of any cancellation, termination or modification of any required
insurance coverages.
In the event of any failure of Tenant to furnish and maintain insurance required hereunder,
Landlord, at its option and without waiving the default of Tenant, shall have the right to obtain
such insurance for, and in the name of,Tenant. In such event Tenant shall pay the cost thereof
upon demand and shall furnish all information required by the insurance carrier.
4. In addition to the foregoing insurance,Tenant shall, prior to commencement of
construction, provide or cause to be provided to Landlord from each subcontractor performing
services or furnishing labor at the Premises(1)general liability insurance,with limits of One Million
and No/100 Dollars ($1,000,000.00) per occurrence and Two Million and No/100 Dollars
($2,000,000.00) in the aggregate and (2)automobile insurance in form and content and in such
• amount as Landlord may require.
5. Subrogation. The terms of insurance policies referred to in Section IV
Subsection 3(c) and Subsection 4 shall preclude subrogation claims against Tenant, Landlord
• and their respective officers,employees and agents.
•
6. Insurance Cooperation. To cooperate with Landlord in obtaining for Landlord
• the benefits of any insurance policy or other proceeds lawfully or equitably payable to it in
connection with the transactions contemplated hereby and the collection of any indebtedness or
obligation of Tenant to Landlord incurred hereunder.
7. Commencement and Completion of Construction. Tenant shall diligently
pursue construction to completion,in accordance with(i)the Tenant's Construction Drawings,(ii)
all applicable Laws,and(iii)such reasonable rules and regulations as Landlord may impose from
time to time to ensure the orderly construction of the Tenant's Work and to minimize disruption.
Tenant shall pay all Soft Costs from Tenant's own funds and not from the Tenant Construction
Fund and supply such sums of money and perform such duties as may be reasonably necessary
to complete the construction of the Tenant's Work on or before the Estimated Commencement
Date pursuant to the Tenant's Construction Drawings and in full compliance with all of the terms,
covenants and conditions of this Work Letter(the "Completion Date"). Tenant shall satisfy all
liens, claims, or assessments(actual or contingent)asserted against the Premises, the Building
or the Project,for any material, labor,or other items furnished in connection with the construction
of the Tenant's Work,and shall comply with the Florida Mechanics'Lien Law,Chapter 713, Florida
Statutes. In connection with the construction of the Tenant's Work,Tenant shall comply or cause
Tenant's Contractor to comply with all construction, use, building, zoning, and other similar
requirements of any governmental authority having orasserting jurisdiction over the Premises,or
the Project Upon request by Landlord, Tenant will provide evidence of satisfactory compliance
with all of the foregoing to Landlord. In the event any lien shall be filed (whether properly or
improperly) against the Premises, or the Project, it shall be removed, satisfied or transferred to
bond by Tenant within ten(10)days. Tenant's failure to do so within the ten(10)day period shall
be a default hereunder and under the Lease, and (i) Escrow Agent shall have no further right to
make any disbursement to Tenant hereunder from the Tenant Construction Fund, and (ii)
Landlord shall be entitled to avail itself of all rights and remedies provided for hereunder or under
the Lease.
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8. Riaht of Landlord to Inspect Premises. To permit Landlord, and Landlord's
employees and Landlord's consultants,if any,and their representatives and agents,to enter upon
the Premises and to inspect the Tenant's Work and all materials to be used in the construction
thereof; and to cooperate and cause Contractor to cooperate with Landlord and its employees,
representatives and agents during those inspections;provided,however,that this provision shall
not be deemed to impose upon Landlord any obligation to undertake such inspections.
9. Correction of Defects. To promptly correct any material defect in the Tenants
Work, or any departure from the Tenant's Construction Drawings not approved by Landlord or
permitted hereunder. The advance of any portion of the Tenant Construction Fund shall not
constitute a waiver of Landlord's right to require compliance with this covenant.
10. Approval of Change Orders. To permit no deviations in excess of$1,000.00
per change or$5,000.00 in the aggregate,from the Tenant's Construction Drawings,without the
prior written approval of Landlord. No change(s) shall be permitted unless and until such
change(s) shall have been approved in writing by the Landlord in accordance with Article II,
Section 3 hereof.
11. Notification of Claims by Subcontractors and Materialmen. To advise Landlord
monthly and in writing, if Tenant receives any Notice to Owner,written or oral,from any laborer,
subcontractor, or materialman in connection with any labor or materials furnished in the
construction of the Tenant's Work.
12. Further Acts. To do and execute all and such further lawful and reasonable
acts, documents,and assurances for the better and more effective carrying out of the intent and
purpose of this Work Letter,as Landlord shall reasonably require from time to time.
13. Architect's Opinion. To furnish to Landlord upon request, the written opinion
of Tenant's Architect, in form and content reasonably satisfactory to Landlord, certifying, that,
based on inter alia, (i) Architect's preparation of the Tenant's Construction Drawings; (ii)
Architect's supervision and inspection of construction of the Tenant's Work; (iii) all applicable
Laws; and(iv)Architect's professional knowledge and judgment: that(a)the Tenant's Work has
been constructed in accordance with the Tenant's Construction Drawings,and in compliance with
all Laws, (b) the proposed Tenant's Work can be constructed in accordance with the Tenant's
Construction Drawings for a cost that does not exceed the price set forth in the Construction
Contract,and(c)the amount remaining in the Tenant Construction Fund is sufficient to pay for all
unpaid Hard Costs of Construction.
14. Certificate of Occupancy. To obtain and furnish to Landlord a copy of a final
certificate of occupancy, or such other certificate or approval required by any governmental
agency to ensure that the Tenant's Work has been finally completed and that Tenant can occupy
the Premises.
15. Florida Buildina Laws. Tenant and Contractor shall comply with all applicable
provision of the Florida Building Codes Act, as amended from time to time, the Miami-Dade
County Building and Zoning Code, as amended from time to time, and all other applicable laws,
rules, ordinances and building or zoning codes(collectively, the"Laws").
16. Smoke. Alcohol. Drugs and Arms Free Site. Tenant acknowledges that the
Premises and the Project shall be designated as a smoke, alcohol, drug and arms free site(the
"Project Designation"). Tenant covenants to observe said Project Designation and to cause
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Contractor and ail other contractors, subcontractors and materialmen employed in the
construction of the Tenant's Work to comply with said restrictions. Violation of the Project
Designation by Tenant, Contractor or any contractor, subcontractor or materialman employed in
the construction of the Tenant's Work shall constitute a breach of the Lease. In addition to all
other rights and remedies of Landlord hereunder, in the event of a violation of the Project
Designation by any contractor, subcontractor or materialman, Landlord shall have the right to
cause Tenant to terminate the contractor, subcontractor or materialman causing such violation.
In order to facilitate the enforcement of this provision, Tenant agrees to include language in its
contract with Contractor,and any other third party,provisions(i)requiring the Contractor and third
party and any of their contractors, subcontractors and materialmen to observe said Project
Designation and (ii) permitting the Tenant to terminate any contractor, subcontractor or
materialman who fails to observe said Project Designation. Tenant agrees to immediately advise
Landlord of any violation of the Project Designation.
17. Parking; Location of Construction Dumpsters and Storage Trailers;Temporary
Bathroom Facilities. Landlord shall have the right to specify the location for the placement of
construction dumpsters and storage trailers used by Tenant and/or its Contractor in the
construction of the Tenant's Work. Landlord shall also have the right to specify the parking spaces
used by Contractor and all other contractors,subcontractors and materialmen. However, unless
Landlord otherwise agrees, Contractor shall be solely responsible for arranging parking for all
workers at an off-site location(not within the Project). Tenant shall, at its own cost and expense
(which shall be part of Soft Costs), provide temporary bathroom facilities and off-site parking for
the contractors, subcontractors and materialmen engaged in the construction of the Tenant's
Work.
18. Maintenance of Premises during Construction. Tenant agrees to undertake
the removal of construction related trash on or about the Premises on a daily basis. In the event
that Tenant fails to comply with the foregoing,Landlord shall have the right,but not the obligation,
to undertake such trash removal and any expenses incurred by Landlord in connection therewith
shall be payable by Tenant(as Soft Costs) within five (5) days after receipt of an invoice from
Landlord.
V. DISBURSEMENT OF TENANT CONSTRUCTION FUND:
Subject to compliance with and fulfillment of each and every of the terms, covenants and
conditions set forth herein, Escrow Agent shall make disbursements out of the Tenant
Construction Fund,up to the full amount of the Tenant Construction Fund,in accordance with this
Work Letter and the following procedures:
1. Request for Payment. At such time as Tenant shall desire to obtain a
disbursement of any portion of the Tenant Construction Fund for Hard Costs of Tenant
Improvement costs, Tenant shall complete,execute and deliver to Escrow Agent and Landlord a
request for an advance on a form of draw request approved by Landlord. Such draw request
shall include, but not be limited to,the following information:
(a) a reasonably detailed breakdown of the total amount then being
requested, identifying each contractor, subcontractor, supplier or materialman to be paid, the
amount to be paid to each such contractor, subcontractor, supplier or materialman,and the work
done by each such person or entity for which payment is being requested;
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(b) ' a copy of all bills, invoices or statements for which payment is being
requested must be attached to the draw request;
(c) waivers or releases or liens for all work performed to the date of the
draw request, from each contractor, subcontractor, materialman or supplier performing work or
supplying materials to the Premises,must be attached to the draw request;
(d) a statement by Tenant that Tenant or Tenant's Architect has inspected
all work for which payment is being requested,that, based upon Tenant's Architect's inspection
of the work,such work complies in all material respects with the Tenant's Construction Drawings
and applicable Laws (subject to minor"punch list" items set forth on such certificate), and that
Tenant authorizes and approves the payment to each contractor, subcontractor, supplier or
materialman shown on the draw request,in the amount set forth in such draw request;
(e) a certification by Tenant that:
(i) all outstanding claims for labor,materials and fixtures in connection
with the Tenant's Work have been paid in full as of the date of the
draw request,or will be paid in full from the proceeds of the draw
then being requested;
(ii) there are no mechanics, materialmen or other liens filed in the
public records against the Premises, the Building or the Project,
arising from or out of the construction of the Tenant's Work;
(iii) Tenant has complied with all of Tenant's obligations, and is not in
default,as of the date thereof, under the Lease,the Work Letter or
the Construction Contract;
(iv) all insurance policies required hereunder and under the Lease are
in full force and effect;
(v) all funds previously disbursed by Landlord from the Tenant
Construction Fund have been applied in accordance with the prior
draw request;
(vi) the undisbursed portion of the Tenant Construction Fund is
sufficient to complete construction of the Tenant's Work in
accordance with the Budget, the Construction Contract, the
Tenant's Construction Drawings,and applicable Laws; and
(vii) there have been no changes in the Tenant's Construction Drawings
other than those made pursuant to change orders permitted
hereunder or those changes that are less than the required amount
to receive approval.
(f) such other and further information as Landlord may reasonably
request.
2. Architect's Certification. Each draw request for Tenant's Work costs shall be
accompanied by the written certification of Tenant's Architect, certifying that, based on (i)
Architect's preparation of the Tenant's Construction Drawings, (ii) Architect's supervision and
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inspection of construction of the Tenant's Work, (iii) all applicable Laws, and (iv) Architect's
professional knowledge and judgment:
(a) all Tenant's Work constructed as of the date of the draw request have
been constructed in accordance with the Tenant's Construction Drawings and in accordance with
all applicable Laws(subject only to minor`punch list"items set forth in such certificate);
(b) (i) neither Tenant nor Tenant's Contractor is in default under the
Construction Contract(but such statement shall not be deemed a waiver of any claim Tenant may
have or assert against Contractor), and (II) each contractor, subcontractor, materialman or
•
supplier performing work on or supplying materials to the Premises in connection with the
Tenant's Work has been paid in full for all work done or materials supplied, up to the date of
Tenant's Architect's certification, except for amounts to be paid from the draw then being
requested;
(c) all work for which Tenant is seeking disbursement from the Tenant
Construction Fund, as reflected in the draw request, has been incorporated into the Premises;
and
(d) the funds remaining in the Tenant Construction Fund are sufficient to
pay for all Hard Costs required to complete the Tenant's Work.
3. Conditions Precedent to Each Disbursement. At no time and in no event shall
Escrow Agent be obligated or permitted to disburse funds from the Tenant Construction Fund:
(a) if any default or Event of Default hereunder or under the Lease or
Construction Contract shall have occurred and remain uncured;or
(b) if the Premises shall have been damaged by fire or other casualty and
Landlord shall not have received•insurance proceeds, sufficient in the reasonable judgment of
Landlord, to effect the restoration of the Tenant's Work in accordance with the Tenant's
Construction Drawings(and Tenant has failed to make arrangements satisfactory to Landlord for
the payment of such insurance insufficiency);or
(c) if there shall be any mechanics' liens or other liens in connection with
construction of the Tenant's Work, filed in the public records against the Premises, the Building
or the Project which have not been released or transferred to bond; or
(d) if the warranties and representations of Tenant set forth herein,and, if
applicable,in the Lease or in the Construction Contract,are false or untrue in any material respect
as of the date of such advance;or
(e) if Tenant shall have failed to comply with and perform all of its
obligations under this Work Letter or shall have failed to deliver to Landlord all documentation
required hereunder,or
(f) if a Notice of Commencement has not been filed and posted as required
by Article IV,Section 1 hereof; or
(g) if the funds remaining in the Tenant Construction Fund are insufficient
to pay all Hard Costs to complete the Tenant's Work in accordance with the Tenant's Construction
Drawings and all Laws.
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4. Retainage. All disbursements from the Tenant Construction Fund shall be
subject to the following retainages:
(a) Ten percent(10%)of that portion of each draw, or such lesser percent
as may be approved by Landlord, which is applicable to payments to be made under the
Construction Contract,unless such retainage has already been deducted from the draw request.
Retainage relating to amounts due under subcontracts shall be released by Escrow Agent for
each subcontractor when the subcontractor has completed its contract to the satisfaction of the
Contractor and Landlord.
• (b) The final construction disbursement, equal to no less than 5% of the
highest balance of the Tenant Construction Fund, shall be withheld by Escrow Agent, and shall
be disbursed along with all other retainages under this Section, only upon compliance with the
following requirements(in addition to the requirements for all other disbursements):
(i) Receipt by Landlord and Escrow Agent of satisfactory evidence of
final completion of the Tenant's Work, substantially in accordance
with the Tenant's Construction Drawings,and the approval of such
completion by local governmental authorities, including, but not
limited to,a final certificate of occupancy issued by the appropriate
governmental authority.
(ii) Receipt by Landlord of satisfactory"as-built"plans,in both blueprint
and CAD form, registered with the City of Miami Beach Building
Department reflecting the completed Tenant's Work.
(iii) Receipt by Landlord of the Contractor's Affidavit for Final Payment
which shall include waivers of lien from Contractor and all
subcontractors,materialmen and suppliers employed by Contractor
or Tenant. Said documents shall be in form, and substance
reasonably satisfactory to Landlord.
(iv) The written certification from Tenant's Architect that the Tenant's
Work has been Substantially Completed in accordance with the
Tenant's Construction Drawings and all applicable Laws,specifying
in detail any outstanding, minor`punch list"items to be completed.
(v) Certificate of Occupancy
(vi) Certificate of Completion
(vii) Delivery and completion of all materials, documents, files, and requisites in
accordance with any and all terms and conditions contained herein this Work Letter.
5. Notice. Frequency and Place of Disbursements. All draw requests for work
performed or materials supplied to the Premises (for which payment has not theretofore been
made),together with Tenant's Architect's Certificate and all other information and documentation
required under this Work Letter,shall be submitted to Landlord and Escrow Agent by Tenant not
later than the twenty fifth(25th)day of the month. Provided that(a)Tenant has complied with all
of the terms, covenants and conditions set forth in this Work Letter, and (b) the Architect's
Certificate and Tenant's draw request are true and correct in all material respects, and (c)
Landlord has not objected in writing to the proposed disbursement, Escrow Agent shall disburse
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the funds requested in the draw request(or such portion thereof as permitted by this Work Letter)
not more than ten (10) Business Days after receipt of the draw request and supporting
documentation from Tenant. Unless otherwise approved by Landlord, Escrow Agent shall only
be permitted to disburse funds from the Tenant Construction Fund one (1)time each calendar
month;provided,however,that Landlord shall not unreasonably withhold its approval of a request
by Tenant that Escrow Agent disburse funds from the Tenant Construction Fund at times other
than as set forth hereinabove in this Section 4, in the event of a bona fide emergency(such as,
by way of illustration, but not limitation,to avert a possible work stoppage by the Contractor or a
subcontractor), provided that (i) such disbursement request otherwise complies with all of the
requirements of this Work Letter, and (ii)no more than four(4) such emergency requests need
be considered by Landlord.
6. Disbursements. Landlord shall,have the right, but not the obligation,to require
Escrow Agent to'make all disbursements from the Tenant Construction Fund(I)directly to Tenant,
or(ii)jointly to Tenant and Contractor.
VI. DEFAULT:
1. Defaults. In addition to the Events of Default set forth in the Lease, the following
shall also be deemed to be Events of Default under the Lease:
(a) If there is any default or Event of Default under the Construction Contract
that arises by reason of the failure of Tenant to pay any sum of money due under the Construction
Contract, and such default is not cured within five(5)days following receipt by Tenant of written
notice alleging such default;or
(b) If Tenant shall fail to make, not later than thirty(30)days prior to the date
when due, the payment of premiums on any policy of insurance required hereunder, and such
failure is not cured within five(5)days of receipt by Tenant of written notice alleging such failure;
or
(c) Any other defaults hereunder, or under the Construction Contract or the
Lease, involving the failure of Tenant to pay monetary sums hereunder or thereunder(including
payment of all Soft Costs),and such failure continues for five (5)days after receipt by Tenant of
written demand therefor by Landlord; provided, however, that a good faith, bona fide dispute
between Tenant and the Contractor or other payee for amounts allegedly due under the
Construction Contract or other contract shall not, by itself, be considered an Event of Default
hereunder, so long as Tenant is diligent and in good faith attempting to resolve such dispute.
(d) If any lien for labor, material, taxes'or otherwise shall be filed against the
Premises,the Building or the Project,on account of Tenant's work,and such lien is not removed,
satisfied or transferred to bond as required under Article IV,Section 7 of this Work Letter.
(e) If construction of the Tenant's Work shall be abandoned and not be
resumed at such time as may be reasonably necessary to complete construction by the Estimated
Completion Date,unless such cessation is due to acts of God,strike or unavailability of materials;
(f) Any other default under this Work Letter that is not cured within thirty(30)
days after Tenant's receipt of notice of default from Landlord; provided, however, in the event
such default cannot reasonably be cured within the thirty (30) day period, said period shall be
extended for such additional period as may be reasonably required in order to cure such default
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(not to exceed an additional 30 days), so long as Tenant acts with reasonable diligence during
and after the thirty(30)day period in attempting to cure the default;or
(g) If the total amount paid by Tenant for Hard Costs of constructing the
Tenant's Work is less than$500,000.
VII. REMEDIES OF LANDLORD:
Upon the occurrence of any one or more of the Events of Default set out in Section VI
hereof,or any default or Events of Default under the Lease,Landlord shall at its option be entitled,
in addition to and not in lieu of the remedies provided for in the Lease,exercise any of the following
remedies:
1. Default Constitutes Default Under Lease. Tenant agrees that the occurrence of
such Event of Default shall constitute a Default under the Lease, thereby entitling Landlord(i)to
exercise any of the various rights and remedies provided, including, but not limited to, the
acceleration of all rents, payments and other amounts due under the Lease,and(ii)cumulatively
to exercise all other rights, remedies, options and privileges provided by law or in equity(unless
stipulated to the contrary in the Lease).
2. Right of Landlord to Assume Possession and Complete Construction. Tenant
agrees, upon the request of Landlord,to vacate the Premises and permit Landlord:
(a) to enter into possession;
(b) to perform or cause to be performed any and all work and labor necessary
to complete the Tenant's Work in accordance with the Tenant's Construction Drawings,or in such
other manner as Landlord may elect in its sole discretion;
(c) to employ security watchmen to protect the Premises;and
(d) to receive from Escrow Agent immediately upon demand that portion of the
Tenant Construction Fund not previously disbursed(including any retainage)to be applied first to
the extent necessary to complete construction of the Tenant's Work in accordance with the
Tenant's Construction Drawings, or in such other manner as Landlord may elect, and if the
completion requires a larger sum than the remaining undisbursed portion of the Tenant
Construction Fund,to disburse such additional funds,all of which funds so disbursed to Landlord
shall be deemed to have been disbursed to Tenant. If Landlord proceeds under this subparagraph
(d), all portions of•the Tenant Construction Fund that are not used to pay for completion of
construction shall not be retained by Landlord as Additional Rent. Landlord, shall have the right,
but not the obligation, to take all actions necessary in connection therewith, including, but not
limited to,the following:To use any funds of Tenant which may be held in deposit and any funds
which may remain unadvanced hereunder for the purpose of completing the Tenant's Work in the
manner called for by the Tenant's Construction Drawings, or in such other manner as Landlord
may elect; to make such additions and changes and corrections in the Tenant's Construction
Drawings which shall be necessary or desirable to complete the Tenant's Work in a manner
acceptable to Landlord; to employ such contractors, subcontractors, agents, engineers,
architects,and inspectors as shall be required for said purposes;to pay,settle,or compromise all
existing or future bills and claims which are or may be liens against said Premises;to execute all
applications and certificates in the name of Tenant which may be required by any construction
contract and to do any and every act with respect to the construction of the Tenant's Work which
Tenant may do in its own behalf. Landlord shall also have power to prosecute and defend all
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actions or proceedings in connection with the construction of the Tenant's Work and to take such
action and require such performance as it deems necessary. In accordance therewith, Tenant
hereby assigns and quit claims to Landlord all sums to be advanced hereunder, including any
remaining Tenant Allowance and any retainage and any sums paid hereunder to Landlord.
3. Additional Remedy. In lieu of exercising its rights under the preceding paragraph
2, Landlord may receive from Escrow Agent immediately upon demand all funds remaining in the
Tenant Construction Account and apply them towards Landlord's damages for Tenant's breach
of the Lease.
VIII. ESCROW AGENT PERFORMANCE OF DUTIES: •
1. Escrow Agent agrees to perform the duties of Escrow Agent under this Work Letter
and to hold and disburse the Tenant Construction Fund strictly in accordance with the provisions
hereof.
2. In performing any of its duties under this Work Letter, or upon the claimed failure
to perform its duties hereunder, Escrow Agent shall be liable to anyone for damages, losses or
expenses which may occur as a result of Escrow Agent's so acting, or failing to act; except,
however, Escrow Agent shall be liable for damages arising out of its willful default or gross
negligence under this Work Letter. Accordingly, Escrow Agent shall not incur any such liability
with respect to(i)any good faith act or omission upon advice of counsel given with respect to any
questions relating to the duties and responsibilities of Escrow Agent hereunder,or(II)any good
faith act or omission in reliance upon any document, including any written notice or instructions
provided for in the Work Letter, not only as to its due execution and to the validity and
effectiveness of its provisions but also as to the truth and accuracy of any information contained
therein,which Escrow Agent shall in good faith believe to be genuine, to have been signed or
presented by the proper person or persons and to conform with the provisions of this Work Letter.
[SIGNATURE PAGES TO FOLLOW]
14
DocuSign Envelope ID:F711 8931-A387-41 F3-B3EF-9C91 BA1712FA
DocuSign Envelope ID:FB4CF5C5-8F14-4FF2-B311-9F70D89F80E7
IN WITNESS WHEREOF, the Work Letter has been made and executed as of the date
set forth below.
Dated:As set forth above
LANDLORD:
Attest:
1 MIAMI BEACH REDEVELOPMENT
DoeuSigned by:
cp
AGENCY
rat,t f. �'v'ain.a�e
'elk eraeado,
Secretary By:
Narr :Aline T. Hudak
Print Name: itie: Executive Director
3/23/2023 I 2:35 PM EDT
Date:
•
•
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
9:44441.VC5 ® 3j23 .
.&t General Counsel Da et
. 15
DocuSign Envelope ID:•F7118931-A387-41F3-B3EF-9C91BA1712FA
DocuSign Envelope ID:FB4CF5C5-8F14-4FF2-B311-9F70D89F80E7
TENANT:
COLLINS 1560, LLC, a Florida limited
liability company
Name: iNy9
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Date: 3/ 7 / `?u2 127
ESCROW AGENT: MILOSEVIC LAW, P.A.
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DocuSign Envelope ID:F7118931-A387-41F3-B3EF-9C91BA1712FA ,
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DocuSign Envelope ID:F7118931-A387-41 F3-B3EF-9C91 BA1712FA
RESOLUTION NO 680-2022
•
A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), ACCEPTING THE
RECOMMENDATION OF THE CITY'S FINANCE AND ECONOMIC
RESILIENCY COMMITTEE,AND APPROVING, IN SUBSTANTIAL FORM,A
LEASE AGREEMENT BETWEEN THE RDA (LANDLORD) AND COLLINS
1560, LLC D/B/A LIME TREE CAFÉ (TENANT), FOR USE OF
APPROXIMATELY 2,697 SQUARE FEET OF GROUND FLOOR RETAIL
SPACE AT THE ANCHOR SHOPS AND GARAGE, AS AN UPSCALE
FRENCH-ITALIAN FUSION CAFÉ, LOCATED AT 1560 COLLINS AVE,
SUITE NOS. 1-2 (PREMISES), FOR A PERIOD OF NINE (9) YEARS AND
TWO-HUNDRED AND SEVENTY-TWO (272) DAYS; AND FURTHER
AUTHORIZING THE EXECUTIVE DIRECTOR TO FINALIZE AND EXECUTE
THE LEASE AGREEMENT.
WHEREAS, the Miami Beach Redevelopment Agency (the "RDA") is a public body
corporate and politic, which owns that certain project commonly known as the "Anchor
Shops", containing a garage and ground floor retail spaces located in the area bounded by
Washington Avenue and Collins Avenue, in the proximity of 16th Street; and
WHEREAS, pursuant to a Professional Service Agreement with the City of Miami
Beach(the"City"), CBRE, Inc. is authorized to provide real estate brokerage services for the
City, and served as the listing agent for the ground floor retail space at the Anchor Shops,
located at 1560 Collins Avenue, Suites 1-2 (Premises); and
WHEREAS, as a prospective tenant for the Premises, CBRE has identified Collins
1560, LLC, a Florida limited liability company(Tenant); and
WHEREAS, as part of lease negotiations, the Tenant provided a sample menu, and
Letter of Intent (LOl), which are set forth as exhibits to the Redevelopment Agency
Memorandum accompanying this Resolution; and
WHEREAS, the Tenant executed a Letter of Intent containing the essential business
terms and conditions outlined below:
Premises: 1560 Collins Avenue, Suite 1-2, Miami Beach, Florida 33139;
Size: Approximately 2,967 rentable square feet;
Term: Nine (9)years and Two-Hundred Seventy-Two (272) days;
RenewalOptions: None;
• Lease Commencement Date, Rent Commencement Date, and Rent/Operating
Expense Abatement Period:
Lease Commencement Date will be the date. Landlord delivers the Premises to
DocuSign Envelope ID:F7118931-A387-41 F3-B3EF-9C91 BA1712FA
Tenant;
Rent Commencement Date will be the Lease Commencement Date;
Rent and Operating Expense Abatement period: Months 2-7 of the Lease Term;
Rent Abatement period: Months 8—18 of the Lease Term. Tenant shall be required
to pay all Operating Expenses during the Rent Abatement period;
Minimum Base Rent: $75.00 per rentable square foot, plus applicable sales tax;
$202, 275.00 per year; $16,856.25 per month;
Percentage Rent: Six percent(6%)over the natural breakpoint of$3,371,250.00 for
first Lease Year, and resets again each subsequent Lease Year, based upon the Base
Rent for each subsequent Lease Year;
Annual Rent Increases: The Minimum Base Rental rate shall be increased by three
percent(3%) annually;
Lease Basis: Tenant shall pay its pro rata share of Real Property Taxes, Property
Insurance and Common Area Maintenance for the Project. Tenant's pro rata share
shall be determined based upon the ratio of Premises'floor area to the total floor area
of all the retail space in the project; current estimate for NNN costs are $14.00 per
square foot;
Prepaid Rent: First month's rent, including sales tax, in the amount of$21,302.93;
Security Deposit: The amount of $40,005.50 shall be due upon execution of the
Lease documents, in addition to first month's rent;
Guarantor: Full personal guaranty shall be required by all owners and spouses;
Utilities: Tenant shall be responsible for the cost of its utilities (electricity, trash
removal, and water and sewer expense);
Construction Allowance: Tenant shall accept the premises in "AS-IS" condition
and shall perform any necessary work at its sole cost and expense, including the
installation of DERM-approved grease traps; and
Use: Tenant shall use the Leased Premises solely for the purpose of operating an
upscale French Italian fusion café; and will be permitted to sell liquor for on-premises
consumption so long as Tenant obtains all the necessary licenses and approvals from
the governing municipalities; provided that the primary use of the Premises cannot
be a lounge bar or primarily serve Cuban or Latin cuisine; and
WHEREAS, in the event, the Tenant desires to use the exterior area, adjacent to a
portion of the Premises, Tenant shall be required to execute a Concession Agreement and
the square footage allowable shall be subject to approval by the Executive Director, as well
DocuSign Envelope ID:F7118931-A387-41F3-B3EF-9C91BA1712FA
as all other governmental City approvals; with the additional square footage being subject
to payment of a Concession Fee, in the amount of$30.00 per square foot, with 3% annual
increases during the Term, plus applicable sales tax; and
WHEREAS, the Letter of Intent was submitted at the October 31, 2022 Finance and
Economic Resiliency Committee (FERC) meeting and the FERC recommended in favor of
approving a new lease with Collins 1560, LLC based upon the terms and conditions outlined
herein; and
WHEREAS, per the Agreement with CBRE,the City will be obligated to pay a leasing
commission equal to four percent(4%) of the gross aggregate base rent over the initial five
years of the lease; therefore, based on the initial five-year.gross aggregate base rent of
$1,073,905.45, the total commission owed CBRE will be$42,956.22; and
WHEREAS, the City will be paying.50% of the commission ($21,478.11) upon lease
execution and 50% ($21,478.11) upon occupancy of the Premise and payment of first
month's rent; and
WHEREAS, based upon the competitive rental rate and the favorable lease terms,
the Executive Director recommends. accepting the recommendation of the FERC and
approving, in substantial form, the proposed new lease agreement, incorporated herein by
reference and attached to the Redevelopment Agency Memorandum accompanying this
Resolution as Composite Exhibit"E".
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRPERSON AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairperson
and Members of the Miami Beach Redevelopment Agency hereby accept the
recommendation of the City's Finance and Economic Resiliency Committee, and approve,
in substantial form, a Lease agreement between the Miami Beach Redevelopment Agency
(RDA) (Landlord) and Collins 1560, LLC (Tenant), for use of approximately 2,697 square
feet of ground floor retail space at the Anchor Shops and Garage, as a un upscale French-
Italian fusion café, located at 1560 Collins Ave, Suites Nos. 1-2 (Premises), for a term of
nine (9) years and two-hundred and seventy-two (272) days; and further authorize the
Executive Director to finalize and execute the lease agreement.
PASSED and ADOPTED this N day of DeLemk✓ 2022.
ATTEST: Dan Gelber, Chairperson
DEC 2 Q 2022
Rafael E. Granada, Secretary •
.
=��-�••••� y,, APPROVED AS TO •
. FORM&LANGUAGE
°°' p OREXECUTION
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