Lease Agreement w/ South Florida Salon Group, Inc. - dIgh C201�2 - d �s
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 1'� day of a , 2012, by
and between the CITY OF MIAMI BEACH, a Florida municipal corpo ation, (hereinafter
referred to as "City" or "Landlord "), and, SOUTH FLORIDA SALON GROUP, INC., a
Florida` corporation, (hereinafter referred to as "Tenant ").
1. Demised Premises.
The City, in consideration of the rentals hereinafter reserved to be paid and of the
covenants, conditions and agreements to be kept and performed by the Tenant,
hereby leases, lets and demises to the Tenant, and Tenant hereby leases and hires
from the City, those certain premises hereinafter referred to as the "Demised
Premises" and more fully described as follows:
1,327 square feet of City -owned property (the "Building "), located at
1701 Meridian Avenue, Unit 1 (a.k.a. 765 17 Street), Miami Beach,
Florida, 33139, and as more specifically delineated in "Exhibit 1",
attached hereto and incorporated herein.
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises fo
initial term of five (5) years, commencing on the � day of ,
2012 (the "Commencement Date "), and ending on the � :Was
N6 L , 2017 For purposes of this Lease Agreement, and including,
without limitation, Subsection 2.2 herein, a "contract year" shall be defined as
that certain period commencing on the 1 day of ! and
ending on the (f`� day of 1 T4't L_
2.2 Provided Tenant is in good standing and free from default(s) under Section
18 hereof, and upon written notice'from Tenant, which notice shall be
submitted to the City Manager no earlier than one hundred twenty (120)
days, but in any case no later than sixty (60) days prior to the expiration of
the initial term, this Lease may be extended for one (1) additional term of
four (4) years and 364 days (the "Renewal Term "). The Renewal Term, if
approved, shall be memorialized in writing and signed by the parties hereto
(with the City hereby designating the City Manager as the individual
authorized to execute such extensions on its behalf). In the event of
approval of the renewal Term, the word "Term ", as used herein, shall also be
deemed to include such Renewal Term.
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Lease Agreement (upon expiration of the initial term),
the City Manager shall notify Tenant of same in writing, which notice shall be
provided to Tenant within fifteen (15) business days of the City Manager's
receipt of Tenant's written notice.
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3. Rent.
3:1 Base Rent.
Tenant's payment of Rent, as defined in this Section 3, shall commence on ,
the earlier of (i) the date Tenant opens for business, or (ii) 90 days after the
Commencement Date (the "Rent Commencement Date ") and, thereafter,.
rent shall be due and payable on each first day of subsequent months during
the Term.
Notwithstanding the preceding" sentence, Tenant agrees to prepay the first
month's Rent payment (the "Prepaid Rent ") prior to the Commencement
Date.
3.1.1 Throughout the Term herein, the Base Rent for the Demised
Premises shall be Sixty Seven Thousand Six Hundred Seventy Seven
and 00/100 Dollars ($ 67,677.00 ) per year, payable in monthly
installments of Five Thousand Six Hundred Thirty Nine -and 75/100
Dollars ($ 5,639.75 ).
3.1.2 The Base Rent amount pursuant to this Section 3.1 shall be
increased annually, on the anniversary of the Commencement Date,
in increments of three (3 %) percent per year.
_3.2 Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall be
required to pay as Additional Rent, when due and subject to and in
accordance with Section 11 hereof, the Property Taxes (as referenced in
Subsection 3.2.2 and Section 11 hereof).
3.2.1 Intentionally Omitted.
3.2.2 Property Taxes:
The Property Tax Payment as defined in Subsection 11.3 of this
Agreement, shall be payable by Tenant, subject to and in accordance
with Section 11 hereof including, without limitation, Subsection 11.3
thereto.
3.2.3 Intentionally Omitted.
3.3 Taxes:
Concurrent with the payment of the Base Rent as provided herein, Tenant
shall also pay any and all sums for all applicable tax(es) including, without
limitation, sales and use taxes and Property Taxes (included as Additional
Rent in Subsection 3.2:2), imposed, levied or assessed against the Demised
Premises, or any other charge or payment required by any governmental
authority having jurisdiction there over, even though the taxing statute or
ordinance may purport to impose such tax against the City.
3.4 Enforcement.
Tenant agrees to pay the Base Rent, Additional Rent contemplated in
Subsection 3.2.2, and any other amounts as may be due and payable by
Tenant under this Agreement, at the time and in the manner provided herein,
and should said rents and /or other additional amounts due herein provided,
at any time remain due and unpaid for a period of fifteen (15) days after the
same shall become due, the City may exercise any or, all options available to
it hereunder, which options may be exercised concurrently or separately, or
the City may pursue any other remedies enforced by law. -
4. Location for Payments.
All rents or other payments due hereunder shall be paid to the City'at the following
address:
City of Miami Beach
Revenue Manager
1700 Convention Center Drive, 3 rd Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in writing.
-5.
Parking.
Tenant may request, from the City's Parking Department, the use of no more than
three (3) parking spaces, if available, within the Municipal Parking Garage located at
18 Street and Meridian Avenue. Rates for said spaces are subject to change, and
are currently (i.e., as of the Commencement Date) Seventy and 00/100 Dollars
($70.00) Dollars per month, plus applicable sales and use tax per space.
6. Security Deposit / Construction Deposit.
6..1 Upon Tenant's execution of this Agreement Tenant shall furnish the City with a
-Security Deposit, in the amount of Thirty Three Thousand Eight Hundred Thirty
Eight and 50/100 Dollars ($ 33,838.50 ). Said Security Deposit shall serve to secure
Tenant's performance in accordance with the provisions of this Agreement. In the
event Tenant fails to perform in accordance with said provisions, the City may retain
said'Security Deposit, as well as pursue any and all other legal remedies provided
herein, or as may be provided by applicable law.
The parties agree and acknowledge that the foregoing condition is intended to be a
condition subsequent to the City's approval of this Agreement. Accordingly, in the
event that Tenant does not satisfy the aforestated, then the City Manager or his
designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to
him for breach of contract.
6.2 Construction Deposit:
Landlord has requested, and Tenant has agreed, to secure Tenant's construction
obligations under this Lease in an amount and upon the terms and conditions
hereinafter set forth. On or before the Commencement Date, Tenant shall deposit
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with its attorney as Escrow Agent ( "Escrow Agent "), a cash construction deposit in
the sum of One Hundred Thirty Eight Thousand and 00/100 Dollars ($ 138,000.00 )
Dollars ( "Construction Deposit "). The Construction Deposit shall be held as security
. for Tenant's construction obligations under this Lease including, but not limited to,
Tenant's obligation to commence and complete construction of the Tenant .
Improvements within the time and in the manner herein set forth. Tenant shall only
use a licensed and insured general contractor. Tenant shall have the right to draw
against the Construction Deposit for all construction costs (hard costs and soft
costs), based upon draw requests executed by Tenant's architect and certifying to
Landlord that the work set forth in the draw request has been substantially
completed. The draw request shall be accompanied by lien waivers or releases of
lien from the persons or entities performing the work or furnishing the materials'
referred to therein. In no event shall the Construction Deposit be reduced to less
than $10,000 until such time as the Tenant Improvements have been substantially
completed, as determined by Landlord, in its sole and reasonable discretion. The
Construction Deposit shall be released upon receipt by Landlord of the final
Certificate of Occupancy (CO), with proof that all permits have been closed,
together with final lien waivers and contractor's affidavit reflecting that all
contractors, subcontractors, laborers and materialmen have been paid in full. In the
event Tenant fails to substantially complete the Tenant Improvements. in
accordance with the final plans and as required herein, such failure shall constitute
a default. In the event of default and in addition to any and all other rights.of the
Landlord hereunder, Escrow Agent shall deliver the Construction Deposit to the
Landlord who shall have the right, in addition to and not in limitation of any and all
rights of Landlord hereunder, to retain such Construction Deposit in the same
manner as in the case of the Security Deposit. Further, in the event Tenant fails or
refuses to deliver to Escrow Agent, the Construction Deposit simultaneously with the
delivery of possession of the Demised Premises, Tenant shall be deemed in default
hereunder and in addition to all other rights and remedies of Landlord hereunder, In
such event, Tenant shall not be entitled to retain possession of the Demised
Premises and Landlord shall retain the Security Deposit as partial consideration for
the damages sustained by resulting from such default.
The parties agree and acknowledge that the foregoing conditions are intended to be
conditions subsequent to the City's approval of this Agreement. Accordingly, in the
event that Tenant does not satisfy the aforestated, then the City Manager or his
designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to
him for breach of contract.
7. Use and Possession of Demised Premises.
.7.1 The Demised Premises shall be used by the Tenant solely for the purpose(s)
of operating a beauty salon, including retail sales of related items. Said
Premises shall be open for operation a minimum of five (5) days a week, with
minimum hours of operation being as follows:
Tuesday-Friday: 10:00 AM' to 7:00 PM
Saturday 10:00 AM to 7:00 PM
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Tenant shall be permitted to be closed for State and federal holidays.
Tenant shall not otherwise modify the days or hours of operation without the
prior written approval of the City Manager, which shall not be unreasonably
withheld, conditioned or delayed. Nothing herein contained shall be
construed to authorize hours contrary to the laws governing such operations.
7.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the above
purpose(s) /use(s), and for no other purpose(s) and /or use(s) whatsoever.
Tenant will not make or permit any use of the Demised Premises that,
directly or indirectly, is forbidden bylaw; ordinance or government regulation,
or that may be dangerous to life, limb or property. Tenant may not commit
(nor permit) waste on the Demised Premises; nor permit the use of the
Demised Premises for any illegal purposes; nor commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised Premises
(or otherwise allows the Demised Premises to be used) for any purpose(s)
not expressly permitted herein, or permits and /or allows any prohibited use(s)
as provided herein, then the City may declare this Agreement in default
pursuant to Section 18 or, in the event that the City Manager determines that
Tenant's improper use of the Demised Premises presents and immediate
threat to the public's health, safety and / or weilfare then, without notice to
Tenant, restrain such improper use by injunction or other legal action.
8. Improvements.
8.1 Tenant accepts the Demised Premises in their present "AS- IS" condition-
and may construct or cause to be constructed, such interior and exterior
improvements and maintenance to the Demised Premises, as reasonably
necessary for it to carry on its permitted use(s), as set forth in Section 7;
provided, however, that any plans for such improvements shall be first
submitted to the City Manager for his prior written consent, which consent, if
granted at all, shall not be unreasonably withheld, conditioned or delayed.
Additionally, any and all approved improvements shall be made at Tenant's
sole expense and responsibility. All permanent (fixed) improvements to the
Demised Premises shall remain the property. of the City upon termination
and /or expiration of this Agreement. Upon termination and /or expiration of
this Agreement, all personal property and non- permanent trade fixtures may
be removed by the Tenant from the Demised Premises, provided that they
can be (and are) removed without damage to the Demised Premises. Tenant_
will permit no liens to attach to the Demised Premises arising from,
connected with, . or related to the design and construction of any
improvements. Moreover, such construction shall be accomplished through
the use of licensed, reputable contractors who are acceptable to the City
Manager. Any and all permits and or licenses required for the installation of
improvements shall be the sole cost and responsibility of Tenant.
8.2 Notwithstanding Subsection 8.1, upon termination and /or expiration of this
Agreement, and at City's sole option and discretion, any or all alterations or
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additions made by Tenant, without the City Manager's prior written approval,
to or in the Demised Premises shall, upon written demand by the City
Manager, be promptly removed by Tenant, at its expense and responsibility,
and Tenant further hereby agrees, in such event, to restore the Demised
Premises to their original condition prior to the Commencement Date of this
Agreement.
8.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 8.3 only, shall also include improvements as necessary for
Tenant's maintenance and repair of the Demised Premises) which do not
exceed Five Hundred ($500.00) Dollars, provided that the work is not
structural, and provided that it is permitted by applicable law.
9. City's Right of Entry.
9.1 The City Manager, and /or his authorized representatives, shall have the right
to enter upon the Demised Premises at all reasonable times for the purpose
of inspecting same; preventing waste; making such repairs as the City may
consider necessary to preserve the integrity and condition(s) of the demised
Premises and the Building; and for the purpose of preventing fire, theft or
vandalism. The City agrees that, whenever reasonably possible, it shall use
reasonable efforts to provide notice (whether written or verbal), unless the
need to enter the Demised Premises is an emergency, as deemed by the
City Manager, in his sole discretion, which if not immediately addressed
could cause property damage, loss of life or limb, or other injury to persons.
Nothing herein shall imply any duty on the part of the City to do any work that
under any provisions of this Agreement the Tenant may be required to
perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
9.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at any time, for any reason, and any entry thereon
shall be necessary or permissible, the City Manager, and /or his authorized
representatives, may enter the Demised Premises by master key, or may
forcibly enter the Demised Premises without rendering the City or such
agents liable therefore.
9.3 Tenant shall furnish the City with duplicate keys to all locks including exterior
and interior doors prior to (but no later than by) the Commencement Date of
this Agreement. In the event Tenant subsequently changes the locks to the
Demised Premises, Tenant shall furnish the City with duplicate keys to said
locks on the same day of their installation.
10. Tenant's Insurance.
10.1 Tenant shall, at its sole expense and responsibility, comply with all insurance
requirements of the City. It is agreed by the parties that_Tenant shall not
occupy the Demised Premises until proof of the following insurance
coverages have been reviewed and approved by the City's Risk Manager:
10.1.1 Comprehensive General Liability, in the minimum. amount of One
$
Million (1,000,000) Dollars (subject to adjustment for inflation) per
occurrence for bodily injury and property damage. The City of Miami
Beach must be named as an additional insured on this policy.
10.1.2 Workers Compensation * and Employers Liability in
accordance with Florida statutory requirements.
10.1.3 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).
10.2 Proof of these coverages must be provided by submitting original certificates
of insurance to the City's Risk Manager and Asset Manager respectively. All
policies must provide thirty (30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager (to be submitted to the addresses
set forth in Section 27 hereof). All insurance policies shall be .issued by
companies authorized to do business under the laws of the State of Florida
and must have a rating of B +:VI or better per A.M. Best's Key Rating Guide,
latest edition, and certificates are subject to the approval of the City's Risk
Manager.
11. Property Taxes and Assessments.
For the purposes of this Section and other provisions of this Agreement:
1.1.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments,
and special assessments of any kind which may. be imposed upon the
Demised Premises, and (ii) any expenses incurred by the City in obtaining a
reduction of any such taxes or assessments.
11.2" The term "Property Tax Year" shall mean the period of twelve (12) calendar
months, beginning on January 1 St of each year.
11.3 In the event this Agreement is extended, pursuant to Subsection 2.2 hereof,
Tenant shall pay, as Additional Rent pursuant to Subsection 3.2, for such
Property Tax Year,.each and every year of the Renewal Term, an amount
equal to the difference between the 2011 Property Taxes and the 2016
Property Taxes ( "Property Tax Payment "). For purposes of this Subsection
11.3 the 2011 Property Taxes are hereby stipulated to be Ten Thousand
Three Hundred Nineteen and 13/100 Dollars ($ 10,319.13 ): If a Property Tax
Year ends after the expiration or termination of the term of this Agreement,
the Property Tax Payment therefore shall be prorated to correspond to that
portion of such Property Tax Year occurring within the term of this
Agreement. The Property Tax Payment shall be payable by Tenant
immediately upon receipt of notice from the City. A copy of the tax bill(s) or
other evidence of such taxes issued by the taxing authorities, together with
the City's computation of the Property Tax Payment, will be made available
to Tenant once received from the taxing authorities, if requested by Tenant.
Tenant shall pay any difference in the amount between the estimated
property taxes and the actual property taxes to the City immediately, upon
receipt of request for said payment from the City.
`12. Assignment and Subletting.
Tenant shall not have the right to assign or sublet the Demised Premises, in whole
or in part, without the prior written consent of the City Manager, which consent shall
not be unreasonably withheld, conditioned or delayed; provided, however, that such
written consent is not a matter of right, and the City is not obligated to give such
consent. if granted as provided herein, the making of any assignment or sublease
will not release Tenant from any of its obligations under this Agreement.
13. Operation, Maintenance and Repair.
13.1 Tenant shall be solely responsible for the operation, maintenance and repair
of the Demised Premises. Tenant shall, at its sole expense' and
responsibility, maintain the Demised Premises, and all fixtures and
appurtenances therein, and shall make all repairs thereto, as and when
needed, to preserve them in good working order and condition. Tenant shall
be responsible for all interior walls and the interior and exterior of all windows
and doors, as well as immediate replacement of any and all plate glass or
other glass in the Demised Premises which may become broken, using glass
of the same or better quality.
The City shall be responsible for the maintenance of the roof, the exterior of
the Building, the structural electrical and plumbing (other than plumbing
surrounding any sink(s) and /or toilet(s), including such sink(s) and toilet(s)
fixture(s), within the Demised Premises), the common areas and the chilled
water supply system. The City shall maintain and /or repair those items that it
is responsible for, so as to keep same in proper working condition.
If the City provides a separate air - conditioning. unit for the Demised
Premises, Tenant agrees and understands that Tenant shall be solely
responsible for the maintenance, repair and replacement of the
heating /ventilation /air - conditioning (HVAC) equipment servicing the Demised
Premises, at Tenant's sole expense.
Tenant further agrees and understands that, if the City provides a separate
HVAC unit for the Demised Premises, the City, at its sole discretion, may
require that Tenant obtain, at any time during the Term of this Agreement,
and continuously maintain in good standing,.at Tenant's expense, throughout
the Term of this Agreement, a maintenance and repair contract, approved by
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the City (which approval shall not be unreasonably withheld, conditioned or
delayed), with a service company previously approved in writing by the City,
providing for the preventative maintenance and repair of all HVAC equipment
servicing the Demised. Premises. In the event that the City notifies Tenant
that it will require Tenant to contract for said maintenance and repair
services, Tenant shall provide to the City, in writing,�within ten (10) business
days, the name(s) and telephone number(s) of service company(ies) for the
City's review and approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Tenant shall provide a copy of a current,
enforceable and fully - executed maintenance and repair contract, no later
than ten (10) business days after receipt of the City's approval of the service
company, as proof of Tenant's compliance with this provision.
13.2 All damage or injury of any kind to the Demised Premises, and including
without limitation its fixtures, glass, appurtenances, and equipment (if any),
or to the building fixtures, glass, appurtenances, and equipment, if any,
except damage caused by the gross negligence and /or willful misconduct of
the City, shall be the sole obligation of Tenant, and shall be repaired,
restored or replaced promptly by Tenant, at its sole expense and to the
satisfaction of the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality
and class equal to or better than the original work. or installations and shall
be done in good and workmanlike manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the City, at the expense of Tenant, and all sums
spent and expenses incurred by the City shall be collectable by the City and
shall be paid by Tenant within three (3) days after submittal of a bill or
statement therefore.
13.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs and /or improvements made by Tenant to the Demised
Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
13.6 Tenant Responsibilities for Utilities.
Tenant is solely responsible for, and shall promptly pay when due all charges
for electricity, gas, cable, telephone, internet; janitorial garage service and
any other utility service provided to the Demised Premises, including, without
limitation, all hook =up fees and impact fees.
In addition to other rights and remedies hereinafter reserved to the City, upon
the failure of Tenant to pay for such utility services (as contemplated in this
-. Subsection 13.6) when due, the City may elect, at its sole discretion, to pay
same, whereby Tenant agrees to promptly reimburse the City upon demand.
In no event, however, shall the City be liable, whether to Tenant or to third
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parties, for an interruption or failure in the supply of any utilities or services to
the Demised Premises.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
WHERE IS" CONDITION.
14. Governmental Regulations.
.Tenant covenants and agrees to fulfill and comply with all statutes, ordinances,
rules, orders, regulations, and requirements of any and all governmental bodies,
including but not limited to Federal, State, Miami -Dade County, and City
governments, and any and all of their departments and bureaus applicable to the
Demised Premises, and shall also comply with and fulfill all rules, orders, and
regulations for the prevention of fire, all at Tenant's own expense and responsibility.
Tenant shall pay all cost, expenses,'claims, fines, penalties, and damages that may
be imposed because of the failure of Tenant to comply with this Section, and shall
indemnify and hold harmless the City from all liability arising from each non -
compliance.
15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements for any labor or materials to Tenant
or claimed to have been furnished to Tenant's agents, contractors, or sub - tenants,
in connection with work of any character performed or claimed to have performed
on said Premises, or improvements by or at the direction or sufferance of the
Tenant; provided however, Tenant shall have the right to contest the validity or
amount of any such lien or claimed lien. In the event of such contest, Tenant shall
give the City reasonable security as may be demanded by the City to insure
payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or
improvements by reasons of such non - payment. Such security need not exceed one
and one half (1 Y2) times the amount of such lien or such claim of lien. Such security
shall be posted by Tenant within ten (10) days of .written notice from the City, or
Tenant may "bond off" the. lien according to statutory procedures. Tenant will
immediately pay any judgment rendered with all proper costs and charges and shall
have such lien released or judgment satisfied at Tenant's own expense.
16. Intentionally Omitted -.
17. Condemnation.
17.1 If at any time during the Term of this Agreement (including any renewal term
hereunder) all or any part or portion of the Demised Premises is taken,
appropriated, or condemned by reason of Eminent Domain proceedings,
then this Agreement shall be terminated as of the date of such taking, and
shall thereafter be completely null and void, and neither of the parties hereto
shall thereafter have any rights against the other by reason of this
Agreement or anything contained therein, except that any rent prepaid
beyond the date of such taking shall be prorated to such date, and Tenant
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shall pay any and all rents, additional rents, utility charges, and /or other costs
for which it is liable under the terms of this Agreement, up to the date of such
taking.
17.2 1 Except as hereunder provided, Tenant shall not be entitled to participate in
the proceeds of any award made to the City in any such Eminent Domain
proceeding, excepting, however, Tenant shall have the right to claim and
recover from the condemning authority, but not from the City, such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right on account of any and all damage to Tenant's business
by reasons of the condemnation and for or on. account of any cost or loss
which Tenant might incur in removing Tenant's furniture and fixtures.
18. ` Default.
18.1. Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default
under this Agreement:
18.1.1 The Base Rent, Additional Rent, or any other amounts as may be due
and payable by Tenant under this Agreement, or any installment
thereof, is not paid when and where due, and Tenant shall
not have cured such failure within ten (10) days after receipt of written
notice from the City specifying such default;
18.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.3 Tenant shall.fail to comply with any material term, provision, condition
or covenant contained herein other than the payment of rent and shall
not cure such failure within thirty (30) days after the receipt of written
notice from the City specifying any such default; or such longer period
of time acceptable to the City, at its sole discretion;
18.1.4 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a law, code, regulation, ordinance or the like,
which remains uncured for a period of thirty (30) days from its
issuance; provided, however, that if such violation cannot reasonably
be cured within such thirty (30) day period, then Tenant shall cure
such violation diligently and as quickly as reasonably practicable
under the circumstances and shall have a reasonable period of time
within which to cure such violation so long as Tenant is proceeding,
but in no event shall such time for cure exceed sixty (60) days from
the date of issuance of the initial notice of violation.
18.1.5_ Any petition is filed by or against Tenant under any section or chapter
of the Bankruptcy Act, as amended, which remains pending for more
than sixty (60) days, or any other proceedings now or hereafter
authorized by the laws of the United States or of any state for the
purpose of discharging or extending the time for payment of debts;
18.1.6 Tenant shall become insolvent;
18.1.7 Tenant shall make an assignment for benefit of creditors;
18.1.8 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
18.1.9 The leasehold interest is levied on under execution.
- 19. Rights on Default.
' 19.1 Rights on Default:
In the event of any default by Tenant as provided herein, City shall have the
option to do any of the following, in addition to and not in limitation of, any
other remedy permitted by law or by this Agreement;
.19.1.1 Terminate this Agreement, in which event Tenant shall immediately
surrender the Demised Premises to the City, but if Tenant shall fail to
do so the City may, without further notice, and without prejudice to
any other remedy the City may have for possession or arrearages in
rent or damages for breach of contract, enter upon the Demised
Premises and expel or remove Tenant and its effects in accordance
with law, without being liable for prosecution or any claim for damages
therefore, and Tenant agrees to indemnify and hold harmless the City
for all loss and damage which the City may suffer by reasons of such
Agreement termination, whether through inability to re -let the Demised
Premises, or otherwise.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
term of this Agreement to be due and payable immediately, in which
event Tenant agrees to pay the same at once, together with all rents
therefore due, at the address of the City, as provided in the Notices
section of this Agreement; provided, however, that such payment
shall not constitute a penalty, forfeiture, or liquidated damage, but
shall merely constitute payment in advance of the rents for the
remainder of said term and such payment shall be considered,
construed and taken to be a debt provable in bankruptcy or
receivership.
19.1.3 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for
damages therefore; remove Tenant's property there from; and re -let
the Demised Premises, or portions thereof, for such terms and upon
such conditions which the City deems, in its sole discretion, desirable,
-and to receive the rents therefore, and Tenant shall pay the City any
deficiency that may arise by reason of such re- letting, on demand at
any time and from time to time at the office of the City; and for the
12
purpose of re- letting, the City may (i) make any repairs, changes,
alterations or additions in or to said Demised Premises that may be
necessary or convenient; (ii) pay all costs and expenses therefore
from rents resulting from re- letting; and (iii) Tenant shall pay the City
any deficiency as aforesaid.
19.1.4 Take possession of any personal property owned by Tenant on said
Demised Premises and sell the same at public or private sale, and
apply same to the payment of rent due, holding Tenant liable for the
deficiency, if any.
19.1.5 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the provisions of
this Agreement which shall not be paid when due shall bear interest at
the maximum legal rate of interest per annum then prevailing in
Florida from the date when the same was payable by the terms
hereof, until the same shall be paid by Tenant. Any failure - on the
City's behalf to enforce this Section shall not constitute a waiver of
this provision with respect to future accruals of past due rent. In
addition, there will be a late charge of Fifty ($50.00) Dollars for any
payments submitted after the due date.
19.1.6 If Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
may pay such expense but the City shall not be obligated to do so.
Tenant, upon the City's paying such expense . shall .be obligated to
forthwith reimburse the City for the amount thereof. All sums of money
payable by Tenant to the City hereunder shall be deemed as rent for
use of the Demised Premises and collectable by the City from Tenant
as rent, and shall be due from Tenant to the City on the first day of
the month following the payment of the expense by the City.
19.1.7 The rights of the City- under this Agreement shall be cumulative but
not restrictive to those given by law and failure on the part of the City
to exercise promptly any rights given hereunder shall not operate to
waive or to forfeit any of the said rights.
19.2 Default by Cites
The failure of the City to perform any of the covenants, conditions, and
agreements of this Agreement which are to be performed by the City and the
continuance of such failure for a period of thirty (30) days after notice thereof
in writing from Tenant to the City (which notice shall specify the respects in
which Tenant contends that the City failed to perform any such covenant,
conditions and agreements) shall constitute a default by the City, unless
such default is one which cannot be cured within thirty.(30) days because of
circumstances beyond the City's control, and the City within such thirty (30)
day period shall have commenced and thereafter shall continue diligently to
prosecute all actions necessary to cure such defaults.
13:
However, in the event the City fails to perform within the initial thirty (30) day
period provided above, and such failure to perform prevents Tenant from
operating its business in a customary manner and causes an undue hardship
for Tenant, then such failure to perform (regardless of circumstances beyond
its as indicated above, shall constitute a default by the City.
19.3 Tenant's Rights on Default:
If an event of the City's default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right to pursue any and all remedies
available at law or in equity, including the right to sue for and collect
damages, including reasonable attorney fees and costs, to terminate this
Agreement; provided however, that Tenant expressly acknowledges and
agrees that any recovery by Tenant shall be limited to the amount set forth in
Section 32 of this Agreement.
20. Indemnity Against Costs and Charges.
20.1 Tenant shall be liable to the City for. all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of Tenant's breach of any of the provisions
of this Agreement. Any sums due the City under the provisions of this item
shall constitute a lien against the interest of the Tenant and the Demised
Premises and all of Tenant's property situated thereon to the same extent
and on the same conditions as delinquent rent would constitute a lien on said
premises and property.
20.2 If Tenant shall at any time be in default hereunder, and if the City shall deem
it necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, Tenant will reimburse the City for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
reasonable attorney's fees, whether suit be brought or not and if suit be
brought, then Tenant shall be liable for expenses incurred at both the trial
and appellate levels. -
21. Indemnification Against Claims.
21.1 Tenant shall indemnify and save the City harmless from and against any and
all claims or causes of action (whether groundless or otherwise) by or on
behalf of any person, firm, or corporation, for personal injury or property
damage occurring upon the Demised Premises or upon any other land or
other facility or appurtenance used in connection with the Demised
Premises, occasioned in whole -or in part by any of the following:
21.1.1 An act or omission on the part of Tenant, or any employee, agent,
contractor, invitee, guest, assignee, sub - tenant or subcontractor of
Tenant;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by
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Tenant, or any employee, agent, contractor, invitee, guest, assignee,
sub- tenant or subcontractor of Tenant;
21.1.3 Any breach, violation, or non - performance of any undertaking of
Tenant under this Agreement;
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by Tenant or anyone holding or claiming to hold through or
under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises and /or other
facilities used in connection therewith, caused by Tenant or any employee,
agent, contractor guest, or invitee of Tenant.
22. Signs and Advertising.
Tenant shall not permit the painting and display of any signs, plaques, lettering or
advertising material of any kind on or near the Demised Premises without the prior
written consent of the City Manager, which consent shall not be unreasonably
withheld, conditioned or delayed. All additional signage shall comply with signage
standards established by the City and comply with all applicable building codes, and
any other municipal, County, State and Federal laws.
23. Effect of Conveyance.
The term "City" and /or, "Landlord" as used in the Agreement means only the owner
for the time being of the land and building containing the Demised Premises, so that
in the event of any sale of said land and building, or in the event of a lease of said
building, the City shall be and hereby is entirely freed and relieved of all covenants
and obligations of the City hereunder, and it shall be deemed and construed without
further agreement between the parties, or- between the parties and the purchaser at
such sale, or the lease of this building, that the purchaser or Tenant has assumed
and agreed to carry out all covenants and obligations of the City hereunder.
24. Damage to the Demised Premises.
24.1 If the Demised Premises shall be damaged by the elements or other casualty
not due to Tenant's negligence, or by fire, but are not thereby rendered
untenantable, as determined by the City Manager, in his sole and reasonable
discretion, in whole or in part, and such damage is covered by the City's
insurance, if any, (hereinafter referred to as "such occurrence "), the City,
shall, as soon as possible after such occurrence, utilize the insurance
proceeds to cause such damage to be repaired and the Rent (Base Rent
and Additional Rent) shall not be abated. If by reason of such occurrence,
the Demised Premises shall be rendered untenantable, as determined by the
City Manager, in his sole and reasonable discretion, only- in part, the City
shall as soon as possible utilize the insurance proceeds to cause the
damage to be repaired, and the Rent meanwhile shall be abated'
proportionately as to the portion of the Demised Premises rendered
untenantable; provided however, that the City shall promptly obtain a good
faith estimate of the time required to render the Demised Premises
15
tenantable and if such time exceeds sixty (60) days, either party shall have
the option of canceling this Agreement.
'24.2 If the Demised Premises shall be rendered wholly untenantable by reason of
such occurrence, the City shall have the option, but not the obligation, in its
sole and reasonable discretion, to utilize the insurance proceeds to cause
such damage to be repaired and the Rent meanwhile shall be abated.
However, the City shall have the right, to be exercised by notice in writing
delivered to Tenant within sixty (60) days from and after said occurrence, to
elect not to reconstruct the destroyed Demised Premises, and in such event,
this Agreement and the tenancy hereby created shall cease as of the date of
said occurrence, the Rent to be adjusted as of such date. If the Demised
Premises shall be rendered wholly untenantable, Tenant shall have the right,
to be exercised by notice in writing, delivered to the City within thirty (30)
days from and after said occurrence, to elect to terminate this Agreement,
the Rent to be adjusted accordingly.
24.3. Notwithstanding any clause contained in this Section 24, if the damage is not
covered by the City's insurance, then the City shall have no obligation to
repair the damage, but the City shall advise Tenant in writing within thirty (30)
days of the occurrence giving rise to the damage and of its decision not to
repair, and the Tenant may, at any time thereafter, elect to terminate this
Agreement, and the Rent shall be adjusted accordingly:
25. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Tenant
complies with the terms of this Agreement.
26. Waiver.
26.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise
any option herein conferred, will not be considered or construed as a waiver
or relinquishment for.the future of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in full force and
effect.
26.2 A waiver of any term expressed herein shall not be implied by any neglect of
the City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated subsequently and any express waiver
shall not affect any term other than the one specified in such waiver and that
one only for the time and in the manner specifically stated.
26.3 The receipt of any sum paid by Tenant to the City after breach of any,
condition, covenant, term or provision herein contained shall not be deemed
a waiver of such breach, but shall be taken, considered and construed as
16
payment for use and occupation, and not as Rent, unless such breach be
expressly waived in writing by the City.
27. Notices.
The addresses for all notices required under this Agreement shall be as follows, or
at such other address as either party shall be in writing, notify the other:
LANDLORD: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami.'Beach, Florida 33139
With copy to: Director
City of Miami Beach
Office of Real Estate, Housing and Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: South Florida Salon Group, Inc.
Attention: Omid Lari
765 17 Street, Unit A
Miami Beach, Florida 33139
With copy to: Gerald K. Schwartz
Law Offices of Gerald K. Schwartz
1691 Michigan Avenue, Suite 320
Miami Beach, Florida 33139
All notices shall be hand delivered and a receipt requested, or by certified mail with
Return receipt requested, and shall be effective upon receipt.
28. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it
may not be modified in any manner other than by agreement in writing signed by all
the parties hereto or their successors in interest. The. terms, covenants and
conditions contained herein shall inure to the benefit of and be binding upon the City
and Tenant and their respective successors and assigns, except as may be
otherwise expressly provided in this Agreement.
29. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
17
i
30. Captions.
The captions contained herein are for the convenience and reference only and shall
not be deemed a part of this Agreement or construed as in any manner limiting or
amplifying the terms and provisions of this Agreement to which they relate.
31. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural
shall include the singular, and the use of one gender shall include all genders.
32. Limitation of Liability.
The City desires to enter into this Agreement only if in so doing the City can place a
limit on the City's liability for any cause of action for money damages due to an
alleged breach by the City of this Agreement, so that its liability for any such breach
never exceeds the sum of Fifty Thousand ($50,000.00) Dollars. Tenant hereby
expresses its willingness to enter into this Agreement with Tenant's recovery from
the City for any damage action for breach of contract to be limited to a maximum
amount of $50,000.00. Accordingly, and notwithstanding any otherterm or condition
of this Agreement, Tenant hereby agrees that the City shall not be liable to Tenant
for damage in an amount in excess of $50,000.00 for any action or claim for breach
of contract arising out of the performance or non - performance of any obligations
imposed upon the City by this Agreement. Nothing contained in this Section or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation
placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
33. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the
City the Demised Premises, together with any and all equipment, fixtures,
furnishings, appliances or other personal property, if any, located at or on the
Demised Premises and used by Tenant in the maintenance, management,or
operation of the Demised Premises, excluding any trade fixtures or personal
property, if any, which can be removed without material injury to the Demised
Premises, free of all liens, claims and encumbrances and rights of others or broom-
clean, together with all structural changes, alterations, additions, and improvements
which may have been made upon the Demised Premises, in good order, condition
and repair, reasonable wear and tear excepted, subject, however, to the
subsequent provisions of this Section. Any property which pursuant to the provisions
of this Section is removable by Tenant on or at the Demised Premises upon the
termination of this Agreement and is not so removed may, at the option of the City,
be deemed abandoned by Tenant, and either may be retained by the City as its
property or may be removed and disposed of at the sole cost of the Tenant in such
manner as the City may see fit. If the Demised Premises and personal property, if
any, be not surrendered at the end of the Term as provided in this Section, Tenant
shall make good the City all damages which the City shall suffer by reason thereof,
and shall indemnify and hold harmless the City against all claims made by any
succeeding tenant or purchaser, so far as such delay is occasioned by the failure of
Tenant to surrender the Demised Premises as and when herein required.
18
34. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
35. Venue:
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall
be enforceable in Miami -Dade County, Florida, and if legal action is necessary by .
either party with respect to the enforcement of any and all the terms or conditions
herein, exclusive venue for the enforcement of same shall lie in Miami -Dade
County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY
AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
36. Radon is a naturally occurring radioactive gas that, when it is 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.,
37. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises thestorage and /or use
of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any kind,
or any substance or thing prohibited in the standard policies, of fire insurance
companies in the State of Florida. Any such substances or materials found. within
the Demised Premises shall be immediately removed'.
Tenant shall indemnify and hold the City harmless from any loss, damage,.cost, or
expense of the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by Tenant of
any "hazardous substance" or "petroleum products" on, in or upon the Demised
Premises as those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations promulgated thereunder.
The provisions of this Section 37 shall survive the termination or earlier expiration of
this Agreement.
REMAINDER OF PAGE .INTENTIONALLY LEFT BLANK
19
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
z xazi-, - -1�
do, CITY CLERK �atfi era Bower, 'MAY 6R
'INCORP ORATED.-
- ED:
�'�•Qtt �Uj SOUTH FLORIDA SALON GROUP, INC.
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R
Signature /Secre ry
Print Name Print Name
ORPORA
(affix seal here)
F: \RHCD \$ALL \ECON \$ALL\ASSET \777 -17th Street \South Fla Salon Group DryBar \SFSG Lease (Final 5- 8- 12).doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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20
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. Demised Premises
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