93-20899 Reso
..,
t I
RESOLUTION NO. 93-20899
A RESOLUTION OF THE KAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING THE ASSIGNMENT OF THE
LEASE BETWEEN SPECIALTY RESTAURANTS CORPORATION AND THE
CITY OF MIAMI BEACH, DATED FEBRUARY 8, 1985, FOR THE
PREMISES SITUATED AT SOUTH POINTE PARK, ONE WASHINGTON
AVENUE, MIAMI BEACH, FLORIDA, AND COMMONLY KNOWN AND
DESCRIBED AS CRAWDADDY'S RESTAURANT; SAID ASSIGNMENT BY
AND BETWEEN SPECIALTY RESTAURANTS CORPORATION, AS
ASSIGNOR, TO ONE WASHINGTON AVENUE CORPORATION, AS
ASSIGNEE.
WHEREAS, Specialty Restaurants Corporation (hereinafter
referred to as "Assignor") is a Lessee under that certain Lease
Agreement dated February 8, 1985, as amended, between Assignor, as
Lessee, and the City of Miami Beach, a Florida corporation, as
Lessor, for the premises situated at South pointe Park, One
Washington Avenue, Miami Beach, Florida, and commonly known and
described as Crawdaddy' s Restaurant (Lease Agreement attached
hereto as Exhibit "A"); and
WHEREAS,
Assignor has
constructed
certain buildings,
structures and improvements on the leasehold estate and has
installed in or on the improvements certain furniture, fixtures,
and equipment; and
WHEREAS, Assignor entered into an Agreement of Purchase and
Sale, dated July 12, 1993 and attached hereto as Exhibit "B", with
One Washington Avenue Corporation (hereinafter referred to as
"Assignee"), wherein, upon the terms, conditions, representations
and warranties set forth therein, Assignor agrees to sell, and
Assignee agrees to purchase, certain properties, rights and
interest in and to the Crawdaddy's Restaurant building, and
including the equipment, furniture, and fixtures therein; and
WHEREAS, Assignor has also contracted to sell and, Assignee
has agreed to purchase, all of Assignor's right, title and interest
in and to the Crawdaddy's Restaurant leasehold estate by assigning
any rights that Assignor may have in and under its Lease Agreement
with the City of Miami Beach dated February 8, 1985; and
WHEREAS, Assignor and Assignee have submitted a Consent of
Assignment and Release of Assignor, attached hereto as Exhibit "C",
for the City's consideration; and
~
If,
AI,
, I ,
WHEREAS, in order to be valid and binding, pursuant to
Paragraph 25 of said February 8, 1985 Lease Agreement, any
assignment of said Lease must first be approved by the City
Commission of the City of Miami Beach, Florida; and
WHEREAS, Assignee is a Florida Corporation whose principal is
Mr. Arthur Forgette; and
WHEREAS, Mr. Arthur Forgette is also principal of the Florida
Corporation known as South pointe Hospitality, Inc.; and
WHEREAS, South pointe Hospitality, Inc. is also the current
operator and Licensee of Crawdaddy's Restaurant, under that certain
Sublease Agreement dated November 12, 1990, as amended, and as
approved by the Mayor and City commission by Resolution No. 91-
20223 (Resolution No. 91-20223 attached hereto as Exhibit "0").
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMHISSION OF THE CITY OF KIAMI BEACH, FLORIDA:
1. That the Mayor and City Clerk are herein authorized to
execute a consent to the assignment of the Lease
Agreement dated February 8, 1985, for the Crawdaddy's
Restaurant premises; said assignment by and between
Specialty Restaurants Corporation, as Assignor, and One
Washington Avenue Corporation, as Assignee.
2. As Assignee to the February 8, 1995 Lease Agreement, as
evidenced by Exhibit "C" hereto, One Washington Avenue
Corporation shall hereafter assume the payment of rent
and performance of all duties and obligations of the
Lessee as set forth in the February 8, 1985 Lease
Agreement, and as it be amended by the City of Miami
Beach.
3. The Assignor, Specialty Restaurants Corporation, is
hereby fully released and discharged from any duties and
obligations under the February 8, 1985 Lease Agreement,
as of the date of execution of this Resolution by the
2
\
lit .
I I (
Mayor and City Clerk, and the Assignee is thereupon
accepted in place of Assignor, as Lessee under the terms
of the Lease Agreement dated February 8, 1985.
4 . That the above is conditioned upon approval of the
subject assignment, upon proper notice and hearing, by
the united states Bankruptcy Court, Central District of
California, and the removal of any and all liens.
PASSED and ADOPTED this 22nd da
ATTEST:
~ti~~.~
CITY CLERK
jm:c:\wp51\data\crawdaddy.res
FORM APPROVED
lE~.. · nk/
By\: 7~
Date ""/ / '>wJ , fi&
3
. '
CITY OF
MIAMI BEACH
. -
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
OFFICE OF THE CITY MANAGER
TELEPHONE: (305) 673-7010
FAX: (305) 673-7782
COMMISSION MEMORANDUM NO. ~8q - g 3
TO:
Mayor Seymour Gelber and
Members of the City Commission
DATE: September 8, 1993
FROM:
SUBJECT:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING THE ASSIGNMENT OF THE
MASTER LEASE BETWEEN SPECIALTY RESTAURANTS CORPORATION
AND THE CITY OF MIAMI BEACH, DATED FEBRUARY 8, 1985, FOR
THE PREMISES SITUATED AT SOUTH POINTE PARK, ONE
WASHINGTON AVENUE, MIAMI BEACH, FLORIDA, AND COMMONLY
KNOWN AND DESCRIBED AS CRAWDADDY I S RESTAURANT; SAID
ASSIGNMENT BY AND BETWEEN SPECIALTY RESTAURANTS
CORPORATION, AS ASSIGNOR, TO ONE WASHINGTON AVENUE
CORPORATION, AS ASSIGNEE.
ADMINISTRATION RECOMMENDATION:
The Administration recommends that the Mayor and City Commission
approve the attached Resolution approving the Assignment of the
Lease between Specialty Restaurants Corporation, and the City of
Miami Beach, to One washington Avenue Corporation.
BACKGROUND:
On July 14, 1993, the Administration met with Mr. Arthur Forgette,
as principal of One Washington Avenue Corporation, regarding One
Washington Avenue's Agreement of Purchase and Sale with Specialty
Restaurant Corporation; said Agreement to purchase the equipment,
furnishings, fixtures and other improvements relating to
Crawdaddy I s Restaurant. Specifically, the City was contacted
regarding its approval for an assignment of the Crawdaddy's Master
Lease, dated February 8, 1985, and currently in effect between the
City and Specialty Restaurants Corporation, to One Washington
Avenue Corporation. .
It should be noted that Mr. Forgette is also the current sub-lessee
under a Sub-Lease Agreement between Specialty Restaurants
corporation and South pointe Hospitality, Inc., a corporation of
which Mr. Forgette is also principal, for the Crawdaddy's
Restaurant premises. This Sub-Lease was approved by the Mayor and
City Commission on November 12, 1990, and is currently in full
force and effect and in good standing.
Continued. . .
".- -.--
1
DATE
R-l-A
q-22-q3
AGENDA
ITEM
'--
" I r'
COMMISSION MEMORANDUM
PAGE TWO
SEPT. 8, 1993
In essence, therefore, Mr. Forgette's company has been maintaining
and operating the Crawdaddy' s Restaurant under the aforestated Sub-
Lease with Specialty Restaurants Corporation, since November 12,
1990. Under his proposed Purchase and Sale Agreement between
Mr. Forgette's company and Specialty Restaurant Corporation, he is
essentially seeking to "buyout" Specialty for the entire
Crawdaddy's operation-including the Assignment of the Crawdaddy's
Master Lease.
In an effort to enhance the South Pointe Park property, and as a
result improve the overall service level of the restaurant,
Mr. Forgette has expressed a willingness to cooperatively evaluate
and possibly modify his company's involvement in the parking,
maintenance and security operations. This evaluation will include
increased assistance through the provision of personnel for these
functions as well as assumption of expanded park areas to be
maintained. These issues will continue to be discussed and
resolved at a future date.
CONCLUSION:
By recommending the attached Resolution, the City Commission will,
in effect, approve the same corporation, as assignee thereto (i.e.
Mr. Forgette), who is already in place and operating the
Crawdaddy's Restaurant premises. Commission approval of the
Assignment is required, pursuant to Paragraph 25 of the February 8,
1985 Crawdaddy's Master Lease, stating that any assignment of any
lease must be approved in writing by the Mayor and City Commission.
RMC:EC:lcd
Attachments
... ,- .....-
j 2
\
. .
"
134..... 't4
RESOLUTION NO.85-18000
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
MIAMI BEACH AUTHORIZING AND DIRECTING THE EXECUTION
OF A REVISED LEASE AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND SPECIALTY RESTAURANT CORPORATION
FOR THE DEVELOPMENT, CONSTRUCTION, AND OPERATION OF
A SOUTH POINTE PARK RESTAURANT FACILITY.
WHEREAS, on August 6, 1984, the City of Miami Beach issued Request for
Proposals for the development, construction, and operation of a restaurant at South Pointe
Park; and
WHEREAS, on September 14, 1984, the Purchasing Agent received a proposal
from Specialty Restaurant Corporation for the development, construction, and operation of
a "Crawdaddy's Restaurant" in South Pointe Park; and
WHEREAS, on October 3, 1984, the City Commission reviewed and accepted the
proposal submitted, and authorized the City Manager to negotiate II Lease Agreement with
.
Specialty Restaurant Corporation; and
WHEREAS, on November 7, 1984, the City Administration had completed
negotiations and had presented to the City Commission, for its approval, the proposed Lease
Agreement; and
WHEREAS, on November 29, 1984, Specialty Restaurant Corporation requested
further changes to the Lease Agreement with regards to parking for its patrons; and
EXHIBIT "A"
. " ,.
WHEREAS, on January 18, 1985, the City Administration has completed
negotiations and has presented, to the City Commission for its approval, the proposed Lease
Agreement; and
WHEREAS, the parties recognize that this Lease Agreement shall be subject to
receiving written approval from the Federal Agencies having jurisdiction over the South
Polnte Park development;
NOW THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA hereby authorizes the Mayor to execute the
proposed revised Lease Agreement with Speciality Restaurant Corporation for the
development, construction, and operation of a restaurant facility in South Pointe Park.
PASSED and ADOPTED this ~ day of February 1985,
---7/;"-,,,,-p-d-
Mayor
----..
,
Attest:
~u"'~- );? g~~
City Clerk
APPROVED AS TO FORM:
7~
Legal Department
Dated
1/3/fis
/ /
\
. ..
SITE NAME:
LEASE DATE:
LESSOR:
LESSEE:
RFP NO. 134-84
\.
r, ,f
SOUTH POlNTE PARK RESTAURANT FACILITY
CITY OF MIAMI BEACH
SPECIALTY RESTAURANT CORPORATION
"
INDEX
I. DESCRIPTION
2. TERM
3. CONDITIONS SUBSEQUENT
(Zoning, Liquor License, Building Permits)
4. USE
,. IMPROVEMENTS OF LESSOR
6. IMPROVEMENTS OF LESSEE
7. CONSTRUCTION BOND
8. OWNERSHIP OF IMPROVEMENTS
9. PLEDGE OF LEASEHOLD INTEREST
10. RENT
II. RENT DEPOSITS
12. GROSS RECEIPTS
13. RECORDS, ACCOUNTS, STATEMENTS, AND AUDITS
14. PROPERTY TAXES
I'. LICENSES AND PERMITS
J6. MANNER OF OPERATION
17. CONFORMITY TO LA W
J8. MAINTENANCE AND REPAIRS
J 9. DESTRUCTION
20, INDEMNIFICATION
21. INSURANCE
22. UTILITIES
23. DEFAULT
RFP NO. 134-84
"
"
INDEX (Continued)
24. BANKRUPTCY OR INSOLVENCY
2'. SUBLEASE AND ASSIGNMENT
26. INSPECTION OF PREMISES
27. NOTICES
28. A TTORNE Y FEES
29. WAIVER
30. TIME OF ESSENCE
31. TERMS BINDING ON SUCCESSORS
32. SIGNS
33. FEDERAL APPROVAL
34. AlTTOMOBll..E PARKING
35. FORCE MAJEURE
RFP NO. 134-84
\.
~ I ~ r
. .
This lease Is executed on Febrl1ar~ 8 , 19 85 ,
between THE CITY OF MIAMI BEACH, a Munic pal Corporation of the State of Florida
whose principal office is located at 1700 Convention Center Drive, Miami Beach,
Florida 33139, as LESSOR, and SPECIALTY RESTAURANTS CORPORA nON; as LESSEE.
IT IS AGREED AS FOLLOWS:
I. DESCRIPTION OF THE PREMISES:
For and in consideration of the mutual promises herein contained, Lessor hereby leases
to Lessee, and Lessee hereby leases from Lessor certain real property (hereinafter
referred to as the Premises) described in ''Exhibit A-I" signed by the parties hereto
and incorporated by reference.
2. TERM:
The term shall be twenty (20) years commencing six months after the date Lessor
notifies Lessee in writing that Lessor's work (as hereinafter defined) is completed, or
the date Lessee commences business, whichever Occurs first. This lease agreement
shall have two (2), ten-year options for renewal provided that the Lessee will request
each option from the Lessor by writing the City Manager at least one (1) year prior to
the expiration of the term preceding the term of the requested option.
3. CONDITIONS SUBSEQUENT:
Liquor License: Lessee shall promptly apply for a liquor license from the appropriate
governmental authorities. Lessee shall use every reasonable effort and due diligence
to obtain a liquor license permitting only the dispensing and sale of alcoholic
beverages on the premises for consumption on the premises. It is understood and
agreed that the Lessee shall obtain a liquor license within one hundred twenty (120)
days from the execution of this contract. If for a bona fide reason, not the fault of
the Lessee, the Lessee does not obtain a liquor license for the premises; then this lease
shall immediately terminate and Lessee's rent deposit shall be refunded. The Lessee
shall be required to use its best efforts and shall use due diligence in obtaining a liquor
license from the appropriate governmental authorities.
Upon termination of this lease for any cause whatsoever, the licenses, including the
liquor license, shall become the property of the City of Miami Beach, its successors or
assigns and the Lessee shall fully cooperate in gratuitously tranferring the licenses to
the Lessor.
4. USE:
Lessee shall use the Premises for the sole purpose of constructing, equipping,
furnishing, and operating a dining facility, cocktail lounge, and/or banquet facility, as
herein defined, and for purposes incidental thereto, and for no other purpose
whatsoever, the latter subject to the written approval of the City Manager.
RFP NO. 134-84
'"
" ,'.
" IMPROVEMENTS OF LESSOR:
Lessor agrees to commence construction and Installation on the Premises of the
following improvements and pursue said work with due dUigence:
To the Site
City to provide the following installations up to the site:
(J) Roads with landscaping and street Jighting
(2) Electricity (not transformer)
(3) Water supply
(4) Sanitary sewer
U) Gas
(6) Telephone
6. IMPROVEMENTS OF LESSEE:
Within ninety (90) days after Lessor notifies Lessee In writing of Lessor's approval of
final working drawings and specifications, Lessee shall commence construction and
installation on the Premises of the following improvements and pursue said work with
due diligence:
(1) The LESSEE offers to enter into an agreement with the City of Miami Beach,
Fiorida for the exclusive development, construction and operation of a first-
class, 200-seat (minimum), restaurant whose quality of food, service,
atmosphere, personnel and equipment shall be comparable to other first-class
restaurants in Dade and Broward Counties for South Pointe Park, per the
specifications of the bid proposal found in RFP No. 134-84.
(2) Item I shall consist of a restaurant of not less than 16,000 to 18,000 square feet
with not iess than 200-person dining capacity and cocktail lounges, serving not
iess than 200-seated guests.
(3) Within thirty (30) days after the lease agreement is signed, the Lessee shall
submit to the Lessor schematic design plans. Thirty (30) days after approval by
the City Manager of the schematic plans, design development plans shall be
submitted. Final working drawings, specifications and construction contract
documents shaH be submitted ninety (90) days after the City Manager's approval
of the preliminary plans. After approval by the City Manager of working
drawings, sixty (60) days will be allowed for the receiving of bids and thirty (30)
days to award same and commence construction. Upon award of bid, the Lessee
shall be permitted nine (9) months for the construction of the above-mentioned
facili ties.
(4) The Lessee shall be solely responsible for complete utility service of the facility.
All improvements of Lessee shall be solely at Lessee's cost and expense and shall
be performed in a good workmanlike manner in accordance with sound
construction practices. Lessee shall keep the Premises and said improvements
free and clear of liens for labor and material and shall hold Lessor harmless from
any responsibility in respect thereto.
The total cost of Lessee's Improvements on the Premises shall not be less than
one million seven hundred thousand dollars ($1,700,000).
RFP NO. 134-84
..
7. CONSTRUCTION BOND:
Lessee shall, prior to commencement of construction on the Premises by Lessee,
furnish Lessor a surety bond from a company duly authorized to do business in Florida
naming Lessor and Lessee as the principals and owners, covering 100% of the cost of
constructing the improvements, including labor and material.
8. OWNERSHIP OF IMPROVEMENTS:
All improvements, furnishings, and equipment constructed or installed on the Premises
by the Lessee, shall be personal property and Lessee shall have legal title thereto
during the term of this lease. Upon the expiration or termination of this lease, title to
all permanent improvements constructed on the Premises shall vest in Lessor. Title to
all supplies, furnishings, inventories, and removable equipment and other personal
property shall remain in Lessee, and Lessee shall have the right to remove such items,
excepting licenses, from the Premises without damaging the Premises unless Lessee is
in default hereunder.
9. PLEDGE OF LEASEHOLD INTEREST:
Lessee may from time to time pledge this leasehold interest as security for any
bona fide loan or loans from reputable lenders or lending institutions, but not beyond
the original lease term. Leasehold interest shall not include public land. Copies of ali
agreements and legal instruments pertaining thereto involving the pledge of the
leasehold interest as security, as contained in this paragraph, shall be furnished to the
City Manager of the Lessor whose approval must be obtained prior to their execution,
10. RENT:
(I) Minimum Monthly Rent: During the term of this lease, Lessee shall pay Lessor
as minimum monthly rent, two thousand five hundred dollars ($2,.500) per month
payable in advance at the address of Lessor on the first day of each month
beginning on the day Lessee commences business or two hundred forty (240) days
from the date Lessor notifies Lessee of Lessor's approval of final working
drawings and specifications, whichever date occurs first. If rent begins in the
middle of the month, rent for such month shall be prorated and paid in advance.
If the restaurant facUity in the future becomes subject to real property or
possessory interest taxes, the Lessee will be responsible for said taxes.
(2) PercentaRe Rent: The Lessee shall pay Lessor as percentage rent, in accordance
with the following:
211% to $2,.500,000
3% $2,.500,001 - $4,800,000
311% over $4,800,000
or two thousand five hundred dollars ($2,.500)
per month minimum guarantee, whichever is the greater
II. RENT DEPOSITS:
On the date this lease is exeOJted, Lessee shall pay to Lessor the sum of fifteen
thousand dollars ($1.5,000) as advance payment of the first six (6) months minimum
monthly rent due hereunder. The bid security of fifteen hundred dollars ($1,.500) shall
be credited to the rent deposit. In the event the Lessee defaults, the Lessor shall be
entitled to retain the rent deposit as liquidated damages.
RFP NO. i34-84
~
12. GROSS RECEIPTS:
The term "gross receipts" as used herein shall include all receipts, whether collected
or accrued, derived by Lessee or any llcensee, concessionaire, or tenant of Lessee,
from all business conducted upon or from the Premises, Including but not limited to
receipts from sale of food, beverages, alcoholic beverages, merchandise, and rental of
space, or from any source whatsoever. The following items are excluded from gross
receipts, however:
(0 Receipts from the sale of waste or scrap materials resulting from Lessor's
opera tions on the Premises,
(2) Receipts from the sale or trade-In value of any furniture, fixtures, or equipment
used on the Premises.
(3) The cost or value of meals or discounts given to employees of Lessee.
(4) The cost or value of food and beverage used for entertainment and business
promotion purposes by officers and employees of Lessee. No trade outs may be
deducted from gross sales under this provision.
13. RECORDS, ACCOUNTS, STATEMENTS AND AUDITS:
Lessee shall keep on the Premises, or such other place within Dade County, Florida
approved by Lessor, true, accurate, and complete records and accounts of all sales,
rentals, and business being transacted upon or from the Premises and shall give Lessor
or Lessor's representative access during reasonable business hours to examine and
audit such records and accounts.
Within thirty (30) days after each month of the term hereof, Lessee shall deliver to
Lessor a written monthly statement of the gross receipts for such month certified by
Lessee to be true, accurate, and complete.
Within sixty (60) days after each fiscal year, Lessee shall deliver to Lessor a written
annual statement of the gross receipts for such fiscal year. Said statement shall be
certified as true, accurate, and complete by Lessee, by and through a duly authorized
officer of Lessee. The City's Auditor or his designee shall have the right, during
regular business hours and upon the City's written request to Lessee to audit, inspect,
examine and copy the Lessee's fiscal and financial records, books, ledgers, statements,
reports, tax returns and documents relating to this agreement and the Lessee's
revenues thereunder throughout the term(s) of this agreement and for three (3) years
following its expiration or cancellation. The Lessee agrees to have such audit(s)
conducted at such locations within Dade County, Florida as are mutually convenient
to the parties.
14. PROPERTY TAXES:
During the term hereof, Lessee shall pay all taxes of whatever nature lawfully levied
upon or assessed against the Premises and improvements, property, sales, rentals or
operations thereon, including but not limited to, ad valorem sales and use taxes.
15. LICENSES AND PERMITS:
Lessee shall pay for all licenses, permits, and fees necessary for Lessee to conduct
Lessee's business on the Premises.
RFP NO. 134-84
"
16, MANNER OF OPERATION:
(J) Lessee shall keep the restaurant and cocktail lounge reasonably stocked with
food and beverage and reasonably staffed to serve the patrons thereof, and
Lessee shall maintain a standard of quality of food and beverage at least equal to
similar operations In the area at reasonably comparable prices.
(2) The facilities to be constructed by the Lessee shall be open seven (7) days a
week, with the exception of Christmas Eve, or such other days that are approved
in writing by the City Manager.
(3) Minimum hours of operation.
Lunch and DiMer, five (5) days a week - 11:00 a.m. to 11:00 p.m.
Dinner two additional days a week - 5:00 p.m. to 11:00 p.m.
Any changes In hours of operation are subject to approval of the City Manager.
Nothing herein contained shall be construed to authorize hours contrary to the
laws governing such operations.
17. CONFORMITY TO LA W:
Lessee shall comply with all laws, ordinances, regulations, and orders of Federal,
State, County and Municipal authorities pertaining to the Premises and Lessee's
improvements and operations thereon.
That the Lessee covenants and agrees that there will be no discrimination as to race,
color, creed or national origin in the use of the demised Premises.
18. MAINTENANCE AND REPAIRS:
During the term hereof, Lessee, at Lessee's expense, shall, to the satisfaction of the
Lessor, keep and maintain the Premises and all improvements thereon in good and
sanitary order, condition, and repair, consistent with the operation of a first-class
quality restaurant in the Dade and Broward County area. Upon expiration or
termination hereof, Lessee shall surrender and deliver up to Lessor the Premises and
all permanent improvements thereon in good and usable condition, ordinary wear and
tear excepted.
19. DESTRUCTION:
In the event the Premises shall be destroyed or so damaged or injured by fire or other
casualty during the life of this agreement whereby the same shall be rendered
untenantable, then the Lessee shall render said Premises tenantable by repairs within
two hundred forty (240) days therefrom, or such additional period of time as agreed to
by Lessor's City Manager in writing. Rent shall abate during the time the premises are
untenantable, provided, however that if the period of untenability shall exceed two
hundred forty (240) days the City shall have the sole option of cancelling or
renegotiating this agreement, at Its discretion.
In the event the Premises are substantially destroyed or so damaged or injured by fire
or other casualty that the Premises cannot be rendered tenantable or that Lessee
elects not to replace within the two hundred forty (240) day period as set forth above,
or such additional period of time as agreed to by the Lessor's City Manager, then the
proceeds of the insurance policy or policies covering such loss or damage shall be paid
to the City of Miami Beach and the Lessee as their interests appear, and this
agreement shall be deemed terminated and the rent shall be payable only to the date
RFP N<<h~Premises are rendered untenantable.
\.
20. INDEMNIFICATION:
Lessee shall indemnify and hold harmless Lessor, its employees, and officials from
claims, causes, demands, suits, actions, damages and liabUlties arising from liens or
claims of any kind or nature whatsoever resulting from the use, activities, and
opera tions of Lessee on or about the Premises and shall pay all judgments (Including
costs, interest and attorney's fees) which may be rendered thereon.
21. INSURANCE:
A t all times during the term hereof, Lessee shall maintain in full force and effect the
following described insurance covering the Premises and Lessee's improvements and
operations thereon:
(1) Public Liability IncludinR Products Liability Insurance:
Not less than one million dollars ($1,000,000) for death of, or injury to, anyone
person in anyone occurrence.
Not less than one million dollars ($1,000,000) for death of, or injury to, two or
more persons in anyone occurrence.
Not less than one million dollars ($1,000,000) property damage.
(2) Fire and Extended CoveraRe:
Ninety percent (90%) of replacement value of all improvements. Certificates of
such insurance shall be delivered to Lessor prior to the beginning of any
construction by Lessee; such policies shall name Lessor as additional insured and
shaJJ provide that Lessor's Insurance Manager be given at least thirty (30) days
advance written notice of cancellation or material modification. All
Certificates of Insurance shall be filed with the City Insurance Department of
the City of Miami Beach, Florida.
The insurance provided for herein shall be written by a company who is rated A:X or
better in Best's Key Rating Guide (latest edition) who is authorized to do business in
the State of Florida and countersigned through an agent authorized to do business in
the State of Florida. The insurance company and the amount of coverage shall be
subject to the approval of the Lessor's City Manager, and the proceeds payable under
section (2) hereof shall be assignable to the City of Miami Beach pursuant to
paragraph 19 of this lease.
22. UTD.ITlES:
Lessee shall promptly pay for charges for water, gas, sewer, electricity, telephone,
and all other charges for utilities which may be furnished to the Premises during the
term hereof.
RFP NO. 134-84
...
23. DEFAULT:
(1) If Lessee abandons or vacates the Premises prior to the expiration of the term
hereof, or
(2) If Lessee falls to make the rent payments as set forth herein and said payment Is
not made within 1.5 days after written notice is given to Lessee, or
"
(3) If Lessee fails to perform in accordance with any of the other terms and
conditions herein contained, and such default is not cured within thirty (30) days
after written notice is given to Lessee then Lessor, at Lessor's option and
without further notice or demand to Lessee, may enter into possession of the
Premises and all improvements thereon and remove all persons therefrom and
may either take possession of all furniture, equipment, and other personal
property of Lessee found on the Premises or remove such property or any part of
it and store it at Lessee's expense. Lessor may then either terminate this lease
or re-Iet the Premises without prejudice to Lessor's lawful rights and remedies
against Lessee. In the event Lessor elects to re-Iet the Premises for such rent
and upon such terms as Lessor may be able to obtain, Lessee shall continue to
pay any difference between the rent obtained by such re-Ietting and the rent due
hereunder.
24. BANKRUPTCY OR INSOLVENCY:
If Lessee is adjudicated a bankrupt or makes an assignment for the benefit of
creditors, or if the leasehold interest is sold under a legal order, or judgment, Lessor
shall have the right to immediately terminate this lease and re-enter the Premises
without notice or demand.
2.5. SUBLEASE AND ASSIGNMENT:
Lessee shall not sublease the Premises or any part thereof nor assign this lease to any
other person or firm without first obtaining City Commission approval therefor.
26. INSPECTION OF PREMISES:
For the purpose of inspection, Lessor hereby reserves the right to enter upon any part
of the Premises at any time during the period the business is to be open under the
terms of this lease.
27. NOTICES:
AU notices and rental payments shall be sent to the parties at the following addresses:
LESSOR:
The City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
LESSEE:
Specialty Restaurants Corporation
President
2977 Redondo A venue
Long Beach, CA 90806
RFP NO. 134-84
27. NOTICES: (Continued)
le~sor and .l.ess~e may change such addresses at any time upon giving the other party
written notification.
All notices under this lease must be In writing and shall be deemed to be served when
delivered to the address of the addressee. All notices served by mail shall be
registered mail, return-receipt requested.
lessee may designate additlonaJ persons for notification of default.
28. ATTORNEY FEES:
lessee agrees to pay the cost of collection and twenty percent (20%) attorneys' fees
on any part of said rental that may be collected by suit or by attorney after the same
is past due.
29. WAIVER:
No waiver by lessor at anytime of any of the terms or conditions of the lease shall be
deemed a waiver at any time thereafter of the same or any other terms or conditions
hereof.
30. TIME OF ESSENCE:
Time shall be of the essence of this lease.
31. TERMS BINDING ON SUCCESSORS:
All of the terms and conditions of this lease shall insure to the benefit of and be
binding upon the Successors and assigns of the parties hereto.
32. SIGNS:
No signs whatsoever, including advertising signs, shall be erected or permitted upon
the Premises until the plans therefor have first been submitted to the City Manager of
the City of Miami Beach, and he shall approve said plans for the design and
construction thereof in writing.
33. FEDERAL APPROVAL:
The parties to this agreement recognize that this agreement shall be subject to
receiving written approval from the Federal Agencies having jurisdiction over
development, construction and operation of the South Pointe Park. This lease shall not
be effective until lessee has been notified by registered mail that all applicable
Federal Agency approvals have been granted.
RFP NO. 134-84
34. AUTOMOBILE PARKING:
Lessor warrants that adequate automobile parking space adjacent to the premises for
Lessee's patrons and employees shall be made available by Lessor. In the event that
Lessor charges a parking fee, Lessor agrees to refund any parking fees to the patrons
of the restaurant upon presentation of a validated restaurant parking ticket.
35. PORCE MAJEURE:
The performance of any act by Lessor or Lessee hereunder may be delayed 01'
suspended at any time while, but only so long as, either party Is hindered In or
prevented from performance by acts of God, the elements, war, rebellion, strikes,
lockouts, or any other cause beyond the reasonable control of such party, providing,
however that If the condition of force majeure exceeds a period of two hundred forty
days (240) days the City may at Its sole option and discretion, cancel or renegotiate
this lease.
RFP NO. 134-84
IN WITNESS WHEREOF, the parties have executed this lease on the date first above
written.
LESSOR:
By:
By:
Attest:
LESSEE:
By:
Type Name:
By:
By:
Attest:
tlJ':i\'i 1\ Fi\'i U V d)
LEGAL DE-PI.
'--'-'?d&.
l~,P
/.~ tfz ~.~':!
ih\f!_i ...J .ti:...--
RFP NO. 134-84
CITY OF MIAMI BEACH
(' ) 1~~~
MA~
~~
/l7~~
CITY CLERK ~-.r-J J-
SPECIALTY RESTAURANTS CORPORATION
NAME
~c?ff4E~
CHARLES E. ~~ITE, EXECUTIVE VICE PRESIDENT
OIUJd c 't't{~ r-
DAVID C. TALLICHET, JR., PRESIDENT
(CORPORATE SEAL)
STATE OF
CALIFORNIA
COUNTY OF
LOS ANGELES
ON
JANUARY 30,
. 19 85 . before me the
undersigned Notary Public in and for said County and State. personally appeared
DAVID C. TALLICHET, JR.,PRESIDENT
CHARLES E. WHITE. EXECUTIVE VICE PRES. known to me to be the person(s) whose
name(s) is(are) subscribed to the attached instrument and acknowledged that he (they)
executed the same.
WITNESS my hand and official seal
c.-; ="! 5:,'.L
c.' r-: =,. ~ ~.' C,=.~L~~ f,~D
.1 r.. r -"I. . :: ..: ,r..)
" / I; ;.~. F ~ Hl
, 1 ~ I .' . _ : L'L' .TV
'.'~ ~ .:." .':I::r, r.,. ,.~ ;; ._'. y :.:... 1~~i
----------- ....-.-...--"""""'"
(_~~ /lJ ~4-uL
,- NOTARY PUBLIC in and for said County and State
CAROLE M. COUILLARD
RFP NO. 134-84
EXHIBIT -A-I-
DESCRIPTION OF PROPERTY
A 100' X 160' parcel of land within South Pointe Park located '0 feet north of Government
Cut and adjacent to the Amphitheater structure which is west of the Coastal Construction
Line.
RFP NO. 134-84
00 0 i i
000 0 i
o
...
.
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (hereinafter referred to as the
M Agreemenn is entered into this I"'" day of July, 1993, by and between SPECIALTY
RESTAURANTS CORPORATION, a California corporation, (hereinafter referred to as the
MSeller") and 1 WASHINGTON A VENUE CORP., a Florida corporation (hereinafter referred
to as "PurchaserM).
RECITALS
WHEREAS, Seller is the sole owner of a restaurant building commonly known as the
"Crawdaddy's RestaurantM (hereinafter referred to as the .Restaurant Building.) and more
particularly described on the attached Exhibit. AM, and by reference made a part hereof;
WHEREAS, Seller is the sole owner of various equipment, furnishings, fixtures, and
other improvements relating to the Restaumnt Building (hereinafter collectively referred to as
the "Equipment") and more particularly described on the attached Exhibit MB., and by this
reference made a part hereof;
WHEREAS, Seller is the Master Lessee of a leasehold estate in and to that certain parcel
of real property leased from THE CITY OF MIAMI BEACH (hereinafter referred to as the
"Leasehold Estate") and more particularly described in the Lease Agreement dated February 8,
1985, attached hereto as Exhibit "C", and by reference made a part hereof;
WHEREAS, SOUTH POINTE HOSPITALITY, INC., a Florida corporation, is the
current Sublessee, operator, and licensee of the restaurant business commonly known as
Crawdaddy's Restaurant, under that certain Sublease Agreement dated November 12, 1990, as
Amended, attached hereto as Exhibit "D, M and by reference incorporated made a part hereof;
and,
WHEREAS, SeHer and Purchaser have entered into this Agreement for the purpose of
describing in detail the property to be conveyed and transferred, certain closing matters, and
additional agreed upon items, all in accordance with the terms and conditions hereinafter set-
forth.
NOW, TlIEREFORE, in consideration of the foregoing premises and the respective
representations, warranties, agreements and conditions herein contained, Seller and Purchaser
agree as follows:
1 WASHINGTON AVENUE CORP.
Agreement of Purcbase and Sale
Revised: Iuly 9, 1993
Printed: Iuly 9. 1993
1
~/
EXHIBIT -B-
ARTICLE I
DEFINITIONS
For the purpose of this Agreement, the following terms (in addition to terms given
defined meanings elsewhere in this Agreement) shall have the respective meanings set forth
below in this Article I.
1.1 "Restaurant Buildine" - shall mean the building more particularly described on
the attached Exhibit" A."
1. 2 "Closine" - shall have the meaning defined in Section 8.1.
1.3 "Closine Date" - shall have the meaning defined in Section 8.1.
1.4 "Equipment" - shall mean all trade fixtures, furnishings, fillings, equipment,
machinery, apparatus, appliances, signs, and articles of personal property of every kind
whatsoever owned by Seller and nQw located at the Restaurant Building, and used or usable in
connection with any present or future occupation or operation of all or any part of the Restaurant
Building, as a restaurant or bar or otherwise, including, without limitation, all boilers, furnaces,
heating, ventilating and air-conditioning systems and equipment, if any, all restaurant furniture
and equipment, all safes, cash registers, office, accounting, specialized restaurant equipment
(including all equipment usable in the operation of kitchens, bars and cocktail lounges), electrical
equipment (including refrigerators and other appliances, radios, televisions and lighting
equipment), fire prevention and extinguishing apparatus, pictures and ornaments. Said
Equipment is more particularly described in the attached Exhibit "B," by reference made a part
hereof.
1.5 "Miscellaneous Assets" - shall mean all of Seller's right, title, and interest in and
to any and all licenses and certificates issued by the appropriate governmental authority with
respect to the operation of the Project, or any part thereof, as well as, an assignment and
delivery of any and all claims, guarantees, warranties, indemnifications, and all other rights, if
any, which Seller may have against suppliers, laborers, materialmen, contractors, or sub-
contractors arising out of or in connection with the installation, construction, and maintenance
of the improvements, fixtures, and personal property on or about the Leasehold Estate.
1.6 "Personal Propertv" - shall mean the Equipment and Miscellaneous Assets.
1.7 "Project" - shall mean all of Seller's right, title and interest in and to the parcels
and items of property referred to in Article II below which are to be conveyed and transferred
to Purchaser on the Closing Date.
1 WASHINGTON AVENUE CORP.
Agreement of Purcbase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
&/
2
1.8 "Leasehold Estate" - shall mean the parcel of real property leased from THE
CITY OF MIAMI BEACH and described in the Lease Agreement attached hereto as Exhibit
"B".
ARTICLE II
SALE AND PURCHASE
Upon the terms, conditions, representations and warranties herein set forth, Seller hereby
agrees to sell the following properties, rights and interests to Purchaser, and Purchaser agrees
to purchase such properties, rights and interests from Seller:
2.1 All of Seller's right, title and interest in and to the Leasehold Estate.
2.2 All of Seller's right, title and interest in and to the Restaurant Building, the
Equipment, and the Miscellaneous Assets.
ARTICLE III
PURCHASE PRICE ANDALLOCATJON
3.1 The total Purchase Price for the Project shall be Two Million Five Hundred
Thousand Dollars ($2,500,000.00), subject to adjustment as provided in Section 9.1 hereof.
3.2 The Purchase Price shall be payable by Purchaser as follows:
A. Concurrently with the opening of escrow, as described in Article V
hereinafter, the Purchaser shall deposit with the Escrow Holder, the sum of Five Thousand
($5,000.00) dollars.
B. The balance of the Purchase Price, Two Million Four Hundred Ninty-Five
Thousand Dollars ($2,495,000.00), shall be deposited into the escrow, as hereinafter defined,
in the form of cash, cashier's check or federal funds wire-transferred on or prior to the Closing
Date, as hereinafter defined; and,
C. All funds comprising said Purchase Price shall be confirmed by Purchaser
to Seller not later than ten (10) days prior to the Closing Date, as hereinafter defined.
3.3 The Seller and the Purchaser agree that all federal, state, and local tax returns
shall be filed in a manner consistent with the following allocation of the Purchase Price, to the
project:
1 WASHINGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
&6"
3
Value Assigned
A.
Restaurant Building:
1,900,000.00
B.
Equipment, Furniture,
Fixtures, Grounds
600,000.00
ARTICLE IV
INSPECTION OF PROJECT
4.1 Purchaser has inspected, or has caused to be inspected, the physical condition of
the Project and is satisfied with all such maUers.
ARTICLE V
ESCROW/TITLE
5.1 OPENING OF ESCROW. Within three (3) business days after this Agreement
has been executed by Seller and Purchaser, the party shall open an escrow (the "Escrow") with
the law firm of MURPHY, REID, PILOTTE & ROSS, P.A., located at 340 Royal Palm Way,
Palm Beach, Florida 33480 (the "Escrow Holder"), by depositing a fully executed original or
counterparts of this Agreement with the Escrow Holder. The Terms of this Agreement shall
serve as Escrow Holder's Escrow Instructions.
5.2 CLOSING OF ESCROW. Closing shall be deemed to occur upon the
recordation, in the Official Records of Dade County, Florida, of the Assignment and Release
of Lessee (" AssignmentJRelease") in the form attached hereto as Exhibit "E," and by this
reference incorporated herein. Closing shall occur on Friday, July 23, 1993 (the "Closing
Date"), and shall occur only when Escrow Holder (i) holds the entire Purchaser Price, (ii) can
deliver to Purchaser a Leasehold Policy of Title Insurance for the Leasehold Estate (the "Title
Policy") showing the Leasehold Estate vested in Purchaser, only to the exceptions and
endorsements shown and approved by Purchaser, as provided herein.
5.3 POLICY. Upon Closing, Escrow Holder shall record the AssignmentJRelease;
deliver the entire cash Purchase Price to Seller, less Seller's share of Escrow Expenses and other
adjustments required herein; and cause the Leasehold Policy of Title Insurance to be issued as
of the Closing Date.
1 WASHINGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
~cf
4
5.4 ESCROW COSTS. The expenses of escrow shall be borne as follows:
A. Seller shall pay the premium for the Title Policy and one half (112) of the
Escrow Holder's escrow fees;
B. Purchaser shall pay one half (112) of the Escrow Holder's escrow fees;
and,
C. All other charges incurred by the Escrow Holder in connection with the
Closing shall be apportioned equally among Seller and Purchaser.
5.5 TITLE. Within five (5) days after the date of this Agreement, Seller shall cause
to be delivered to Purchaser a preliminary title report ("Report") issued by a mutually acceptable
title company ("Title Company") covering the Leasehold Estate, together with copies of all
documents referred to therein, as exceptions to Title. Purchaser shall approve or disapprove the
Report, in writing, within ten (10) days after receipt of the Report and all such documents, or
any update or supplement thereto. Within ten (10) days after receipt of Purchaser's disapproval
with any exceptiQ" to Title specified in the Report, or any update or supplement thereto, Setter
shall notify Purchaser if Seller is or will be unable to remove such exception from the Title
Report to be issued at Closing. In the event Seller notifies Purchaser that Seller will be unable
to remove any such exception, then Purchaser may elect to waive its disapproval as to such
exception, or terminate this Agreement. If Seller intends to remove such exception, Seller shall
have until the Closing Date to do so.
ARTICLE VI
NOTICES
6.1 Notice shall be deemed as given hereunder upon personal delivery to the addresses
set forth below or, if properly addressed, upon depositing such notice with postage prepaid in
a United States mailbox or depositing such notice in the custody of a nationally recognized
overnight delivery service. Notice shall be deemed properly addressed if sent to the following
addresses:
If to Seller:
Specialty Restaurants Corporation
4155 E. La Palma Avenue, Suite 250
Anaheim, California 92807
Attn: President and General Counsel
If to Purchaser:
Arthur Forgette
President
South Pointe Hospitality, Inc.
Nl Washington Avenue
Miami Beach, Florida 33139
1 WASlflNGTON AVENUE CORP.
Agreement or Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
s~
5
. '.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Seller shall execute all applications and instruments required in connection with
and cooperate with Purchaser to effect the transfer to Purchaser of all transferable permits, if
any, in order to effect such transfer on the Closing. All costs and expenses incurred in
connection with such transfers shall be paid by Purchaser.
7.2 Seller and Purchaser will cooperate with each other in good faith and will exercise
due diligence in carrying out the transactions contemplated herein, in obtaining all required
approvals, authorizations, and clearances, in satisfying the conditions set forth in Article XIV
hereof, and in delivering all documents, instruments, or copies thereof, or other information
deemed reasonably necessary or useful by the other party.
7.3 Following the Closing, Seller agrees, on request of Purchaser, to execute and
deliver to Purchaser such further instruments in writing as may be reasonably required to
complete or evidence the transaction herein provided for and Purcha~er shall, on request, execute
and deliver like instruments to Seller.
7.4 Seller and Purchaser agree, in all respects, to comply with the Florida Bulk Sales
Law.
ARTICLE VIII
CLOSING
8.1 Following satisfaction by Seller or waiver by Purchaser of the conditions
precedent to Purchaser's obligation to consummate the subject transaction, as set forth in Article
XIV hereunder, the parties shall consummate the transaction described in this Agreement at a
meeting of the parties (the NClosingN), which shall take place at the offices of the Escrow Holder
at 10:00 a.m. on Friday, July 23, 1993 (the NClosing DateN). All proceedings to take place at
the Closing shall take place simultaneously, and no delivery shall be considered to have been
made until all such proceedings have been completed.
8.2 At the Closing, Seller and Purchaser shall jointly prepare a closing statement
setting forth, in reasonable detail, the adjustments and prorations, as of the Closing Date,
required under Article IX hereunder, and the Purchase Price will be adjusted on the basis thereof
("Final Closing StatementN).
8.3 In the event that, at any time within ninety (90) days after the Closing, either
party discovers any item which should have been included in the Final Closing Statement, but
was not included for any reason, then, provided such item is not disputed, such item shall be
6
W@
I WASHINGTON A VENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993cPrinted: July 9, 1993
. '.
adjusted as if its existence had been known at the time of the preparation of the Final Closing
Statement and the necessary payment shall promptly be made.
ARTICLE IX
CLOSING ADJUSTMENTS: OrnER CLOSING MATTERS
9.1
Purchaser:
On the Closing Date the following items shall be apportioned between Seller and
A. Seller shall pay all recording fees, and any use or transfer tax,
documentary stamp tax and/or intangibles tax to become payable upon the delivery or recording
of Seller's interest in and to the Project; however, Purchaser shall pay the cost of recording any
and all deeds of conveyance;
B. It is agreed between the parties that Purchaser shall be entitled to a credit
in the amount of Twelve Thousand Five Hundred Dollars ($12,500), toward the Purchase Price,
in connection with the litigation filed in The Circuit Court of the Eleventh Judicial District in
and for Dade County, Florida, General Jurisdiction Division, bearing Case Number 91-28067
CA 28; and,
C. Such other items as are provided for in this Agreement.
ARTICLE X
CLOSING: CLOSING DOCUMENTS
At the Closing, SeJler shall execute and deliver to Purchaser (as required) and Purchaser
shall execute and deliver to Seller (as required) the following:
10.1 Seller shall deliver to Purchaser a good and sufficient warranty Bill of Sale
conveying marketable title to the Equipment, free and clear of all liens, claims or encumbrances
and otherwise in form and substance satisfactory to Purchaser, such Bill of Sale shall contain
an itemized list of such Equipment.
10.2 If not previously delivered, SeJler shall cause to be delivered to Purchaser all
existing plans and specifications in SeJler's possession relating to the improvements located upon
or associated with the Project.
10.3 SeJler and Purchaser shall provide each other with an opinion of their respective
counsel stating that Seller/Purchaser is a corporation, duly organized and validly existing under
the laws of the State of California and Florida, respectively, with full power and authority to
enter into and consummate the transaction contemplated herein, and that the person executing
the closing documents on behalf of each is authorized to do so.
1 WASffiNOTON AVENUE CORP.
Agreemenl or Purchase and Sale
Revised: July 9, 1993
Prinled: July 9, 1993
&/
7
10.4 Seller shall furnish Purchaser with an affidavit stating that none of the entities
constituting Seller is a "Foreign Person" within the meaning of IRC Section 1445(1)(3).
10.5 Seller hereby agrees to indemnify and hold harmless Purchaser from and against
any and all liability arising or resulting from any event or omission attributable to Seller's action
in connection with the Project, accruing prior to the date in which Purchaser took possession of
the Crawdaddy's Restaurant (November 12, 1990), under that certain Sublease Agreement
attached hereto as Exhibit "D," and by this reference incorporated herein, including, but not
limited to, the following:
(i) Any claims, lawsuits, condemnation proceedings or other administrative
actions or examinations whatsoever relating to the Project or Seller's use
of the Project;
(ii) Any violation of any law, regulation or ordinance or building rule or other
rule or regulation affecting the Project or Seller's use of the Project;
(iii) Any claims made under any Contracts (except Purchaser shall have no
such claims made under any Contracts which Purchaser has not agreed to
assume and have assigned to Purchaser as of the Closing);
(iv) Any proceeding or enforcement actions relating to chemical or hazardous
wastes or toxin substances which have been or are alleged to have been
released or disposed upon or below the surface of the Leasehold Estate or
into any water systems on or below the surface of the Leasehold Estate in
connection with the operation of the Project or the Seller's use of the
Project; and
(v) any provider of any utility service for utility services furnished to the
Project.
10.6 Subject to Section 16.3, Purchaser hereby agrees to indemnify and hold Seller
harmless from and against any and all liability arising or resulting from any event or omission,
attributable to or accruing after the date in which Purchaser took possession of Crawdaddy's
Restaurant (November 12, 1990), under that certain Sublease Agreement attached hereto as
Exhibits "D", and by this reference incorporated herein, as to the following:
(i) Any claims, lawsuits, condemnation proceedings or other administrative
actions or examinations whatsoever relating to the Project or Purchaser's
use of the Project;
(ii) Any violation of any law, regulation or ordinance or building rule or other
rule or regulation affecting the Project or Purchaser's use of the Project;
1 WASHINGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
8
ID/
fY{}
(Hi) Any claims made under any Contracts (except Seller shall have no such
claims made under any Contracts which Purchaser has not agreed to
assume and have assigned to Purchaser as of the Closing);
(iv) Any proceeding or enforcement actions relating to chemical or hazardous
wastes or toxin substances which have been or are alleged to have been
released or disposed upon or below the surface of the Leasehold Estate or
into any water systems on or below the surface of the Leasehold Estate in
connection with the operation of the Project or the Purchaser's use of the
Project; and
(v) Any provider of any utility service for utility services furnished to the
Project during the period after the Closing Date.
10.7 Seller shall deliver to Purchaser any licenses and certificates or such other
comparable certificates or documents issued by the appropriate governmental authority with
respect to the Project or any part thereof.
10.8 Seller shall execute and deliver to Purchaser an assignment and delivery of all
claims, guaranties, warranties, indemnifications, and all other rights, if any, which Seller may
have against suppliers, laborers, materialmen, contractors or subcontractors arising out of or in
connection with the installation, construction and maintenance of the improvements, fixtures and
personal property on or about the Leasehold Estate.
ARTICLE XI
FIRE DAMAGE
In the event that any improvements located upon the Leasehold Estate shall be damaged
or destroyed by fire, storm or other casualty on or before the Closing Date and the cost to repair
such casualty loss shall exceed Fifty Thousand Dollars and nollOO ($50,000.00), Purchaser shall
have the right to terminate its obligations under this Agreement and to receive a return of all
sums deposited with Escrow Agent pursuant to Article m hereof. In the event Purchaser shall
not elect to terminate its obligations under this Agreement, Purchaser shall be entitled to receive
an assignment from Seller of any interest Seller may have otherwise had in the proceeds of al'\Y.
insurance on the Project.
ARTICLE xn
CONDEMNA TION
In the event that notice of any action, suit, or proceeding shall be given prior to the
Closing Date, for the purpose of condemning any part of the Leasehold Estate, then Purchaser
shall have the right to terminate its obligations hereunder and upon such termination, the
1 WASIflNGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
/'
9
~,
proceeds resulting from such condemnation shall be paid to Seller. In the event Purchaser shall
not elect to terminate its obligations hereunder, the proceeds of such condemnation shall belong
.to Purchaser.
ARTICLE xm
BROKER
Each party represents to the other that neither have dealt with any broker or finder in
connection with this transaction.
ARTICLE XIV
CONDITIONS PRECEDENT TO CLOSING
Anything contained in this Agreement to the contrary notwithstanding, Purchaser shall
have no obligation to consummate the within contemplated transaction unless and until the
conditions set forth in this Article XIV shall have either been satisfied or waived by Purchaser
in writing. Seller shall use its best efforts to assist Purchaser in satisfying each and all of such
conditions. If not so waived, all such conditions must be satisfied by no later than the Closing
Date (unless a shorter period is specified with respect thereto). Upon failure by Purchaser to
satisfy any of such conditions within the applicable time provided therefor, Purchaser may
terminate this Agreement upon written notice to Seller. Such conditions are as follows:
A. There shall have been no intervening destruction or damage to or
condemnation of the Leasehold Estate, or any portion thereof (subject to Article XI and Article
XII above);
B. Approval by THE CITY OF MIAMI BEACH of the Assignment to
Purchaser of that certain Lease Agreement dated February 8, 1985, attached hereto as Exhibit
"C," and by this reference incorporated herein;
C. Approval by THE CITY OF MIAMI BEACH to the Release of Seller of
any and all obligations under that certain Lease Agreement dated February 8, 1985, attached
hereto as Exhibit "C," and by this reference incorporated herein; and,
D. Purchaser shall have obtained, within twenty (20) days from the date of
this Agreement, financing for ninety percent (90%) of the Purchase Price of the Project. Said
financing shall be further contingent upon the Purchaser being able to mortgage the Leasehold
Estate, which mortgage shall bear interest at market rates, but not greater than ten percent (10%)
per annum, which mortgage shall have a term of not less than twenty (20) years and provide for
equal monthly installments of principal and interest.
1 WASHINGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
10
~/
ARTICLE XV
DEFAULT
15.1 In the event the transaction contemplated hereby is not consummated due to a
default by the Purchaser or Seller, the non-defaulting party may elect to rescind this Agreement
and waive any claim for loss of bargain and shall be reimbursed for all costs which said party
incurred in connection with this Agreement and in preparation for closing; alternatively, said
non-defaulting party may commence an action for specific performance, or file an action at law
for damages for loss of bargain and consequential damages, and for the recovery for its costs
and preparation of this Agreement and in preparation for closing.
15.2 In the event any action is brought by either party hereto to enforce the terms of
this Agreement, the prevailing party in such action shaD be entitled to an award of its cost of
suit, including reasonable attorneys' fees.
ARTICLE XVI
NO ASSUMPTION OF LIABILITIES
16.1 The parties acknowledge that this transaction contemplates only the sale and
purchase of Seller's right, title, and interest in and to the Project and that the parties do not
intend that Purchaser be deemed a successor of Seller with respect to any liabilities of Seller
whatsoever to any third (3rd) parties. Purchaser shall neither assume nor be liable for any of
the debts, liabilities, taxes or obligations of, or claims against, Seller, or of any other person or
entity, of any kind or nature, whether existing now, on the Closing Date, or at any time
thereafter. All of such debts, liabilities, taxes, obligations, and claims shall be solely those of
Seller, and Seller hereby represents, warrants, covenants, and agrees to defend, indemnify and
hold harmless Purchaser from any liability with respect thereto. Buyer and Seller agree to
prorate through escrow any real personal property taxes due, as of the Date of Closing.
16.2 The Seller shall be fully responsible for and shall indemnify and hold Purchaser
harmless with respect to the Project, including, but not limited to, all suits, actions, damages,
and claims which may be asserted or threatened against the Purchaser from and after the Closing
Date, but which shall have arisen out of any aspect of the Project prior to the date in which
Purchaser took possession of the Crawdaddy's Restaurant (November 12, 1990) under that
certain Sublease Agreement attached hereto as Exhibit .0" , and by this reference incorporated
herein.
16.3 The Purchaser shall be fully responsible for and shall indemnify and hold Seller
harmless, with respect to all operations and uses of the Project by Purchaser, after the date in
which Purchaser took possession of the Crawdaddy's Restaurant (November 12, 1990), under
that certain Sublease Agreement attached hereto as Exhibit "0", and by this reference
incorporated herein.
1 WASHINGTON A VENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
11
~:I
ARTICLE XVD
MISCELLANEOUS
17.1 This Agreement may not be modified except in writing signed by all parties.
17.2 Failure of either party to complain of any act or omission on the part of the other
party, no matter how long the same may continue, shall not be deemed to be a waiver by such
party to any of its rights hereunder. No waiver by any party at any time, expressed or implied,
of any breach of any provision of this Agreement shall be deemed a waiver or a breach of any
other provision of this Agreement or a consent to any subsequent breach of the same or any
other provision. If any action by any party shall require the consent or approval of another
party, such consent or approval of such action on anyone occasion shall not be deemed a
consent to or approval of said action on any subsequent occasion or a consent to or approval of
any action on the same or any subsequent occasion.
17.3 The captions, section numbers, and article numbers appearing in this Agreement
are inserted only as a matter of convenience, and do not define, limit, construe, or describe the
scope or intent of such sections or articles of this Agreement nor in any way affect this
Agreement.
17.4 No party other than Seller and Purchaser. their heirs, personal representatives,
successors and assigns, shall have any rights to enforce or rely upon this Agreement, which is
binding upon and made solely for the benefit of Seller and Purchaser, their heirs, personal
representatives, successors and assigns, and not for the benefit of any other party.
17.5 All pronouns and any variations thereof as used herein shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identity of the parties may
require.
17.6 This Agreement shall be governed by the laws of the State of Florida.
ARTICLE xvm
USE OF RESTAURANT NAME
18.1 The Seller agrees that Purchaser shall have the right to the use of the name and
logo of "Crawdaddy's" at this location only, for a period of one year from the closing date.
1 WASHINGTON AVENUE CORP.
Agreement of Purcbase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
~~
12
ARTICLE XIX
TERMINATION OF SUBLEASE AGREEMENT
19.1 The Sublease Agreement attached hereto as Exhibit "0", and by this reference
incorporated herein, shall terminate and the parties thereto shall be absolutely released forever
from their respective obligations thereunder in the event that this purchase and sales transaction
is consummated and Purchaser, as Sublessee, has paid, in full, all current monetary obligations
under that certain Sublease Agreement attached hereto as Exhibit NO", and by this reference
incorporated herein.
ARTICLE XX
NON-COMPETE RESTRICTION
20.1 In connection with the sale to the Purchaser of the properties, rights, and interests
set-forth in Article II herein, Seller agrees that Seller shall not, either directly or indirectly,
engage in, as an owner, manager, or operator of any land-based restaurant operation within the
city limits of the City of Miami Beach, for a term of five (5) years from the Closing Date of this
Agreement. This restriction shall be binding on Seller, and Seller's successors, assigns, and
nominees. Notwithstanding anything contained in this Article XX to the contrary, Seller shall
be allowed to use, occupy, and operate, during the restriction period, Seller's Moshulu Vessel
/II
/II
III
/II
III
III
11/
11/
/II
11/
11/
1 WASHINGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
/-
(PI)
13
as a first-class restaurant, banquet facility, and cocktail lounge within the city limits of the City
of Miami Beach.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Agreement as of the date first above written.
SELLER:
WITNESS:
SPECIALTY RESTAURANTS CORPORATION, a
California corporation
~~
By: 0lWltl C- f)~
David C. Tallichet, Jr.
President
zs/(
PURCHASER:
1 WASHINGTON A VENUE CORP.,
a Florida corporation
ExnmIT LIST
A. Restaurant Building Description
B. Equipment List
C. Master Lease
D. Sublease Agreement
E. Assignment of Master Lease and Release of Lessee
(CRWDDYS.AGTl
I WASHINGTON AVENUE CORP.
Agreement of Purchase and Sale
Revised: July 9, 1993
Printed: July 9, 1993
(JrI'
14
.
..
CONSENT OF ASSIGNMENT
RELEASE OF ASSIGNOR
september 22, 1993
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, being
the Landlord of the above-described Premises, hereby consents to
the foregoing Assignment of the Assignor's interest in and to said
Lease Agreement dated February 8, 1985, to Assignee~ and, Landlord
further consents and approves of the agreement by the Assignee to
hereafter assume the payment of rent and performance of all duties
and obligations of the Lessee as set forth in the Lease Agreement,
and does hereby fully RELEASE and DISCHARGE the Assignor from all
duties and obligations under the Lease and accepts Assignee in the
place of Assignor, as Lessee under the terms of the Lease Agreement
dated February 8, 1985.
The subj ect Consent of Assignment/Release of Assignor is
approved and executed subject to all of the terms and conditions in
City of Miami Beach Resolution No. 93-20899, and is attached and
incorporated by reference as Exhibit "C" thereto.
LESSOR:
I (l~ (LA A r I~",-
CITY CLERK
IN WITNESS WHEREOF, the undersigned has hereunt
cons~nt to AS~itnment for the purpo herein e r
~ day of Cr . ~~'V' ,1993.
jm:c:\wp51\data\specrescorp.coa
~~
EJ /~ /c;"::::> :;7
I / ~
By
Date
EXHIBIT "C"