492-2004 RDA Reso
RESOLUTION NO. 492-2004
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF
THE MIAMI BEACH REDEVELOPMENT AGENCY (RDA)
AUTHORIZING THE CHAIRMAN AND SECRETARY TO
EXECUTE A RETAIL LEASE AGREEMENT BETWEEN THE
MIAMI BEACH REDELOPMENT AGENCY AND
ARTCONNECTION INTERNATIONAL, INC., FOR SUITE #6
IN THE ANCHOR SHOPS, LOCATED AT 100 16TH STREET,
MIAMI BEACH, FLORIDA; SAID LEASE TERM FOR A
PERIOD OF ELEVEN (11) YEARS, COMMENCING
RETROACTIVELY ON NOVEMBER 8, 2004.
WHEREAS, on July 26, 2000, ArtConnectiori Swiss Design, L.C., (Tenant)
executed a fifteen (15) year Retail Lease Agreement for a 721 square foot space in the
Anchor Shops of South Beach, located at 100 16th Street, Suite 6, Miami Beach, Florida
(the "Lease Agreement"); and
WHEREAS, ArtConnection was the creation of a husband-wife team, Mario and
Gabriella Provenzano, selling custom designed jewelry from Switzerland and other small
European gift items; and
WHEREAS, in June, 2004, the RDA was made aware that the Provenzanos had
separated and were pursuing a divorce; and
WHEREAS, on July 7, 2004, the RDA met with Mario Provenzano to address
overdue rent, disposition of the Lease Agreement and possible termination options; and
WHEREAS, shortly after this meeting, Mario Provenzano returned to Switzerland
and the RDA has not been able to contact him since; and
WHEREAS, since this time, the Lease Premises were vacated and no further rent
payments have been received, prompting the RDA to file for an eviction on grounds of
abandonment and breach of contract; and
WHEREAS, a final judgment of default was issued in favor of the RDA on
Wednesday, October 27,2004; and
WHEREAS, Gabriella Provenzano has expressed a desire to remain in the
Premises and operate the store independently of ArtConnection Swiss Design, LLC; and
WHEREAS, Gabriella Provenzano has established a separate corporate entity
under her own name, ArtConnection International, Inc., in the hope of occupying the space
upon conclusion of the eviction process and a favorable ruling by the Court; and
WHEREAS, Gabriella Provenzano has always strived to maintain a good working
relationship with the RDA, and has committed to resuming the business on her own and
paying rent on a timely basis; and
WHEREAS, since the interior finishes and furnishings remain intact in the
Premises, no build-out period is required, allowing Art Connection to do business upon
moving in; and
WHEREAS, in allowing the new entity, Art Connection, to occupy the Premises, the
RDA will not have to incur further loss of revenue and will not have to incur the cost of
brokerage fees in attempting to secure a new tenant for the space; and
WHEREAS, the Administration recommends executing a new Retail Lease
Agreement with ArtConnection International, Inc., for a term of approximately eleven (11)
years, at a base rent of $21 ,630 per year, or $30 per square foot.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and
Secretary be authorized to execute a Retail Lease Agreement between the Miami Beach
Redevelopment Agency and ArtConnection International, Inc, for Suite #6 in the Anchor
Shops, located at 100 16th Street, Miami Beach, Florida; said Lease Term for a period of
eleven (11) years, commencing retroactively on November 8, 2004.
PASSED and ADOPTED this 10th day of November
J;\:t ~CAN~
SECRETARY
JMG\CMC\KOB
t:lAgenda\2004\Nov101Ar! Connection Lease.Res.doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
MAJ1t,{\A..II '!:... .u--;..o1
.~r Da"
General Counsel/Clr \
ArtConnection Swiss Design
Lease Chronology
Lease execution - July 26, 2000
Annual Rent - $21,630 - $1,802.50/month
Rent Commencement Date - October 26, 2000
Gross Rentable Area -721 sq.ft.
Lease Term - 15 years
Jan 15,2001 - Letter received from Tenant's Attorney, advising that Landlord is in
default of Agreement as a result of street flooding, delaying approval of Tenant's plans,
and misrepresenting leasing status of the Anchor Shops.
Jan 23, 2001 - Landlord submits correspondence to Tenant's attorney, disproving
default allegations. Landlord offers 3 months extension on rent commencement on
account of delays wi permitting process.
Landlord extends rent commencement date to July 1,2001
Aug 9, 2001 - Letter received from Tenant advising of problems wi taxi cabs, hornless
people and construction activity in the area, impacting business
Oct 11, 2001-letter received from Tenant's Attorney advising of damage due to roof
leak and requesting repairs by Landlord and reimbursement for damage incurred by
Tenant.
Oct 23,2001 - Meeting with Commissioner Garcia, Tenant and RDA (Landlord), to
discuss roofleak and recourse. Tenant advised of workmanship issues with the
Contractor, including incorrectly poured terrazzo floors. Landlord recommended that
Tenant pursue action against the Contractor for damages.
Landlord engaged Murton Roofing to perform roof leak assessment and to attempt to
repair the problem.
November 21,2001 - Landlord replies to Tenant's Attorney, advising that leaks were
reported only after completion of Tenant's improvements in July, 2001, and that the
Tenant's Contractor may have perforated the split slab membrane while hanging the drop
ceiling. Tenant also advised that Sections 5.2 & 5.3 ofthe Lease clearly state that it is
Tenant's responsibility to maintain adequate contents insurance and that Landlord is not
responsible for damages.
1
ArtConnection Swiss Design
Lease Chronology
Page 2
J an 4, 2002 - Due to impact of construction activity on 16th Street associated with 1601
Washington Ave, lingering effects of 9/11 and other hardships endured by tenants along
16th Street, (ArtConnection and AD) Landlord provides Tenants with a 25% discount on
rent for an 8 month period.
Jan 24, 2002 - Landlord issues letter to Tenant advising that despite extensive invasive
testing and preventative maintenance to repair the leak, Murton Roofing was unable to
definitively determine the source ofthe leak. Tenant was further advised to commence
repairs to the interior ofthe premises.
Feb 1, 2002 - Letter received from Tenant's Attorney, indicating that ceiling was still
leaking,
Feb 20, 2002 - Landlord resonded to Tenant's Attorney, indicating that additional
seepage occurred as a result of pouring of new concrete slab that was removed to test and
fix the leak.
June 4, 2002 - Letter received from Tenant advising of Taxi issues and re-appearance of
a small leak in ceiling.
Sept 18,2002 - Rent check for Aug, 2002, in the amount of$I,439.75, returned for
insufficient funds.
May 13, 2003 - Tenant advised that rent will remain discounted by 25%. However, 3%
cpi increase, calculated against original base rent, will go into effect, per Lease
Agreement.
June 13,2003 - Landlord issued correspondence to Tenant advising of non-payment of
5 months rent, (returned check for Aug, 2002 rent plus period from May - Aug, 2003).
Aug 28, 2003 - Meeting between Mario Provenzano (Tenant), MBCDC and Landlord to
address resolving outstanding issues.
Oct 7, 2003 - Landlord and Tenant execute a Letter Agreement providing for tenant to
remit back-due rent in 12 equal monthly payments, together with regularly scheduled rent
payments, for a total monthly payment of $2, 131,19 commencing on Dec 1, 2003.
May 15, 2004 - 3-day notice issued to Tenant for non-payment of rent & penalties for
May, 2004, - Total of$2,237.74
June 15, 2004 - 3-day notice issued to Tenant for non-payment of rent & penalties for
May and June, 2004, - Total of$4,792.87
2
ArtConnection Swiss Design
Lease Chronology
Page 3
July 7 - MBCDC meeting with Tenant to discuss status of Lease and pending divorce
between Mario Provenzano and his wife.
July 2,2004, - Wire transfer received from Tenant in the amount of $4,263.82 -
applied towards amount due.
July 8, 2004 - 3-day notice issued to Tenant for non-payment of rent & penalties for
July, 2004, - Total of$2,237.74
July 21,2004 - Letter to Tenant reminding of balance due on July, 2004 rent plus
penalties, plus rent due for Aug, 2004, - Total of $4,476.94
Aug 11, 2004 - Submitted written request to Legal Department, seeking advice on
proceeding with eviction proceedings.
Week of Sept 27 - Legal Department files complaint for eviction with the Court
October 22, 2004 - Action of default filed by Court as defendant failed to file a response
to the complaint
Week of October 25 - Pending final Judgment of Default and Writ-of-Possession from
the presiding Judge.
3
LANDLORD:
Miami Beach Redevelopment Agency, a public body
corporate and politic
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT:
ArtConnection International, Inc
100 16th Street, Suite 6
Miami Beach, FL 33139
DATE OF EXECUTION:
,2004
ANCHOR SHOPS AT SOUTH BEACH
RETAIL LEASE
Lease Final. Gabriella.doc
(i)
LEASE SUMMARY
The following is a summary of basic lease provisions with respect to the Lease. It is an integral part of the
Lease, and terms defined or dollar amounts specified in this Summary shall have the meanings or amounts as
stated, unless expanded upon in the text of the Lease and its Exhibits, which are attached to and made a part of
this Summary.
1.
Date of Lease Execution:
,2004.
2.
"Landlord":
Miami Beach Redevelopment Agency
3.
Landlord's Address:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Ms. Christina Cuervo, Assistant Director
with a copy to:
City of Miami Beach
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Legal Department
4. "Tenant":
ArtConnection International, Inc
5. Tenant's Address:
100 16th Street, Suite 6
Miami Beach, FL 33139
6. "Guarantor":
Gabriella Myrtha Provenzano
7. Guarantor's Address:
cIa Hanna Rabenseifner, Esq.
905 Brickell Bay Drive, Suite 730
Miami, FL 33131
8. Premises (section 1.1 ):
100 16th Street - Suite #6
Miami Beach, FL 33139
As shown on Exhibit "B"
9. Gross Rentable Area of
Premises (section 1.1 ):
Approximately 721 square feet
10. Gross Rentable Area of
Retail Soace (section 1.1 ):
Approximately 20,500 rentable square feet
11. Tenant's Prooortionate
Share (section 2.4):
N/A
12. Permitted Use of
Premises (section 3.1):
First-class retail store selling upscale fine custom-made
jewerly (and subject to the prohibited uses described in
Exhibit "D" to the Lease)
Lease Final - Gabriella.doc
(ii)
13. Term of Lease (section 1.1):
Approximately eleven (11) years
"Commencement Date": The date that Landlord delivers
possession of the Premises to Tenant or (Date of
Occupancv), whichever is earlier.
"Rent Commencement Date": The date Tenant opens for
business or (Date of Occupancv), whichever is earlier.
"Expiration Date": Eleven (11) year after the "Rent
Commencement" Date.
14. "Minimum Rent" (section 2.2):
MONTHS
ANNUAL MINIMUM RENT
MONTHLY PAYMENT
(PLUS SALES TAX)
Commencement Date - Rent
Commencement Date
Rent Commencement Date -
next succeeding twelve months *
$ 0.00
$0.00
$21,630.00
$1,802.50
* Beginning with the thirteenth (13th) month after the Rent Commencement Date, and thereafter at the
beginning of each succeeding year during the Term of the Lease, the Minimum Rent shall be adjusted by
multiplying the Minimum Rent then being paid by a fraction, the numerator of which shall be the Consumer Price
Index - U.S. City average for urban wage earners and clerical workers all items (1982-84 equals 100) ("CPI") for
the third month-preceding the month of adjustment, and the denominator of which shall be the CPI for the fifteenth
month preceding the month of adjustment. Anything herein to the contrary-notwithstanding, in no event shall
Minimum Rent in any year be less than the Minimum Rent paid for the immediately prior year. Should the CPI
become unavailable, a reasonable substitute prepared by the U.S. Department of Labor or other source, as
designated by Landlord, shall be used. Minimum Rent shall continue to be payable in monthly installments as
otherwise described above until Landlord notifies Tenant of the new monthly Minimum Rent installment amount.
Landlord shall attempt to so notify Tenant prior to the commencement of each adjustment date. However, failure
of Landlord to timely notify Tenant of the new monthly Minimum Rent installment amount shall not be deemed a
waiver by Landlord of the increased rental; the new monthly amount (or any portion to previously paid) shall be
payable, retroactive to the commencement of the new adjustment date, upon notification by Landlord to Tenant of
the new monthly Minimum Rent installment amount. Notwithstanding the foregoing, the annual Minimum Rent
shall not be increased by more than three percent (3%) from the Minimum Rent payable for the immediately prior
year.
15. Percentaqe Rental (section 2.3):
N/A
16. Prepaid Rent (section 2.2):
N/A
17. Securitv Deposit (section 2.7):
$3,605.00 (excludes sales tax) (due upon execution of
Lease)
18. Cost Pass-Throuqhs (section2.4):
N/A
19. Comprehensive General
Liabilitv Insurance (section 6.1 ):
$2,000,000.00
Lease Final - Gabriella.doc
(iii)
20. Monthly Promotional Charge
(section 13.1 ):
N/A
21. Broker(s)(section 14.12):
N/A
22. Completion Date for Tenant's Work
(section 5.1 ):
N/A
23. Trade Name (section 3.1 ):
ArtConnection International, Inc.
Lease Final. Gabriella.doc
(iv)
CITY OF MIAMi BEACH
MIAMI BEACH REDEVELOPMENT AGENCY ITEM SUMMARY
m
Condensed Title:
A Resolution consenting to a Lease Agreement between the Miami Beach Redevelopment Agency and ArtConnection
International, Inc., for Suite #6 in the Anchor Shops, located at 100 16th Street, Miami Beach, Florida retroactively
commencin on November 8, 2004 Date sub'ect to chan e .
Issue:
Shall the RDA approve the Lease Agreement with ArtConnection International, Inc?
Item Summary/Recommendation:
ArtConnection Swiss Design, L.C., became a tenant at the Anchor Shops on July 26,2000, executing a 15-year lease
for a 721 square foot space located on 16th Street, at a rate of $21,630 ($30/sq.ft) per year. ArtConnection (Tenant)
was the creation of a husband-wife team, Mario and Gabriella Provenzano, selling custom designed jewelry from
Switzerland and other small European gift items. In June, 2004, the RDA became aware that the Provenzanos had
separated and were pursuing a divorce. On July 7,2004, the RDA and MBCDC met with Mario Provenzano to
address overdue rent, disposition of the lease and possible exit options. Shortly after this meeting, Mario Provenzano
returned to Switzerland and has not been in contact since. During this time, the store was vacated and no further
rent payments have been received, prompting the RDA to file for an eviction on grounds of abandonment and breach
of contract. A final judgment of default and writ-of-possession in favor of the RDA was anticipated by no later than
October 29, 2004. Shortly prior to initiating the eviction process, Gabriella Provenzano expressed her desire to
remain in the space and operate the store. The issue however was that only Mario Provenzano's name was on the
lease and corporate records, precluding her from being able to operate independently from her husband. Gabriella
Provenzano was advised to contact her husband to assign the lease to her name, which apparently he was unwilling
to do. Consequently, Gabriella Provenzano established a separate corporation under her own name called
ArtConnection International, Inc., in the hope of occupying the space upon conclusion of the eviction process and a
favorable ruling by the Court. Despite the complications arising out of the divorce, Gabriella Provenzano has always
strived to maintain a good working relationship with MBCDC and the RDA. She has committed to resuming the
business on her own and paying rent on a timely basis. Additionally, since the interior finishes and furnishings remain
intact in the space, no build-out period is required, allowing Art Connection to do business upon moving in.
Furthermore, in allowing Art Connection to occupy the space, the RDA will not have to incur further loss of revenue
and will not have to incur the cost of brokerage fees in attempting to secure a new tenant for the space. As such, the
Administration recommends executing a new lease agreement with ArtConnection International, Inc.
Advisory Board Recommendation:
Financial Information:
Source of Amount Account Approved
Funds: 1
D ...~..
3.
:.i1
Finance Dept. ,.()~~!
Assistant City Manager
City Manager
T:\AGENDA\2004\Nov10\RDA\Art_ Connection..sum.doc
AGENDA ITEM
DATE
30
/I-IO-()f{
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
www.ci.miamibeachfl.gov
MIAMI BEACH REDEVELOPMENT AGENCY MEMORANDUM
To:
Chairman and Members of the Board of the
Miami Beach Redevelopment Agency
Date: November 10, 2004
From:
Jorge M. Gonzalez }
Executive Director 0 --y
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA) AUTHORIZING THE
CHAIRMAN AND SECRETARY TO EXECUTE A RETAIL LEASE
AGREEMENT BETWEEN THE MIAMI BEACH REDELOPMENT AGENCY
AND ARTCONNECTION INTERNATIONAL, INC., FOR SUITE #6 IN THE
ANCHOR SHOPS, LOCATED AT 100 16TH STREET, MIAMI BEACH,
FLORIDA; SAID LEASE TERM FOR A PERIOD OF ELEVEN (11) YEARS,
COMMENCING RETROACTIVELY ON NOVEMBER 8, 2004.
Subject:
RECOMMENDATION:
Adopt the Resolution.
ANALYSIS:
ArtConnection Swiss Design, L.C., became a tenant at the Anchor Shops on July 26,2000,
executing a 15-year lease for a 721 square foot space located on 16th Street, at a rate of
$21,630 ($30/sq.ft) per year. ArtConnection (Tenant) was the creation of a husband-wife
team, Mario and Gabriella Provenzano, selling custom designed jewelry from Switzerland
and other small European gift items.
In late September, 2004, the RDA initiated eviction proceedings against the Tenant for
repeated incidents of non-payment of rent. The Tenant started experiencing problems with
rent payments in May, 2003, requiring extensive noticing and follow-up on behalf of Miami
Beach Development Corporation (MBCDC/Property Manager). In October, 2003, the RDA
and the ArtConnection executed a Letter Agreement, providing forthe Tenant to remit five
months of back-due rent in 12 equal monthly payments, together with regularly scheduled
rent payments, commencing on December 1,2003. In May and June, 2004, the Tenant
again failed to remit rent. At this time the RDA became aware that the Provenzanos had
separated and were pursuing a divorce. On July 2,2004, a wire transfer was received from
the Tenant, covering all but $529 of the overdue rent. On July 7, 2004, the RDA and
MBCDC met with Mario Provenzano to address overdue rent, disposition of the lease and
possible exit options. Shortly after this meeting, Mario Provenzano returned to Switzerland
and has not been in contact since. During this time, the store was vacated and no further
rent payments have been received, prompting the RDA to file for an eviction on grounds of
abandonment and breach of contract. A final judgment of default and writ-of-possession in
favor of the RDA was anticipated by no later than October 29, 2004. A complete
chronology of events leading up to the eviction is included with this memorandum.
November 10, 2004
Redevelopment Agency Memorandum
Art Connection Lease
Page 2 of 2
Shortly prior to initiating the eviction process, Gabriella Provenzano expressed her desire
to remain in the space and operate the store, The issue however was that only Mario
Provenzano's name was on the lease and corporate records, precluding her from being
able to operate independently from her husband. Gabriella Provenzano was advised to
contact her husband to assign the lease to her name, which apparently he was unwilling to
do. Consequently, Gabriella Provenzano established a separate corporation under her
own name called ArtConnection International, Inc., in the hope of occupying the space
upon conclusion of the eviction process and a favorable ruling by the Court.
Despite the complications arising out of the divorce, Gabriella Provenzano has always
strived to maintain a good working relationship with MBCDC and the RDA. She has
committed to resuming the business on her own and paying rent on a timely basis.
Additionally, since the interior finishes and furnishings remain intact in the space, no build-
out period is required, allowing Art Connection to do business upon moving in.
Furthermore, in allowing Art Connection to occupy the space, the RDA will not have to
incur further loss of revenue and will not have to incur the cost of brokerage fees in
attempting to secure a new tenant for the space. As such, the Administration recommends
executing a new lease agreement with ArtConnection International, Inc., for a term of
approximately eleven (11) years, (the equivalent amount of time remaining under the
former lease). It should be noted that since February, 2002, the former tenant's rent
payments had been reduced by 25%, as a goodwill gesture by the RDA to address a
number of prevailing adverse conditions, including the lingering effects of 9/11 and a
series of streetscape improvements along 16th Street, resulting in unannounced street
closures and loss of pedestrian traffic. The discounted rent which was also extended to
Adolfo Dominguez, was only to last for eight months. With the approval of the RDA, it
remained in effect until the termination of the lease. Under the new lease agreement,
Gabriella Provenzano has agreed to remit the full base rent of $21 ,630 per year or $30 per
square foot. The Lease also provides for an annual CPI adjustment not to exceed 3%. A
copy of the Lease Summary is included with this memorandum.
JMG/C~KOB/rar
T:\AGENOA\2004\Nov1004\RDA\ARt_ ConneclionMem.DOC
Enclosures: ArtConnection Swiss Design, L.C. Lease Chronology
ArtConnection International, Inc., Lease Summary
LANDLORD:
Miami Beach Redevelopment Agency, a public body
corporate and politic
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT:
ArtConnection International, Inc
100 16th Street, Su ite 6
Miami Beach, FL 33139
DATE OF EXECUTION:
Ilk V (?YJ1 fa HZ-
10
,2004
ANCHOR SHOPS AT SOUTH BEACH
RETAIL LEASE
lease Final. Gabriella.doc
(i)
LEASE SUMMARY
The following is a summary of basic lease provisions with respect to the Lease. It is an integral part of the
Lease, and terms defined or dollar amounts specified in this Summary shall have the meanings or amounts as
stated, unless expanded upon in the text of the Lease and its Exhibits, which are attached to and made a part of
this Summary.
1.
Date of Lease Execution:
fllo (/ 01A I/f?-- to
,2004.
2.
"Landlord":
Miami Beach Redevelopment Agency
3.
Landlord's Address:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Ms. Christina Cuervo, Assistant Director
with a copy to:
City of Miami Beach
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Legal Department
4. "Tenant":
ArtConnection International, Inc
100 16th Street, Suite 6
Miami Beach, FL 33139
5. Tenant's Address:
Gabriella Myrtha Provenzano
6. "Guarantor":
c/o Hanna Rabenseifner, Esq.
905 Brickell Bay Drive, Suite 730
Miami, FL 33131
7. Guarantor's Address:
8. Premises (section 1.1 ):
100 16th Street - Suite #6
Miami Beach, FL 33139
As shown on Exhibit "B"
9. Gross Rentable Area of
Premises (section 1.1 ):
Approximately 721 square feet
10. Gross Rentable Area of
Retail SDace (section 1.1 ):
Approximately 20,500 rentable square feet
11. Tenant's ProDortionate
Share (section 2.4):
N/A
12. Permitted Use of
Premises (section 3.1 ):
First-class retail store selling upscale fine custom-made
jewerly (and subject to the prohibited uses described in
Exhibit "D" to the Lease)
Lease Final. Gabriella.doc
(ii)
13. Term of Lease (section 1.1 ):
Approximately eleven (11) years
"Commencement Date": The date that Landlord delivers
possession of the Premises to Tenant or (Date of
Occuoancv), whichever is earlier.
"Rent Commencement Date": The date Tenant opens for
business or (Date of Occuoancy), whichever is earlier.
"Expiration Date": Eleven (11) year after the "Rent
Commencement" Date.
14. "Minimum Rent" (section 2.2):
MONTHS
ANNUAL MINIMUM RENT
MONTHLY PAYMENT
(PLUS SALES TAX)
Commencement Date - Rent
Commencement Date
Rent Commencement Date -
next succeeding twelve months *
$ 0.00
$0.00
$21,630.00
$1,802.50
* Beginning with the thirteenth (13th) month after the Rent Commencement Date, and thereafter at the
beginning of each succeeding year during the Term of the Lease, the Minimum Rent shall be adjusted by
multiplying the Minimum Rent then being paid by a fraction, the numerator of which shall be the Consumer Price
Index - U.S. City average for urban wage earners and clerical workers all items (1982-84 equals 100) ("CPI") for
the third month-preceding the month of adjustment, and the denominator of which shall be the CPI for the fifteenth
month preceding the month of adjustment. Anything herein to the contrary-notwithstanding, in no event shall
Minimum Rent in any year be less than the Minimum Rent paid for the immediately prior year. Should the CPI
become unavailable, a reasonable substitute prepared by the U.S. Department of Labor or other source, as
designated by Landlord, shall be used. Minimum Rent shall continue to be payable in monthly installments as
otherwise described above until Landlord notifies Tenant of the new monthly Minimum Rent installment amount.
Landlord shall attempt to so notify Tenant prior to the commencement of each adjustment date. However, failure
of Landlord to timely notify Tenant of the new monthly Minimum Rent installment amount shall not be deemed a
waiver by Landlord of the increased rental; the new monthly amount (or any portion to previously paid) shall be
payable, retroactive to the commencement of the new adjustment date, upon notification by Landlord to Tenant of
the new monthly Minimum Rent installment amount. Notwithstanding the foregoing, the annual Minimum Rent
shall not be increased by more than three percent (3%) from the Minimum Rent payable for the immediately prior
year.
15. Percentaae Rental (section 2.3):
N/A
16. Preoaid Rent (section 2.2):
N/A
17. Security Deoosit (section 2.7):
$3,605.00 (excludes sales tax) (due upon execution of
Lease)
18. Cost Pass-Throuahs (section2.4):
N/A
19. Comprehensive General
Liabilitv Insurance (section 6.1 ):
$2,000,000.00
lease Final - Gabriella.doc
(iii)
20. Monthly Promotional Charge
(section 13.1):
N/A
21. Broker(s) (section 14.12):
N/A
22. Completion Date for Tenant's Work
(section 5.1 ):
N/A
23. Trade Name (section 3.1 ):
ArtConnection International, Inc.
Lease Final. Gabriella.doc
(iv)
1~ .
THIS LEASE (the "Lease"), dated the /0 day of ~V{.,-m~C1Z..; 2004, is made between the Miami
Beach Redevelopment Agency, a public body corporate and politic (the "Landlord"), and ArtConnection
International, Inc. (the "Tenant").
RECITALS:
A. The Landlord is the fee simple owner of a certain facility (the "Facility") containing a
municipal parking garage and appurtenances containing approximately eight hundred (800) parking spaces
(the "Garage") and certain retail space (the "Retail Space") located in an area bounded by Washington and Collins
Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade County, Florida, as more particularly
described in Exhibit "A," attached hereto and made a part hereof (the "Land"). The Landlord is the fee simple owner
of the Land and the Facility.
B. Landlord and Tenant desire to enter into this Lease for a portion of the Retail Space, on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
ARTICLE I. TERM.
1.1 Grant: Term. In consideration of the performance by Tenant of its obligations under this Lease,
Landlord leases to Tenant, and Tenant leases from Landlord, for the Term, the "Premises." A site plan showing
the location of the Retail Space within the Facility, as well as the location of the Premises within the Retail Space,
is attached hereto and made a part hereof as Exhibit "B." The gross rentable area of the Premises and Retail
Space shown on the Lease Summary do not represent accurate measurements of the square footage contained in
the Premises or the Retail Space, but are mere estimates.
The "Term" of the Lease is the period from the Commencement Date as specified in the Lease
Summary, through the Expiration Date, as specified in the Lease Summary.
1.2. Landlord's Work. Tenant acknowledges and agrees that it is accepting possession of the
Premises in as-is condition and that, except as otherwise expressly hereinafter set forth, Landlord has no
obligation to furnish, render, or supply any money, work, labor, material, fixture, equipment, or decoration with
respect to the Premises. Landlord has caused or will cause the completion of the shell improvements to the Retail
Space as more particularly described on Exhibit "B-1," attached hereto and made a part hereof (the "Shell
Improvements"), pursuant to plans and specifications therefor prepared by Landlord's architect and engineer
(the "Project Plans and Specifications") and made available to Tenant prior to the date hereof. Landlord reserves
the right to modify the plans and specifications for the Shell Improvements in response to building code
requirements and/or construction conditions. Tenant is responsible for any and all utility impact fees and
connection fees, charges, and/or deposits as may be required in connection with Tenant's Work, as hereinafter
defined.
Upon the expiration of five (5) business days following the Commencement Date, the Premises
shall be conclusively deemed to be accepted by Tenant unless Tenant shall have given Landlord written notice of
any contended defects in the Premises.
ARTICLE II. RENT.
2.1 Covenant to Pav. Tenant shall pay to Landlord all sums due hereunder from time to time from the
Rent Commencement Date without prior demand, together with all applicable Florida sales tax thereon; however,
unless otherwise provided in this Lease, payments other than Tenant's regular monthly payments of Minimum
Rent shall be payable by Tenant to Landlord within five (5) days following demand. All rent or other charges that
are required to be paid by Tenant to Landlord shall be payable at Landlord's address indicated on the Lease
Summary. Minimum Rent and additional rent (which is all sums payable to Landlord other than Minimum Rent) for
any "Lease Year" consisting of less than twelve (12) months shall be prorated on a per diem basis, based upon a
period of 365 days. "Lease Year" means the twelve (12) full calendar months commencing on the Commencement
Date. However, the final Lease Year may contain less than twelve (12) months due to expiration or sooner
termination of the Term. Tenant agrees that its covenant to pay rent and all other sums under this Lease is an
independent covenant and that all such amounts are payable without counterclaim, set-off, deduction, abatement,
or reduction whatsoever, except as expressly provided for in this Lease.
2.2 Minimum Rent. Subject to any escalation which may be provided for in this Lease, Tenant shall
pay Minimum Rent for the Term in the initial amount specified in the Lease Summary, which, except for the first
installment, shall be payable throughout the Term in equal monthly installments in advance on the first day of each
calendar month of each year of the Term, such monthly installments to be in the amounts (subject to escalation)
specified in the Lease Summary. The first monthly installment of Minimum Rent shall be due on the date of this
Lease. The Minimum Rent described above shall be adjusted during the Term of this Lease as provided in the
Lease Summary.
2.3. Percentaoe Rental. Intentionally Omitted.
2.4 Ooeratino Costs: Taxes. Intentionally Omitted.
2.5 Pavment of Personal Prooertv Taxes: Sales Tax Reoorts. Tenant shall pay, when due, all taxes
attributable to the personal property, trade fixtures, business, occupancy, or sales of Tenant or any other occupant
of the Premises and to the use of the Retail Space by Tenant or such other occupant. Tenant shall provide
Landlord with copies of Tenant's sales tax reports provided to the State of Florida, as and when such reports are
provided to the State. Landlord shall have the right to disclose such reports to any person or entity having an
interest or prospective interest in the Retail Space.
2.6 Rent Past Due. If any payment due from Tenant shall be overdue more than five (5) days, a late
charge of five (5%) percent of the delinquent sum may be charged by Landlord. If any payment due from Tenant
shall remain overdue for more than fifteen (15) days, an additional late charge in an amount equal to the lesser of
the highest rate permitted by law or one and one-half (1 1/2%) percent per month (eighteen (18%) percent per
annum) of the delinquent amount may be charged by Landlord, such charge to be computed for the entire period
for which the amount is overdue and which shall be in addition to and not in lieu of the five (5%) percent late
charge or any other remedy available to Landlord.
2.7 Securitv Deoosit. Landlord acknowledges receipt of a security deposit in the amount specified on
the Lease Summary to be held by Landlord, without any liability for interest thereon, as security for the
performance by Tenant of all its obligations under this Lease. Landlord shall be entitled to commingle the security
deposit with Landlord's other funds. If Tenant defaults in any of its obligations under this Lease, Landlord may at
its option, but without prejudice to any other rights which Landlord may have, apply all or part of the security
deposit to compensate Landlord for any loss, damage, or expense sustained by Landlord as a result of such
default. If all or any part of the security deposit is so applied, Tenant shall restore the security deposit to its original
amount on demand of Landlord. Subject to the provisions of section 2.4, within thirty (30) days following
termination of this Lease, if Tenant is not then in default, the security deposit will be returned by Landlord to
Tenant.
Notwithstanding the foregoing, for purposes of the security deposit described in the Lease Summary and
the above paragraph, Tenant, at its option, shall have the right to post an irrevocable, unconditional, and
transferable Letter of Credit, which Letter of Credit shall comply with the provisions of Exhibit "2.7," attached
hereto and made a part hereof. If Tenant delivers the Letter of Credit to Landlord, then Landlord will return the
cash security deposit promptly after Landlord's receipt of the Letter of Credit.
2.8 Landlord's Lien. To secure the timely construction and installation of all improvements to the
Premises by tenant and to secure the payment of all rent and other sums of money due and to become due
hereunder and the faithful performance of this Lease by Tenant, Tenant hereby gives to Landlord an express first
and prior contract lien and security interest on all property now or hereafter acquired (including fixtures, equipment,
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chattels, and merchandise) which may be placed in the Premises and also upon all proceeds of any insurance
which may accrue to Tenant by reason of destruction of or damage to any such property. Such property shall not
be removed therefrom without the written consent of Landlord until all arrearages in rental and other sums of
money then due to Landlord hereunder shall first have been paid; provided, Tenant may operate its business in
the ordinary course and the removal of merchandise from the Premises by customers of Tenant shall not be a
default under this section. All exemption laws are hereby waived in favor of said lien and security interest. This
lien and security interest is given in addition to Landlord's statutory lien and shall be cumulative thereto. Landlord
shall, in addition to all of its rights hereunder, also have all of the rights and remedies of a secured party under the
Uniform Commercial Code as adopted in the State in which the Premises is located. To the extent permitted by
law, this Lease shall constitute a security agreement.under Article 9 of the Florida Uniform Commercial Code.
ARTICLE III. USE OF PREMISES.
3.1 Permitted Use. The Premises shall be used and occupied only for the sale at retail of goods or
services as specified in the Lease Summary. The business of Tenant in the Premises shall be carried on under
the name specified in the Lease Summary and under no other name unless approved by Landlord in writing.
Tenant shall carry on its business on the Premises in a reputable manner and shall not do, omit, permit, or suffer
to be done or exist upon the Premises anything which shall result in a nuisance, hazard, or bring about a breach of
any provision of this Lease or any applicable municipal or other governmental law or regulation, or would otherwise
be inconsistent with a first-class retail center or incompatible with retail uses ancillary to a first-class convention
center hotel. Tenant shall observe all reasonable rules and regulations established by Landlord from time to time
for the Retail Space. The rules and regulations in effect as of the date hereof are attached to and made a part of
this Lease as Exhibit "C." Landlord will provide a copy of any amendments to the rules and regulations at least
seven (7) days prior to the effective date of any such amendments. Tenant shall display such name as Landlord
may from time to time designate for the Retail Space in its stationery used upon the Premises, and in material
which is given, visible, or available to customers of Tenant. Tenant shall promote such name in any
advertisements or promotional material published or initiated by Tenant in regard to its business from the
Premises. The names for the Retail Space and the project of which the Retail Space is a part, which Landlord
may from time to time adopt, and every name or mark adopted by Landlord in connection with the Retail Space
shall be used by Tenant only in association with the business carried on in the Premises during the Term and
Tenant's use thereof shall be subject to such reasonable regulation as Landlord may from time to time impose.
3.2 Comoliance with Laws. The Premises shall be used and occupied in a safe, careful, and proper
manner so as not to contravene any present or future laws, rules, regulations, constitutions, orders, ordinances,
charters, statutes, codes, executive orders, and requirements of all governmental authorities having jurisdiction over
the Premises or any street, road, avenue, or sidewalk comprising a part of, or lying in front of, the Premises or any
vault in or under the Premises (including, without limitation, any of the foregoing relating to handicapped access or
parking, the local building codes, and the laws, rules, regulations, orders, ordinances, statutes, codes, and
requirements of any applicable Fire Rating Bureau or other body exercising similar functions), the temporary and/or
permanent certificate or certificates of occupancy issued for the Premises as then in force, and any and all provisions
and requirements of any property, casualty, or other insurance policy required to be carried by Tenant under this
Lease. If due to Tenant's use of the Premises, repairs, improvements, or alterations are necessary to comply with
any of the foregoing, Tenant shall pay the entire cost thereof.
3.3 Siqns. Tenant, at Tenant's expense, shall erect and maintain identification signage upon the
storefront of the Premises. The design and specification of such signage shall be subject to Landlord's sign
criteria as adopted from time to time and such design and specification (including camera-ready artwork) shall be
submitted for Landlord's prior approval. Except with the prior written consent of Landlord, Tenant shall not erect,
install, display, inscribe, paint, or affix any signs, lettering, or advertising medium upon or above any exterior
portion of the Premises or in or on Tenant's storefront or storefront window. Landlord's signage criteria is attached
hereto and made a part hereof as Exhibit "E."
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3.4 Environmental Provisions.
(a) Tenant shall not knowingly incorporate into, use, or otherwise place or dispose of at the
Premises or in the Retail Space (or allow others to incorporate into, use, or otherwise place or dispose of at the
Premises or in the Retail Space) any Hazardous Materials, as hereinafter defined, unless (i) such Hazardous
Materials are for use in the ordinary course of business (Le., as with office or cleaning supplies), (ii) notice of and a
copy of the current material safety data sheet is provided to Landlord for each such Hazardous Material (except for
Hazardous Materials used by Tenant in the ordinary course of business (Le., as with office or cleaning supplies)),
and (iii) such materials are handled and disposed of in accordance with all applicable governmental laws, rules,
and regulations. If Landlord or Tenant ever has knowledge of the presence in the Premises or the Retail Space of
Hazardous Materials which affect the Premises, such party shall notify the other thereof in writing promptly after
obtaining such knowledge. For purposes of this Lease, "Hazardous Materials" shall mean: (a) petroleum and its
constituents; (b) radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls
in excess of federal, state or local safety guidelines, whichever are more stringent; (c) any substance, gas, material or
chemical which is or may hereafter be defined as or included in the definition of "hazardous substances," "hazardous
materials," "hazardous wastes," "pollutants or contaminants," "solid wastes," or words of similar import under any
applicable governmental laws, rules, and regulations including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. 99061 et sea.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. 9 1801, et sea.; the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 96901, et sea.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. 9 1251, et sea.;
and Florida Statutes, Chapters 376 and 403; and (d) any other chemical, material, gas, or substance, the exposure to
or release of which is regulated by any governmental or quasi-governmental entity having jurisdiction over the Retail
Space or the operations thereon.
(b) If Tenant or its employees, agents, or contractors shall ever violate the provisions of
subsection (a), above, then Tenant shall clean-up, remove, and dispose of the Hazardous Material causing the
violation, in compliance with all applicable governmental standards, laws, rules, and regulations and repair any
damage to the Premises or Retail Space within such period of time as may be reasonable under the
circumstances after written notice by Landlord, provided that such work shall commence not later than thirty (30)
days from such notice and be diligently and continuously carried to completion by Tenant or Tenant's designated
contractors. Tenant shall notify Landlord of its method, time, and procedure for any clean-up or removal of
Hazardous Materials under this provision; and Landlord shall have the right to require reasonable changes in such
method, time, or procedure or to require the same to be done after normal business hours or when the Retail
Space is otherwise closed (Le., holidays) if reasonably required for the protection of other tenants or occupants of
the Retail Space.
(c) Tenant agrees to defend, indemnify, and hold harmless Landlord, and the City of Miami
Beach (the "City") against any and all claims, costs, expenses, damages, liability, and the like, which Landlord may
hereafter be liable for, suffer, incur, or pay arising under any applicable environmental laws, rules, and regulations
and resulting from or arising out of any breach of the covenants contained in this section 3.4, or out of any act,
activity, or violation of any applicable environmental laws, rules, and regulations on the part of Tenant, its agents,
employees, or assigns. Tenant's liability under this section 3.4 shall survive the expiration or any termination of this
Lease.
3.5 Hours: Continued Occupancv. During the Term, Tenant shall conduct its business in the
Premises, at a minimum, on all days and during all hours established by Landlord from time to time as store hours
for the Retail Space. Tenant may conduct business on the Premises, in addition to the foregoing times, in Tenant's
reasonable judgment in order to maximize sales from the Premises, at Tenant's sole expense. However, Landlord
shall not be responsible for providing common area or other services during such additional hours. Tenant shall
open the whole of the Premises for business to the public, fully fixtured, stocked, and staffed on the Completion
Date set forth in item 22 of the Lease Summary, and shall continuously, actively, and diligently carry on the
business specified in section 3.1 on the whole of the Premises during the Term, during such hours and upon such
days as are herein required, except when prevented from doing so by force majeure. Tenant acknowledges that its
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continued occupancy of the Premises and the regular conduct of its business therein are of utmost importance to
neighboring tenants and to Landlord in the renting of space in the Retail Space, the renewal of other leases
therein, the efficient and economic supply of services and utilities. Tenant acknowledges that Landlord is
executing this Lease in reliance thereupon and that the same is a material element inducing Landlord to execute
this Lease. Tenant shall not keep or display any merchandise on or otherwise obstruct the common areas and
shall not sell, advertise, conduct, or solicit business anywhere within the Retail Space other than in the Premises.
Tenant shall ship and receive supplies, fixtures, equipment, furnishings, wares, and merchandise only through the
appropriate service and delivery facilities provided by Landlord; and shall not park its trucks or other delivery
vehicles or allow suppliers or others making deliveries to or receiving shipments from the Premises to park in the
parking areas, except in those parts thereof as may from time to time be allocated by Landlord for such purpose.
Tenant shall maintain available a substantial stock of goods, wares, and merchandise adequate to ensure
successful operation of Tenant's business, and shall employ and maintain sales and other personnel sufficient at
all times for proper service to customers.
3.6 Prohibited Uses. Notwithstanding any other provisions of this Lease, Tenant shall not use the
Premises nor permit them to be used for any of the following purposes: (A) for the sale by Tenant, as its principal
business purpose, of any merchandise which Tenant, in the course of its normal business practice, purchases at
manufacturers' clearances or purchases of ends-of-runs, bankruptcy stock, seconds, or other similar
merchandise; (6) for the sale of second-hand goods, war surplus articles, insurance salvage stock, fire sale stock,
merchandise damaged by or held out to be damaged by fire, except merchandise damaged by fire or smoke
occurring in the Retail Space, and then only for thirty (30) days after the date of any such damage; (C) as an
auction or flea market; (D) for a bankruptcy sale or going-out-of-business sale or liquidation sale or any similar
sale, unless Tenant is in fact in bankruptcy or is going out of business or is in liquidation, in which case such sale
shall not continue beyond thirty (30) days; (E) a business primarily used for an order office, mail order office, or
catalogue store; or (F) any business in which Tenant is engaged in intentionally deceptive or fraudulent advertising
or selling practices or any other act or business practice contrary to honest retail practices.
3.7 Intentionaly Omitted.
3.8 Exclusive Use. So long as Tenant is in actual occupancy of the Premises and using the Premises
for the permitted use set forth in the Lease Summary, Landlord agrees not to enter into any leases for space in the
Retail Space with persons or entities whose primary business at the Retail Space would be the sale of upscale fine
custom-made jewerly.
ARTICLE IV. ACCESS AND ENTRY.
4.1 Riaht of Examination. Landlord shall be entitled at all reasonable times and upon reasonable
notice (but no notice is required in emergencies) to enter the Premises to examine them if Landlord reasonably
believes that Tenant is not complying with any of its obligations hereunder; to make such repairs, alterations, or
improvements thereto as Landlord considers necessary or reasonably desirable; to have access to underfloor
facilities and access panels to mechanical shafts and to check, calibrate, adjust, and balance controls and other
parts of the heating, air conditioning, ventilating, and climate control systems. Landlord reserves to itself (and
others acting on behalf of Landlord including, without limitation, the City) the right to install, maintain, use, and
repair pipes, ducts, conduits, vents, wires, and other installations leading in, through, over, or under the Premises
and for this purpose, Landlord may take all material into and upon the Premises which is required therefor. Tenant
shall not unduly obstruct any pipes, conduits, or mechanical or other electrical equipment so as to prevent
reasonable access thereto. Landlord reserves the right to use all exterior walls and roof area. Landlord shall
exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to
minimize interference with Tenant's use and enjoyment of the Premises and Tenant's property.
4.2 Riaht to Show Premises. Landlord and its agents have the right to enter the Premises at all
reasonable times and upon reasonable notice to show them to prospective purchasers, lenders, or anyone having
a prospective interest in the Retail Space, and, during the last six (6) months of the Term (or the last six (6)
months of any renewal term if this Lease is renewed), to show them to prospective tenants. Landlord shall
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exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to
minimize interference with Tenant's use and enjoyment of the Premises and Tenant's property.
ARTICLE V. INITIAL CONSTRUCTION; MAINTENANCE, REPAIRS. AND ALTERATIONS.
5.1. Tenant's Construction Obliqations.
(a) Subject to the provisions hereof, Tenant shall, at its expense, cause the construction and
installation of all improvements to the Premises in accordance with Tenant's Plans, as hereinafter defined, and as
necessary to permit Tenant to occupy same and conduct normal business operations (such improvements being
referred to herein as " Tenant's Work"). The plans for such improvements shall be submitted to the Landlord for
the Landlord's prior written consent, which will not be unreasonably withheld or delayed.
(b) All permanent (fixed) improvements to the Premises shall remain the property of the Landlord
upon termination of the Lease. Upon the lawful termination of the Lease, all personal property and trade fixtures
may be removed by the Tenant from the Premises without damage to the Premises.
(c) Any damage to the existing finishes of the Retail Space shall be patched and repaired by Tenant,
at its expense, and all such work shall be done to Landlord's satisfaction. If any patched and painted area does
not match the original surface, then the entire surface shall be repainted at Tenant's expense. Tenant agrees to
indemnify and hold harmless Landlord, its agents, and employees from and against any and all costs, expenses,
damage, loss, or liability, including, but not limited to, reasonable attorneys' fees and costs, which arise out of, is
occasioned by, or is in any way attributable to the build-out of the Premises or any subsequent improvements or
alterations by Tenant pursuant to this Lease. Tenant, at its expense, shall be responsible for the maintenance,
repair, and replacement of any and all items constructed by Tenant's contractor.
(d) Tenant shall not alter the existing fire alarm system in the Premises or the Retail Space. Tenant's
Plans shall include detailed drawings and specifications for the design and installation of Tenant's fire alarm (and
security) system(s) for the Premises. Such system(s) shall meet all appropriate building code requirements, and
the fire alarm system shall, at Tenant's expense, be integrated into Landlord's fire alarm system for the Retail
Space. (Landlord is not required to provide any security system.) Landlord's electrical contractor and/or fire alarm
contractor shall, at Tenant's expense, make all final connections between Tenant's and Landlord's fire alarm
systems. Tenant shall insure that all work performed on the fire alarm system shall be coordinated at the job site
with the Landlord's representative.
(e) The failure of Tenant to complete the improvements and be granted a Certificate of Occupancy
within a reasonable time from the date of execution of this Lease shall be deemed a default by Tenant.
(f) Tenant will permit no liens to attach to the Premises arising from, connected with or related to the
construction of the improvements. Moreover, such construction shall be accomplished through the use of
licensed, reputable contractors who are acceptable to Landlord. Any and all permits and or licenses required for
the installation of improvements shall be the sole responsibility of Tenant.
(g) The above requirements for submission of plans and the use of specific contractors shall not
apply to maintenance or repairs which do not exceed $1,000.00, provided that the work is not structural, and
provided that it is permitted by applicable law.
(h) Landlord acknowledges that the Current Tenant has made improvements and had signage
installed prior to the execution of this Lease Agreement, and as such, said improvements and signage are
acceptable to Landlord, to the extent that same were properly permitted, and done in compliance with all
applicable building codes, and any other Municipal, County, State and Federal laws.
5.2 Maintenance and Repairs bv Landlord. It is hereby acknowledged and agreed that Landlord shall
maintain and repair certain portions of the Retail Space. Tenant will notify in writing of any necessary repairs that
are the obligation of Landlord. Landlord shall not be responsible for any damages caused to Tenant by reason of
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failure of any equipment or facilities serving the Retail Space or delays in the performance of any work for which
the Landlord is responsible to perform pursuant to this Lease. Notwithstanding any other provisions of this Lease,
if any part of the Retail Space is damaged or destroyed or requires repair, replacement, or alteration as a result of
the act or omission of Tenant, its employees, agents, invitees, licensees, or contractors, Landlord shall have the
right to perform same and the cost of such repairs, replacement, or alterations shall be paid by Tenant to Landlord
upon demand. In addition, if, in an emergency, it shall become necessary to make promptly any repairs or
replacements required to be made by Tenant, Landlord may re-enter the Premises and proceed forthwith to have
the repairs or replacements made and pay the costs thereof. Upon demand, Tenant shall reimburse Landlord for
the cost of making the repairs. Landlord shall exercise its rights under this section in a manner so as to minimize
any disruption or interference with the operation of Tenant's business and property.
5.3 Maintenance and Repairs bv Tenant. Tenant shall, at its sole cost, repair and maintain the
Premises exclusive of base building mechanical and electrical systems, all to a standard consistent with a first
class retail center, with the exception only of those repairs which are the obligation of the Agency Landlord
pursuant to this Lease. Without limiting the generality of the foregoing, Tenant is specifically required to maintain
and make repairs to (I) the portion of any pipes, lines, ducts, wires, or conduits contained within the Premises;
(ii) windows, plate glass, doors, and any fixtures or appurtenances composed of glass (including, without
limitation, interior and exterior washing of windows and plate glass and the installation of hurricane shutters as
provided by the Landlord); (iii) Tenant's sign; (iv) any heating or air conditioning equipment serving the Premises
("HVAC") (which shall include, without limitation, a preventive maintenance HVAC service contract. Such service
contract shall include, without limitation, preventive HVAC maintenance no less than quarterly); and (v) the
Premises or the Retail Space when repairs to the same are necessitated by any act or omission of Tenant, or the
failure of Tenant to perform its obligations under this Lease. All repair and maintenance performed by Tenant in
the Premises shall be performed by contractors or workmen designated or approved by Landlord, which approval
shall not be unreasonably withheld or delayed. At the expiration or earlier termination of the Term, Tenant shall
surrender the Premises to Landlord in as good condition and repair as Tenant is required to maintain the Premises
throughout the Term, reasonable wear and tear excepted. Tenant shall also furnish, maintain, and replace all
electric light bulbs, tubes, and tube casings located within or serving the Premises and Tenant's signage, all at
Tenant's sole cost and expense.
5.4 Approval of Tenant's Alterations. No alterations (including, without limitation, improvements,
additions, or modifications to the Premises) shall be made by Tenant to the Premises without Landlord's prior
written approval, which, as to exterior or structural alterations may be withheld in Landlord's sole discretion. Any
alterations by Tenant shall be performed at the sole cost of Tenant, by contractors and workmen approved by
Landlord, which approval shall not be unreasonably withheld or delayed, in a good and workmanlike manner, and
in accordance with all applicable laws and regulations.
5.5 Removal of Improvements and Fixtures. All leasehold improvements and fixtures (other than
unattached, movable trade fixtures which can be removed without damage to the Premises) shall at the expiration
or earlier termination of this Lease become Landlord's property. Tenant may, during the Term, in the usual course
of its business, remove its trade fixtures, provided that Tenant is not in default under this Lease; and Tenant shall,
at the expiration or earlier termination of the Term, at its sole cost, remove such of the leasehold improvements
(except for improvements installed by Landlord prior to the Commencement Date) and trade fixtures in the
Premises as Landlord shall require to be removed and restore the Premises to the condition existing prior to such
removal. Tenant shall at its own expense repair any damage caused to the Retail Space by such removal. If
Tenant does not remove its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures
shall, at the option of Landlord, become the property of Landlord and may be removed from the Premises and sold
or disposed of by Landlord in such manner as it deems advisable without any accounting to Tenant.
5.6 Liens. Tenant shall promptly pay for all materials supplied and work done in respect of the
Premises by, through, or under Tenant so as to ensure that no lien is recorded against any portion of the Retail
Space or against Landlord's or Tenant's interest therein. If a lien is so recorded, Tenant shall discharge it
promptly by payment or bonding. If any such lien against the Retail Space or Landlord's interest therein is
recorded and not discharged by Tenant as above required within fifteen (15) days following written notice to
Tenant, Landlord shall have the right to remove such lien by bonding or payment and the cost thereof shall be paid
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immediately from Tenant to Landlord. Landlord and Tenant expressly agree and acknowledge that no interest of
Landlord in the Premises or the Retail Space shall be subject to any lien for improvements made by Tenant in or
for the Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant, such liability
being expressly prohibited by the terms of this Lease. In accordance with applicable laws of the State of Florida,
Landlord has filed in the public records of Dade County, Florida, a public notice containing a true and correct copy
of this paragraph, and Tenant hereby agrees to inform all contractors and material suppliers performing work in or
for or supplying materials to the Premises of the existence of said notice.
5.7 Utilities. Tenant shall pay to Landlord, or as Landlord directs, all gas, electricity, water, and other
utility charges applicable to the Premises as separately metered. Tenant shall, at its own cost, install, maintain
and repair, as required, its electrical meter for the Premises. In addition, Tenant's electrical equipment and lighting
shall be restricted to that equipment and lighting which individually does not have a rated capacity and/or design
load greater than the rated capacity and/or design load of the Retail Space. If Tenant's consumption of electrical
services exceeds either the rated capacity and/or design load of the Retail Space, then Tenant shall remove the
equipment and/or lighting to achieve compliance within ten (10) days after receiving written notice from Landlord,
or such equipment and/or lighting may remain in the Premises, so long as (a) Tenant shall pay for all costs of
installation and maintenance of submeters, wiring, air-conditioning, and other items required by Landlord, in
Landlord's reasonable discretion, to accommodate Tenant's excess design loads and capacities; and (b) Tenant
shall pay to Landlord, within thirty (30) days after rendition of a bill, the cost of the excess consumption of electrical
service at the rates charged to Landlord by Florida Power & Light, which shall be in accordance with any applicable
laws.
ARTICLE VI. INSURANCE AND INDEMNITY.
6.1 Tenant's Insurance. Tenant shall, throughout the Term (and any other period when Tenant is in
possession of the Premises), maintain at its sole cost the following insurance:
(A) All risks property insurance, containing a waiver of subrogation rights which Tenant's
insurers may have against Landlord and against those for whom Landlord is in law responsible including, without
limitation, its directors, officers, agents, and employees, and (except with respect to Tenant's chattels)
incorporating a standard New York mortgagee endorsement (without contribution). Such insurance shall insure
property of every kind owned by Tenant in an amount not less than the full replacement cost thereof (new), with
such cost to be adjusted no less than annually. Such policy shall include as additional insureds Landlord and its
affiliates and any mortgagee of Landlord, the City, and any mortgagee of the Landlord in connection with a mortgage
on the Facility.
(B) Comprehensive general liability insurance. Such policy shall contain inclusive limits per
occurrence of not less than the amount specified in the Lease Summary; provide for severability of interests; and
include as additional insureds Landlord and its affiliates and any mortgagee of Landlord, the City, and any
mortgagee of Landlord in connection with a mortgage on the Facility.
(C)
legal requirements.
Worker's compensation and employer's liability insurance in compliance with applicable
(D) Business interruption insurance, sufficient to insure Tenant for no less than one (1) full
year of loss of business, with the Landlord named thereon as loss payee to the extent permitted by applicable law.
(E) Any other form of insurance which Tenant or Landlord, acting reasonably, requires from
time to time in form, in amounts, and for risks against which a prudent tenant would insure, but in any event not
less than that carried by comparable retail establishments in Dade County, Florida.
All policies referred to above shall: (i) be taken out with insurers licensed to do business in Florida
and reasonably acceptable to Landlord; (ii) be in a form reasonably satisfactory to Landlord; (iii) be
non-contributing with, and shall apply only as primary and not as excess to any other insurance available to
Landlord or any mortgagee of Landlord; (iv) contain an undertaking by the insurers to notify Landlord by certified
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mail not less than thirty (30) days prior to any material change, cancellation, or termination, and (v) with respect to
subsection (A), contain replacement cost, demolition cost, and increased cost of construction endorsements.
Certificates of insurance on Landlord's standard form or, if required by a mortgagee, copies of such insurance
policies certified by an authorized officer of Tenant's insurer as being complete and current, shall be delivered to
Landlord promptly upon request. If Tenant fails to take out or to keep in force any insurance referred to in this
section 6.1, or should any such insurance not be approved by either Landlord or any mortgagee, and Tenant does
not commence and continue to diligently cure such default within two (2) business days after written notice by
Landlord to Tenant specifying the nature of such default, then Landlord has the right, without assuming any
obligation in connection therewith, to effect such insurance at the sole cost of Tenant and all outlays by Landlord
shall be paid by Tenant to Landlord as additional rent without prejudice to any other rights or remedies of Landlord
under this Lease. Tenant shall not keep or use in the Premises any article which may be prohibited by any fire or
casualty insurance policy in force from time to time covering the Premises or the Retail Space.
6.2 Loss or Damaae. Tenant acknowledges that the Landlord will be performing any maintenance and
repairs required of Landlord hereunder. Landlord shall not be liable for any death or injury arising from or out of any
occurrence in, upon, at, or relating to the Retail Space or damage to property of Tenant or of others located on the
Premises or elsewhere in the Retail Space, nor shall it be responsible for any loss of or damage to any property of
Tenant or others from any cause, unless such death, injury, loss, or damage results from the gross negligence or
willful misconduct of Landlord. Without limiting the generality of the foregoing, Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling plaster, falling ceiling tile, falling
fixtures, steam, gas, electricity, water, rain, flood, or leaks from any part of the Premises or from the pipes,
sprinklers, appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of the Retail Space or
from the street or any other place or by dampness, or by any other cause whatsoever, unless resulting from the
gross negligence or willful misconduct of Landlord. Tenant agrees to indemnify Landlord and hold it harmless from
and against any and all loss (including loss of Minimum Rent and additional rent payable in respect to the
Premises), claims, actions, damages, liability, and expense of any kind whatsoever (including attorneys' fees and
costs at all tribunal levels), unless caused by the gross negligence or willful misconduct of Landlord, arising from
any occurrence in, upon, or at the Premises, or the occupancy, use, or improvement by Tenant or its agents or
invitees of the Premises or any part thereof, or occasioned wholly or in part by any act or omission of Tenant its
agents, employees, and invitees or by anyone permitted to be on the Premises by Tenant.
6.3 Waiver of Subroaation. Landlord and Tenant each hereby waives on behalf of itself and its
insurers (none of which shall ever be assigned any such claim or be entitled thereto due to subrogation or
otherwise) any and all rights of recovery, claim, action, or cause of action, against the other, its agents, officers, or
employees, for any loss or damage that may occur to the Premises, or any improvements thereto or the Retail
Space, or any improvements thereto, or any personal property of such party therein, by reason of fire, the
elements, or any other causes which are, or could or should be insured against under the terms of the standard
fire and extended coverage insurance policies referred to in this Lease, regardless of whether such insurance is
actually maintained and regardless of the cause or origin of the damage involved, including negligence of the other
party hereto, its agents, officers, or employees. Landlord and Tenant shall each obtain from their respective
insurers, under all policies of fire, theft, public liability, worker's compensation, and other insurance maintained by
either of them at any time during the term hereof insuring or covering the Retail Space or any portion thereof or
operations therein, a waiver of all rights of subrogation which the insurer of one party might have against the other
party, and Landlord and Tenant shall each indemnify, defend, and hold harmless the other against any loss or
expense, including reasonable attorneys' fees (appellate or otherwise) resulting from the failure to obtain such
waiver.
ARTICLE VII. DAMAGE AND DESTRUCTION.
7.1 Damaae to Premises. Tenant acknowledges that if the Premises are partially or totally destroyed
due to fire or other casualty, any repairs to or rebuilding of the damaged portions of the Retail Space will be
performed by Landlord and in any event only to the extent that Landlord is required to repair or rebuild the Retail
Space. If Landlord repairs or rebuilds, Minimum Rent shall abate proportionately to the portion of the Premises, if
any, rendered untenantable from the date of destruction or damage until the repairs have been substantially
completed. Upon being notified that the repairs have been substantially completed, Tenant shall diligently perform
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all other work required to fully restore the Premises for use in Tenant's business, in every case at Tenant's cost
and without any contribution to such cost by Landlord, whether or not Landlord has at any time made any
contribution to the cost of supply, installation, or construction of leasehold improvements in the Premises. Tenant
agrees that during any period of reconstruction or repair of the Premises, it will continue the operation of its
business within the Premises to the extent practicable. If all or any part of the Premises shall be damaged by fire
or other casualty and the fire or other casualty is caused by the fault or neglect of Tenant or Tenant's agents,
guest, or invitees, rent and all other charges shall not abate.
7.2 Termination for Damaae. Notwithstanding section 7.1, if damage or destruction which has
occurred to the Premises or the Retail Space is such that in the reasonable opinion of Landlord such
reconstruction or repair cannot be completed within one hundred twenty (120) days of the happening of the
damage or destruction, Landlord may, at its option, terminate this Lease on notice to Tenant given within thirty (30)
days after such damage or destruction and Tenant shall immediately deliver vacant possession of the Premises in
accordance with the terms of this Lease.
In addition, if Landlord undertakes the reconstruction or repair, and does not complete same within
nine (9) months after the date of the fire or other casualty (subject to the time required to prepare plans for
reconstruction, to obtain building permits, to receive distribution of insurance proceeds, and to complete the likely
contract bidding process and all other relevant factors, but not to exceed an additional ninety (90) days), then
Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within thirty (30) days
after the expiration of such nine (9) month period (or as extended), whereupon both parties shall be relieved of all
further obligations hereunder, except as otherwise expressly set forth herein.
ARTICLE VIII. ASSIGNMENT, LEASES. AND TRANSFERS.
8.1 Transfer bv Tenant. Tenant shall not enter into, consent to, or permit any Transfer, as hereinafter
defined, without the prior written consent of Landlord in each instance, which consent may be granted or withheld
in Landlord's sole and absolute discretion for any reason or for no reason. For purposes of this Lease, "Transfer"
means an assignment of this Lease in whole or in part; a sublease of all or any part of the Premises; any
transaction whereby the rights of Tenant under this Lease or to the Premises are transferred to another; any
mortgage or encumbrance of this Lease or the Premises or any part thereof or other arrangement under which
either this Lease or the Premises become security for any indebtedness or other obligations; and if Tenant is a
corporation or a partnership, the transfer of a controlling interest in the stock of the corporation or partnership
interests, as applicable. If there is a permitted Transfer, Landlord may collect rent or other payments from the
transferee and apply the net amount collected to the rent or other payments required to be paid pursuant to this
Lease but no acceptance by Landlord of any payments by a transferee shall be deemed a waiver of any provisions
hereof regarding Tenant. Notwithstanding any Transfer, Tenant shall not be released from any of its obligations
under this Lease. Landlord's consent to any Transfer shall be subject to the further condition that if the Minimum
Rent and additional rent pursuant to such Transfer exceeds the Minimum Rent and additional rent payable under
this Lease, the amount of such excess shall be paid to Landlord. If, pursuant to a permitted Transfer, Tenant
receives from the transferee, either directly or indirectly, any consideration other than Minimum Rent and
additional rent for such Transfer, either in the form of cash, goods, or services, Tenant shall, upon receipt thereof,
pay to Landlord an amount equivalent to such consideration.
ARTICLE IX. DEFAULT.
9.1 Defaults. A default by Tenant shall be deemed to have occurred hereunder, if and whenever:
(i) any Minimum Rent is not paid when due whether or not any notice or demand for payment has been made by
Landlord; (ii) any other additional rent is in arrears and is not paid within five (5) days after written demand by
Landlord; (iii) Tenant has breached any of its obligations in this Lease (other than the payment of rent) and Tenant
fails to remedy such breach within thirty (30) days (or such shorter period as may be provided in this Lease), or if
such breach cannot reasonably be remedied within thirty (30) days (or such shorter period), then if Tenant fails to
immediately commence to remedy and thereafter proceed diligently to remedy such breach, in each case after
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notice in writing from Landlord; (iv) Tenant becomes bankrupt or insolvent; (v) any of Landlord's policies of
insurance with respect to the Retail Space are canceled or adversely changed as a result of Tenant's use or
occupancy of the Premises; or (vi) the business operated by Tenant in the Premises shall be closed by
governmental or court order for any reason.
9.2 Remedies. In the event of any default hereunder by Tenant, then without prejudice to any other
rights which it has pursuant to this Lease or at law or in equity, Landlord shall have the following rights and
remedies, which are cumulative and not alternative:
(A) Landlord may cancel this Lease by notice to Tenant and retake possession of the
Premises for Landlord's account, or may terminate Tenant's right to possession of the Premises without
terminating this Lease. In either event, Tenant shall then quit and surrender the Premises to Landlord. If Landlord
terminates Tenant's right to possession of the Premises without terminating this Lease, Tenant's liability under all
of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any re-entry,
repossession, or disposition hereunder.
(8) Landlord may enter the Premises as agent of Tenant to take possession of any property
of Tenant on the Premises, to store such property at the expense and risk of Tenant or to sell or otherwise dispose
of such property in such manner as Landlord may see fit without notice to Tenant. Re-entry and removal may be
effectuated by summary dispossess proceedings, by any suitable action or proceeding, or otherwise. Landlord
shall not be liable in any way in connection with its actions pursuant to this section, to the extent that its actions are
in accordance with law.
(C) If Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under subsection (A) above, Tenant shall remain liable (in addition to accrued liabilities) to the extent
legally permissible for all rent and all of the charges Tenant would have been required to pay until the date this
Lease would have expired had such cancellation not occurred. Tenant's liability for rent shall continue
notwithstanding re-entry or repossession of the Premises by Landlord. In addition to the foregoing, Tenant shall
pay to Landlord such sums as the court which has jurisdiction thereover may adjudge as reasonable attorneys'
fees with respect to any successful lawsuit or action instituted by Landlord to enforce the provisions of this Lease.
(D) Landlord may relet all or any part of the Premises for all or any part of the unexpired
portion of the Term of this Lease or for any longer period, and may accept any rent then attainable; grant any
concessions of rent, and agree to paint or make any special repairs, alterations, and decorations for any new
tenant as it may deem advisable in its sole and absolute discretion. Landlord shall be under no obligation to relet or
to attempt to relet the Premises, except as expressly set forth below.
(E) If Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under subsection (A) above, and Landlord so elects, the rent hereunder shall be accelerated and
Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the
remainder of the Term (reduced to present value using a discount factor equal to the stated prime lending rate on
the date of Tenant's default by Landlord's then existing mortgagee or, if there is no mortgagee, by Citibank, N.A.,
New York). Prior to or following payment in full by Tenant of such discounted sum promptly upon demand,
Landlord shall use good faith efforts to relet the Premises. If Landlord receives consideration as a result of a
reletting of the Premises relating to the same time period for which Tenant has paid accelerated rent, such
consideration actually received by Landlord, less any and all of Landlord's cost of repairs, alterations, additions,
redecorating, and other expenses in connection with such reletting of the Premises, shall be a credit against such
discounted sum, and such discounted sum shall be reduced if not yet paid by Tenant as called for herein, or if
Tenant has paid such discounted sum, such credited amount shall be repaid to Tenant by Landlord (provided said
credit shall not exceed the accelerated amount).
(F) Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the
account of Tenant and to enter upon the Premises for such purposes. No notice of Landlord's intention to perform
such covenants need be given Tenant unless expressly required by this Lease. Landlord shall not be liable to
Tenant for any loss or damage caused by the reasonable acts of Landlord in remedying or attempting to remedy
such default and Tenant shall pay to Landlord all expenses incurred by Landlord in connection with remedying or
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attempting to remedy such default. Any expenses incurred by Landlord shall accrue interest from the date of
payment by Landlord until repaid by Tenant at the highest rate permitted by law.
9.3 Costs. Tenant shall pay to Landlord on demand all costs incurred by Landlord, including attorneys'
fees and costs at all tribunal levels, incurred by Landlord in enforcing any of the obligations of Tenant under this
Lease. In addition, upon any default by Tenant, Tenant shall be also liable to Landlord for the expenses to which
Landlord may be put in re-entering the Premises; repossessing the Premises; painting, altering, or dividing the
Premises; combining the Premises with an adjacent space for any new tenant; putting the Premises in proper
repair; protecting and preserving the Premises by placing watchmen and caretakers therein; reletting the Premises
(including attorneys' fees and disbursements, marshall's fees, and brokerage fees, in so doing); and any other
expenses reasonably incurred by Landlord.
9.4 Additional Remedies: Waiver. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereinafter provided by law. All rights and remedies shall be
cumulative and non-exclusive of each other. No delay or omission by Landlord in exercising a right or remedy
shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default.
9.5 Default by Landlord. In the event of any default by Landlord, Tenant's exclusive remedy shall be
an action for damages or injunction, but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall have a period of thirty (30) days following the date of such notice
in which to cure such default (provided, however, that if such default reasonably requires more than thirty (30)
days to cure, Landlord shall have a reasonable time to cure such default, provided Landlord commences to cure
within such thirty (30) day period and thereafter diligently prosecutes such cure to completion). Notwithstanding
any provision of this Lease, Landlord shall not at any time have any personal liability under this Lease. In the event
of any breach or default by Landlord of any term or provision of this Lease, Tenant agrees to look solely to the
equity or interest then-owned by Landlord in the Retail Space, and in no event shall any deficiency judgment be
sought or obtained against Landlord. It is expressly understood that the obligations of Landlord under this Lease
are solely corporate obligations, and that, except for conversion, fraud, or willful misconduct, no personal liability
will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, or employees, as
such, of the Landlord, or of any successor corporation, or any of them, under or by reason of the obligations,
covenants, or agreements of Landlord contained in this Lease or implied therefrom; and, except for conversion,
fraud, or willful misconduct, that any and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder,
officer, director, or employee, as such, or under or by reason of the obligations, covenants or agreements
contained in this Lease or implied therefrom are expressly waived and released as a condition of, and as a
consideration for, the execution of this Lease.
ARTICLE X. ESTOPPEL CERTIFICATE: SUBORDINATION.
10.1 Estoppel Certificate. Within ten (10) days after written request by Landlord, Tenant shall deliver in
a form supplied by Landlord, an estoppel certificate to Landlord as to the status of this Lease, including whether
this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full
force and effect as modified and identifying the modification agreements); the amount of Minimum Rent and
additional rent then being paid and the dates to which same have been paid; whether or not there is any existing or
alleged default by either party with respect to which a notice of default has been served, or any facts exist which,
with the passing of time or giving of notice, would constitute a default and, if there is any such default or facts,
specifying the nature and extent thereof; and any other matters pertaining to this Lease as to which Landlord shall
request such certificate. Landlord, and any prospective purchaser, lender, or ground lessor shall have the right to
rely on such certificate.
10.2 Subordination: Attornment. This Lease and all rights of Tenant shall be subject and subordinate
to any and all mortgages, security agreements, or like instruments resulting from any financing, refinancing, or
collateral financing (including renewals or extensions thereof), and to any and all ground leases, made or arranged
by Landlord of its interests in all or any part of the Retail Space, from time to time in existence against the Retail
Space, whether now existing or hereafter created. Such subordination shall not require any further instrument to
12
evidence such subordination. However, on request, Tenant shall further evidence its agreement to subordinate
this Lease and its rights under this Lease to any and all documents and to all advances made under such
documents. The form of such subordination shall be made as required by Landlord, its lender, ground lessor, the
City. Tenant shall, if requested by Landlord, or a mortgagee, owner, or purchaser, or by any person succeeding to
the interest of such mortgagee, owner, or purchaser, as the result of the enforcement of the remedies provided by
law or the applicable instrument held by Landlord, such mortgagee, owner, or purchaser, automatically attorn to
and become the tenant of Landlord or any such mortgagee, owner, purchaser, or successor-in-interest, without
any change in the terms or other provisions of this Lease; provided, however, that Landlord, said mortgagee,
owner, purchaser, or successor shall not be bound by (a) any payment of rent or additional rent for more than
one (1) month in advance, or (b) any security deposit or the like not actually received by Landlord, such
mortgagee, owner, or purchaser, or successor, or (c) any amendment or modification in this Lease made without
the consent of Landlord, such mortgagee, owner, purchaser, or successor, or (d) any construction obligation, free
rent, or other concession or monetary allowance, or (e) any set-off, counterclaim, or the like otherwise available
against Landlord, or (f) any act or omission of any prior landlord (including Landlord). Upon request by Landlord,
said mortgagee, owner, or purchaser, or successor, Tenant shall execute and deliver an instrument or instruments
confirming its attornment.
l'Jotwithstanding the foregoing, any such subordination of this Lease shall be conditioned on the Landlord
obtaining a nondisturbance agreement in favor of Tenant from all mortgagees and ground lessors regarding any
financings or overleases entered into by Landlord with respect to the Retail Space, and no subordination shall be
effective without a corresponding nondisturbance agreement.
ARTICLE XI. CONTROL OF RETAIL SPACE BY LANDLORD.
11.1 Use and Maintenance of Common Areas. Tenant and those doing business with Tenant for
purposes associated with Tenant's business on the Premises, shall have a non-exclusive license to use the
common areas for their intended purposes during normal business hours in common with others entitled thereto
and subject to any rules and regulations imposed by Landlord. Landlord shall use reasonable efforts to keep the
common areas in good repair and condition and shall clean the common areas when necessary. Tenant
acknowledges that any common areas of the Retail Space shall at all times be under the exclusive control and
management of Landlord. For purposes of this Lease, "common areas" shall mean those areas, facilities, utilities,
improvements, equipment, and installations of the Retail Space which serve or are for the benefit of tenants of
more than one component of the Retail Space and which are not designated or intended by Landlord to be leased,
from time to time, or which are provided or designated from time to time by Landlord and/or the City for the benefit
or use of all tenants in the Retail Space, their employees, customers, and invitees, in common with others entitled
to the use or benefit of same. Tenant acknowledges that the Garage portion of the Facility is not a part of the
Retail Space, and that Tenant has no right or license to use the Garage pursuant to this Lease. Any use by
Tenant or its invitees of the Garage is subject to the rules and regulations in connection therewith imposed by
Landlord (or successor owner) and/or the operator of the Garage. No portion of the garage is under Landlord's
control or supervision, and Landlord shall not be liable for any damage to automobiles of any nature whatsoever
to, or any theft of, automobiles or other vehicles or the contents thereof, while in or about the Garage.
11.2 Alterations bv Landlord. Landlord and/or the City may (but shall not be obligated to) (i) alter, add
to, subtract from, construct improvements on, re-arrange, and construct additional facilities in, adjoining, or
proximate to the Retail Space; (ii) relocate the facilities and improvements in or comprising the Retail Space or
erected on the Land; (iii) do such things on or in the Retail Space as required to comply with any laws, by-laws,
regulations, orders, or directives affecting the Land or any part of the Retail Space; and (iv) do such other things
on or in the Retail Space as Landlord and/or the City, in the use of good business judgment determines to be
advisable, provided that notwithstanding anything contained in this section 11.2, access to the Premises shall be
available at all times. Landlord shall not be in breach of its covenants for quiet enjoyment or liable for any loss,
costs, or damages, whether direct or indirect, incurred by Tenant due to any of the foregoing; provided, Landlord
shall exercise its rights under this section in a manner so as to minimize any disruption or interference with the
operation of Tenant's business and property.
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11.3 Tenant Relocation. Landlord shall have the right, at any time upon sixty (60) days' written notice to
Tenant, to relocate Tenant into other space within the Retail Space comparable to the Premises. Upon such
relocation, such new space shall be deemed the Premises and the prior space originally demised shall in all
respects be released from the effect of this Lease. If Landlord elects to relocate Tenant as above described,
(i) the new space shall contain approximately the same as, or greater usable area than the original space,
(ii) Landlord shall improve the new space, at Landlord's sole cost, to at least the standards of the original space,
(Hi) Landlord shall pay the reasonable costs of moving Tenant's trade fixtures and furnishings from the original
space to the new space, (iv) as total compensation for all other costs, expenses, and damages which Tenant may
suffer in connection with the relocation, including but not limited to, lost profit or business interruption, no Minimum
Rent shall be due or payable for the first two (2) full calendar months of Tenant's occupancy of the new space, and
Landlord shall not be liable for any further indirect or special expenses of Tenant resulting from the relocation,
(v) Minimum Rent and all other charges hereunder shall be the same for the new space as for the original space,
notwithstanding that the new space may be larger than the original space, and (vi) all other terms of this Lease
shall apply to the new space as the Premises, except as otherwise provided in this paragraph.
ARTICLE XII. CONDEMNATION.
12.1 Total or Partial Takinq. If the whole of the Premises, or such portion thereof as will make the
Premises unusable for the purposes leased hereunder, shall be taken by any public authority under the power of
eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease as of the day
possession or title shall be taken by such public authority, whichever is earlier ("Taking Date"), whereupon the rent
and all other charges shall be paid up to the Taking Date with a proportionate refund by Landlord of any rent and
all other charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises, or less
than such portion thereof as will make the Premises unusable for the purposes leased hereunder, the Term shall
cease only as to the part so taken as of the' Taking Date, and Tenant shall pay rent and other charges up to the
Taking Date, with appropriate credit by Landlord (toward the next installment of rent due from Tenant) of any rent
or charges paid for a period subsequent to the Taking Date. Minimum Rent and other charges payable to
Landlord shall be reduced in proportion to the amount of the Premises taken.
12.2 Award. All compensation awarded or paid upon a total or partial taking of the Premises or Retail
Space including the value of the leasehold estate created hereby shall belong to and be the property of Landlord
without any participation by Tenant; Tenant shall have no claim to any such award based on Tenant's leasehold
interest. However, nothing contained herein shall be construed to preclude Tenant, at its cost, from independently
prosecuting any claim directly against the condemning authority in such condemnation proceeding for damage to,
or cost of removal of, stock, trade fixtures, furniture, and other personal property belonging to Tenant and for
Tenant's moving expenses; provided, however, that no such claim shall diminish or otherwise adversely affect
Landlord's award or the award of any mortgagee.
ARTICLE XIII. PROMOTION.
13.1 Promotional Fund; Merchants' Association. Intentionally Omitted.
ARTICLE XIV. GENERAL PROVISIONS.
14.1 Delav. Whenever a period of time is herein prescribed for the taking of any action by Landlord or
Tenant, as applicable, Landlord or Tenant, as applicable, shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, or governmental laws, regulations, or restrictions in the nature of a prohibition or
moratorium, or any bona fide delay beyond the reasonable control of Landlord or Tenant, as applicable. The
foregoing shall not apply to any payments of money due under this Lease.
14.2 Holdinq Over. If Tenant remains in possession of the Premises after the end of the Term without
having executed and delivered a new lease or an agreement extending the Term, there shall be no tacit renewal of
this Lease or the Term, and Tenant shall be deemed to be occupying the Premises as a Tenant from month to
month at a monthly Minimum Rent payable in advance on the first day of each month equal to twice the monthly
14
amount of Minimum Rent payable during the last month of the Term, and otherwise upon the same terms as are
set forth in this Lease, so far as they are applicable to a monthly tenancy.
14.3 Waiver: Partial Invalidity. If Landlord excuses or condones any default by Tenant of any obligation
under this Lease, this shall not be a waiver of such obligation in respect of any continuing or subsequent default
and no such waiver shall be implied. All of the provisions of this Lease are to be construed as covenants even
though not expressed as such. If any provision of this Lease is held or rendered illegal or unenforceable it shall be
considered separate and severable from this Lease and the remaining provisions of this Lease shall remain in
force and bind the parties as though the illegal or unenforceable provision had never been included in this Lease.
14.4 RecordinQ. Neither Tenant nor anyone claiming under Tenant shall record this Lease or any
memorandum hereof in any public records without the prior written consent of Landlord.
14.5 Notices. Any notice, consent, or other instrument required or permitted to be given under this
Lease shall be in writing and shall be delivered in person, or sent by certified mail, return receipt requested, or
overnight express mail courier, postage prepaid, addressed (i) if to Landlord, at the address set forth in the Lease
Summary: and (ii) if to Tenant, at the Premises or, prior to Tenant's occupancy of the Premises, at the address
set forth on the Lease Summary. Any such notice or other instruments shall be deemed to have been given and
received on the day upon which personal delivery is made or, if mailed, then forty-eight (48) hours following the
date of mailing. Either party may give notice to the other of any change of address and after the giving of such
notice, the address therein specified is deemed to be the address of such party for the giving of notices. If postal
service is interrupted or substantially delayed, all notices or other instruments shall be delivered in person or by
overnight express mail courier.
14.6 Successors: Joint and Several Liability. The rights and liabilities created by this Lease extend to
and bind the successors and assigns of Landlord and the heirs, executors, administrators, and permitted
successors and assigns of Tenant. No rights, however, shall inure to the benefit of any transferee unless such
Transfer complies with the provisions of Article VIII. If there is at any time more than one Tenant or more than one
person constituting Tenant, their covenants shall be considered to be joint and several and shall apply to each and
every one of them.
14.7 Caotions and Section Numbers. The captions, section numbers, article numbers, and table of
contents appearing in this Lease are inserted only as a matter of convenience and in no way affect the substance
of this Lease.
14.8 Extended Meaninas. The words "hereof," "hereto," "hereunder," and similar expressions used in
this Lease relate to the whole of this Lease and not only to the provisions in which such expressions appear. This
Lease shall be read with all changes in number and gender as may be appropriate or required by the context. Any
reference to Tenant includes, when the context allows, the employees, agents, invitees, and licensees of Tenant
and all others over whom Tenant might reasonably be expected to exercise control. This Lease has been fully
review~d and negotiated by each party and their counsel and shall not be more strictly construed against either
party,
.'. 14.9 Entire Aareement: Governina Law: Time. This Lease and the Exhibits and Riders, if any, attached
hereto are incorporated herein and set forth the entire agreement between Landlord and Tenant concerning the
Premises and there are no other agreements or understandings between them. This Lease and its Exhibits and
"Riders may not be modified except by agreement in writing executed by Landlord and Tenant. This Lease shall be
construed in accordance with and governed by the laws of the State of Florida. Time is of the essence of this
Lease.
14.10 No Partnershio. The parties hereby acknowledge that it is not their intention under this Lease to
create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership, or
agency relationship. Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this
Lease, whether based on the calculation of rental or otherwise, shall be construed or deemed to create, or to
express an intent to create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or
15
agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this section
shall survive expiration of the Term.
14.11 Quiet Eniovment. If Tenant pays rent and other charges and fully observes and performs all of its
obligations under this Lease, Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the
Term without interruption or interference by Landlord or any person claiming through Landlord.
14.12 BrokeraQe. Landlord and Tenant each represent and warrant one to the other that except as set
forth in the Lease Summary, neither of them has employed any broker in connection with the negotiations of the
terms of this Lease or the execution thereof. Landlord and Tenant hereby agree to indemnify and to hold each
other harmless against any loss, expense, or liability with respect to any claims for commissions or brokerage fees
arising from or out of any breach of the foregoing representation and warranty. Landlord recognizes the broker(s)
specified in the Lease Summary as the sole broker(s) with whom Landlord has dealt in this transaction and agrees
to pay any commissions determined to be due said broker(s).
14.13 Radon Notice. Chapter 88-285, Laws of Florida, requires the following notice to be provided with
respect to the contract for sale and purchase of any building, or a rental agreement for any building:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county public health unit.
14.14 Execution. This Lease has been submitted for discussion purposes only and shall not be deemed
an offer by either party to the other to enter into this Lease unless and until this Lease shall have been executed by
both parties, indicating their acceptance of the terms and conditions contained herein.
14.15 TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
~K~.
~AsTO
FQRM&LANGUAG&
a FOR EXECUTION
EXECUTED as of the day and year first abov/1itten.
/ I
LANDLORD:
/
MIAMI B~ACH
body corporate
By:
CHAIRMAN
WITNESSES:
)O,~"O~
e~ Date
GIImnI Counael'W "\
TENANT:
By:
Name:
Title:
~~fi~
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16
17
EXHIBIT "A"
Legal Description
Lots 8,9, 10, 11, 12 and 13, Block 57, Fisher's First Subdivision of Alton Beach, according to the Plat thereof, as
recorded in Plat Book 2, Page 77 of the Public Records of Dade County, Florida, together with all of 16th Street
(Avenue "C"), less and except the following described parcel:
BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of Alton Beach Plat; thence
North 880 0' 53" East along the South line of said Block 54, a distance of 443.08 feet, to the Southeast corner of
said Block 54; thence South 070 35' 04" West, a distance of 96.26 feet, to a point of cusp with a tangent curve
concave to the Southwest; thence along the arc of said curve to the left, having a radius of 25.00 feet and a central
angel of 900 00' 00", an arc distance of 39.27 feet, to a point of tangency; thence North 820 24' 52" West, a
distance of 24.75 feet; thence South 880 00' 53" West along a line 8.00 feet North of and parallel with, as
measured at right angles to the North line of Block 57 of said plat, a distance of 382.18 feet to a point on the
Easterly Right-of-Way line of Washington Avenue; thence North 010 59' 11" West along said Easterly
Right-of-Way line, a distance of 62.00 feet to the Southwest corner of said Block 54 and the Point of beginning.
Said lands lying and being in the City of Miami Beach and containing 65,910 square feet (1.5131 Acres) more or
less.
Lease Final - Gabriella.doc
EXHIBIT "B"
Site Plan of Retail Space and Location of Premises
EXHIBIT "B-1"
ANCHOR SHOPS AND GARAGE
Description of Landlord's Work
April 9, 1998
Landlord will minimally provide the following improvements, consistent with the Project Plans and Specifications (a
copy of which has been provided to Tenant):
1. Storefront and Doors
. As shown on Project Plans and Specifications.
. Interior of storefront and doors to be finished with standard color (not to be modified by Tenant).
. Entry doors to be provided with hardware (not to modified by Tenant).
. Rear service door to be provided.
(Storefront sills are excluded.)
2. Ceilina
. Exposed to structure except bathroom.
. Ceiling included in bathroom (2'x 2' acoustic tile suspended).
3. Demisina Walls (between tenant spaces)
. Metal studs at 3 E".
. Drywall with taped seams (UL Assembly U-485).
4. Exterior Walls
. Exposed, unfinished masonry or concrete.
5. Floor Slab
. Concrete slab included as per Project Plans and Specifications.
6. Plumbina
. Includes one ADA compliant bathroom with:
a. Standard lavatory and water close!.
b. VCT flooring.
c. 36" 1 y," dia. grab bar and 42" 1 Y:z" dia. grab bar.
d. Walls to be painted drywall.
e. Accessories (mirror, paper dispenser, soap dispenser).
. Cold water domestic service (%" line).
. Grease waste connection (except spaces along 16th Street).
. Condensate drainage (1 y." line).
. Natural gas service (except spaces along 16th Street).
7. Electrical
. For typical space, includes electric service as follows:
Food service tenant:
a. Four 3/0 CU in 2"C.
b. One 200 amp fusible disconnect switch with fuses 600 volt.
c. Four "Polaris" gutter taps (UL listed).
d. One sq. "D" NEHB 277/489 volt., 42 pole panel 225A.
e. One sq. "D" NQOD 120/208 volt. MCB 225A panel.
f. One 75 KV A transformer 480 to 120/208 volt.
g. Greenfield- 1 - Yo" + 2" with feeders to transformer.
h. Grounding conductor (transformer to CWP).
i. Nipples, lockouts, and fasteners at meter room.
Dry goods tenant:
a. Four #3/0 CU in 2"C.
b. One 100 amp fusible disconnect switch with fuses 600 volt.
c. Same as above.
d. Use 100 amp panel M.L.O.
e. Use 100 amp panel M.C.B.
f. Use 30 KVA transformer.
g. Use all 1- Yo".
h. Same as "h" above.
i. Same as "i" above.
. Lighting is excluded.
. Exit signs are included.
8. Mechanical
. Bathroom exhaust as per Project Plans and Specifications.
. Air conditioning system (either split DX or package system with determination dependent upon tenant
space and as per Project Plans and Specifications) based upon one ton cooling per 300 sq. ft., based
upon the following criteria (with Trane or equivalent assumed):
a. Split DX Unit Equipment
1. Air handling units shall be fully insulated draw through type, with direct drive blower and
filter rack.
2. Air handlers shall match characteristics and capacities specified on schedules and shall
be provided with 1" throwaway filters.
3. Air cooled condensing units shall be of weatherproof construction, with galvanized steel
cabinets, hermetic compressor, internal high temperature motor overload protection, and
high efficiency design. Units shall be supplied with sufficient refrigerant charge for a
complete functional system.
4. The system shall be provided with the following:
- Liquid line filter-dryer sight glass and solenoid valve.
- Short cycle protection circuit for compressor.
- Disconnect switch.
- Proper vibration isolation as per plans or manufacturer's recommendations.
- Proper size refrigerant piping as per manufacturer's recommendations to provide listed
total and sensible MBH.
ii
- Condensate drains with trap as per plans.
_ Yo" thick armaflex fire retardant piping insulation on AiC condensate lines and %" thick
on refrigerant suction lines (paint white when exposed to sun light).
- Service valves on suction and liquid lines.
b. Rooftop Packaqe Equipment
1. Combination heating and cooling rooftop units shall be completely factory assembled as a
unitary package consisting of electric cooling section, electrical heating section, air
handling-filtering section and complete controls section. Cabinet shall be of galvanized
weatherproof construction with floor providing backup protection to prevent water leakage.
Service access panels shall be furnished as standard to allow service and inspection of
internal components.
2. Cooling section shall be equipped with refrigerant circuits with multistage compressors
and crankcase heaters. The refrigeration system shall be factory charged, providing
stage cooling capacity. Minimum compressor protection shall include high pressure
control, low pressure control and anticycle control.
3. The electrical heating section shall be of heavy duty nickel-chromium elements with
automatic reset high limit control and unitary control processor staging. Electric heating
modules shall be UL listed.
4. Each unit shall have permanently lubricated motors with multiple blade fans. Motors shall
be equipped with overload protection and shall be mounted on removable panels for easy
access. Condenser air shall discharge vertically.
5. Provide 2" thick throwaway type air filters.
6. Include automatic fan shutdown control installed in RIA section of units.
. Excluded is any distribution (Le., ductwork)
9. Fire Sorinklers
. Lines and heads as required by code, with layout as per Project Plans and Specifications. (Changes,
if any, are Tenant's obligation.)
10. Exterior Awninas
. Per Project Plans and Specifications. (Not to be modified by Tenant.)
11. Exterior Sians
. As per Signage Guidelines established by Landlord.
. Electrical junction box provided within storefront, to provide power with conduit from exterior box to
interior of Tenant space.
Landlord reserves the right to modify its Project Plans and Specifications in response to building code
requirements and/or construction conditions.
Tenant is to assume full responsibility for any/or utility impact fees, connection fees/charges and/or deposits as
may be required in connection with Tenant's Work.
iii
EXHIBIT "C"
RULES AND REGULATIONS
1. Securitv. Landlord may from time to time adopt appropriate systems and procedures for the
security or safety of the Retail Space, any persons occupying, using, or entering the same, or any equipment,
furnishings, or contents thereof, and Tenant shall comply with Landlord's reasonable requirements relative thereto.
2. Return of Kevs. At the end of the Term, Tenant shall promptly return to Landlord all keys for the
Retail Space and Premises which are in the possession of Tenant. In the event any Tenant fails to return keys,
Landlord may retain $100.00 of Tenant's security deposit for locksmith work and administration.
3. Reoair. Maintenance. Alterations. and Imorovements. Tenant shall carry out Tenant's repair,
maintenance, alterations, and improvements in the Premises only during times agreed to in advance by Landlord
and in a manner which will not interfere with the rights of other Tenant's in the Retail Space.
4. Water Fixtures. Tenant shall not use water fixtures for any purpose for which they are not
intended, nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting from such
misuse by Tenant shall be paid for by Tenant.
5. Personal Use of Premises. The Premises shall not be used or permitted to be used for
residential, lodging, or sleeping purposes or for the storage of personal effects or property not required for
business purposes.
6. Heaw Articles. Tenant shall not place in or move about the Premises without Landlord's prior
written consent any safe or other heavy article which in Landlord's reasonable opinion may damage the Premises,
and Landlord may designate the location of any such heavy articles in the Premises.
7. Bicvcles. Animals. Tenant shall not bring any animals or birds into the Retail Space, and shall not
permit bicycles or other vehicles inside or on the sidewalks outside the Retail Space except in areas designated
from time to time by Landlord for such purposes.
8. Deliveries. Tenant shall ensure that deliveries of supplies, fixtures, equipment, furnishings, wares,
and merchandise to the Premises are made through such entrances, elevators, and corridors and at such times
as may from time to time be designated by Landlord, and shall promptly payor cause to be paid to Landlord the
cost of repairing any damage in the Retail Space caused by any person making improper deliveries.
9. Solicitations. Landlord reserves the right to restrict or prohibit canvassing, soliciting, or peddling in
the Retail Space.
10. Food and Beveraaes. Only persons approved from time to time by Landlord may prepare, solicit
orders for, sell, serve, or distribute foods or beverages in the Retail Space, or use the common areas for any such
purpose. Except with Landlord's prior written consent and in accordance with arrangements approved by
Landlord, Tenant shall not permit on the Premises the use of equipment for dispensing food or beverages or for
the preparation, solicitation of orders for, sale, serving, or distribution of food or beverages.
11. Refuse. Tenant shall place all refuse in proper receptacles provided by Tenant at its expense in
the Premises or in receptacles (if any) provided by Landlord for the Retail Space, and shall keep sidewalks and
driveways outside the Retail Space, and lobbies, corridors, stairwells, ducts, and shafts of the Retail Space, free of
all refuse.
12. Obstructions. Tenant shall not obstruct or place anything in or on the sidewalks or driveways
outside the Retail Space or in the lobbies, corridors, stairwells, or other common areas, or use such locations for
any purpose except access to and exit from the Premises without Landlord's prior written consent. Landlord may
remove at Tenant's expense any such obstruction or thing caused or placed by Tenant (and unauthorized by
Landlord) without notice or obligation to Tenant.
13. Proper Conduct. Tenant shall not conduct itself in any manner which is inconsistent with the
character of the Retail Space as a first quality retail center or which will impair the comfort and convenience of
other Tenant's in the Retail Space.
14.
employees,
Premises.
Emplovees, Aoents. and Invitees. In these Rules and Regulations, "Tenant" includes the
agents, invitees, and licensees of Tenant and others permitted by Tenant to use or occupy the
15. Pest Control. In order to maintain satisfactory and uniform pest control throughout the Retail
Space, Tenant shall engage for its own Premises and at its sole cost, a qualified pest extermination contractor
either designated or approved by Landlord, who shall perform pest control and extermination services in the
Premises at such intervals as reasonably required or as may be directed by Landlord.
EXHIBIT "D"
Prohibited Uses
1. In no event may the primary business at the Premises be the sale of coffee beans, coffee by the
cup, teas, espresso, or other related drinks containing coffee or tea (including, without limitation, so-called "coffee
cocktails," which are coffee drinks which have an alcohol content).
2. In no event may the primary business at the Premises be the sale of swimwear.
3. In no event may the primary business at the Premises be the sale of (i) motorcycle-related
clothing and accessories or (ii) clothing sold under the following brand names: Dolce & Gabbana; Versace Jeans
Couture; B.C.B.G.; Diesel; Replay; Polo Sport; Polo Jeans; and Ralph Lauren; and shoes sold under the following
brand names: Charles David; Calvin Klein; Kenneth Cole; SoHo Shoes; Via Spiga; and Milano.
4. In no event may the primary business at the Premises be the sale of smoothies, fresh-squeezed
juices, nutritional supplements or vitamins.
5. In no event may the primary business at the Premises be the sale of ice cream for take out
consumption.
EXHIBIT "E"
Landlord's Signage Criteria
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