HomeMy WebLinkAboutReso 2013-2139 RESOLUTION NO. 2013- z)39
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, APPROVING A SUBLEASE
AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH,
AMERICAN FEDERATED TITLE CORPORATION, AS
TRUSTEE UNDER FLORIDA LAND TRUST #3258, AND SUNNY
ISLES BEACH QUARTERDECK, LLC, OR ASSIGNEE, A
FLORIDA LIMITED LIABILITY COMPANY, IN
SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS
EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE
SAID SUBLEASE AGREEMENT; PROVIDING THE CITY
MANAGER AND THE CITY ATTORNEY WITH THE
AUTHORITY TO DO ALL THINGS NECESSARY TO
EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, American Federated Title Corporation, as trustee under Florida Land Trust
#3258 ("American Federated") is the tenant under that certain Lease Agreement dated July 26,
2013, between the City of Sunny Isles Beach ("City") and American Federated, as tenant, (the
"Prime Lease") regarding the lease of the premises located at 16501 Collins Avenue, Sunny Isles
Beach, Florida 33160 (the "Prime Lease Premises") consisting of an entire building (the
"Building") in the project known as Newport Fishing Pier in the City; and
WHEREAS, American Federated desires to lease to Sunny Isles Beach Quarterdeck,
LLC, a Florida limited liability company ("Quarterdeck") the entire Prime Lease Premises which
consists of a restaurant facility, bait shop, second floor of restaurant facility and additional
outdoor dining area in the Prime Lease (the "Sublease Premises"), as more particularly described
in the Sublease Agreement in substantially the same form attached hereto as Exhibit"A".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA,AS FOLLOWS:
Section 1. Approval of the Sublease Agreement. The Sublease Agreement between the City
of Sunny Isles Beach, American Federated Title Corporation, as trustee under Florida Land Trust
#3258, and Sunny Isles Beach Quarterdeck, LLC, or assignee, a Florida limited liability
company, is hereby approved in substantially the same form attached hereto as Exhibit "A".
Section 2. Authorization of Mayor. The Mayor is authorized to execute said Sublease
Agreement.
Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are hereby authorized to do all things necessary to effectuate the terms of this
Resolution.
Page 1 of 2
Section 4. Effective Date. This Resolution shall become effective upon adoption.
PASSED AND ADOPTED this 1-11 day of October 2013.
), , ,f) ' 1(al 1/
No an S. Edelcup, Mayor
ATTE •
Jan ines, City Clerk, MMC
APPROVED AS TO FORM
AN! ' • L SUFFICIENCY:
I ;CI ot, City Attorney
Moved by: C.Din kit-A-
Seconded by: \ U.p t ..11)
Vote:
Mayor Edelcup (Yes) (No)
Vice Mayor Aelion ✓(Yes) (No)
Commissioner Gatto ✓ (Yes) (No)
Commissioner Levin ✓ (Yes) (No)
Commissioner Scholl V (Yes) (No)
Page2of2
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is dated as of October x.5/2013 by and
among CITY OF SUNNY ISLES BEACH, FLORIDA, a municipal corporation of the State of
Florida ("Landlord"), AMERICAN FEDERATED TITLE CORP., as trustee under Florida Land
Trust #3258 ("Sublessor"), and BEACH BAR @ NEWPORT PIER, LLC, a Florida limited liability
company ("Subtenant").
Preliminary Statements
WHEREAS, Sublessor is the tenant under that certain Lease Agreement, dated July 26,
2013,by and between Landlord and Sublessor, as tenant, (the"Prime Lease") regarding the lease of
those certain premises located at 16501 Collins, Sunny Isles, Florida 33160 (the "Prime Lease
Premises") consisting of an entire building (the "Building") in the project known as Newport Pier
at Sunny Isle Beach(the"Project");
WHEREAS, Sublessor desires to sublease to Subtenant and Subtenant desires to sublease
from Sublessor the Sublease Premises (as hereafter defined), on the terms and conditions set forth
below;and
WHEREAS, Subtenant desires that Landlord grant additional rights in order for Subtenant
to operate Beach Bar @ Newport Pier restaurant at the Prime Lease Premises, and Landlord desires
to grant such rights,on the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the foregoing and for other good and
valuable consideration and of the mutual agreements hereinafter set forth, Sublessor and
Subtenant hereby covenant and agree as follows:
1. Definitions. Capitalized terms used but not defined in this Sublease shall have the same
definitions given to them in the Prime Lease,unless the context clearly indicates a contrary intent.
2. Sublease Premises; Uses. Sublessor does hereby demise and sublease to Subtenant the
entire Prime Lease Premises which consists of a restaurant facility, bait shop, second floor of
restaurant facility and additional outdoor dining area as further depicted in Exhibit "C" in the
Prime Lease (the "Sublease Premises"). Subtenant agrees to operate Beach Bar @ Newport Pier
restaurant with a menu similar to the menu attached hereto as Exhibit "A", andcommence
operations as a restaurant to the public no later than January 1, 2014. 7D ci,;e ,&.:r c-f ,T$'
3. Term. The term of this Sublease (the "Initial Term") shall commence on the
Commencement Date (as hereinafter defined) and shall expire on July 26, 2023, unless earlier
terminated in accordance with the terms of this Sublease or applicable law. As used herein, the
"Commencement Date" means the date on which this Sublease is executed by the last of the parties
hereto. Subtenant shall have the right to renew or extend the Term for four (4) additional terms of
five (5) years (a "Renewal Term" and collectively with the "Initial Term", the "Sublease Term"),
provided, however, Sublessor renews the term under the Prime Lease and Subtenant is not in
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default at the time of the renewal of the applicable term. If Subtenant is not in default, Subtenant
shall have the right to extend the Sublease Term by giving Sublessor written notice of its election to
extend the term of this Sublease not less than one hundred fifty (150) days prior to the expiration of
the Initial Term or the then running Renewal Term. All of the terms and conditions of this
Sublease shall remain in full force and effect during each Renewal Term, if exercised.
4. Rent.
4.1 Base Rent. Subtenant shall pay directly to Landlord, in lawful United States
currency,base monthly rent of Fifteen Thousand and No/100 Dollars ($15,000.00) (the "Base Rent")
plus all applicable sales tax. The Base Rent shall be subject to increases in the CPI, as defined in the
Prime Lease, as set forth in Section 4(b) of the Prime Lease. All Base Rent shall be payable in equal
monthly installments, in advance, beginning on the Rent Commencement Date, as hereinafter
defined, and continuing on the first day of each and every calendar month thereafter during the
Sublease Term. Base Rent payments for any fractional month shall be paid on a per diem basis
(calculated on the basis of the number of days in such month). Notwithstanding the foregoing, the
parties hereto agree and acknowledge that the Base Rent will be abated until three (3)months from
the date the appropriate governmental agency issues a temporary certificate of occupancy or
certificate of occupancy on the Sublease Premises (the "Rent Commencement Date").
4.2 Percentage Rent. Simultaneously with and in addition to the payment of Base Rent,
Subtenant shall pay to Sublessor for each year of the Sublease Term, as percentage rent (the
"Percentage Rent"), an amount equal to the amount by which (i) the product of (x) ten percent
(10%) and (y) all Gross Sales, as hereinafter defined, resulting from business conducted by
Subtenant (or any of its concessionaires, if applicable) in, on or from the Prime Lease Premises for
the respective month, exceeds (ii) the Base Rent, plus applicable sales tax. The Percentage Rent
shall be paid in monthly installments computed in accordance herewith commencing after the
three (3) month rent abatement period, and shall be payable within five (5) days following the end
of each month during the Sublease Term. The term "Gross Sales" as used herein shall be construed
to include the entire amount of the actual sales price, whether for cash or otherwise, of all sales of
merchandise or services and all other receipts whatsoever of all business conducted in or from the
Prime Lease Premises by Subtenant. A "sale" shall be deemed to have been consummated for the
purposes of this Sublease, and the entire amount of the sales price shall be included in Gross Sales,
at such time that (i) the transaction is initially reflected in the books or records of Subtenant or a
concessionaire (if a concessionaire makes the sale), or (ii) Subtenant or such concessionaire receives
all or any portion of the sales price, or (iii) the applicable goods or services are delivered to the
customer, whichever first occurs, irrespective of whether payment is made in installments, the sale
is for cash or for credit, or otherwise, or all or any portion of the sales price has actually been paid
at the time of inclusion in Gross Sales or at any other time. No deduction shall be allowed for
direct or indirect discounts, rebates, or other reductions on sales to erilleljegsair others, unless
generally offered to the public on a uniform basis. In addition, no deduction shall be allowed for
uncollected or uncollectible credit accounts, or for trade-ins or other credits on sales to employees
or others. The term "Gross Sales" shall not include, however, any sums collected and paid out by
Subtenant for any sales or excise tax imposed by and accounted for by Subtenant to any duly
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constituted governmental authority, nor shall it include the exchange of merchandise between the
stores of Subtenant, if any, where such exchange of goods or merchandise is made solely for the
convenient operation of the business of Subtenant and not for the purpose of consummating a sale
which has theretofore been made in or from the Sublease Premises and/or for the purpose of
depriving Sublessor of the benefit of a sale which otherwise would be made in or from the Prime
Lease Premises,nor shall the term include the amount of returns to shippers or manufacturers, nor
proceeds from the sale of trade fixtures. There shall be deductible from Gross Sales the amount of
any cash or credit refund made upon any sale in or from the Prime Lease Premises, previously
included in "Gross Sales" hereunder, not to exceed the sum so previously included, where the
merchandise sold is thereafter returned by the purchaser and accepted by Subtenant. The term
"merchandise" as used in this Lease shall include,but not be limited to, food and beverages.
4.3 Additional Rent Provisions. Unless otherwise expressly provided, all monetary
obligations of Subtenant to Sublessor or Landlord under this Sublease, of any type or nature, other
than Base Rent or Percentage Rent, shall be denominated as additional rent. Except as otherwise
expressly provided, all additional rent payments are due five (5) days after delivery of an invoice.
Sublessor and Landlord shall have the same rights and remedies for defaults in the payment of
additional rent as provided in this Sublease for defaults in the payment of Base Rent. The term
"Rent" or "rent" when used in this Sublease shall include Base Rent, Percentage Rent and all forms
of additional rent. All Base Rent shall be paid to Landlord without demand, setoff, or deduction
whatsoever, except as specifically provided in this Sublease, at Landlord's notice address indicated
in Section 24 of this Sublease, or at such other place as Landlord shall designate in writing to
Subtenant. All Percentage Rent shall be paid to Sublessor without demand, setoff, or deduction
whatsoever, except as specifically provided in this Sublease, at Sublessor's notice address indicated
in Section 24 of this Sublease, or at such other place as Sublessor shall designate in writing to
Subtenant. If any payment of rent due from Subtenant shall be overdue by five (5) days or more,
Landlord or Sublessor shall be entitled to charge Subtenant the late charges and interest provided
for in Section 4(d) and Section 4(e) of the Prime Lease. Subtenant's obligations to pay rent are
covenants independent of Sublessor's obligations under this Sublease. Subtenant shall also pay
monthly to Landlord and Sublessor, as the case may be, any sales, use, or other tax (excluding
state and federal income tax) now or hereafter imposed by the United States of America, the State
of Florida in which the Sublease Premises are located, or any political subdivision of them, on any
form of rent due under this Sublease, or in substitution for any rent, notwithstanding the fact that
the law imposing the tax may endeavor to impose it on Sublessor or Landlord.
4.4 Other Charges and Taxes. Subtenant shall also reimburse Sublessor for all charges
payable by Sublessor under the Prime Lease which relate to the Sublease Premises or to
Subtenant's use of the facilities of the Project, or which are payable by reason of any act or
omission of Subtenant, including, but not limited to, (i) any increases in Sublessor's or Landlord's
insurance premiums, and (ii) any fee imposed by Landlord for the review of plans and
specifications or inspections done pursuant to the Prime Lease with respect to the Sublease
Premises. Subtenant shall pay, on or before their respective due dates to the appropriate collecting
authorities, all federal, state, county and city taxes, fees, and assessments, which are now due or
may subsequently be levied upon the Sublease Premises or upon any Subtenant's property used in
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connection with this Sublease, including but not limited to any applicable ad valorem, sales, and
excise taxes.
4.5 Sublessor's Lien. To secure the payment of all rent due and to become due
hereunder and the faithful performance of this Sublease by Subtenant, Subtenant hereby gives to
Landlord an express first and prior contractual lien and security interest on all property now or
hereafter acquired (including fixtures, equipment, chattels, and merchandise) which may be placed
in the Sublease Premises and also upon all proceeds of any insurance which may accrue to
Subtenant or Landlord by reason of destruction of or damage to any such property. Such property
shall not be removed from the Sublease Premises without the prior written consent of Landlord
until all arrearages in rental and other sums of money then due to Landlord hereunder shall first
have been paid. 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 of Florida (the "UCC") and Subtenant hereby authorizes Sublessor to file one or more
financing statements thereunder. To the extent permitted by law, this Sublease shall constitute a
security agreement under Article 9 of the UCC.
5. Right To Examine Books; Audit. Notwithstanding the acceptance by Sublessor or
Landlord of payments of Percentage Rent, as hereinafter defined, Sublessor and Landlord shall
have the right to Percentage Rents, respectively, and the right to examine, make extracts from and
copy, at the Sublease Premises or (at the option of Sublessor) at the corporate headquarters office
of Subtenant in the United States, Subtenant's and all concessionaires' books, source documents,
accounts, records and sales tax reports filed with applicable government agencies in order to verify
the amount of Gross Sales in and from the Sublease Premises. Subtenant shall make all such
documents and records available at the Sublease Premises (or at Subtenant's corporate
headquarters, if elected by Sublessor) upon five (5) days' prior written notice from Sublessor or
Landlord, as the case may be.
5.1 At its option, Sublessor or Landlord may at any time, upon ten (10) days' prior
written notice to Subtenant, arrange for an auditor selected by Sublessor or Landlord to conduct a
complete audit (including a physical inventory) of the entire records and operations of Subtenant,
including those in connection with any concessionaire concerning business transacted upon or
includable in Gross Sales from the Sublease Premises during the period covered by any statement
issued by Subtenant. Subtenant shall make available to Sublessor or Landlord's auditor at the
Sublease Premises (or at Subtenant's corporate headquarters, if elected by Sublessor or Landlord)
within ten (10) days following Sublessor or Landlord's notice requiring such audit, all of the books,
source documents, accounts and records referred to in Sections 5 and 33 of this Sublease and any
other materials which such auditor deems necessary or desirable for the purpose of making such
audit. Subtenant shall promptly pay to Sublessor or Landlord the amount of any deficiency in
percentage rent payments respectively, disclosed by any such audit. If such audit shall disclose
that Subtenant's statement of Gross Sales is at variance to the extent of three percent (3%) or more,
Sublessor or Landlord, as the case may be, may bill to Subtenant the amount of any deficiency and
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the cost of such audit, which shall be paid by Subtenant within ten (10) days after Subtenant's
receipt of the applicable invoice; in the event Subtenant fails to pay such discrepancy and costs,
Sublessor or Landlord may terminate this Sublease as set forth below and/or shall have such other
rights and remedies as may be provided herein or at law arising by virtue of Subtenant's failure to
pay Percentage Rent. In addition to the foregoing, and in addition to all other remedies available
to Sublessor and Landlord, in the event Sublessor or Sublessor's auditor, or Landlord or Landlord's
auditors, shall schedule a date for an audit of Subtenant's records in accordance with this Section,
and Subtenant shall fail to be available or shall otherwise fail to comply with the requirements for
such audit, Subtenant shall pay all costs and expenses associated with the scheduled audit.
5.2 In addition to all other remedies available to Sublessor, in the event that any such
audit shall disclose that Subtenant's records and other documents as referred to in this Section 5
and such other materials provided by Subtenant to Sublessor or Landlord's auditor are inadequate,
in the opinion of Sublessor or Sublessor 's auditor, or Landlord or Landlord's auditor, to accurately
disclose Subtenant's Gross Sales, then Sublessor or Landlord, as the case may be, shall be entitled
to collect as additional rent from Subtenant an amount equal to percentage rent due for such
understatement together with interest at eighteen percent (18%) per annum and the cost of such
audit and attorney fees. Sublessor or Landlord's exercise of the foregoing remedy shall in no way
limit or otherwise affect Sublessor or Landlord's ability to exercise other remedies available to it,
nor shall Subtenant's obligations pursuant to the terms, covenants and conditions of this Sublease
(including, without limitation, Subtenant's obligation with respect to reporting Gross Sales and
payment of Percentage Rent ) be in any manner reduced or diminished by the exercise of such
remedy. In the event that Subtenant shall, following the exercise of such remedy, provide to
Sublessor all records and documentation as required to be provided pursuant to the terms of this
Sublease so as to permit Sublessor's auditor to accurately establish Subtenant's Gross Sales for the
period in question, then Subtenant shall be permitted a credit with respect to any amount of
additional rent collected by Sublessor from Subtenant pursuant to this paragraph, with such credit
to be applied first against the installment of percentage rent due from Subtenant for the period in
question, with any remaining credit to be applied against the next installment of Percentage Rent
payable by Subtenant. Neither the provisions of this Section 5.2 nor any other provisions in this
Sublease shall restrict Sublessor's rights to discovery in any litigation or arbitration proceeding.
6. Parking. Subtenant shall be entitled to use during the Term of this Sublease, five (5)
dedicated parking spaces in the public parking area at Gateway Park(151 Sunny Isles Blvd.) or the
public parking area adjacent to the Walgreens store located on 175th Street and Collins Avenue or
any other location approved by the City, subject to all of the terms and conditions upon which
such spaces are made available. The customers of the Subtenant may use public parking spaces in
the same manner as the general public.
7. Compliance With Prime Lease.
7.1 Prime Lease. Subtenant acknowledges that Sublessor is the Tenant under the Prime
Lease, a copy of which is attached to this Sublease as Exhibit "B", and Subtenant agrees to observe,
perform, and be bound by the duties and obligations of the Tenant under the Prime Lease. The
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Prime Lease is hereby incorporated in and made part of this Sublease with the same force and
effect as though set forth at length in this Sublease, except that(a) the terms "Landlord", "Tenant",
"Lease" and "Premises" as used in the Prime Lease are replaced by, respectively, the terms
"Sublessor", "Subtenant", "Sublease" and "Sublease Premises", (b) the amounts of Base Rent set
forth in the Prime Lease are not incorporated in and do not apply to this Sublease, and (c) such
Prime Lease terms as by their nature do not relate to the Sublease Premises or are inapplicable or
inappropriate to the subleasing of the Sublease Premises under this Sublease or are inconsistent
with any of the provisions of this Sublease are also not incorporated in and do not apply to this
Sublease. Notwithstanding anything contained in this Sublease, this Sublease shall in all events be
subject and subordinate to all of the terms and conditions of the Prime Lease. Whenever, under a
provision of the Prime Lease incorporated in this Sublease, Sublessor as Tenant is required to take
some action by a date certain or within a certain time period, Subtenant shall take such action not
less than five days prior to the deadline which would be applicable to Sublessor's performance of
such action.
7.2 Approvals and Consents. Whenever a provision of the Prime Lease incorporated in
this Sublease requires or refers to Landlord's consent or approval, such provision as incorporated
in this Sublease shall be deemed to require or refer to both Landlord's and Sublessor's consent or
approval. In such a case, Subtenant shall submit its request for consent or approval to Sublessor.
Sublessor shall forward the request to Landlord for its consent or approval unless Sublessor has
then decided to deny its consent or approval to Subtenant's request. Sublessor's consent may be
withheld in Sublessor's sole and absolute discretion as to any consent or approval refused by
Landlord. Where Landlord's consent may not be not unreasonably withheld under certain
provisions of the Prime Lease, Sublessor's consent under corresponding provisions of the Sublease
will not be unreasonably withheld, except in the event that Landlord denies its consent thereto.
7.3 Protection of Prime Lease. Subtenant shall not do or cause to be done or suffer or
permit to be done any act or thing which would or might constitute a default under the Prime
Lease or cause the Prime Lease or the rights of Sublessor as tenant under the Prime Lease to be
terminated, which would or might cause Sublessor to become liable for any damages, costs,claims,
or penalties, which would or might increase the basic monthly rent or other obligations of
Sublessor as tenant under the Prime Lease, or which would or might adversely affect or reduce any
of Sublessor's rights or benefits under the Prime Lease. Subtenant represents to Sublessor that
Subtenant has read and is familiar with the terms of the Prime Lease.
7.4 Limitation on Sublessor's Obligation. Notwithstanding anything contained in this
Sublease (including any provisions of the Prime Lease which are incorporated by reference into
this Sublease), Subtenant acknowledges and agrees that Sublessor shall have no obligation,
liability, or responsibility whatsoever to Subtenant to (i) provide or perform any work, supply or
cause to be supplied, any service, utility, repair, alteration, maintenance, or restoration in or
relating to the Sublease Premises or the Project, (ii) comply with any laws or requirements of
public authorities which relate to the Sublease Premises or the Project, (iii) repair or restore the
Sublease Premises or the Project in the event of condemnation or damage or destruction by fire or
other casualty, or (iv) as to any warranty or representation of Landlord under the Prime Lease.
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Subtenant shall undertake all repair obligations of Sublessor under the Prime Lease as to the
Sublease Premises.
7.5 Condemnation; Damage by Fire or Other Casualty. In the event of any taking by
eminent domain or damage by fire or other casualty to the Project, thereby rendering the Sublease
Premises or the Project wholly or partially untenantable, Subtenant shall acquiesce in and be
bound by any action taken by, or agreement entered into between Sublessor and Landlord with
respect thereto; and if, by application of the provisions of the Prime Lease or separate agreement
between Landlord and Sublessor, the Prime Lease is terminated, this Sublease shall likewise
terminate. If, however, the Prime Lease remains in effect, this Sublease shall also remain in effect
except that the Base Rent and Additional Rent shall be abated proportionately; provided, however,
that such abatement shall in no event exceed the abatement granted to Sublessor under the Prime
Lease for the Sublease Premises and, provided further, that no compensation or claim or reduction
will be allowed or paid by Sublessor by reason of inconvenience, annoyance or injury to
Subtenant's business arising from the necessity of effecting repairs to the Sublease Premises or any
portion of the Project, regardless of whether such repairs are required by operation of any
provision of the Prime Lease.
7.6 Termination of Prime Lease. In the event of and upon the termination, surrender or
cancellation of the Prime Lease pursuant to any of the provisions thereof, whether or not the
Commencement Date of this Sublease shall have occurred, this Sublease shall automatically
terminate as if such date of termination was the scheduled expiration date, and Subtenant shall
have no claim against Sublessor of any kind whatsoever arising out of or in connection with such
termination.
8. Landlord's Consent to this Sublease. Upon execution of this Sublease by Landlord,
Landlord shall consent to (i) the subleasing of the Sublease Premises to Subtenant, and (ii)
Subtenant selling food and beverage in the Building and outside the Building within a five (5) feet
radius of the Building subject to all applicable codes, ordinances, and state and federal law.
9. Use of Sublease Premises. Subtenant will use and occupy the Sublease Premises for the
Permitted Use set forth in the Prime Lease and for no other use or purpose. In connection with the
Permitted Use, the Subtenant shall be allowed to (i) play music outside the Building provided the
volume does not exceed 75 bD(A) one hundred (100) yards from the Pier, as hereinafter defined,
(ii) maintain antennas and satellite dishes on the roof of the Building as approved by the Landlord,
and (iii) place awnings, and build outside signage (subject to Section 31 hereof) and neon trim
outside the Building subject to applicable law and building code. Subtenant agrees that it shall be
responsible for painting the Building on an as needed basis subject to the consent of the Landlord.
Notwithstanding the foregoing, Subtenant shall not play music outside beyond the time of 11:00
pm.The Landlord reserves the right to reduce the decibel level for the outside music.
10. Grant of License for Sale of Food and Beverage; Management of Pier. During the
Sublease Term, Landlord grants Subtenant the non-exclusive license to sell food and beverage in
the Building and outside the Building within a five (5) feet radius of the Building. In accordance
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with a Management Agreement between Sublessor and Landlord, Sublessor shall manage the Pier
owned by the Landlord adjacent to the Building (the "Pier"). Upon termination of Management
Agreement, the Landlord shall select a management company. In the event Sublessor is not
selected as the management company for the Pier, the Sublessor may consent to the selection of the
management company provided that consent shall not be unreasonably withheld. Subtenant shall
maintain in current status all necessary licenses and permits to operate a restaurant in the Building.
11. Construction of Improvements. Within Sixty (60) days from the date of the execution of
this Sublease , Subtenant shall, at its own cost and expense, submit to Sublessor and Landlord for
their written approval its plans for the commencement and completion of the construction, and the
acquisition and installation of, the Subtenant's improvements to the Sublease Premises. Such
improvements shall be completed no later than January 1, 2014 and the Beach Bar @ Newport Pier
restaurant shall be opened for business no later than January 1, 2014. The opening of the Beach Bar
@ Newport Pier restaurant may be extended due to and in accordance with Unavoidable Delay, as
hereinafter defined in Section 30 of this Sublease.
12. Obligations of Landlord. In connection with this Sublease, Landlord agrees that it shall:
12.1 Pay for costs in the amount not to exceed Forty Thousand Dollars ($40,000.00) for
modifying windows and doors in the Building in accordance with reasonable specifications of the
Subtenant. The City reserves the right to pay the Forty Thousand Dollars ($40,000.00) as a rent
credit;
12.2 Maintain the insurance required under the Prime Lease;
12.3 Remain responsible for the cleaning, repair and maintenance of the Pier exclusive of
restaurant Building, as well as the structural components of the Pier and restaurant Building;
12.4 Provide separate water and electric meters for the Building;
12.5 Comply with all requirements of the Americans with Disabilities Act of 1990, as
amended, the Florida Americans with Disabilities Accessibility Implementation Act and all other
related state and local laws;
12.6 Be responsible for maintaining existing Turtle Lights. The City shall not be
responsible for installing any new Turtle Lights;
12.7 Provide directional signage to the Project on Collins Avenue in Sunny Isles Beach,
Florida.
13. Compliance With Laws. Subtenant shall promptly comply with all laws, orders, and
regulations of all county, municipal, state, federal, and other applicable governmental authorities,
including environmental laws, and all recorded covenants and restrictions affecting the Project,
now in force, or that may hereafter be in force, pertaining to Subtenant or its use of the Sublease
Premises. If, as a result of Subtenant's use of the Sublease Premises or the making of any
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alterations by Subtenant, any additions, alterations, or improvements shall be required to be made
by Sublessor to any part of the Sublease Premises to comply with any requirements of the
Americans with Disabilities Act of 1990, as amended, the Florida Americans with Disabilities
Accessibility Implementation Act and/or any other related state or local laws, Subtenant shall, at
Sublessor's option, promptly make all such required additions, alterations, or improvements at
Subtenant's sole cost and expense or shall reimburse Sublessor on demand for the costs incurred
by Sublessor in doing so.
14. Hazardous Substances. Subtenant shall not cause or permit any Hazardous Substance (as
defined below) to be used, stored, generated or disposed of on or in the Building, the Project or the
Sublease Premises, by Subtenant, Subtenant's agents, employees, contractors or invitees without
first obtaining Sublessor's written consent, except, with the prior written consent of Landlord, for
small quantities of Hazardous Substances customarily used in connection with general office uses.
If any Hazardous Substances are used, stored, generated or disposed of on or in the Building, the
Project or the Sublease Premises, or if the Building, the Project or the Sublease Premises, become
contaminated in any manner by Subtenant or its employees, agents, guests or invitees or otherwise
become affected by any release or discharge of a Hazardous Substance caused in whole or in part
by Subtenant or its employees, agents, guests or invitees, Subtenant shall immediately notify
Sublessor and Landlord of the release or discharge of a Hazardous Substance and Subtenant shall
indemnify, defend and hold harmless Sublessor and its shareholders, directors, officers and
employees from and against any and all claims, damages, fines, judgments, penalties, costs
liabilities, or losses (including without limitation, a decrease in value of the Project, the Building or
the Sublease Premises, damages caused by loss or restriction of rentable or usable space, or any
damages caused by adverse impact on marketing of the space, and any and all sums paid for
settlement of claims, attorneys' fees, consultant, and expert fees) arising during or after the Term,
and arising as a result of such use, generation, storage, disposal, contamination, release or
discharge. This indemnification includes without limitation, any and all costs incurred because of
any investigation of the site or any cleanup, removal, or restoration mandated by federal, state or
local agency or political subdivision. Without limitation of the foregoing, if Subtenant causes or
permits the presence of any Hazardous Substance on the Sublease Premises, the Building or the
Project and the same results in any contamination, release or discharge, Subtenant shall promptly,
at its sole expense, take any and all necessary actions to return the Sublease Premises, the Building
or the Project to the conditions existing prior to the presence of any such Hazardous Substance on
the Sublease Premises, the Building or the Project and in compliance with all applicable laws.
Subtenant shall first obtain Sublessor's and Landlord's approval for any such remedial action and
the approval of the contractors doing the work. Sublessor shall have the right to do the work, at
Subtenant's sole cost and expense, if Sublessor determines an emergency exists or if necessary to
protect the health and safety of other tenants of the Building or the Project. As used herein,
"Hazardous Substance" means any and all material or substances that are defined as "hazardous
waste", "hazardous materials", or a "hazardous substance" pursuant to federal, state or local
governmental law and any substance that is toxic, ignitable, reactive, or corrosive. "Hazardous
Substance" includes, but is not restricted to, asbestos, polychlorobiphenyls, and petroleum
products.
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15. Liability and Indemnification.
15.1 Sublessor's Liability. Sublessor shall not be liable to Subtenant, Subtenant's agents,
or Subtenant's customers, clients, invitees, licensees, contractors, or employees for any damage,
injury, loss, compensation, claim or expense, including claims based on, arising out of, or resulting
from any cause whatsoever pertaining to the Sublease Premises (including the intentional
misconduct or criminal acts of third parties), except to the extent such damage, injury, loss,
compensation, claim or expense is caused by Sublessor's gross negligence or willful misconduct,
and Subtenant waives all claims against Sublessor for any loss or damage against which Subtenant
is insured, or for which Subtenant is required to maintain insurance under this Sublease, nor shall
Sublessor be liable in any event for any interruption of or loss to Subtenant's business, and
Subtenant waives all claims against Sublessor based on loss of business or profits or other
consequential damages or for punitive or special damages of any kind.
15.2 Subtenant's Indemnity. Subtenant shall defend, indemnify, and hold Sublessor,
Sublessor's agents, employees, officers, directors, partners, managers, and Sublessor's interest in
the Prime Lease and the Sublease Premises harmless from and against all costs, damages, claims,
liabilities and expenses (including, but not limited to, court costs and reasonable attorneys' fees)
suffered by or claimed against Sublessor, directly or indirectly, based on, arising out of or resulting
from (i) the control, maintenance, management, occupancy, possession, repair, or use of the
Sublease Premises, or the business conducted by Subtenant therein, (ii) the condition, repair,
and/or maintenance of the Sublease Premises, (iii) any injury to person or property or loss of life
sustained in, on or about the Sublease Premises, (iv) any act or omission by Subtenant or
Subtenant's agents, employees, licensees, invitees, or contractors, or (v) any breach or default by
Subtenant in the performance or observance of its covenants or obligations under this Sublease or
the Prime Lease, but excluding any costs, damages, claims, liabilities, and expenses to the extent
that the same are proximately caused by the gross negligence or willful misconduct of Sublessor.
For the purpose of Section 15.2, Subtenant shall indemnify Landlord in the same manner that it
indemnifies the Sublessor in Section 15.2.
15.3 Independent Covenants. In the event that at any time during the Sublease Term
Subtenant shall have a claim against Sublessor or Landlord, Subtenant shall not have the right to
deduct the amount allegedly owed to Subtenant from any rent or other sums payable to Sublessor
under this Sublease, it being understood that Subtenant's sole remedy for recovering upon such
claim shall be to institute an independent action against Sublessor or Landlord. Notwithstanding
anything to the contrary contained in this Sublease, if any provision of this Sublease expressly or
impliedly obligates Sublessor not to unreasonably withhold its consent or approval, an action for
declaratory judgment or specific performance shall be Subtenant's sole right and remedy in any
dispute as to whether Sublessor has breached such obligation.
15.4 Non-Recourse. Subtenant shall look solely to Sublessor's estate and interest in the
Sublease Premises for the satisfaction of any right or remedy of Subtenant under this Sublease, or
for the collection of any judgment (or other judicial process) requiring the payment of money by
Sublessor, and no other property or assets of Sublessor or its principals shall be subject to levy,
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execution, or other enforcement procedure for the satisfaction of Subtenant's rights or remedies
under this Sublease, the relationship of Sublessor and Subtenant under this Sublease, Subtenant's
use and occupancy of the Sublease Premises, or any other liability of Sublessor to Subtenant of
whatever kind or nature. In no event shall any principal, agent, employee, director, officer, or
partner of Sublessor, or any other person, be held to have any personal liability for satisfaction of
any claims or judgments that Subtenant may have against Sublessor or Landlord.
16. Insurance. Subtenant shall maintain throughout the Term or any Renewal Term all
insurance required to be maintained by the Tenant under the Prime Lease, which insurance shall
name Sublessor and Landlord as an additional insured and/or loss payees, as applicable.
Subtenant shall also maintain throughout the Term, to the extent not required by the Prime Lease,
the following additional insurance: (a) "all-risk" fire and casualty insurance covering all of the
Equipment and of Subtenant's personal property, including removable trade fixtures, located in
the Sublease Premises for the full replacement cost thereof; (b) commercial general liability
insurance covering injury, death and property damage occurring in the Building with a combined
single limit of not less than $3,000,000 per occurrence and $5,000,000 in the aggregate; (c) business
income and extra expense insurance covering the risks to be insured by the all risk property
insurance described above, on an actual loss sustained basis; (d) worker's compensation insurance
on all employees of Subtenant, as required by the laws of the State of Florida and employer's
liability insurance subject to limits of not less than $500,000 per employee, $500,000 per accident,
and $1,000,000 policy limit; (e) liquor liability in an amount not less than One Million Dollars
($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate. Each
policy of insurance required to be maintained by Subtenant hereunder shall be placed through
insurers reasonably approved by Sublessor and Landlord, shall name Sublessor and Landlord as
additional insureds and/or loss payees thereunder, as applicable, shall contain waiver of
subrogation and severability of interests endorsements, shall in all events be in an amount
sufficient to prevent Subtenant from being a co-insurer of any loss covered under the applicable
policy or policies and shall require not less than thirty (30) days' prior written notice of any
cancellation or modification. On or prior to the Commencement Date, Subtenant shall deliver to
Sublessor and Landlord binding certificates or other binding evidence of all such insurance (on an
ACCORD 27 form or other form acceptable to Sublessor), together with true copies of each such
policy and evidence of payment thereof; and thereafter, at least fifteen (15) days prior to the
expiration of any policy, Subtenant shall deliver to Sublessor and Landlord such original
certificates as shall evidence a renewal or new policy to take the place of the policy that is expiring
together with true copies of each such policy and evidence of payment therefor.
17. Alterations. Subtenant shall not make any alterations, additions, or improvements on or to
the Sublease Premises without first obtaining the written consent of Sublessor and Landlord, and
all alterations, additions, and improvements shall be performed at the sole expense of Subtenant.
All alterations, additions and improvements shall be performed in accordance with such
restrictions and regulations as Landlord and/or Sublessor may impose in connection therewith,
including the applicable terms of the Prime Lease. Without limiting the generality of the
foregoing, Subtenant shall pay to Sublessor (or if Sublessor requests, directly to Landlord) all fees
required by the Prime Lease or otherwise imposed by Landlord in connection with any alterations,
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additions or improvements requested to be performed by Subtenant and until such amounts are
paid in full, Sublessor shall have no obligation to consider or act upon Subtenant's request to make
such alterations, additions or improvements.
18. Liens. Sublessor hereby notifies all mechanics, materialmen and other lienors that pursuant
to Florida Statutes §713.10, any liens under Florida Statutes Chapter 713 shall extend to, and only
to, the right, title and interest of the person who contracts for the improvement in question and
that neither the interest of Sublessor, Landlord nor any superior interest in the Sublease Premises,
Building or Project shall be subject to liens for any improvements, services or materials made by,
contracted for or otherwise authorized by Subtenant or by any employee, contractor or agent of
subtenant, and that Subtenant has no power, authority or permission to create any such lien.
Subtenant agrees that prior to contracting for or otherwise authorizing any improvements, services
or materials to be made in or delivered to the Sublease Premises, Subtenant shall notify the
applicable contractor of the foregoing provisions. Subtenant further agrees that upon request of
Sublessor, Subtenant shall execute a notice which sets forth the foregoing provisions, which notice
may be recorded by Sublessor or Landlord in the public records of the county where the Project is
located. Notwithstanding these provisions, Subtenant, at its expense, shall cause any lien filed
against the Sublease Premises, the Building or the Project for work or materials claimed to have
been furnished to Subtenant to be discharged of record or properly transferred to a bond under
§713.24, Florida Statutes, within ten days after notice to Subtenant. Further, Subtenant agrees to
indemnify, defend, and save Sublessor harmless from and against any damage or loss, including
reasonable attorneys' fees, incurred by Sublessor as a result of any liens or other claims arising out
of or related to work performed in the Sublease Premises by or on behalf of Subtenant.
19. Assignment and Subletting. Subtenant shall not mortgage, encumber, transfer, or assign
this Sublease in whole or in part, or further sublet or permit occupancy of the Sublease Premises,
or any part thereof or interest therein or enter into any other arrangement which does or may
require the consent of the Landlord, including any of the foregoing effected by operation of law
(each a "Transfer"), without the prior written consent of Sublessor and Landlord, which consent of
Sublessor shall not be unreasonably withheld. Sublessor's withholding of such consent shall be
deemed reasonable if Landlord does not consent for any reason. The sale or other transfer of any
partnership interest in or any capital stock of, or the issuance of any additional partnership interest
in or any capital stock of, Subtenant or any partner in Subtenant or any entity directly or indirectly
owning or controlling Subtenant or any partner in Subtenant shall be deemed a Transfer which
requires Sublessor's prior written consent, except with respect to capital stock which is publicly
traded. No Transfer shall relieve Subtenant from any of its obligations under this Sublease.
Notwithstanding anything to the contrary contained herein, Sublessor shall have the option,
exercisable by notice to Subtenant, to recapture all of the Sublease Premises, or at the option of
Sublessor, the portion of the Premises subject to the proposed Transfer in the event that less than
all of the Premises is subject to the proposed Transfer. Such recapture notice shall cancel and
terminate this Sublease with respect to the space being recaptured as of effective date of the
proposed Transfer. If this Sublease shall be canceled with respect to less than all of the Sublease
Premises, then the Base Rent and the Additional Rent shall be prorated on the basis of the number
of net rentable square feet retained by Subtenant in proportion to the number of net rentable
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square feet contained in the Sublease Premises and this Sublease as so modified shall continue in
full force and effect. If consent is once given by Sublessor to a Transfer, Sublessor shall not be
barred or in any way limited from subsequently refusing to consent to any further or subsequent
Transfer.
20. Access to Premises. Subtenant shall allow Sublessor and Landlord, their agents,
contractors, or employees access to the Sublease Premises throughout the Term at all reasonable
times with reasonable prior notice for the purpose of inspecting or of making any repairs,
additions, improvements, or alterations to the Sublease Premises or adjacent portions of the Project
or any property owned by or under the control of either party, or to exhibit the Sublease Premises
to prospective purchasers of the Project, or (during the last 12 months of the Term) to prospective
tenants, assignees, and/or subtenants.
21. Default of Subtenant.
21.1 Events of Default: If (a) any rents or other payment reserved, including, without
limitation, Base Rent, Percentage Rent , or any part thereof, become due and remain unpaid for
more than three (3) days after the same is due and payable, (b) Subtenant fails to maintain the
insurance required under this Sublease, (c) there is a Transfer of this Sublease or Subtenant's rights
hereunder without the prior consent of Sublessor and Landlord, (d) Subtenant shall vacate or
abandon the Sublease Premises, (e) Subtenant becomes bankrupt or insolvent or makes a general
assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any debtor
proceedings shall be taken by or against Subtenant; (f) a receiver or trustee in bankruptcy is
appointed for Subtenant's property and the appointment is not vacated and set aside within thirty
(30) days from the date of the appointment; or (g) Subtenant violates or defaults in any other
provision(s) of this Sublease, and fails to cure or remedy the same within fifteen (15) days after
Sublessor or Landlord shall have given Subtenant written notice specifying such violation or
default, then in any of such events, Landlord or Sublessor, as the case may be, may exercise all
rights and remedies available under the Prime Lease and at law and equity.
21.2 Acceleration. If Landlord and Sublessor elect to terminate this Sublease pursuant to
this Section 21, they shall have the option, to be exercised in their sole discretion, to declare the
entire balance of all forms of rent due under this Sublease for the remainder of the Term to be
forthwith due and payable and may collect the then present value of the rents (calculated using a
discount rate equal to 400 basis points over the yield then obtainable from the United States
Treasury Bill or Note with a maturity date closest to the date of expiration of the Term). If
Sublessor exercises its remedy to retake possession of the Sublease Premises and collects from
Subtenant all forms of rent owed for the remainder of the Term, Sublessor shall account to
Subtenant, at the date of the expiration of the Term, for amounts actually collected by Sublessor as
a result of a reletting, net of Subtenant's obligations as specified above. Termination of this
Sublease requires the consent of the Landlord and Sublessor.
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21.3 Sublessor's Right to Cure. If Subtenant fails to perform any of its obligations under
this Sublease in accordance with the terms hereof, then, after five (5) days' written notice to
Subtenant and after the lapse of the applicable cure period, if any, provided for under this Sublease
for defaults (except in case of emergency, in which event no prior notice shall be required),
Sublessor may but shall not be obligated to cure such failure for the account of and at the expense
of Subtenant, and the amount of any costs, payments or expenses incurred by Sublessor in
connection with such cure (including reasonable attorneys' fees) shall be payable by Subtenant to
Sublessor as additional rent on demand, with interest thereon at the Default Rate (as defined
below). Sublessor shall be provided with a thirty (30) day period to cure any defaults under the
Prime Lease and the Sublease.
21.4 Late Charges. If any payment due to Landlord or Sublessor under this Sublease
shall not be paid within five (5) days of the date when due, Subtenant shall pay, in addition to the
payment then due, an administrative charge equal to five percent (5%) of the past due payment.
All payments due Sublessor under this Sublease shall bear interest at a rate (the "Default Rate")
equal to the lesser of: (i) the default rate provided in the Prime Lease, which is one and one-half
percent (1 1/2%) per month (18% per annum), or (ii) the maximum rate allowed by law, accruing
from the date the obligation arose through the date payment is actually received by Sublessor.
21.5 No Accord and Satisfaction. No payment by Subtenant or receipt by Landlord or
Sublessor of any lesser amount than the amount stipulated to be paid hereunder shall be deemed
other than on account of the earliest stipulated Base Rent, Additional Rent, or other sums due
under this Sublease; nor shall any endorsement or statement on any check or letter be deemed an
accord and satisfaction, and Sublessor and Landlord's right to recover the balance due or to pursue
any other remedy available to Sublessor or Landlord shall not be limited thereby.
21.6 Waivers. No failure by Sublessor to insist upon the strict performance of any term,
covenant, agreement, provision, condition, or limitation of this Sublease or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance by Sublessor of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any such breach or of any
such term, covenant, agreement, provision, condition or limitation. No term, covenant, agreement,
provision, condition, or limitation of this Sublease to be kept, observed, or performed by
Subtenant, and no breach thereof, shall be waived, altered, or modified except by a written
instrument executed by Sublessor. No waiver of any breach shall affect or alter this Sublease, but
each and every term, covenant, agreement, provision, condition, and limitation of this Sublease
shall continue in full force and effect as to any other then existing or subsequent breach thereof.
21.7 Remedies Cumulative. The remedies provided in this Sublease or presently or
hereafter existing at law or in equity shall be cumulative and concurrent, and may be exercised as
often as occasion therefor shall occur. No single or partial exercise by Sublessor of any remedy
shall preclude any other or further exercise of that remedy or of any other remedy.
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22. End of Term.
22.1 Surrender. Subtenant shall, at the termination or expiration of this Sublease,
surrender the keys to the Sublease Premises to Sublessor. Subtenant shall surrender the Sublease
Premises at the expiration or sooner termination of the Sublease Term vacant, free of all
occupancies and tenancies, free of all Subtenant's personal property and equipment, broom clean,
and in the same condition as when Subtenant took possession, reasonable wear and tear excepted.
Tenant's alterations and improvements shall remain to the extent required by the Prime Lease.
Upon the expiration of this Sublease, or if Sublessor or the Landlord re-enters or re-takes
possession of the Sublease Premises prior to normal expiration of this Sublease, Sublessor or the
Landlord shall have the right, but not the obligation, to remove from the Sublease Premises all
personal property located therein belonging to Subtenant, and either party may place the property
in storage at the expense and risk of Subtenant.
22.2 Holding Over. Any holding over at the expiration or sooner termination of this
Sublease with the consent of Sublessor shall at Sublessor's option be on a month-to-month basis at
double the monthly Base Rent prior to the expiration or sooner termination hereof, which tenancy
may thereafter be terminated as provided by the laws of the state in which the Sublease Premises
are located. During any holdover without Sublessor's consent, Subtenant shall pay as fair rental
value damages double the rate of rental on a monthly basis as was in effect immediately prior to
the termination of this Sublease, plus any other damages, consequential or otherwise, suffered by
Landlord and Sublessor and arising from or out of, or in connection with, such holdover, and shall
be bound by all the terms and conditions of this Sublease. Subtenant shall defend, indemnify, and
hold harmless Sublessor from any damages, losses, costs and expenses (including reasonable
attorneys' fees) resulting from such holdover.
23. Successors and Assigns. The covenants and agreements of this Sublease shall be binding
on and inure to the benefit of the successors, assigns, and transferees of Sublessor and the
permitted successors, assigns, and transferees of Subtenant.
24. Notices. All notices, demands, requests, consents, approvals or other communications
(collectively, "Notices") required or permitted to be given hereunder or which are given with
respect to this Sublease shall be effective only if in writing and delivered by personal service, or
delivered to an overnight courier service with guaranteed next day delivery or mailed by
registered or certified mail, return receipt requested, postage prepaid, addressed as hereinafter
provided. Any Notice to any of the parties hereto shall be provided to:
If to Landlord: City Manager and City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
If to Sublessor: American Federated Title Corp. as Trustee
ATTN: Dr. Robert M. Cornfeld, President
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American Federated Title Corporation
3850 Hollywood Boulevard, Suite 400
Hollywood, Florida 33021
If to Subtenant: Beach Bar @ Newport Pier
ATTN: Paul Flanigan
1015 SE 16th Street
Fort Lauderdale,FL 33316
Any party may change its address for Notices by Notice to the other party. The aforesaid attorneys
for the parties hereto are hereby respectively authorized to give any Notice permitted under this
Sublease. Any Notice given as provided herein shall be deemed received as follows: if delivered
by personal service, on the date so delivered; if delivered to an overnight courier service, on the
business day immediately following delivery to such service; and if mailed, on the third business
day after mailing. Rejection or other refusal to accept or the inability to deliver any Notice because
of a changed address of which no Notice was given shall be deemed to be receipt of the Notice
sent.
Any Notices required under Section 83.20, Florida Statutes, shall be deemed to have been
fully given, made, sent, and received if sent in compliance with this section.
25. Radon Gas. Subtenant is hereby advised that 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. The foregoing disclosure is provided
to comply with state law and is for informational purposes only and does not create any
representation, warranty, liability or obligation of Sublessor.
26. Estoppel Certificates. From time to time, Subtenant, within five (5) days' after written
request therefor from Sublessor, shall execute and deliver to Sublessor an estoppel certificate in a
form generally consistent with the requirements of institutional lenders or as otherwise required
by Sublessor or Landlord and certified to Sublessor, Landlord, and any lender, purchaser, or
prospective purchaser of the interest of Sublessor. In addition, if requested, Subtenant shall
provide any financial information concerning Subtenant and Subtenant's business operations that
may be reasonably requested by Sublessor, Landlord or any lender, purchaser, or prospective
purchaser of the interest of Sublessor. Any such statement, delivered pursuant to this Sublease
may be relied upon by Sublessor, Landlord, and any owner, prospective purchaser, lender, or
prospective lender.
27. Subordination. This Sublease and all of Subtenant's rights hereunder are subject and
subordinate to the Prime Lease and all ground or underlying leases, and mortgages which may
now or hereafter affect the Project or the real property on which the same is situate or any interest
therein, to all renewals, modifications, consolidations, replacements and extensions thereof, and to
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all rights, interests, and title of any lender, mortgagee, fee title holder, or ground lessor secured
thereby. The foregoing provisions shall be self-operative and no further instrument of
subordination shall be required to give effect to the same. Within five days' after written request
therefor from Sublessor, Subtenant shall execute and deliver to Sublessor or to such other party as
Sublessor may direct, a subordination agreement confirming such subordination and containing
such other provisions as are generally consistent with the requirements of institutional lenders or
as otherwise required by Sublessor or Landlord.
28. Brokers. Landlord, Sublessor and Subtenant each represents that it has not dealt with any
brokers in connection with this Sublease. Each party agrees with the other to indemnify and hold
the other harmless from and against any and all loss, liability, damage, cost, and expense
(including court costs and reasonable attorneys' fees) which the other may incur or sustain in
connection with any claim or action arising out of any fact or occurrence that would constitute a
breach by such indemnifying party of any representation, warranty or agreement contained in this
Section 28.
29. Subtenant's Representations. Subtenant represents and warrants as follows: (i) Subtenant
is duly organized, validly existing, and in good standing under the laws of the State in which it
was formed and is duly qualified to transact business in the State in which the Sublease Premises
are located; (ii) Subtenant has full power to execute, deliver, and perform its obligations under this
Sublease; (iii) The execution and delivery of this Sublease, and the performance by Subtenant of its
obligations under this Sublease, have been duly authorized by all necessary action of Subtenant,
and do not contravene or conflict with any provisions of Subtenant's Articles of Incorporation or
Bylaws, or any other agreement binding on Subtenant; (iv) the individual executing this Sublease
on behalf of Subtenant has full authority to do so; (v) Subtenant's financial statements and the
information describing Subtenants' business and background previously furnished to Sublessor
were at the time given true and correct in all material respects and there have been no adverse
material changes to the information subsequent to the date given. On or prior to the
Commencement Date, Subtenant shall deliver to Sublessor and Landlord evidence that Subtenant
is duly qualified to transact business in the State in which the Sublease Premises are located.
30. Impossibility of Performance. For purposes of this Sublease, the term "Unavoidable
Delay" shall mean any delays due to strikes, lockouts, civil commotion, warlike operations,
invasion, rebellion, hostilities, military or usurped power, sabotage, government regulations or
controls, inability to obtain any material, utility, or service because of governmental restrictions,
hurricanes, floods, or other natural disasters, acts of God, or any other cause beyond the direct
control of the party delayed (not including the insolvency or financial condition of that party or the
increased cost of obtaining labor and materials). Notwithstanding anything in this Sublease to the
contrary, if Subtenant or Sublessor shall be delayed in the performance of any act required under
this Sublease by reason of any Unavoidable Delay, then provided notice of the Unavoidable Delay
is given to the other party within ten (10) days after its occurrence, performance of the act shall be
excused for the period of the delay and the period for the performance of the act shall be extended
for a reasonable period, in no event to exceed a period equivalent to the period of the delay;
provided that, if the Prime Lease does not excuse Sublessor from the performance of any
17
obligation of Sublessor under the Prime Lease for an Unavoidable Delay described above, then
Subtenant shall correspondingly not be excused under this section or this Sublease with respect to
the same Unavoidable Delay for which Sublessor is not excused under the Prime Lease.
31. Signage. Subtenant shall not erect any sign on or about the Project or visible from the
exterior of the Sublease Premises without both Subtenant's and Landlord's prior written approval,
subject to the further requirements of the Prime Lease.
32. Attorney's Fees. In any suit, action, or other proceeding, including arbitration or
bankruptcy, arising out of or in any manner relating to this Sublease, the Sublease Premises, or the
Project (including (a) the enforcement or interpretation of either party's rights or obligations under
this Sublease whether in contract, tort, or both, or (b) the declaration of any rights or obligations
under this Sublease) the prevailing party, as determined by the court or arbitrator, shall be entitled
to recover from the losing party reasonable attorneys' fees and disbursements (including
disbursements that would not otherwise be taxable as costs in the proceeding). In addition, if
Sublessor becomes a party to any suit or proceeding affecting the Sublease Premises or involving
this Sublease or Subtenant's interest under this Sublease or the Prime Lease, other than a suit
between Sublessor and Subtenant, or if Sublessor engages counsel to collect any of the amounts
owed under this Sublease, or to enforce performance of any of the agreements, conditions,
covenants, provisions, or stipulations of this Sublease, without commencing litigation, then the
costs, expenses, and reasonable attorneys' fees and disbursements incurred by Sublessor shall be
paid to Sublessor by Subtenant. All references in this Sublease to attorneys' fees shall be deemed
to include all legal assistants', paralegals', and law clerks' fees and shall include all fees incurred
through all post-judgment and appellate levels and in connection with collection, arbitration, and
bankruptcy proceedings.
33. Books and Records.
33.1 Tenant's Records. Subtenant shall prepare and keep full, complete and proper books
and source documents, in accordance with generally accepted accounting principles, of Gross
Sales , whether for cash, credit or otherwise, of each separate department at any time operated in
the Sublease Premises and of the operations of each subtenant, concessionaire, licensee and/or
assignee, if any, and shall require and cause all such parties to prepare and keep books, source
documents, records and accounts sufficient to substantiate those kept by Subtenant. The books
and source documents to be kept by Subtenant shall include, without limitation, true copies of all
Federal, State and local tax returns and reports, records of inventories and receipts of merchandise,
daily receipts from all sales and other pertinent original sales records and records of any other
transactions conducted in or from the Sublease Premises by Subtenant and any other persons
conducting business in or from the Sublease Premises. Pertinent original sales records shall
include, without limitation: (i) cash register tapes, including tapes from temporary registers, (ii)
serially pre-numbered sales slips, (iii) the original records of all mail and telephone orders at and
to the Sublease Premises, (iv) settlement report sheets of transactions with subtenants,
concessionaires, licensees and assignees, (v) original records indicating that merchandise returned
by customers was purchased at the Sublease Premises by such customers, (vi) memorandum
18
receipts or other records of merchandise taken out on approval, (vii) detailed original records of
any exclusions or deductions from Gross Sales (viii) sales tax records, and (ix) such other sales
records, if any, which would normally be examined by an independent accountant pursuant to
accepted auditing standards in performing an audit of Subtenant's sales. Subtenant shall record at
the time of each sale or other transaction, in the presence of the customer, all receipts from such
sale or other transaction, whether for cash, credit or otherwise, in a cash register or cash registers
having a cumulative total which shall be sealed in a manner approved by Sublessor and which
shall possess such other features as shall be required by Sublessor. All of the foregoing books,
source documents and records shall be retained for a period of at least four (4) years after the
expiration of each lease year.
33.2 Reports By Subtenant. Subtenant shall furnish to Sublessor within thirty (30) days
after the expiration of each lease year a complete statement, certified by an independent certified
public accountant, showing in all reasonable detail the amount of such Gross Sales made by
Subtenant from the Sublease Premises during the preceding lease year. Subtenant shall in all
events furnish to Sublessor within five (5) days after the end of each month of the term of this
Sublease a written statement of Gross Sales covering the preceding month, the statement to be in
such form and style and contain such details and breakdown as the Subtenant may reasonably
require. Subtenant shall require and cause all its concessionaires, if any, to furnish statements at
the times and in the form and content specified in this Section, relating to their operations within
the Sublease Premises. All reports of Gross Sales submitted or caused to be submitted by
Subtenant to Sublessor shall be conclusive and binding upon Subtenant unless such reports are
corrected within two (2) years after the date of issuance. The term "concessionaire" as used in this
Sublease shall mean and include any and all concessionaires, licensees, franchisees, department
operators, subtenants, permittees or others directly or indirectly operating or conducting a
business in or from the Sublease Premises.
34. Miscellaneous.
34.1 Severability. In the event any one or more of the provisions contained in this
Sublease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision of this Sublease, but
this Sublease shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein. Furthermore, in the event that the application of any provision of this
Sublease to any person or circumstance shall for any reason be held to be invalid, illegal or
unenforceable, in whole or in part, or in any respect or to any extent, then, and in any event, such
invalidity, illegality or unenforceability shall not be deemed to affect the application of such
provision to the extent that such application is legal, valid and enforceable nor the application of
such provision to any person or entity or circumstance against whom or which such application is
legal, valid and enforceable.
34.2 Entire Agreement. This Sublease contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any and all prior and contemporaneous
19
negotiations, representations, understandings and agreements, whether written or oral, all of
which are merged into this Sublease.
34.3 Survival. All of the provisions of this Sublease which could require enforcement or
application after the expiration or any earlier termination of this Sublease (including, without
limitation, all indemnities contained in this Sublease) shall survive the expiration or any earlier
termination of this Sublease.
34.4 Time of the Essence. Time is of the essence for each of the parties to perform its
obligations under this Sublease.
34.5 Interpretation. The captions used in this Sublease are for convenience of reference
only and shall not be construed to extend, limit or modify the scope or meaning of the respective
paragraphs to which they relate. This Sublease shall not be construed more strictly against one
party than against the other merely by virtue of the fact that this Sublease may have been
physically prepared by one of the parties, or such party's counsel, it being agreed that all parties
and their respective counsel have mutually participated in the negotiation and preparation of this
Sublease.
34.6 No Recording. Neither this Sublease nor any notice or memorandum hereof shall
be recorded or otherwise filed, and any attempt by or on behalf of Subtenant to do so shall
constitute a default under this Sublease and shall entitle Sublessor to exercise any and all remedies
provided for herein, at law and/or in equity.
34.7 Counterparts. This Sublease may be executed in one or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making proof of this Sublease to
produce or account for more than one such counterpart, executed by all of the parties hereto.
34.8 Modifications; Waivers; Remedies Cumulative. No amendment, modification,
waiver or discharge of this Sublease, or any provision hereof (including, without limitation, this
sentence) shall be valid or effective unless in writing and signed by the party against whom
enforcement of such amendment, modification, waiver or discharge is sought and then only to the
extent set forth in such writing. No delay or omission of any party in exercising any right, power
or remedy accruing under or pursuant to this Sublease, at law, in equity, or otherwise, shall
exhaust or impair any right, power or remedy of any party or shall be construed to waive any such
right, power or remedy. Every right, power and remedy of the parties under this Sublease may be
exercised from time to time and as often as may be deemed expedient by any party in its sole
discretion. No right, power or remedy conferred upon or reserved to the parties is exclusive of any
other right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and remedy given
under this Sublease or under any other instrument executed in connection herewith, or now or
hereafter existing at law, in equity, or otherwise. No obligation of any party under this Sublease
shall be deemed waived by arty course or pattern of conduct by any party.
20
34.9 Relationship. Nothing herein shall be deemed to create any partnership, joint
venture, or principal-agent relationship between the parties, and neither party shall act toward
third parties or the public in any manner which would indicate any such relationship other than
landlord-tenant.
34.10 Governing Law. This Sublease shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Florida, excluding its choice of law principles.
Venue for any dispute shall be in Miami-Dade County, Florida.
34.11 Mediation. Sublessor and Subtenant agree that if a dispute develops between them
arising from or in connection with this Sublease or the Prime Lease, they will submit to non-
binding mediation to address any controversy or claim arising out of, or relating to this Sublease or
the Prime Lease and the Landlord shall serve as the mediator. Prior to the beginning of the
mediation process, Sublessor and Subtenant may agree that if there is one or more disputed items
that remain unresolved at the end of the mediation, the parties will proceed with binding
mediation where the mediator will render a final and binding decision on those unresolved items.
If agreed to, the Settlement Agreement shall be binding upon the parties and shall be enforceable
in any court of competent jurisdiction. Both parties shall share the cost of the dispute resolution
process equally.
34.12 Facsimile Execution. Facsimile copies (i.e., telecopies) of counterparts of this
Sublease, executed by all of the parties hereto, shall be considered for all purposes, including
delivery, as originals.
35. Jury Trial Waiver. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE
OR DEFEND ANY RIGHT, POWER, REMEDY OR DEFENSE ARISING OUT OF OR
RELATED TO THIS SUBLEASE, WHETHER SOUNDING IN TORT OR CONTRACT OR
OTHERWISE, OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY RELATING TO THIS SUBLEASE; AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF
THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY
SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER
LITIGATION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.
FURTHER, EACH OF THE PARTIES HERETO HEREBY CERTIFIES THAT NO OTHER
PARTY NOR ANY REPRESENTATIVES, AGENTS OR ATTORNEYS OF ANY OTHER PARTY
HAS REPRESENTED,EXPRESSLY OR OTHERWISE,THAT IT WOULD NOT,IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THE
PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO THE
ACCEPTANCE OF THIS SUBLEASE BY THE OTHER PARTIES HERETO.
21
IN WITNESS WHEREOF, the parties have signed this Sublease under seal as of the day
and date first ab,ve written.
E '.ES: LANDLORD:
.= ..4..-- CITY OF SUNNY ISLES BEACH,
With•ss to si IA above FLORIDA
Print ame: y 0 ,E1-4.0i&ie._
By�U�i1�i�
Witness to sign a ove Norman S.Edelcup,Mayor
Print name: U
e21 1
L
�` � SUBLESSOR:
/Z..,, , ' i ��i'�.�, AMERI f • N FEDERATE I1 ITLE CORP,
Witness to sign above as trus'- ,er Flori. . Lan. T t#3 1
Print name -Mkt l/\(c,2r24S,4s.,"!
-deu,� � a, By:
Witness to sign above Robert i .Comfeld,7Mident
Print name: 1.4s+vn�".-Z L . sa elver&
SUBTENANT:
I / (/ties vl4C4ti ill BEACH BAR Q NEWPORT PIER,LLC, a Florida
Witness t sign above limited liability company
Print name:
MiMes M60140 ArA By: ..�
Witness to sign above .. 1.'t Zaffere, President
Print name: .,
, );f/ ._-
By i '
Pahri'B. Flanigan, Vice President .
r
22
EXHIBIT"A"
MENU OF
Dive I .
Attached
A-1
Quarterdeck Restaurants I Food Menu Page 1 of 3
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Food Menu
Starters Sandwiches
Crab Cake Fritters 10.99 All sandwiches served with macaroni and cheese,
french fries,tater tots or cole slaw.
Buffalo Shrimp 10.99 Dolphin Reuben 11.99
With Blue Cheese Dressing P
Chicken Wings or Boneless Wings 8.99 Tuna Philly Sandwich 11.99
(10) Mild, Medium, Hot, Honey Garlic,Teriyaki or BBQ (Yellowfin Tuna)With Peppers, Onions,and
Served with Celery,Carrots and Blue Cheese White Wasabi Sauce
Smoked Fish Dip 7.99 Philly Sandwich 9.99
With Tortilla Chips,Carrots and Celery. (Steak or Chicken)With Mushrooms and Onions
Conch Fritters 6.99 Buffalo Chicken Sandwich 8.99
(Hot, Medium or Mild)
Breaded Chicken Tenders 6.99 Tuna Melt 8.99
Fried Mozzarella Sticks 5.99 (Served Open-Faced)With Tomato and Swiss Cheese
Artichoke Spinach Crab Dip. 9.99 Grilled Cheese Sandwich 8.99
With Tortilla Chips With Tomato and Bacon on Country Loaf
Fried Calamari 11.99 Turkey Club... 8.99
(Feeds 3-4)With Pepperoncini Peppers
May Be Ordered Tossed in Hot, Medium or Mild Wing Sauce Chicken Caesar Wrap 8.99
Endamame Hummus 8.99 Ciabatta Sandwich 10.99
With Fresh Fish,Chicken or Portabella Mushroom
and Buffalo Mozzarella,Cappicola Ham and
SFresh Basil
Soups
Hot Pastrami Sandwich 10.99
Soup of the Day, Clam Chowder, Conch Italian Beef Dip 11.99
Chowder, Lobster Bisque, Chili or French Tender,Juicy,Thinly Sliced Roast Beef with Au Jus
Onion 4.25
Crab Cake Club 10.99
Stone Crab Chowder 5.25
Chili 5.25
Lobster &Shrimp Pot Pie 9.99
Handmade Burgers
All burgers are served with macaroni and cheese,french fries,tater tots or cole slaw.
Patty Melt(With Swiss Cheese) 9.99 Free Toppings:
Sauteed onions, sautéed mushrooms, pickle spear, cole slaw,
CLASSIC ROLLS
Hand/Roll Hand/Roll
Tuna Roll 4/7 Salmon Skin Roll 5/7
Salmon Roll 4/7 Shrimp Roll 5/7
Ilk.' California Roll 4/6 Eel Avocado Roll 5/8
Spicy Crab Roll 4/8 Hamachi Scallions Roll 518
• / JB Roll 4/8 Smoked Salmon Roll 5/8
Spicy Tuna Roll 5/8 Ikura(Salmon Caviar)Roll...5/8
Y Vegetable Roll 4/6 Any roll con be mode L'0 with sesame(L00;,
�`
R e s t I VL I a n t 1/O with flying fish egg().00)or with brown nr a 17.00'
"SUSHI MIKE" CREATIVE ROLLS
S U S I—I I Tuna Crunchy av Tuna
Tuna.avocado,scallion,tempura style.wasabi&wild pepper sauce 15
JB Deluxe 17
Salmon,scallions,cream cheese,tempura&spicy crabmeat on top
SOUPS Tiger Roll 21
Shrimp tempura,cream cheese&masago with crab meat,avocado and eel on top
Miso Soup 3 Miso Crab 4 Rainbow 12
Avocado,fish egg,cream cheese inside&tuna.salmon,white fish on top
SALADS Spider 17
Deep fried soft shell crab,lettuce,avocado,asparagus,fish egg&eel sauce
Green Salad 3 Mexican(I/O Sesame Seed) 12
Seaweed Salad 6 Shrimp tempura,lettuce,scallions,avocado&spicy sauce
Avocado Salad 10 Volcano 15
Crab,cucumber,avocado&conch dynamite on top
Spicy Tuna Salad 13 Red Dragon 23
Tuna,vegetables&spicy sauce
Shrimp tempura,spicy tuna,avocado&topped with seared tuna
APPETIZERS Dancing Shrimp 13
Avocado,masago,cream cheese inside&shrimp on top
Edamame 6 Crazy(I/O Fish Egg) 13
Shrimp tempura,eel,cream cheese,avocado,scallions,asparagus&eel sauce
Spicy Conch&Octopus 10 Dragon 15
Sliced cucumber,masago,scallion&kimchee sauce Eel,scallions,shrimp tempura,masago,cream cheese,&avocado on top
Sunomono 12 Lover Story 19
Conch,crab,shrimp,octopus,cucumber, Shrimp tempura,avocado,lettuce,scallop dynamite on top
masago&ponzu sauce
Bahama Roll 23
Sushi Appetizer 12 Tuna,salmon,tamago,avocado&topped with spicy conch salad
spcs.chefs choice Mike's Lobster Roll 25
Tuna Tataki 15 Shrimp tempura and fish eggs with avocado and Maine lobster on top
Hurricane Roll 15
Lobster stuffed spring rolls served with dipping sauce RICELESS ROLLS (Served l'ntf7PorizusaurOi
Tuna or Salmon Sashimi Appetizer. 17
9pcs. B&B Roll 13
Buffalo Tuna Tartar 15 Crab meat,masago,avocado,wrap with hand peeled cucumber
Spicy tuna,tempura flakes,masago and scallions KC ROII 14
m
Salmon,crab meat,scallions,wrap with hand peeled cucumber
Dive Bar Sashimi. 17 CJ Roll 17
New style sashimi Tuna,salmon,white fish,crab,tomago,asparagus,shrimp&light tempura&Dive sauce
SUSHI & SASHIMI Dive Roll 20
Tuna,salmon,white fish,crab,masago,&vegetable with seaweed
Tuna,Salmon,Hamachi,Eel,Shrimp,Conch, Jupiter Roll 20
Octopus,Ika,Smoked Salmon,Wahoo,Cobia, Tuna,salmon,hamachi,crab.asparagus,scallions&wrapped in cucumber
Masago,Escolar,Snapper,Mackerel 2.50
Sweet Shrimp,Scallop,Ikura(Salmon Roe)4.50 DINNERS
Uni,Toro (MP) Entrees served with miso soup or salad.All sushi&sashimi chef's choice (Brown rice with sushi.50)
Maki Corn 24
LUNCH BENTO BOXES California roll,tuna roll,salmon roll&avocado roll
Sushi Deluxe 27
11:00 am-4:00 pm Served with miso soup or salad California roll with 10pcs,assorted sushi
Vegetarian Bento Box 12 Sashimi Deluxe 29
spcs.of vegetarian sushi&two daily vegetables 16pcs.assorted sashimi chef's choice
Maki Bento Box 13 Sushi&Sashimi Combo 29
Tuna roll,avocado roll,4pcs.Cal roll,&two daily specials Shrimp tempura,9pcs.sashimi,spcs.sushi
Sushi Bento Box 14 Chirashi 27
Tuna roll,Spcs.of sushi,&two daily specials Sushi rice topped w/assorted sashimi&vegetables
Sashimi Bento Box 15 Unagi Don 29
9pcs.of sashimi,4pcs.Cal roll&two daily specials 68Q eel over rice w/eel sauce&sesame seeds
Chirashi Zushi Bento Box 15 CHEF'S CREATIVE BOATS
9pcs.of sashimi,sushi rice&two daily specials
Sushi&Sashimi Bento Box 15 All sushi&sashimi chef's choice (Brown rice with sushi.50)
3pcs.of sushi,6pcs.sashimi,4pcs.Cal roll&two The Sashimi Lovers(Serves Two) 55
daily specials 35pcs.assorted sashimi
(Brown rice with sushi.50) The Love Boat(Serves Two) 60
---- Shrimp tempura roll,spicy tuna roll,l0pcs.sushi&16pcs.sashimi
All Seafood is Subject To Season, 1 The Blue OH Boat(Serves Three) 100
Weather,and Fishing Conditions - Spider roll,rainbow roll,Mexican roll,18pcs sushi&2Opcs.sashimi
LATITUDE:26°55'51.0384" The Titanic(Serves Four) 130
LONGITUDE:-80'4'49.1304" Shrimp tempura roll,dragon roll,dancing shrimp roll,spicy tuna roll,24pcs.sushi&2tpcs.sashimi
www.divebarrestaurant.com Health Advisory•The consumption of row or undercooked meats,poultry.seafood,shellfish or eggs may increase
your risk of food borne illness,especially if you have certoin medico!conditions.
'1rea� 'virfi, can came-c f✓e wee-of gravify to b14 edeu■der4.kfe ie bo!fed ft eadG,.
NI-eao,1+04 enly fe cinr:benunr fhe 5u4sea and 1,2 r9 ree' Socipes`lver:eJ4few
141Ittfai STARTERS
Jumbo Sea Scallops 20
R e s t 2l Y n t Flash fried bacon panko encrusted scallops with a white wine butter sauce
Oyster Rockefeller(half dozen) 12
Broiled fresh plump oysters,stuffed with roasted garlic pernod,creamed spinach&topped with
RAWBAR gruyere cheese
Crispy Calamari 12
Tender calamarr rings,lightly tempura battered then flash fried&served with a Thai sweet sour sauce
OYSTERS Bahamian Conch Fritters 10
Half Dozen/Dozen Pan fried style fitter served with mango pineapple habanera chutney
Louisiana 8/15 Ceviche 15
Gulf Coast Citrus marinated shrimp,scallops,mussels&domestic fish,plantain chips&fresh avocado
Malpeque 9/17 Fish Dip 12
Malpeque Bay,Prince Edward Island Local smoked fish served with celery,carrots,jalapenos&assorted flat breads
Blue Points 8/15 Shrimp Cocktail 21
Long Island,New York Six jumbo shrimp served with cocktail sauce and lemon
Edamame Hummus 10
CLAMS Edamame and chick pea hummus made in house and served with pita bread wedges,
celery and carrot sticks
Half Dozen/Dozen Grilled Kimchee Beef Tenderloin Tips 16
Middlenecks 7/13 Kimchee marinated beef tenderloin tips served with a sesame ponzu glaze
Florida
Top Necks 8/15 SANDWICHES
Northern New Jersey
All oysters and clams available raw or steamed. All sandwiches served with our American fries&cabbage slaw
Fresh Black&Bleu Mahi Sandwich 16
SOUPS Blackened Mahi topped with blue cheese crumbles and served on a Kaiser roll with lettuce,tomato,
onion and a mango tartar sauce
Lobster Bisque 8 Shrimp or Oyster Po Boy 12
Bahamian Conch Chowder 7 Lightly floured flash fried plump shrimp or oysters,shredded lettuce on fresh roll
Stone Crab Chowder 8 served with Cajun remoulade
Oyster Stew 8 Yellow Fin Tuna Burger 16
Hand pattied tuna,char grilled&served on Kaiser Roll with Wasabi mayo&Maui wowee salsa
American Bacon Cheeseburger 12
SALADS 10 oz.Black Angus Burger served on a toasted Kaiser roll,lettuce,tomato sweet onion
&half sour pickle
Caesar 9 Grilled Chicken Sandwich 12
Crisp romaine hearts,anchovy filets,parmesan Lightly seasoned grilled chicken breast topped with pepper jack cheese,bacon,avocado&tomato.
cheese croutons&traditional dressing Accompanied with black bean mayonnaise&served on stone ground multi-grain bread
(Add shrimp,chicken or fish of the cloy) Yacht Club Grilled Cheese Sandwich 10
Iceberg Wedge 8 Aged American cheddar,tomato onion marmalade,smoked bacon&golden griddled farmer's bread
Iceberg lettuce heart,crisp apple wood bacon. Maine Lobster Roll 18
chopped tomato&blue cheese crumbles Maine lobster salad chunks served on griddled roll,a New England Classic-
Spinach Salad 8 Mahi Mahi Tacos 16
Baby spinach,candied walnuts,shallots,bacon, Soft tortilla topped with Pan Seared,Cajun or Fried Mahi,shredded lettuce,cheddar cheese,
apples and blue cheese crumbles tossed in a pico de gallo&cilantro chive mayo.Served with pigeon pea rice
balsamic vinaigrette
House Sa greens, 6 ENTREES
Mixed field greens,tomato,cucumber&sweet onion
with your choice of dressing
Caprese 10 All entrees served with your choice of scalloped potato,pigeon pea rice,American fries,
Sliced buffalo mozzarella,local vine ripe tomato cabbage slow or vegetable of the day
&basil infused olive oil Peppercorn Seared Jumbo Sea Scallops 28
Dressings: Cracked black peppercorn scallops topped with a red onion marmalade and a citrus beurre blanc
Blue cheese,house vinaigrette,passion fruit vinaigrette "Calabash Style"Fried Seafood Platter 22
&green goddess Down south white corn battered fish of the day,bay scallops&firecracker shrimp served with
lemon dill aioli
DESSERTS Maryland Crab Cakes 26
Pan-seared Maryland style crab cake served with black bean remoulade&red pepper relish
Key Lime Mango Pie 7 Seafood Cioppino 28
Lightly stewed mussels,clams,shrimp,lobster,scallops&fish of the day in a white wine,pancetta,
Down Island Berry Cobbler 6 &saffron tomato broth over angel hair pasta served with asiago cheese grissini
Bimini Bread Pudding w/Rum Caramel Sauce6 Double Stuffed Chicken Breast 24
Triple Layer Chocolate Cake 8 Two tender chicken breasts stuffed with roasted red pepper,buffalo mozzarella&spinach.
Pan Fried and finished with sundried tomato&roasted chicken demi glaze.
Chocolate Chip Cookie Pie a la mode 8
Prime Center Cut Filet Mignon 38
All Seafood is Subject To Season,
Prime center cut filet mignon,topped with Cabernet demi glace
Weather,and Fishing Conditions ) Florida Citrus and Seafood Cobb Salad 20
Orange and grapefruit sections,shrimp,jumbo lump crab,romaine,bacon,blue cheese,avocado,
tomato,red onion&diced eggs.
LATITUDE: 26'55'51.0384"
LONGITUDE; -80 4'49.1304" Health Advisor There is a risk associated with uwo oysters,Advisory- consuming r ys you have chronic illness of the liver.
www.divebarrestaurant.com stomach or blood,or hove immune disorders,you ore at a greater risk of serious illness from raw oysters and
should eat oysters fully cooked.If unsure of your risk,consult a physician.
EXHIBIT"B"
PRIME LEASE
Attached
B-1
SUNNY, le
ti — v
) FIRST AMENDMENT TO THE LEASE AGREEMENT
I:,ETWEEN THE CITY OF SUNNY ISLES BEACH AND AMERICAN
or,u�. FEDERATED TITLE CORIF®RATI®N,AS TRUSTEE UNDER
IFL®I"IIilA LAN J> T i"UST #3258
THIS FT AMENDMENT ("Amendment") is made as of this of 1 ( 0,i/
2013 and shall be effective as of the Effective Date (as defined herein) by and among THE CITY
OF SUNNY ISLES BEACH, FLORIDA (hereinafter "Lessor") and AMERICAN FEDERATED
TITLE CORPORATION, AS TRUSTEE UNDER FLORIDA LAND TRUST# 3258, (hereinafter
"Lessee"),hereinafter collectively referred to as Parties.
WIITNIESSETH
WHEREAS, the Lessor and the Lessee entered into a Lease Agreement dated July 26,
2013 (the "Prime Lease") for the lease of restaurant facilities and a bait shop located at the Historic
Newport Fishing Pier ("Pier') with the address of 16501 Collins Avenue, Sunny Isles Beach,
Florida 33160 (the"Leased Premises"); and
WITIP AS, the Lessor has paid more than $5 Million Dollars to rebuild the Pier which
included a voluntary contribution of$2 Million dollars provided by the Lessee toward rebuilding
the Pier; and
WHEREAS, Section 25(j) of the Prime Lease allows the Lessor and Lessee to amend the
Prime Lease by written amendment; and
WHEREAS,the Lessor and the Lessee desire to execute a written amendment to the Prime
Lease.
NSW, THEREFORE, in consideration of the terms and conditions contained herein and
for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged,the Parties agree as follows:
1. IT corporation of I ecitalls. The above-referenced recitals are true and correct and
are incorporated herein.
2. Conflicting Provisions All other terms of a particular provision in the Prime
Lease not otherwise expressly modified herein shall remain in full force and affect. If there is any
conflict between the terms of the First Amendment and the Prime Lease, the terms set forth in the
First Amendment shall prevail and be given superior effect and priority.
3. Fundamental Lease Provisions. The term Premises shall include outdoor areas
adjacent to the building that may be used by Lessee for table dining purposes that do not extend
beyond the entrance gate to the fishing area of the Pier. The term Rent shall reflect an increase to
Fifteen Thousand ($15,000.00) per month subject to increases pursuant to the Consumer Price
Index set forth in the Prime Lease. Notwithstanding any provision in the Prime Lease, the Lessee
may serve food and drinks to customers beyond the entrance gate to the Pier provided that sit-
down or table services are not provided in such areas.
4. Use of Premises. Section 2(a) of the Prime Lease is amended to delete the
following provision: "No outdoor dining shall take place on the Premises or the Pier unless
approved by the City."
5. Rent and Rent Commencement Date. Section 4(a) of the Prime Lease is
amended to reflect an increase in the Base Monthly Rent from Ten Thousand Dollars
($10,000.00) to Fifteen Thousand ($15,000.00). The Rent Commencement Date reflected in
Section 4(c) of the Prime Lease shall be consistent with the date set forth in the Sublease
provided that the Sublease Agreement is approved by the City. If the Sublease Agreement is
not approved, the controlling date shall be the date in the Prime Lease regarding the Rent
Commencement Date. Section 4(b) of the Prime Lease is amended to reflect that "CPI
Increases" up to the five (5) year Rent Adjustment Period shall riot increase the Base Monthly
Rent more than the twelve and one half percent (12 Y2 %) from the Base Monthly Rent of the
prior Rent Adjustment Period.
6. Construction of Improvements. Sections 5(a) and 7(a) of the Prime Lease are
amended to reflect that the date for completion of the Improvements on the Leased Premises and
the opening of the restaurant facilities shall be the dates set forth in the Sublease Agreement
provided that the Sublease Agreement is approved by the City. If the Sublease Agreement is not
approved, the controlling dates shall be the dates in the Prime Lease, Notwithstanding any other
provision in the Prime Lease, the Lessor is required to provide written consent for the construction
of any improvements and such consent shall not be unreasonably withheld.
7. l'esen°vation of Space. Section 15(a) of the Prime Lease is amended to reflect that
the Lessor shall be provided with a working area within the second floor of the restaurant building
instead of the area within the bait shop to monitor activities on the Pier.
8. Cure Period. Sections 17(a) and 17(b) of the Prime Lease are amended to provide
the Lessee with a thirty day (30) right to cure any event that may constitute a default under the
Prime Lease. The thirty-day cure period shall commence upon written notice provided by Lessor
pursuant to Section 24 of the Prime Lease.
9. emovall of Property. Section 21(a) of the Prime Lease is amended to state that
Improvements on the Leased Premises shall not vest in Lessor unless Lessee fails to cure any
default under the Prime Lease and the Prime Lease is terminated.
10. Consequential Damages. To the fullest extent permitted by law, neither party
shall be liable to the other for any special, indirect, consequential, punitive or exemplary damages
resulting from the performance or non-performance of the Prime Lease and its Amendment
Agreement notwithstanding the fault, tort (including negligence,t strict liability or other basis of
legal liability of the party so released or whose liability is so }united and shall extend to the
officers, directors, employees, licensors, agents, subcontractors., vendors and related entities of
such party.
(SE m atnres on Following Page)
2
IN WI['INIESS WHEREOF, the parties hereto have caused this First Amendment to the Lease
Agreement to be executed on the date that the last party signs it.
ATTEST: CIITY OF SUNNY ISLES ►;,EACH,ftO1's iRA,a
Munnkknpall Corporation of the State of IFllorntdla
1 .
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Jane A.Hines,IVEIVIC,City Clerk No an S.Edelcup,May r s
APPRO IG�`.t�S T )FORM AND
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Hans 0 'ot,Ci `Attorney
WITNESS: AMERICAN FEDERATED TITLE
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`, CORPORA TION,AS TRUSTEE ER
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FLORID A LAND T NS
Signature I
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Print Name: / / /7
Dr. l�c�bert Co eld,Pre Wren F
3
LEASE AGREEMENT
BETWEEN THE CITY OF SUNNY ISLES BEACH(LESSOR OR CITY)
AND
AMERICAN FEDERATED TITLE CORPORATION AS TRUSTEE UNDER FLORIDA
LAND TRUST#3258(LESSEE)
FOR THE
RESTAURANT FACILITIES AND BAIT SHOP AT THE HISTORIC PIER
LOCATED AT
PIER PARK
16501 COLLINS AVENUE
SUNNY ISLES BEACH,FLORIDA
THIS LEASE AGREEMENT (the "L ease")is made and entered into this 24-Aday of
, 2013, by and between the CITY of SUNNY ISLES BEACH, a municipal
corpoeta of the State of Florida referred to as "CITY", or "LESSOR") and
AMERICAN FEDERATED TITLE CORP. AS TRUSTEE UNDER FLORIDA LAND TRUST
#3258,(hereinafter referred to as"LESSEE").
W►ITNESSETH:
WHEREAS,pursuant to Letter Agreement dated November 25,2008,the LESSOR and
DR. ROBERT CORNFELD, President of LESSEE, entered into a public/private partnership
agreement to rebuild the historic Newport Fishing Pier(the"Nen;and
WHEREAS, the partnership agreement requires President of LESSEE to contribute a
maximum of$2 Million Dollars to rebuild the Pier and the LESSOR to contribute more than$2
Million Dollars towards rebuilding the Pier;and
WHEREAS,the parties wish to amend the terms of the Letter Agreement,to provide the
LESSEE with the exclusive right to manage and operate the Pier, and to lease the restaurant
facilities and bait shop to the LESSEE;and
WHEREAS, LESSOR owns certain real property located in Miami-Dade County,
Florida as more particularly described in Exhibit "A", a copy is attached to this Lease and
incorporated herein by reference(the"Parcel") upon which LESSOR constructed a fishing Pier
as more particularly described in Exhibit"B", a copy of which is also attached to this Lease and
incorporated herein by reference;and
WHEREAS, LESSOR desires to lease to LESSEE, and LESSEE desires to lease from
LESSOR a portion of the Pier as more particularly described on Exhibit"C",a copy of which is
attached to this Lease and incorporated by reference and made a part hereof(the"Premises") for
the purpose stated in this Lease,subject to the terms and conditions of this Lease.
NOW THEREFORE,in consideration of the premises and mutual covenants hereinafter
contained to be observed and performed, the parties hereto do hereby covenant and agree as
follows:
SECTION 1. FUNDMENTAL LEASE PROVISIONS
The provisions in the Section shall be referred to in this Lease as the"Fundamental Lease
Provisions." Unless otherwise defined herein,capitalized terms used in this Lease shall have the
meanings listed in the Fundamental Lease Provisions.
Effective Date: The term Effective Date shall mean the date of mutual execution and
delivery of this Lease.
Rent Commencement Date: The date upon which LESSEE is required to make its initial
rent payment to the LESSOR.
2
•
•
Lessor City of Sunny Isles Beach
Attn:Finance Director
18070 Collins Avenue
Sunny Isles Beach,FL 33160
Imo: American Federated Title Corp.as Trustee
Attn: Robert M.Cornfeld
3850 Hollywood Boulevard,Suite 400
Hollywood,FL 33021
Lessee's Fed Tax ID No:
Premises: The restaurant facility, bait shop, and second floor of
restaurant facility located at 16501 Collins Avenue, Sunny
Isles Beach, FL 33160, as generally described in Exhibit
"C". Upon delivery of additional"outdoor dining"areas to
LESSEE, the term Premises shall include the outdoor
dining areas located on the North and Northwest/Southwest
areas of the restaurant and bait shop building.
Notwithstanding the foregoing,the term Premises shall not
include outdoor dining areas except if the LESSOR is able
to obtain permission from permitting agency to use such
area for dining purposes and the Rent is adjusted for use of
such areas for dining purposes.
Initial Term: 20(twenty)years,commencing on the Effective Date.
Renewal Terms: 3 (three) terms of 20 (twenty) years, and another 1 (one)
term of 10 (ten)years as provided in Section 4.The Initial
Term and any Renewal Terms,if exercised,are collectively
referred to herein as the"Term".
R,,,ant: Ten Thousand Dollars ($10,000.00) per month, subject to
adjustment as provided in Section 5. Rent may increase
upon the negotiating of the use of outdoor dining areas.
Permitted Use: Restaurant,bait shop and permitted ancillary uses.
SECTION 2. USE OF PREMISES AND CONDITIONS OF PREMISES.
(a) LESSEE shall use the Leased Premises solely for the Permitted Uses. The
Permitted Uses are retail sale of food items, alcoholic beverages, and fishing supplies to the
patrons of the Pier in compliance with federal,state,and local laws.LESSEE may not use the
Premises for any other purpose without obtaining the prior written consent of LESSOR,which
consent shall not be unreasonably withheld. Lessee shall sell only frozen bait at the bait shop.
Live bait shall not be sold at the bait shop.No outdoor dining shall take place on the Premises
or the Pier unless approved by the City.
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(b) LESSOR has constructed the
foundation,building shell and roof of the restaurant
facility and bait shop and delivered the restaurant facility and bait shop to LESSEE for finish
out,such finish out to be solely at LESSEE's cost.
SECTION 3. TERM OF LEASE AGREEMENT
(a) Team. The term("Initial Term')of the Lease shall be for a period of Twenty(20)
years beginning on the Effective Date and shall terminate on the same date as the Effective Date
in the Twentieth(20th)year unless sooner terminated or extended as provided in this Lease.
(b) Renewal Terms. The LESSEE shall have the option to renew this Lease for three
(3) additional Twenty (20) year periods and an additional Ten (10) year term, provided that
LESSEE is not in default at the time of renewal of the terms. If LESSEE is not in default,
LESSEE shall have the option to extend by giving LESSOR written notice of its election to
extend the term of this Lease not less than ninety(90)days prior to expiration of the Initial Term
or the then running Renewal Term. If the LESSEE fails after notice, to timely exercise a renewal
in the period or in the manner provided in this Lease, such renewal shall be deemed to have
lapsed and terminated, and shall be of no further force or effect without any action or notice
required on the part of the LESSEE. All of the terms and conditions of this Lease,other than the
amount of Rent, as discussed below, shall remain in full force and effect during each Renewal
Term.
SECTION 4. RENT
(a) Base Monthly Rent. For the right to lease the Premises, the LESSEE shall pay to
the LESSOR a guaranteed monthly payment of Ten Thousand Dollars ($10,000.00). (the "Base
Monthly Rent"). Base Monthly Rent shall be subject to annual increases in the Consumer Price
Index ("CPI") on the first day of the month of every fifth (5'h) year anniversary of the Lease
Term and such revised amount shall be referred to herein as the Base Monthly Rent. Rent is due
no later than the Fifteenth(15th)day of each month. Rent shall be made payable to the City of
Sunny Isles Beach C/O the City's Finance Department located at 18070 Collins Avenue, Sunny
Isles Beach, FL 33160. Rent shall commence upon the Rent Commencement Date as discussed
below. If outdoor dining is permitted on the Premises or the Pier, the parties shall negotiate an
additional rent for the use of the outdoor dining areas.
(b) CPI Increases. Commencing with the Base Monthly Rent due for the first month
of the fifth (5th) year anniversary of the Initial Term, and continuing every 5th anniversary
thereof for the Term of the Lease (a "Rent Adjustment Period"),the Base Monthly Rent shall
increase and shall be determined as follows: the Base Monthly Rent payable for the first month
of the Initial Term shall be multiplied by a fraction,the numerator of which shall be the CPI, as
defined below,for the month of the Initial Rent Adjustment Period(and continuing thereafter for
every Rent Adjustment Period,as the case may be), and the denominator of which shall be the
CPI for the Month of the Rent Commencement Date(and the CPI for the first month of the prior
Rent Adjustment Period, as the case may be. The sum so calculated shall constitute the new
monthly Base Monthly Rent until the following Rent Adjustment Period, but in no event shall
such new monthly Base Monthly Rent be less than the Base Monthly Rent for the prior Rent
Adjustment Period or represent an increase of more than fifteen percent (15%) from the Base
4
Monthly Rent of the prior Rent Adjustment Period. The following hypothetical is to be used
solely for illustrative purposed:
$10,000(Base Monthly X 230.280 (CPI in January 2013/ Ste Year Index) = $10.900
Rent on Effective Date) 211.080 (CPI in January 2008/Base Index) new Base Monthly
Rent
"CPI", as used herein, shall mean the Consumer Price Index for All urban Customers,
U.S. City Average(1982-84=100)published by the United States Department of Labor, Bureau
of Labor Statistics, or such equivalent index as may hereafter be published. If the Consumer
Price Index is discontinued or revised during the Lease year immediately preceding an
adjustment date, such other government index or computation with which it is replaced shall be
used to obtain substantially the same results as would be obtained if the Consumer Price Index
had not been so discontinued or revised. For purposes of computing the percentage increase in
the CPI for any applicable period, the CPI for the month nearest the commencement and
expiration dates of the applicable Term shall be used.
(c) Rent Commencement Date. The Rent Commencement Date shall be one hundred
eighty (180) days from the date the restaurant facility is opened for business or April 1, 2014,
whichever occurs first. Commencing on the Effective Date,LESSEE is obligated to use its best
possible efforts to diligently pursue and obtain on the earliest possible date all necessary building
permits and licenses at LESSEE's sole cost and expense to construct LESSEE's Improvements.
LESSEE's performance of this Lease shall not be excused under any circumstances if the failure
or inability to obtain such licenses or permits is due to the neglect or omission of LESSEE.
LESSOR shall provide LESSEE with all reasonable cooperation in obtaining such building
permits and licenses.
(d) Late Charge. If any installment of the Base Monthly Rent,any Imposition or any
other payment provided for under this Lease which is payable by LESSEE is not received by
LESSOR within fifteen (15) days after notice, LESSEE shall immediately pay LESSOR the
amount of Five Hundred ($500) Dollars as a late charge (the "Late Charge"). LESSOR and
LESSEE agree that the Late Charge represents a fair and reasonable estimate of the costs that
LESSOR will incur by reason of any such late payment by LESSEE. Acceptance of the Late
Charge by LESSOR shall not constitute a waiver of LESSEE's default with respect to the
overdue amount,not prevent LESSOR from exercising any other rights and remedies available to
LESSOR under this Lease.
(e) Interest on Overdue Amounts. The Base Monthly Rent and all other amounts due
LESSOR under this Lease which are not paid when due shall bear interest at a per annum rate
equal to the "Prime Rate" (or substantial equivalent) announced from time to time (as adjusted
monthly) plus 10 %, from the date due until paid; provided, however, that if such rate shall
exceed the lawful rate of interest which LESSOR is entitled to charge under applicable law,then
the per annum rate of interest on any such overdue amounts shall be the maximum rate permitted
by applicable law.
(f) Net Lease. Other than the Lessor's obligations set forth in this Lease,this Lease is
what is commonly called a"net lease",it being understood that LESSOR shall receive the Base
5
•
Monthly Rent free and clear of any and all taxes, other Impositions, liens,charges, or expenses
of any nature whatsoever incurred in connection with the ownership and operation of the
Premises,other than the Lessor's obligations set forth herein.
(g) Licenses.Fees.Taxes. LESSEE shall pay,on or before their respective due dates,
to appropriate collecting authorities,all federal, State, County, and City taxes, licenses,permits,
assessments,submerged land lease fees, and fees,which are now or may subsequently be levied
upon or apportioned to the Premises or the leasehold estate granted by this Lease, or upon
LESSEE, or upon any of LESSEE's property used in connection with this Lease, or upon any
rentals or other sums payable under this Lease, including, but not limited to any applicable ad
valorem, sales or excise taxes,and shall maintain in current status all federal, State, County and
City licenses and permits, now or subsequently required for the operation of the business
conducted by LESSEE including,but not limited to,occupational licenses.
(h) Payment of Utilities. From and after the Effective Date, LESSEE shall pay when
due all water, wastewater, electric, telephone, solid waste, recycling, and all other utility and
costs of any and all types whatsoever which are now or hereafter charged or assessed with
respect to operations at the Premises. LESSEE shall pay all fees or charges relative to the
foregoing promptly prior to delinquency. LESSOR represents and warrants that the utilities
which will be provided to the Premises are or will be separately metered and will not include any
such utilities consumed on any other portion of the Pier.
SECTION S. CONSTRUCTION OF IMPROVEMENTS BY LESSEE.
(a) Schedule for Development of Premises. Sixty (60) days from the Effective Date,
LESSEE shall,at its own cost and expense, submit to LESSOR its plans for the commencement
and completion of the construction, and the acquisition and installation of the LESSEE's
Improvements as discussed below(hereinafter referred to"Improvements"). The Improvements
shall be completed no later than December 1, 2013. The restaurant facility shall be opened for
business no later than December 1, 2013 and the opening of restaurant facility may be extended
due to Force Majeure as set forth in Section 25(f).
(b) Description of Improvements. LESSEE's Improvements shall consist of the
interior electrical and plumbing work for the restaurant facility and bait shop,including the build
out of the interior of the restaurant facility and bait shop. The plans for the restaurant facility and
bait shop shall include: a layout of the Premises,a lighting plan,a depiction of all fixtures to be
added to the Premises, interior finish and material samples, typical display technique, and
interior and exterior signage plan. LESSEE shall be responsible for all costs and expenses for
the planning, design, engineering, installation, and construction of the Improvements. The
completion of the Improvements shall be evidenced by a certificate of occupancy issued by the
City.
(c) Ownership of Improvements. Unless otherwise set forth in the Lease, upon
completion, all Improvements including, but not limited to, all installed and permanently
attached restaurant equipment such as stoves,sinks,coolers,refrigerators, freezers,dishwashers,
and any additions and alterations of a permanent nature made to the Premises by LESSEE, or at
LESSEE's direction (but excluding unattached, movable trade fixtures, furnishings and
equipment owned by LESSEE), shall become and remain LESSOR's property free and clear of
any liens and encumbrances whatsoever upon the expiration or earlier termination of this Lease.
6
•
•
(d) Encumbrances. LESSEE represents, warrants and covenants to LESSOR that the
Premises shall be at all times kept free and clear of all liens,claims and encumbrances created by
or through LESSEE(other than those created or consented to by LESSOR). If any claim of lien
or notice of lien shall be filed against the Premises created by or through LESSEE, LESSEE
shall, within forty-five (45) calendar days after notice of any such filing, cause the same to be
discharged of record by payment, deposit, transfer bond, or order of a court of competent
jurisdiction. LESSOR shall not be deemed to be LESSEE's agent so as to confer upon any
contractor or subcontractor providing labor or services to the Premises (whether in connection
with LESSEE's Improvements or otherwise)a construction lien,mechanic's lien or both against
LESSOR's estate under the provisions of Chapters 255 and 713, Florida Statutes, as amended
from time to time. The foregoing shall be contained in a notice or memorandum disclaiming
such liability on the part of the LESSOR which shall be recorded in the Public Records of
Miami-Dade County in accordance with Chapters 255 and 713,Florida Statutes.
(e) Required Governmental Approvals. LESSEE, at its sole cost and expense, shall
obtain all required governmental approvals from all governmental agencies having jurisdiction
over the Premises for any Improvements constructed or to be constructed by LESSEE,including
but not limited to departments, divisions or offices of the State, County, City, and the federal
government.
(f) Contractor Indemnity. LESSEE shall require any contractor performing any work
in connection with its Improvements to indemnify and hold LESSOR (including its elected
officials, officers, employees and agents) harmless from any and all loss, damage, cost, or
expense,including,but not limited to,attorney fees and court costs through all trial and appellate
levels with respect to personal injury, property damage or both caused by such contractor, its
subcontractors,agents and employees in connection with performing such work.
(g) Alterations. Except for the construction of LESSEE's Improvements discussed
herein, LESSEE shall not cut, drill into, disfigure, deface or injure any part of the Premises or
perform or undertake any alteration,addition,improvement or construction to or in the Premises,
other than minor or cosmetic alterations which are interior and nonstructural in nature, without
LESSOR's prior written consent, which consent shall be unreasonably withheld nor delayed
except,however,that LESSOR may withhold or delay consent at LESSOR's sole discretion, for
any alteration or Improvement which(i)will alter or affect any portion of the plumbing,heating,
ventilating, air conditioning,mechanical, electrical and other building systems,installations and
facilities of the Premises or structure, facade, wall, roof, or foundation of the Premises,the Pier
or both; (ii)will detract from the use or character of the Premises or be visible from the exterior
of the Premises; (iii) will require amendment of any certificate of occupancy for the Premises;
(iv) will require the consent of any insurer under any of LESSOR's or LESSEE's policies of
insurance covering the Premises; or (v) void or otherwise adversely impair any applicable
roofing guaranty in effect.
SECTION 6. CONSTRUCTION OF LESSOR'S IMPROVEMENTS.
The LESSOR shall construct the "shell" or structure of the restaurant facilities and bait
shop, which shall consist of exterior and interior walls and utility connections to bring electric
and water into the Premises. The LESSOR shall not at any time undertake or be responsible for
any construction,repair alteration,improvement or maintenance to electrical or plumbing work,
7
interior finish work, decor, furniture, fixtures, and kitchen equipment within the interior of the
restaurant shell and bait shop.
SECTION 7. OPERATIONAL REQUIREMENTS OF LESSEE AND PARKING.
(a) approval of Restaurant Vendors/Date of Operations. The consent of the
LESSOR is required before LESSEE selects a vendor to sell food and beverages in the restaurant
facility. Consent by the LESSOR shall not be unreasonably withheld if the vendor(s)are deemed
to be in the best interest of the Premises. LESSEE is required to have the restaurant facilities
operational and open to the public no later than one hundred eighty (180) days from the date of
issuance of certificate of occupancy for the Pier.
(b) OperatingSchedule. LESSEE shall generally provide its services not less than
six (6) days a week except for any holidays as determined by LESSEE, with daily hours of
operation no less than as follows: 10:00 a.m. (EST) to 10:00 p.m. (EST) and as otherwise
permitted by Applicable Laws. During the Term, such days and hours of operation may be
modified, altered, varied, supplemented, increased or decreased only with the prior written
consent of LESSOR,which consent shall not be unreasonably withheld or delayed since it is the
intent of the parties that the days and hours of operation meet the needs and desires of the
residents of the City and the economic practicality of LESSEE as mutually determined by the
Mies.
(c) Quality of Services. LESSEE shall conduct its operations in a first class, neat,
sanitary and professional manner and in accordance with and subject to the terms and conditions
of the Lease and all Applicable Laws. LESSEE shall ensure at all times that its standards of
operation are commensurate with the service, food and quality of other similar restaurants in the
State of Florida. LESSEE shall control the conduct,demeanor,performance and appearance of
its officers, members, employees, agents, volunteers, independent contractors, representatives,
guests, and invitees consistent with the operation of a first class restaurant establishment and
otherwise in accordance with Applicable Laws. LESSEE shall post and enforce strict behavior
and usage policies on and about the Premises, which policies, at a minimum, shall prohibit
fighting,reckless actions,abusive language,and misbehavior.
(d) Parking. LESSEE shall have the non-exclusive right in common with the
general public to utilize the LESSOR's municipal parking lot consisting of twenty nine (29)
parking spaces located at Pier Park and the three hundred(300)plus parking spaces at the soon
to be constructed Gateway Parking Garage located on Sunny Isles Boulevard. Employees of the
LESSEE shall not use the 29 public parking spaces at Pier Park.
(e) Delivery. Food or other delivery trucks shall not use Pier Park to deliver
goods and products except if such deliveries cause disruptions to the Premises or cause loud
noise.
SECTION 8. OBLIGATIONS OF LESSEE.
(a) Garbage., LESSEE shall remove from the Premises or otherwise dispose of
all garbage,debris and other waste materials (whether solid or liquid)arising out of the use and
occupancy of the Premises or out of any operations conducted within or upon the Premises in
accordance the highest standards or sanitary practice and at all times in accordance with
8
Applicable Laws. When removing such waste, LESSEE shall comply with all Applicable Laws
relating to sanitation and waste disposal. Any items shall be kept in suitable garbage and waste
receptacles,as approved in writing by LESSOR. Garbage pick-up shall be between 8:00 a.m.—
9:00 a.m.
(b) Odor. LESSEE shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
nuisance; provided, however, that fumes resulting from the normal operations of vehicles or
normal business operations shall be excepted from this provision,unless same constitutes a legal
nuisance or as otherwise prohibited by Applicable Law.
(c) Sians. LESSOR shall cooperate with LESSEE to provide directional signage to
the Pier and its restaurant facility from Collins Avenue,provided that such signage is consistent
with LESSOR's sign ordinances, requirements of the State and approved by all applicable
governmental authorities having jurisdiction. Any exterior signage other than the foregoing shall
require the approval of LESSOR and any and all applicable governmental authorities.
Notwithstanding anything in this Lease to the contrary,billboard signs are expressly prohibited.
SECTION 9. COMPLIANCE WITH GOVERNMENTAL REOUIREMENTS.
LESSEE shall comply with all applicable federal, State,County,and City statutes, laws,
ordinances,resolutions and governmental rules, regulations and orders as may be in effect now
or at any time during the Term(collectively "Applicable Laws"), all as may be amended,which
are applicable to LESSEE, the Premises, or the operations conducted at the Premises. A
violation of any such Applicable Laws, not cured within any applicable notice and cure period
shall constitute a material breach of this Lease, and in such event LESSOR shall after 30 days
notice be entitled to exercise any and all rights and remedies provided in this Lease and available
at law and in equity.
SECTION 10. MAINTENANCE AND REPAIR.
(a) LESSEE shall throughout the Term assume the entire responsibility and shall
relieve LESSOR from all responsibility for all repair, maintenance, replacements and capital
improvements whatsoever with respect to the Premises, except for structural and roof repairs
which are the responsibility of LESSOR as set forth in Section 11(b) below. LESSEE shall
perform all maintenance, repairs, replacements and capital improvements in a good and
workmanlike manner in accordance with all Applicable Laws. All materials utilized in any
repairs or replacements shall be of a quality and grade comparable or superior to that in existence
in the Premises as of the Effective Date. Except as otherwise set forth in this Lease, LESSEE
shall be required to keep the Premises in good, tenantable, useable condition throughout the
Term (subject to casualty, condemnation and the other provisions of this Lease with regard to
development and the redevelopment of the Premises), and without limiting the generality of the
foregoing,LESSEE shall:
(I) Keep and maintain the Premises at all times in a clean and orderly
condition and appearance.
(2) Provide and maintain all lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature
9
required by Applicable Laws in good working order and condition.
Notwithstanding the foregoing,to the extent the Premises is served by any
shared alarm or fire suppression system that serves other premises on the
Pier and LESSOR maintains the same, LESSOR shall be permitted to
equitably allocate to LESSEE it's pro-rata share of the costs to maintain
and operate such shared systems based on LESSOR's good faith,
reasonable determination of such costs which shall be payable by LESSEE
as Additional Rent.
(3) Be responsible for the maintenance and repair of all utilities servicing the
Premises including but not limited to,service lines for the supply of water,
gas service lines, electrical power and telephone conduits and lines,
sanitary sewers and storm sewers which are now or which may be
subsequently located upon any portion of the Premises which are
controlled by LESSEE.
(4) Provide adequate security for the Premises and all portions of them for the
purpose of protecting person and property.
(5) Be responsible for the cleaning and refuse disposal for refuse generated by
the operation of the LESSEE on the Premises as necessary to keep the
appearance of the Pier in good order and condition. Such cleaning and
refuse disposal shall be performed on a daily basis.
(b) During the Term,subject to the provisions of Section 13 below,the maintenance,
repair or replacement of the existing roof(including repairing leaks not caused by LESSEE, its
agents, contractors and employees) as well as any structural repairs or replacements to the
Premises, Pier or any or all of the foregoing, shall be undertaken by LESSOR, unless such
repairs or replacement are required due to the wrongful acts, negligence or omissions of
LESSEE, its employees, agents, contractors, invitees or guests. LESSEE shall not cause or
permit any penetrations into the roof membrane or otherwise perform any alteration on or about
the roof that may void or limit LESSOR's roofing warranty. To the extent any roofing
penetration is necessary, LESSEE shall if required by LESSOR, hire LESSOR's designated
roofing contractor to perform or supervise such roof penetration work so as to prevent any
voiding or impairment of LESSOR's roofing warranty.
SECTION 11. INSURANCE REQUIREMENTS FOR LESSOR AND LESSEE.
(a) LESSOR's Casualty Insurance. LESSOR shall, during the Term, insure and
keep insured to the extent of not less than 100%of the insurable replacement value,all buildings,
structures,fixtures and attached equipment(other than LESSEE's equipment which shall be the
responsibility of LESSEE to insure)on the Premises against such hazards and risks as may now
or in the future be included under the Standard Form of Fire and Extended Coverage insurance
policy of the State. The insurance coverages to be provided by LESSOR shall include full
coverage for windstorm and flood. LESSOR may meet the foregoing requirement through a
program of self-insurance or by adding the Premises to its master policy.
10
(b) LESSEE's Insurance. During the Term, LESSEE shall pay for and
maintain in effect the following types of insurance policies,placed only with carriers carrying an
A.M.Best or equivalent rating of A VII or better
Comprehensive General Liability Insurance to protect against bodily injury,
death and property damage in an amount of not less than One Million Dollars ($1,000,000.00)
per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate. Coverage must be
afforded on a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the Florida Insurance Services
Office and must include: Premises and Operations, Independent Contractors and Broad Form
Contractual Coverage covering all liability arising out to the terms of this Lease.
Business Automobile Liability Insurance in an amount not less than One
Million Dollars($1,000,000.00)combined single limit. Coverage must be afforded on a form no
more restrictive than the latest edition of the Business Auto mo bile Liability policy, without
restrictive endorsements, as filed by the Insurance Services Office, and must include: Owned,
Non-owned and Hired vehicles.
Workers' Compensation and Employer's Liability Insurance to apply for all
employees in compliance with the"Workers"Compensation Law"of the State of Florida and all
applicable federal laws with no less than One Hundred. Thousand ($100,000.00) in employer
liability.
Rental Loss(Business Interruption)Insurance in an amount equal to twelve(12)
months of not less than eighty percent (80%) of the then applicable Base Monthly Rent, taxes,
insurance and utility charges.
Renter's or Contents Insurance in an amount not less than 100%of the insurable
replacement value of all furnishings, fixtures and equipment owned by LESSEE and located at
the Premises including but not limited to the Improvements.
Liquor Liability Policy in an amount of not less than One Million Dollars
($1,000,000.00)per occurrence and Two Million Dollars($2,000,000.00)annual aggregate.
Builder's Risk Insurance with respect to all Improvements and alterations
undertaken by LESSEE during the Term.
LESSEE acknowledges and agrees that all insurance policies provided by LESSEE shall
be deemed primary coverage. Additionally, LESSEE acknowledges and agrees that the
monetary coverages specified above are the minimum acceptable coverages applicable solely to
the Premises without regard to any other business operations or locations insured by LESSEE.
In particular,the specified"aggregate"coverages shall apply solely to the Premises.
(c) Certificates. LESSEE shall furnish to LESSOR, certificates of insurance or
endorsements evidencing the insurance coverages specified by this Section prior to the
Commencement Date. The required certified of insurance shall name the types of policies
provided, refer specifically to this Lease, and state that such insurance is as required by this
Lease. All policies of such insurance and renewals of them(except for Workers' Compensation
coverage) required to be provided by LESSEE shall name LESSOR (including its elected
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officials, officers, employees and agents), as additional named insureds as their interests may
appear,and shall provide that the loss,if any,shall be adjusted with and payable to LESSEE and
LESSOR (as their interests may appear), except as otherwise provided in Section 12 of this
Lease.
(d) Cancellation. Coverage is not to cease and is to remain in force (subject to
cancellation notice) throughout the Term. All policies must be endorsed to provide LESSOR
with at least thirty (30) calendar days' notice of cancellation, restriction or both. If any of the
insurance coverages will expire prior to the termination of this Lease,copies of renewal policies
shall be furnished at least sixty(60)calendar days'prior to the date of their expiration.
(e) Deficiencies. When such policies or certificates have been delivered by LESSEE
to LESSOR as aforesaid and anytime thereafter,LESSOR may notify LESSEE in writing that,in
the reasonable opinion of LESSOR the insurance represented does not conform with the
requirements of this Section either because the amount or because the insurance company or for
any other reason does not comply,and LESSEE shall have thirty(30)calendar days to cure such
defect to the extent required pursuant to the Lease.
(f) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by LESSOR (but not more frequently than every five (5) Lease
Years) and may be adjusted if LESSOR reasonably determines that such adjustments are
necessary to protect LESSOR's interest,provided such coverages shall not exceed the amount of
coverage required at the time of such review by similar quality projects in Miami-Dade County,
Florida.
(g) Service of Process.The insurance shall be written by companies authorized to do
business in the State of Florida and having agents upon whom service of process may be made in
the State of Florida.
(h) Continued Obligations. Compliance with the foregoing requirements shall not
relieve LESSEE of its liability and obligations under any other provision of this Lease
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris/Repair to Ensure Safety. If the Improvements located on the
Premises or any part of them shall be damaged by fire,the elements, or other casualty, LESSEE
shall promptly remove, or cause to be promptly removed,all debris resulting from such damage
from the Premises. LESSEE shall promptly take such actions and cause such repairs to be made
to the Premises as will ensure the safety of persons entering upon the Premises. To the extent,if
any,that the removal of debris under such circumstance is covered by LESSEE's insurance,the
proceeds shall be paid to LESSEE for such purpose.
(b) Minor DAmage, If Improvements located on the Premises or any part of them shall
be damaged by fire,the elements,or other casualty but not rendered reasonably untenantable or
unusable,Rent shall continue unabated. The Premises shall be repaired and restored promptly to
the condition they were in prior to such casualty by LESSOR and by LESSEE(the scope of each
such party's obligation to repair being described in Section 11 hereof),and to the extent that such
damage is covered by LESSOR's and LESSEE's insurance,the proceeds shall be made available
for that purpose.
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(c) Damage to or Destruction of the Premises. Pier. If the Premises, Pier, both of
then or any part of them shall be destroyed or so damaged by fire, the elements, or other
casualty as to render either or both untenantable or unusable, nothing in this Lease shall be
deemed or construed to require or obligate LESSOR to repair,rebuild,replace or restore either or
both or any portion of the Premises or Pier provided that all insurance proceeds shall first be
applied to the repair or replacement of the same Pier or Premises. Rent shall resume 60 days
after the Pier and the Premises have been restored to their previous condition, then the Lease
shall be terminated effective as of the date of such casualty. Provided the casualty resulting in
the damage or destruction was not caused by the negligence or wrongful act or omission of
LESSEE, all insurance proceeds payable to LESSEE under its policies shall be retained by
LESSEE without any obligation to pay any portion thereof to LESSOR. Upon termination,
LESSEE shall surrender the Premises to LESSOR immediately and the parties will have no
further obligations to each other hereunder, except as otherwise provided to the contrary in
Section 15 of this Lease.
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) Total or Partial Taking. If the whole of the Premises,or such portion of them as
will make the Premises unusable for the Required Use, 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 off 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 LESSOR of any Rent and all other
charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises is
taken, but the Premises may be restored to a configuration in LESSEE's reasonable business
judgment that will enable the continued use of the Premises for the Required Use,then the Term
shall cease only as to the part so taken as of the Taking Date, and LESSEE shall pay Rent and
other charges up to the Taking Date, with appropriate credit by LESSOR (toward the next
installment of Rent due from LESSEE) of any Rent or charges paid for a period subsequent to
the Taking Date. Base Rent,shall be reduced as of the Taking Date in proportion to the amount
of the Premises taken. If the Lease is not terminated then LESSOR shall be responsible to
reconfigure the Premises into one contiguous space from the condemnation proceeds which shall
be accomplished with reasonable diligence after the Taking Date.
(b) Award., All compensation awarded or paid upon a total or partial taking of the
Premises excluding the value of the leasehold estate created by this Lease shall belong to and be
the property of LESSOR without any participation by LESSEE. However,nothing contained in
this Lease shall be construed to preclude LESSEE, 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,unattached movable trade fixtures,furniture,and other personal
property belonging to LESSEE.
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SECTION 14. INDEMNITY.
LESSEE shall indemnify and hold harmless LESSOR (including its elected officials, officers,
employees and agents)from and against any and all claims,costs,losses and damages(including
but not limited to all fees and charges of architects, attorneys,and other professionals, and all
court or other dispute resolution costs), liabilities,expenditures,or causes of action of any kind
(including negligent, reckless, or willful or intentional acts or omissions of LESSEE, any
Subtenant, any subcontractor, any supplier, any person or organization directly or indirectly
employed by any of them to perform or furnish any work or anyone for whose acts any of them
may be liable),arising from,relative to,or caused in connection with this Lease except,and only
to the extent, that such claim is caused by LESSOR's negligence or misconduct (subject to
applicable sovereign immunity). This indemnity includes, but is not limited to, claims
attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible
property, including the Improvements, and including the loss of use resulting from them.
Payment of any amount due pursuant to this Section shall, after receipt of Notice by LESSEE
from LESSOR that such amount is due, be paid by LESSEE if LESSOR becomes legally
obligated to pay same, or LESSEE agrees that it is responsible for such claim, or in the
alternative, LESSOR, at LESSOR's option, may make payment of an amount so due and
LESSEE shall promptly reimburse LESSOR for same. Where the basis for a claim for damages
brought against LESSOR by a third party is that LESSOR has breached a contract or other duty
to the third party, and the action or inaction which constitutes the breach was a result of the
negligent or wrongful act or omission of LESSEE,then LESSEE agrees,at LESSEE's expense,
after written notice from LESSOR to defend any action against LESSOR that falls within the
scope of this Section, or LESSOR, at LESSOR's option, may elect not to tender such defense
and may elect instead to secure its own attorney to defend any such action. If the claimant
prevails in a lawsuit on the basis that the breach was a result of the negligent or wrongful act or
omission of LESSEE,then the reasonable costs and expenses of LESSOR incurred in defending
such action shall be payable by LESSEE. If either LESSOR or LESSEE is required to incur
attorney fees and costs to enforce this Section,the prevailing party in any litigation shall recover
all of its attorney fees and costs at both trial and appellate levels. LESSEE agrees to also
indemnify, defend, save and hold harmless LESSOR (including its elected officials, officers,
employees and agents),from all damages, liabilities, losses, claims, fines and fees and from any
and all suits and actions of every type and description that may be brought against LESSOR,its
officers, agents and employees on account of any claims, fees, royalties, or costs for any
infringement of any and all copyrights or patent rights claimed by any person, firm, or
corporation.
The provisions of this Section shall survive the expiration or earlier termination of this
Lease.
SECTION 15. RIGHTS OF ENTRY RESERVED AND RESERVATION OF SPACE.
(a) Access. LESSOR, by its officers, employees, agents, representatives and
contractors shall have the right at all reasonable times and upon reasonable advance notice to
enter upon the Premises for the purpose of inspecting the same,for observing the performance by
LESSEE of its obligations under this Lease and for the doing of any act or thing for which
LESSOR may be obligated or have the right to do under this Lease or otherwise, subject to the
provisions of this Lease, provided that, in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
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(b) Maintenance. Without limiting the generality of the foregoing, LESSOR, by its
officers, employees, agents, representatives, contractors and furnishers of utilities and other
Services, shall have the right upon reasonable advance notice (except in case of emergency, in
which case no notice is necessary), at its own cost and expense, for its own benefit or for the
benefit of others than LESSEE, to maintain existing utility systems and to enter upon the
Premises at all reasonable to make such repairs, replacements or alterations as may, in the
reasonable opinion of LESSOR, be deemed necessary or advisable and from time to time to
maintain such systems or parts of them and in connection with such maintenance.
(c) No Eviction. The exercise of any or all of the foregoing rights by LESSOR or
others to the extent permitted by this Lease or the law shall not be or be construed to be an
eviction of LESSEE nor be made the grounds for any abatement of Rent nor any claim or
demand for damages, consequential or otherwise, unless LESSOR breaches its covenants with
respect to such access as provided in this Lease.
(d) Police Powers. Nothing contained in this Lease shall be deemed to in any way
limit LESSOR in the exercise of their police and regulatory powers or their powers of eminent
domain.
(e) Reservation of Space. Without charge to the LESSOR,the LESSEE shall provide
the LESSOR with a working area within the bait shop to monitor activities on the Pier or for any
public purpose.
SECTION 16. ASSIGNMENT AND SUBLETTING.
(a) Assignment. LESSEE shall not sell, convey, transfer or assign (all of the
foregoing being deemed as an "Assignment") all or any portion of its interest in this Lease,
without the prior written consent of LESSOR (which shall not be unreasonably withheld or
delayed, provided that the factors set forth below are fulfilled to LESSOR's reasonable
satisfaction),provided that no such Assignment shall be deemed valid or binding upon LESSOR
and LESSEE shall not be released from its obligations under this Lease. For purposes of this
Section, an "Assignment" will include: (i) any transfer of the Lease by merger, consolidation,
liquidation or by operation of law,or(ii)if LESSEE is or becomes a corporation, any change or
transfer (other than to Affiliates of shareholders or partners of the individuals first named as
LESSEE in the Lease) in ownership or power to vote a majority of the outstanding voting stock
thereof from those controlling the power to vote such stock on the date of the Lease, or(iii) if
LESSEE is or becomes a limited or a general partnership,joint venture, or a limited liability
company,any transfer of an interest in the partnership,joint venture or limited liability company
(other than to an existing partner or member or any Affiliates of existing partners or members)
resulting in a majority of the voting or equity interests of LESSEE being transferred.
The factors upon which LESSOR may base its decision upon whether to grant consent
under this Section will include,but not limited to: (A)whether LESSEE is or has been in default
of this Lease, (B) whether the proposed assignee meets standards of creditworthiness and
financial resources and responsibility as originally expected of the LESSEE, (C) whether the
proposed assignee has the ability to perform the obligations of LESSEE hereunder, and (D)
whether the proposed assignee has prior related business experience for operating or owning
property for the Required Use comparable to that of LESSEE.
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(b) Sjagt&& LESSEE shall not sublet portions or the whole of the Premises,or grant
licenses or concessions in any of them(all of the foregoing being deemed a"Sublease")without
the prior written consent of LESSOR in each instance, which consent may be not be
unreasonably withheld by LESSOR, it being expressly understood that the management and
operation of the Premises by LESSEE is material to LESSOR's lease of the Premises to
LESSEE. The following tams and conditions shall apply in each instance where LESSOR has
consented to a Sublease:
(1) Each Sublease shall contain a self-operative provision that it is subject and
subordinate to this Lease and any amendments, modifications and
extensions of this Lease,including,but not limited to,all use restrictions.
(2) No Sublease shall relieve LESSEE from liability for any of its obligations
under this Lease, and in the event of any such Sublease, LESSEE shall
continue to remain primarily liable for and continue to make payments
required to be made pursuant to this Lease and for the performance and
observance of the other agreements on its part as contained in this Lease.
(3) The form of such Sublease shall be subject to the review and approval of
LESSOR and shall,at a minimum,contain all of the material provisions of
this Lease with respect to the obligations of LESSEE.
(c) Reimbursement of Costs. LESSEE agrees to reimburse LESSOR for LESSOR's
attorney fees and costs incurred in connection with the processing and documentation of any
request made pursuant to this Section 17. LESSEE shall deliver to LESSOR, within five (5)
days after execution by LESSEE,an original counterpart of any executed Sublease or instrument
of Assignment, together with LESSEE's and the subtenant's (or assignee's) affidavit that such
Sublease or Assignment instrument is the true and complete statement of the subletting or
Assignment and reflects all sums and other consideration passing between the parties. LESSEE
shall pay, indemnify and hold LESSOR harmless from and against, any and all cost or expense
('including reasonable attorney fees and disbursements) and liability in connection with any
compensation, commissions or charges claimed by any broker or agent with respect to any
Assignment or Sublease.
SECTION 17. DEFAULT:REMEDIES.
(a) Default. If any one or more of the following events shall occur,same shall be
an event of default under this Lease:
(1) LESSEE shall voluntarily abandon the Premises or discontinue its
operations on the Premises for a period of thirty(30)consecutive calendar
days, other than as a result of casualty, condemnation,major renovation,
or one or more acts of Force Majeure;or
(2) Any lien, claim or other encumbrance which is filed against LESSOR's
fee simple title to the Premises (other than that created by or through
LESSOR) is not removed,or transferred to bond pursuant to Florida law,
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within thirty(30) calendar days after LESSEE or LESSORs,or both have
received notice of such lien,claim or encumbrance;or
(3) LESSEE shall fail to pay any item constituting Rent when due to LESSOR
and LESSEE shall continue in its failure to make any such payments for a
period of ten (10) calendar days after Notice is given to make such
payments; provided however LESSOR shall not be required to provide
Notice of non-payment of Rent on more than one (1) occasion in any
twelve(12)month period;or
(4) LESSEE shall fail to make any other payment required under this Lease
when due to LESSOR and shall continue in its failure to make any such
other payments required under this Lease for a period of fifteen (15)
calendar days after Notice is given to make such payments;or
(5) LESSEE shall fail to keep, perform and observe each and every non-
monetary promise, covenant and term set forth in this Lease on its part to
be kept, including without limitation all rules and regulations in effect
from time to time in accordance with the terms of this Lease,performed or
observed within thirty (30) calendar days after Notice of default (except
where fulfillment of its obligation required activity over a greater period
of time and LESSEE shall have commenced to perform whatever may be
required for fulfillment within thirty (30)calendar days after Notice and
continues such performance without material interruption); provided,
however, the foregoing shall not apply if LESSEE's failure to perform is
due directly to the willful wrongful acts or omissions of LESSOR;or
(6) LESSEE makes an assignment for the benefit of creditors;or
(7) LESSEE files a voluntary petition under Title 11 of the United States
Code(the`Bankruptcy Code")or if such petition is filed against LESSEE
and an order for relief is entered and not dismissed within sixty(60)days
or if LESSEE files any petition or answer seeking, consenting to or
acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the
Bankruptcy Code or any other present or future applicable federal,state or
other statute or law;or
(8) If, within sixty (60) days after the appointment of any trustee, receiver,
custodian,assignee,sequestrator or liquidator of LESSEE,or of all of any
of the Premises or any interest of LESSEE in the Premises, such
appointment is not vacated or stayed on appeal or otherwise, or if, within
thirty(30) days after the expiration of any such stay, such appointment if
not vacated.
(9) Habitual Default. Notwithstanding the foregoing, in the event that
LESSEE has committed a monetary breach or default three (3) or more
times in a twelve (12) month period, and regardless of whether LESSEE
has cured each individual monetary breach or default, LESSEE may be
determined by LESSOR to be an"habitual violator". At the time that such
17
determination is made, LESSOR shall issue to LESSEE a written notice
advising of such determination and citing the circumstances therefor.
Such notice shall also advise LESSEE that there shall be no further notice
or grace periods to correct any subsequent monetary breaches or defaults
for the balance of such twelve(12)month period and that any subsequent
breaches or defaults for the balance of such (12) month period, shall
constitute a condition of noncurable default and grounds for immediate
termination of the Lease which termination shall be effective upon
delivery of the Notice to LESSEE,subject to the prevailing law in Miami-
Dade County.
(b) Remedies. Upon the occurrence of any event setforth in Section 18(a),
above,or at any time thereafter during the continuance of such event,LESSOR may exercise any
of the following rights and remedies:
(1) LESSOR may, pursuant to written notice to LESSEE, and appropriate
legal proceeding terminate this Lease and, pursuant to appropriate legal
proceedings, re-enter, retake and resume possession of the Premises for
LESSOR's own account and, for LESSEE's breach of and default under
this Lease,recover immediately from LESSEE any and all rents and other
sums and damages due or in existence at the time of such termination,
including without limitation, (i) all Base Monthly Rent and Additional
Rent; (ii) all other sums, charges, payments, costs and expenses agreed,
and required or both to be paid by LESSEE to LESSOR under this Lease;
(iii)all costs and expenses of LESSOR in connection with the recovery of
possession of the Premises, including reasonable attorney fees and court
costs; (iv) all free rent credits and rental abatements, if any, granted to
LESSEE as concessions in connection with this Lease; and (v) all costs
and expenses of LESSOR in connection with any reletting or attempted
reletting of the Premises or any part or parts of them including without
limitation, brokerage fees, attorney fee and the cost of any alterations or
repairs which may be reasonably required to so relet the Premises, or any
part of parts of them;or
(2) LESSOR shall have, receive, and enjoy as LESSOR's sole and absolute
property, any and all sums collected by LESSOR as rent or otherwise
upon reletting Premises after LESSOR shall resume possession of the
Premises as provided by this Lease, including, without limitation, any
amounts by which the sum or sums so collected shall exceed the
continuing liability of LESSEE under this Lease. If LESSOR shall have
accelerated Rent payments and collected same from LESSEE, and
subsequently shall have relet the Premises,then LESSOR,after deducting
all costs related to reletting,including those described or anticipated in this
Section 18 shall pay to LESSEE the net amount remaining at the end of
the Term, which shall have actually been collected as net rent from third
parties, to the extent LESSOR shall have previously received the
applicable Rent form LESSEE.
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(c) No Waiver. If LESSOR shall institute proceedings against LESSEE and a
compromise or settlement of it shall be made,the same shall not constitute a waiver of the future
breach of the same or of any other covenant,condition or agreement set forth in this Lease,nor
of any LESSOR's rights under this Lease,unless expressly set forth in such settlement Neither
the payment by LESSEE of a lesser amount than the installments of Base Monthly Rent,
Additional Rent or of any sums due under this Lease nor any endorsement or statement on any
check or letter accompanying a check for payment or Rent other sums payable under this Lease
be deemed an accord and satisfaction,and LESSOR may accept such check or payment without
prejudice to LESSOR's right to recover the balance of such Rent or other sums or to pursue any
other remedy available to LESSOR. No re-entry by LESSOR,and no acceptance by LESSOR of
keys from LESSEE shall be considered an acceptance of a surrender of the Lease.
(d) LESSOR May Cure LESSEE's Defaults. If LESSEE defaults in the making of
any payment or in the doing of any act required in this Lease to be made or done by LESSEE,
then LESSOR may, but shall not be required to,make such payment or do such act. If LESSOR
elects to make such payment or do such act, all costs and expense incurred by LESSOR, plus
interest on them at the highest rate allowable under the laws of the State of Florida from the date
paid by LESSOR to the date of payment of them by LESSEE, shall be immediately paid by
LESSEE to LESSOR,provided,however,that nothing contained in this Lease shall be construed
as permitting LESSOR to charge or receive interest in excess of the maximum legal rate then
allowed by law. The taking of such action by LESSORs shall not be considered as a cure of such
default by LESSEE or bar LESSOR from pursuing any remedy to which it is otherwise entitled
on account of such default.
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE.
(a) Cumulative Remedies. All rights and remedies of the parties under this
Lease or at law or in equity are cumulative, and the exercise of any right or remedy shall not be
taken to exclude or waive the right to the exercise of any other,subject to the express limitations
set forth in this Lease,if any.
(b) Survival. Upon termination or expiration of this Lease, LESSEE shall remain
liable for all obligations and liabilities that have accrued prior to the date of termination or
expiration.
SECTION 19., SURRENDER.
LESSEE covenants and agrees to yield and deliver peaceably and promptly to LESSOR,
possession of the Premises, the Ex p iration Date or
earlier termination of this Lease.
LESSEE shall surrender the Premises in the condition required pursuant to this Lease,
reasonable wear,tear,casualty and condemnation excepted. All maintenance and repairs shall be
completed prior to surrender.
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE.
No agreement of surrender or to accept a surrender of this Lease shall be valid unless and
until the same shall have been reduced to writing and signed by the duly authorized
representatives of LESSOR and of LESSEE in a document of equal dignity and formality as this
Lease. Except as expressly provided in this Lease, neither the doing of nor any omission to do
19
any act or thing by any of the officers, agents or employees of LESSOR shall be deemed an
acceptance of a surrender of letting under this Lease.
SECTION 21. REMOVAL 01?PROPERTY.
(a) Removal. LESSEE shall have the right at any time during the Term to
remove its unattached, movable trade fixtures and other personal property from the Premises
excluding any property owned by LESSOR as set forth in this Lease provided the same is
immediately replaced with no less than comparable personalty of an equal or higher value.
LESSEE shall immediately repair any damage to the structure or any portion of the Premises
caused by its removal of any personal property or unattached, movable trade fixtures. If
LESSEE shall fail to remove its inventories, unattached, movable trade fixtures, and personal
property by the termination or expiration of this Lease, then LESSEE shall be considered to be
holding over and subject to charges under Section 26(m), of this Lease, and after fourteen (14)
calendar days following such termination or expiration, at LESSOR's option: (i) title to same
shall vest in LESSOR, at no cost to LESSOR; or(ii) LESSOR may remove such property to a
public warehouse for deposit;or(iii)LESSOR may retain the same in its own possession and sell
the same at public auction, the proceeds of which shall be applied first to the expenses of
removal,storage and sale,second,to any sums owed by LESSEE to LESSOR,with any balance
remaining to be paid to LESSEE; or LESSOR may dispose of such property in any manner
permitted by law. If the expenses of such removal,storage and sale shall exceed the proceeds of
sale,LESSEE shall pay such excess to LESSOR upon demand.
(b) Transfer of Interest. Upon the termination of this Lease the ownership of all
Improvements shall vest in LESSOR(except for those specific items described herein for which
the ownership will remain in LESSEE) and LESSEE agrees to execute such documentation
required by LESSOR to effectuate the foregoing.
(c) Survival. The provisions of this Section shall survive the expiration or
termination of this Lease.
SECTION 22. ENVIRONMENTAL COMPLIANCE.
LESSEE shall at all times during the Term keep the Premises free of Hazardous Materials
(as defined below), and neither LESSEE nor any of its employees, agents, invitees, licensees,
contractors or subtenants (if permitted) shall use, generate, manufacture, refine, treat, process,
produce, store, deposit, handle, transport, release, or dispose of Hazardous Materials in, on or
about the Premises or the Parcel, or the groundwater of them in violation of any federal,state or
municipal law, decision, statute, rule, ordinance or regulation currently in existence or
subsequently enacted or rendered. LESSEE shall give LESSOR prompt written notice of any
claim received by LESSEE form any person, entity or governmental agency that a release or
disposal of Hazardous Materials has occurred on the Premises, or the parcel. As used in the
Lease, the term "Hazardous Materials" shall mean and be defined as any and all toxics or
hazardous substances, chemicals, materials or pollutants, or any kind or nature, including the
disposal of grease or grease products as a result of LESSEE's restaurant operation which are
regulated, governed, restricted or prohibited by any federal, state or local law, decision, statute,
rule, or ordinance currently in existence or hereafter enacted or rendered. LESSEE shall not
discharge into any sanitary sewer system serving the Premises any toxic or hazardous sewage or
waste which is produced or generated by LESSEE or in connection with the operation of
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LESSEE'S business, including the disposal of grease generated as part of LESSEE's restaurant
operation, shall be handled and disposed of as required by and in compliance with Applicable
Laws or shall be pretreated to the level of domestic wastewater prior to discharge into any
sanitary sewer system serving the Premises.
SECTION 23. NON-DISCRIMINATION.
(a) American with Disabilities Act. LESSEE shall comply with Title I of the
Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
marital status, political affiliation, familial status or physical or mental disability. In addition,
LESSEE shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship),and accessibility.
(b) EqualOpaortunity. LESSEE shall take appropriate action to ensure that
applicants are employed and employees are treated without regard to race, age, religion, color,
gender, sexual orientation, national origin, marital status, political affiliation, familial status or
physical or mental disability during employment. Such actions shall include, but not be limited
to, the followings: employment, upgrading, demotion, transfer, recruitment or recruitment
advertising,layoff,termination,rates of pay, other forms of compensation,teens and conditions
of employment,training(including apprenticeship),and accessibility.
(c) Non-Discrimination. LESSEE shall not engage in or commit any discriminatory
practice in violation of Applicable Laws,statutes,ordinances,rules regulations.
SECTION 24. WRITTEN NOTICES.
LESSOR and LESSEE agree that all notices under this Lease Agreement must be in
writing and shall be deemed to be served when delivered to either party at:
(1) American Federated Title Corp.as Trustee
ATTN: Dr.Robert M. Cornfield,President
American Federated Title Corporation
3850 Hollywood Boulevard,Suite 400
Hollywood,Florida 33021
(2) CITY OF SUNNY ISLES BEACH
ATTN: City Manager and City Attorney
18070 Collins Avenue,46 Floor
Sunny Isles Beach,Florida 33160
21
SECJ'ION 25. MQSCELLANEOUs
(a) Headings. The section and paragraph headings in this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision of this Lease.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida Disputes shall be resolved in the l to Judicial
Circuit Court of Miami-Dade County or in the federal courts in the Southern District of Florida,
whichever jurisdiction is appropriate.
(c) Severance. In the event this Lease or a portion of this Lease is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue to be
effective to the fullest extent permitted by law.
(d) Relationship of Parties/independent Contractor. It is the intent of the parties
that the relationship of LESSOR and LESSEE under this Lease is the relationship of LESSOR
and LESSEE. Nothing contained in this Lease shall create or be deemed or construed to create a
partnership,joint venture,joint enterprise or any other agency or other similar such relationship
between the parties to this Lease.
(e) Third Party Beneficiaries. Neither LESSEE nor LESSOR intend to directly or
indirectly substantially benefit a third party by this Lease. Therefore,the parties agree that there
are no third party beneficiaries to this Lease and that no third party shall be entitled to assert a
claim against either of them based upon this Lease.
(f) Force Majeure. Notwithstanding anything contained in this Lease to the
contrary, neither LESSOR nor LESSEE shall be considered to be in default of this Lease if
delays in or failure of performance shall be due to Force Majeue, the effect of which, by the
exercise of reasonable diligence,the non-performing party could not avoid and in such event,the
time for performance shall be extended by the period of such Force Majeure event(s).
(g) Negotiated Lease. Both parties have substantially contributed to the
negotiations which resulted in the preparation of this Lease,which shall not,solely as a matter of
6 � >y
PnP Y
judicial construction,be construed more severely against one of the parties than any other. The
parties to this Lease acknowledge that they have thoroughly read this Lease, including all
Exhibits and attachments to it, and have sought and received (or had the means, ability and
ample opportunity to do so) whatever competent advice and counsel, legal or otherwise, which
was necessary for them to form a full and complete understanding of all rights and obligations
contained in this Lease.
(h) Incorporation by Reference. The truth and accuracy of each"Recind" clause set
forth above is acknowledged by the parties.
(i) Estoppel Statement. The parties agree that from time to time,upon not less than
fifteen(15)days prior request by a party to this Lease,the other party may deliver a statement in
writing certifying: (a)that this Lease is unmodified and in full force and effect(or,if there have
been modifications); (b) the dates to which the Rent and other charges have been paid; (c)that
neither party is in default under any provisions of this Lease, or,if in default,the nature of such
22
•
default described in detail;and(d)such other information pertaining to this Lease as either party
may reasonably request.
('j) Amendments. No modification, amendment, or alteration in the terms or
conditions contained in this Lease shall be effective unless contained in a written documents
prepared with the same or similar formality as this Lease and executed by LESSOR and
LESSEE.
(k) Prior Agreements. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable to the
matters contained in this Lease and the parties agree that there are no commitments,agreements
or understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly,the parties agree that no deviation from the terms of the Lease shall be
predicated upon any prior representation or agreements, whether oral or written. It is further
agreed that no modification,amendment or alteration in the terms or conditions contained in this
Lease shall be effective unless contained in a written document in accordance with subparagraph
(J),above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa,unless the context otherwise
requires. Whenever reference is made to a Section of this Lease,such reference is to the Section
as a whole, including all of the subsections and subparagraphs of such Section, unless the
reference is made to a particular subsection or subparagraph of such Section.
(m) Holdover. It is agreed and understood that any holding over of LESSEE after
the termination of this Lease shall not renew and extend same,but shall operate and be construed
as a license from month to month. At the option of LESSOR,upon written notice to LESSEE,
LESSEE shall be required to pay to LESSOR during any holdover period, monthly license fees
which shall be equal to one and one half(1Y2) the amount of the monthly installment of rental
that was due and payable for the month immediately preceding the termination date of this
Lease. In addition, LESSEE shall be required to pay to LESSOR any other charges required to
be paid under this Lease during any such holding over against LESSOR's will after the
termination of this Lease,whether such loss or damage may be contemplated at the execution of
this Lease or not. It is expressly agreed that acceptance of the foregoing payments by LESSOR
in the event that LESSEE fails or refuses to surrender possession shall not operate or give
LESSEE any right to remain in possession nor shall it constitute a waiver by LESSOR of its right
to immediate possession of the Premises.
(Signatures on following page)
23
ATTEST: CITY OF SUNNY ISLES BEACH,FLORIDA,a
Municipal Corporation of the State of Florida
Qv:v.0 By: •� i
JANE HINES,CMC,CITY CLERK NO'4 S.EDELCUP,MAYOR
AMERICAN FEDERATED TITLE CORP.,AS
TRUSTEE UNDER LAND TRUST#3258
By:
ROB 'RT M.C► `+ FE ,PRE IDENT
APPROVED AS TO FORM AND
CORRE
,lirf/�.
''(r- i T,'Z ' ATT I° EY
24
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s‘,)ts 94 Y fst
_, ,,,:- ,4:r City of Sunny Isles Beach
- ' �, 18070 Collins Avenue
/: Sunny Isles Beach, Florida 33160
••r
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yF '4r,Fi,09A ,,44 (305)947-0606 City Hall
`'/'Y Gc 5,,,4 Aaa (305)949-3113 Fax
MEMORANDUM
TO: The Honorable Mayor and City Commission
FROM: Christopher J. Russo, City Manager
DATE: 10/17/2013
RE: Sublease Agreement with American Federated Title Corp., As
Trustee under Florida Land Trust #3258 and Sunny Isles Beach
Quarterdeck, LLC.
• RECOMMENDATION:
This Resolution is presented for your consideration.
REASONS:
American Federated Title Corporation, as trustee under Florida Land Trust #325E
("American Federated") is the tenant under that certain Lease Agreement datec
July 26, 2013, between the City of Sunny Isles Beach ("City") and Americar
Federated, as tenant, (the "Prime Lease") regarding the lease of the premises
located at 16501 Collins Avenue, Sunny Isles Beach, Florida 33160 (the "Prime
Lease Premises") consisting of an entire building (the "Building") in the project
known as Newport Fishing Pier in the City.
American Federated desires to sublease to Sunny Isles Beach Quarterdeck, LLC
a Florida limited liability company or assigns ("Quarterdeck") the entire Leasec
Premises which consist of a restaurant facility, bait shop, second floor 01
restaurant facility and additional outdoor dining area in the Prime Lease
Premises, subject to the following terms and conditions:
Obligations of the City:
• 1. Pay for costs in the amount not to exceed $40,000.00 for modifying windows
and doors in the Building in accordance with reasonable specifications of
Quarterdeck. In lieu of cash payment of the window, the City reserves the right to
Agenda Item No l OR
Date 10/17/2013
266
provide the
p $40,000.00 contribution as a rent credit.
2. Maintain the insurance required under the Prime Lease.
3. Responsible for cleaning, repair and maintenance of the Pier exclusive of the
restaurant Building, as well as structural components of the Pier and restaurant
Building.
4. Provide separate water and electric meters for the Building.
5. Comply with the requirements of the Americans with Disabilities Act ("ADA") of
1990, and related state and local laws.
6. Responsible for maintaining existing Turtle Light.
7. Provide directional signage to the restaurant on Collins Avenue.
General obligations of the Parties:
1. The initial term of the sublease shall be a ten (10) year term. Quarterdeck shall
have the right to renew this initial term for four (4) additional terms of five (5)
• years.
2. Quarterdeck shall pay directly to City base monthly rent of Fifteen Thousand
Dollars ($15,000.00) plus all applicable sales tax. The base rent shall be subject
to increase in the consumer price index ("CPI") as defined in the Prime Lease.
3. In addition to base monthly rent, Quarterdeck shall pay to American Federated
for each year of the sublease term, as percentage rent, an amount equal to the
amount by which ten percent (10%) times all gross sales, resulting from business
conducted by Quarterdeck in the Prime Lease Premises for each month exceeds
the base rent, plus applicable sales tax.
4. American Federated and the City shall have the right to examine
Quarterdeck's and all concessionaires' accounting and sales records in order to
verify the amount of gross sales in the Sublease Premises.
5. Quarterdeck shall be entitled to use five (5) dedicated parking spaces in the
public parking area at Gateway Park, i.e. 151 Sunny Isles Blvd. or the public
parking area adjacent to the Walgreens store located at 175 th Street and Collins
Avenue or any public parking area selected by the City. The customers of
Quarterdeck may use the twenty nine (29) public parking spaces located at Pier
Park in the same manner as the general public.
6. Quarterdeck agrees to be bound by all duties and obligations of American
• Federated under the Prime Lease, which is incorporated and made part of the
sublease. However, notwithstanding anything contained in the sublease, the
Agenda Item No IOR
Date 10/17/2013
1 267
• sublease shall be subordinate to all of the terms and conditions of the Prime
Lease.
7. I n addition to the above, Quarterdeck shall be allowed to i() play y music
outside the Building provided the volume does not exceed 75 dD(A) one hundred
(100) yards from the Pier, (ii) maintain antennas and satellite dishes on the roof
of the Building, and (iii) place awnings, and build outside signage and neon trim
outside the Building. Quarterdeck shall be responsible for painting the Building
on an as needed basis. Notwithstanding the foregoing, Quarterdeck shall not
play music outside beyond 11:00 p.m. and the City reserves the right to reduce
the decibel level for the outside music.
8. During the sublease term, City grants Quarterdeck the non-exclusive license
to sell food and beverage in the Building and outside the Building. Quarterdeck
shall maintain in current status all necessary licenses and permits to operate a
restaurant in the Building.
9. Within sixty (60) days from the date of execution of the sublease agreement,
Quarterdeck shall, at its own cost and expense, submit to American Federated
and the City for their written approval, its plans for Quarterdeck's Improvements
to the Sublease Premises. Such Improvements shall be completed no later than
January 1, 2014, and the Quarterdeck restaurant shall be opened for business
• no later than January 1, 2014.
10. Quarterdeck shall maintain insurance coverage, and name American
Federated and the City as additional named insured parties, as applicable, for its
insurance policies, including "all risk" fire and casualty insurance, commercial
general liability, business income and extra expenses insurance, workers'
compensation, and liquor liability.
11. Quarterdeck shall not assign or sublet the Sublease Premises without the
prior written consent of American Federated and the City, which consent of
American Federated shall not be unreasonably withheld.
12.Quarterdeck shall not erect any sign on or about the Project, or visible from
the exterior of the Sublease Premises, without both American Federated and the
City's prior written approval.
13.Quarterdeck shall prepare and keep full, complete and proper accounting
books and sales records documenting their Gross Sales. Quarterdeck shall
furnish to American Federated within thirty (30) days after the expiration of each
lease year, a complete statement, certified by an independent certified public
accountant, detailing the Gross Sales made by Quarterdeck from the Sublease
Premises during the preceding lease year.
• ATTACHMENTS:
• Resolution
Agenda Item No.IOR
Date 10.17/2013
268