HomeMy WebLinkAboutReso 2024-3761RESOLUTION NO. 2024 -�
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, APPROVING A LEASE AGREEMENT WITH CREMA DOWNTOWN CORP. TO
DESIGN, BUILD, OPERATE, AND LEASE RESTAURANT SPACE AT THE PROPERTY
LOCATED AT 18050 COLLINS AVENUE, ATTACHED HERETO, IN SUBSTANTIALLY THE
FORM, AS EXHIBIT "A"; AUTHORIZING THE PAYMENT OF BROKERS' COMMISSIONS
TO COLLIERS INTERNATIONAL AND AVENUE REAL ESTATE PARTNERS, IN THE
TOTAL AMOUNT OF NINETY-SEVEN THOUSAND ONE HUNDRED FIFTY DOLLARS
AND SEVENTY-THREE CENTS ($97,150.73); AUTHORIZING THE CITY MANAGER TO
DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, on April 18th, 2024, via Resolution No. 2024-3642 ("Negroni Reso"), the City
Commission of the City of Sunny Isles Beach (the "City") authorized the City Manager to negotiate a
lease agreement with Negroni to design, build, operate, and lease a food operation at the property
located at 18050 Collins Avenue (the "Services"); and
WHEREAS, the City and Negroni reached an impasse in negotiations; and
WHEREAS, on September 19th, 2024, via Resolution No. 2024-3721, the City Commission
authorized the City Manager to negotiate a Lease Agreement with Crema Downtown Corp.
("CREMA"); and
WHEREAS, the City Manager has successfully negotiated a Lease Agreement with CREMA;
and
WHEREAS, the City Commission wishes to approve a Lease Agreement with CREMA to
lease, design, build, and operate restaurant space, as more particularly described the Lease
Agreement, attached hereto, in substantially the form, as Exhibit "A"; and
WHEREAS, the City as Lessor, is responsible for the payment of brokers' commissions for
the Lease Agreement, in the amount of Forty -Eight Thousand Five Hundred Seventy -Five Dollars
and Thirty -Six Cents ($48,575.36) or 3% to Colliers International, and in the amount of Forty -Eight
Thousand Five Hundred Seventy -Five Dollars and Thirty -Six Cents ($48,575.36) or 3% to Avenue
Real Estate Partners, for a total of Ninety -Seven Thousand One Hundred Fifty Dollars and Seventy -
Three Cents ($97,150.73) or 6%.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Lease Agreement. The City Commission hereby approves a Lease
Agreement with Crema Downtown Corp. to design, build, operate, and lease a food operation at
the property located at 18050 Collins Avenue, attached hereto, in substantially the form, as Exhibit
Section 2. Approval of Payment of Brokers' Commissions. The City Commission hereby
@BCL@EC0A7B17.doc Page 1 of 2 549
approves the payment of brokers' commissions for the Lease Agreement, in the amount of Forty -
Eight Thousand Five Hundred Seventy -Five Dollars and Thirty -Six Cents ($48,575.36) or 3% to
Colliers International, and in the amount of Forty -Eight Thousand Five Hundred Seventy -Five
Dollars and Thirty -Six Cents ($48,575.36) or 3% to Avenue Real Estate Partners, for a total of
Ninety -Seven Thousand One Hundred Fifty Dollars and Seventy -Three Cents ($97,150.73) or 6%.
Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said
Agreement.
Section 4. Authorization of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolution.
Section 5. Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 21St day of Nov ber, 2024.
ATTES
S`
1' i
Mauriciq 13e0nnc r; CMC, City Clerk
Larisa Svechin, Mayor
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
en
Alain E. Boileau, for Nabors, Giblin &
Nickerson, P.A., City Attorney
Moved by:(SS/�l Seconded by:
Vote:
Mayor Svechin LAI es) (No)
Vice Mayor Lama ✓Yes) (No)
Commissioner Joseph ✓ (Yes)'o)
Commissioner Stuyvesant Yes)
Commissioner Viscarra 2(Yes) (No)
@BCL@ECOA7B17.doc Page 2 of 2 550
GUARANTY
THIS GUARANTY (the "Guaranty") made and entered into this 6' day of February,
2025, by IOANNIS SOTIROPOULOS ("Guarantor"). individually, to and for the benefit of the
CITY OF SUNNY ISLES BEACH, FLORIDA, a municipal corporation organized under the
laws of the State of Florida ("Landlord").
WITNESSETH:.
WHEREAS, Landlord and CREMA DOWNTOWN CORP., as Tenant (the "Tenant")
propose to enter into a certain Lease Agreement dated on or about the date hereof (the "Lease")
pursuant to which Tenant shall lease approximately 1,440 square feet of interior space and
approximately 1,655 square feet of exterior space (the "Premises") located at 18050 Collins
Avenue, Sunny Isles Beach; and
WHEREAS, Guarantor as the owner of Tenant is desirous that Landlord make and enter
into the Lease with Tenant and will benefit from Tenant entering into the Lease; and
WHEREAS, Landlord requires as a condition to its execution of the Lease that Guarantor
guarantees the performance of the obligations of Tenant under the Lease, as set forth herein;
NOW, THEREFORE, for and in consideration of Ten and No/ 100 Dollars ($10.00), the
execution of the Lease by Landlord and for other good and valuable consideration, the receipt,
adequacy and sufficiency of all of which are hereby acknowledged by Guarantor, Guarantor does
hereby agree as follows:
1. Guaranty — Guarantor, in his individual capacity, hereby unconditionally and
personally guarantees, for the first three (3) years of the Lease, and thereafter on a twelve (12)
month rolling basis, the full, faithful and punctual performance of each and all of the terms,
covenants, agreements and conditions of the Lease to be kept and performed by Tenant, in
accordance with and within the time prescribed by the Lease, including, without limitation, the
payment of all Rent, (including, without limitation, all Minimum Rent, and Additional Rent), all
other charges and other amounts accruing under the Lease, any damages owed Landlord in the
event Tenant defaults under the Lease, together with interest on all of the foregoing as provided in
the Lease, and all other costs and expenses of collection, including, without limitation, reasonable
attorneys' fees (all of the foregoing sometimes hereinafter referred to as the "Obligations").
Guarantor does hereby agree that if all or any part of the Obligations are not paid or performed by
Tenant pursuant to the terms and conditions of the Lease, Guarantor will upon reasonable notice
from Landlord make such payments to Landlord or perform such Obligations within a reasonable
period of time.
2. No Discharge - This Guaranty by Guarantor shall continue for the benefit of
Landlord notwithstanding (i) any extension, renewal, modification, amendment or alteration of the
Lease, (ii) any assignment of any all or any portion of the Lease or sublease of all or any portion
of the Premises, with or without the consent of Landlord, (iii) any release, extension, acceleration,
GUARANTY — IOANNIS SOTIROPOULOS Page I of 5
or other change of the time for payment of any amounts payable under the Lease or modification
of the liability of Tenant or any other parry liable under the Lease or any other guaranty of the
Lease, (iv) any dissolution or liquidation of Tenant or change in the composition of the partners of
Tenant, (v) any release of Tenant and substitution of any one or more parties as Tenants or
sublessees under the Lease; (vi) any waiver or failure to take action with respect to any default by
Tenant under the Lease; and (vii) any waiver or failure to take action with respect to any remedy
under the Lease (each of the items set forth in the foregoing subsections (i) through (vi), a "Lease
Change"). No such Lease Change (with or without notice to or knowledge of Guarantor) shall in
any manner release or discharge Guarantor; and Guarantor does hereby consent to any such Lease
Change. This Guaranty shall in all respects be a continuing, absolute and unconditional guaranty,
and shall remain in full force and effect notwithstanding, without limitation, the death or
incompetency of Guarantor.
3. Unchanged by Bankruptcy - This Guaranty will continue unchanged
notwithstanding any bankruptcy, reorganization, or insolvency of Tenant or any successor or
assignee thereof, any discharge of Tenant or any successor or assignee pursuant thereto or by any
disaffirmance or abandonment by a trustee or Tenant. If any payment by Tenant is held to
constitute a preference under any applicable bankruptcy or similar law or for any reason Landlord
is required to refund any sums to Tenant, Guarantor shall remain liable for the amounts refunded
by Landlord to Tenant.
4. Transfer or Assignment - Landlord may without notice, assign or transfer this
Guaranty in whole or in part and no such assignment or transfer of the Lease shall operate to
extinguish or diminish the liability of Guarantor hereunder.
5. Primarily Liable - This Guaranty is a guaranty of payment and not of collection.
The liability of Guarantor under this Guaranty shall be primary and direct and in any right of action
which shall accrue to Landlord under the Lease, Landlord may, at its option, proceed against
Guarantor without having commenced any action, or having obtained any judgment, against
Tenant or any other party liable under the Lease or any other guaranty of the Lease. This provision
shall only take effect in the event of a default by Tenant, and after Tenant has been provided a
reasonable period of time to cure such default.
6. Default - In the event of a default by Tenant under the Lease, Landlord shall have
the right to enforce its rights, powers and remedies under the Lease, any other guaranty of the
Lease, and under this Guaranty and all rights, powers and remedies available to Landlord shall be
non-exclusive and cumulative of all other rights, powers and remedies under the Lease, any other
guaranty of the Lease or under this Guaranty or by law or in equity. The obligations of Guarantor
hereunder are independent of the obligations of Tenant or any other guarantor, and Landlord may
proceed directly to enforce all rights under this Guaranty without proceeding against or joining
Tenant, any other guarantor or any other person or entity following reasonable notice to Tenant
and Guarantor. Guarantor hereby authorizes and empowers Landlord upon a default by Tenant
under the Lease, at its sole discretion and without notice to Guarantor, to exercise any right or
remedy which Landlord may have under the Lease and Guarantor shall be liable to Landlord for
any deficiency resulting from the exercise by it of any such remedy, even though any right which
Guarantor may have against Tenant or others may be lost or diminished by exercise of any such
GUARANTY — IOANNIS SOTIROPOULOS Page 2 of 5
remedy. Until all of the Obligations have been performed and paid in full, Guarantor shall have
no right of subrogation to Landlord and Guarantor hereby waives any rights to enforce any remedy
which Landlord may have against Tenant.
7. Proceeds - Guarantor hereby authorizes Landlord, without notice to Guarantor, to
apply all payments and credits received from Tenant or realized from any personal property of
Tenant on the Premises in such manner and in such priority as Landlord in its sole judgment shall
see fit to the Obligations which are the subject of this Guaranty.
8. Binding on Successors - Guarantor's obligations hereunder shall not be assigned
or delegated but this Guaranty shall pass to and be fully binding upon any successors, heirs, assigns
and/or trustees of Guarantor.
9. Waivers - Guarantor expressly waives and agrees not to assert or take advantage
of. (a) the defense of the statute of limitations in any action hereunder or in any action for
collection of the Obligations, (b) any defense that may arise by reason of the failure of Landlord
to file or enforce a claim against Guarantor in bankruptcy or any other proceeding, (c) any defense
based on the failure of Landlord to give notice of the creation, existence or incurring of any new
obligations or on the action or non -action of any person or entity in connection with the
Obligations, (d) any defense based on any duty on the part of Landlord to disclose to Guarantor
any facts it may know or hereinafter acquire regarding Tenant, (e) any defense based on lack of
diligence on the part of Landlord in the collection of any and all of the Obligations, (f) demand for
payment, presentment, notice of protest or dishonor, notice of acceptance of this Guaranty, , (g)
any defense arising from the extinguishment of the Obligations by an act of Landlord without the
consent of Guarantor, (h) any defense arising from any release or compounding with any other
guarantor without the consent of the Guarantor, and/or (i) any defense arising from Landlord's
failure to commence an action against Tenant.
10. Choice of Law; Consent to Jurisdiction - Guarantor acknowledges and agrees
that this Guaranty shall be governed by, and construed and interpreted in accordance with, the laws
of the State Florida. The venue for any action relating to the construction, interpretation, or
enforcement of this Lease shall be in the state courts of Miami -Dade County, Florida. Guarantor
hereby consents to personal jurisdiction in the State of Florida for the enforcement of this Guaranty
and hereby waives any and all claims of rights under the laws of the State of Florida or of the
United States or of any other state or country, to object to jurisdiction within the State of Florida
for the purpose of litigation to enforce this Guaranty. In the event such litigation is commenced,
Guarantor agrees that service of process may be made and personal jurisdiction obtained over
Guarantor by serving a copy of the summons and complaint upon Guarantor by a generally
recognized courier service (ems., Federal Express, UPS or DHL) at the address set forth below
Guarantor's signature or any other address notice of which is provided by Guarantor to Landlord.
Nothing contained herein, however, shall prevent the Landlord from bringing any action or
exercising any rights against Guarantor personally, or against any property of Guarantor, within
any other county, state or country. The means of obtaining personal jurisdiction and perfecting
service of process set forth above are not intended to be exclusive but are cumulative and in
addition to all other means of obtaining personal jurisdiction and perfecting service of process now
GUARANTY — IOANNIS SOTIROPOULOS Page 3 of 5
or hereafter provided by the laws of the State of Florida, the United States or any other state or
country.
11. Financial Statements, Estoppel Certificates - Guarantor shall from time to time,
within thirty (30) days after written request from Landlord, make available to Landlord and any
prospective purchaser or lender of Landlord, audited financial statements for the two most recently
completed fiscal years of Guarantor (or if Guarantor's financial statements are not audited, copies
of such financial statements certified as being true and correct by or on behalf of Guarantor).
Guarantor further agrees upon ten (10) days written notice from Landlord to provide Landlord and
any prospective purchaser or lender dealing with Landlord, a statement certifying that this
Guaranty is unmodified and in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified stating such modification) and such further information
as such prospective purchaser or lender may reasonably request. Guarantor agrees that any such
certificate may be relied upon by anyone purchasing the property that is the subject of the Lease
or making any loan secured by such property.
12. Representations - Guarantor hereby represents and warrants that to the best of
Guarantor's knowledge:
(a) Guarantor is not in default under any agreement to which Guarantor is a
party, the effect of which will impair performance by Guarantor of the Obligations;
(b) There are no actions, suits or proceedings pending or threatened against
Guarantor before any court or any governmental, administrative, regulatory, adjudicatory or
arbitrational body or agency of any kind that will affect performance by Guarantor of the
Obligations;
(c) Neither this Guaranty nor any document, financial statement, credit
information, certificate or statement heretofore furnished or required herein to be furnished to
Landlord by Guarantor contains any untrue statement of facts or omits to state a fact material to
this Guaranty as of the date of this Guaranty; and
(d) If Guarantor is not an individual, the execution and delivery of this Guaranty
has been authorized by all necessary corporate, partnership or other action and the party executing
this Guaranty on behalf of Guarantor has the authority to bind Guarantor.
13. Notices - Any notice, demand or document required or permitted to be delivered
by this Guaranty or the Lease shall be deemed to be delivered (whether or not actually received)
when delivered personally or when delivered by a generally recognized courier service (e.g_,
Federal Express, UPS or DHL), at the address set forth below Guarantor's signature or any other
address notice of which is provided by Guarantor to Landlord.
14. Miscellaneous - The invalidity or unenforceability in any particular circumstances
of any provision of this Guaranty shall not extend beyond such provision or circumstances, and no
other provision of this instrument shall be affected thereby. This provision shall control every
other provision of this Guaranty. Whenever used herein, the singular number shall include the
GUARANTY — IOANNIS SOTIROPOULOS Page 4 of 5
plural, the plural the singular, and the use of any gender shall include all genders. The paragraph
headings used in this Guaranty are for suggestive purposes only and are not intended to be an
accurate or comprehensive summary of the terms and provisions of this Guaranty. Time is of the
essence of this Guaranty. The liability of Guarantor hereunder shall be joint and several with the
liability of any other guarantor of the Lease and with the liability of any other parry liable under
the Lease. This Guaranty may not be changed orally, and no obligation of Guarantor can be
released or waived by Landlord except by a writing signed by Landlord.
15. Counterparts — This Guaranty may be executed in one or more counterparts, each
of which shall be an original, and all of which together shall constitute a single instrument. Further,
the parties agree that, to the fullest extent permitted under Applicable E -Transaction Laws (as
defined below) (i) this Guaranty may be signed, notarized, verified.and/or transmitted by electronic
mail of a .PDF document or electronic signature (e.g., DocuSign or similar electronic signature
technology) and thereafter maintained in electronic form, and that such electronic record shall be
valid and effective to bind the party so signing, or to evidence such notarization or verification, as
a paper copy bearing such party's hand-written signature and/or attestation, and (iii) this Guaranty
may be notarized or verified by remote electronic means.
IN WITNESS WHEREOF, Guarantor has hereunder caused this Guaranty to be executed
under seal and delivered to Landlord the day and year first above written.
STATE OF FLORIDA:
COUNTY OF MIAMI-DADE:
The foregoing instrument s acknowledged before me by means of Elpfysical presence or ❑
online notarization, this Ill day of February, 2025, by Ioannis ii opoulos.
"Wo I
(SEAL) Not ic, State of Florida
(Signature of Notary Public)
Notary Public State of Florida�`'�
Danielle Padua
My Commission HH 401313 (Print, Type, or Stamp
1110 Expires 7r7i2027 Commissioned Name of Notary
Public)
Personally Known _ or Produced Identification
Type of Identification Produced: CL
GUARANTY — IOANNIS SOTIROPOULOS Page 5 of 5
EXECUTION COPY
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), is made and entered into this S*day of February,
2025 (the "Effective Date"), by and between:
CITY OF SUNNY ISLES BEACH, a municipal corporation
organized under the laws of the State of Florida, whose principal
address is 18070 Collins Avenue, FL 33160 (hereinafter "LESSOR"
or "CITY"),
And
CREMA DOWNTOWN CORP., a corporation organized under
the laws of the State of Florida, whose principal address is 249 E.
Flagler Street, Miami, FL 33131, and whose Federal Employer
Identification No. is 85-3008779 (hereinafter "LESSEE").
WHEREAS, LESSOR is the owner, in fee simple; together with the property and rights included
therein, of that certain parcel of property located at 18050 Collins Avenue, Sunny Isles Beach, as more
particularly described in the legal description set forth in Exhibit "A" (the "Property"); and
WHEREAS, LESSEE desires to lease a portion of the Property, as more particularly depicted
in Composite Exhibit `B" (the "Leased Premises"), as an all -day caf6 and restaurant, from LESSOR,
and LESSOR has agreed to lease the same to LESSEE upon the following terms and conditions; and
WHEREAS, at its regular meeting of November 21, 2024, the City Commission of the City of
Sunny Isles Beach authorized execution of a Lease with LESSEE for the Leased Premises;
NOW, THEREFORE, the Parties hereto, acknowledging that the foregoing Recitals are true
and correct, intending to be legally bound hereby, and in consideration of the rents and covenants of
LESSEE to be paid and kept as herein contained, LESSOR has agreed to lease unto LESSEE, and by
these presents does hereby lease the Leased Premises unto LESSEE, and the LESSEE hereby leases the
Leased Premises from LESSOR, and the Parties do covenant and agree as follows:
1. LEASED -PREMISES. LESSOR hereby leases to LESSEE, and LESSEE hereby leases
from LESSOR, the following described premises:
1.1. The Leased Premises, consisting of approximately 1,440 square feet of interior
space, and approximately 2,005 square feet of exterior space, of the Property located at 18050 Collins
Avenue, Sunny Isles Beach, Florida 33160, as more particularly depicted in Composite Exhibit `B."
1.2. Together with the non-exclusive right to use in common with LESSOR, its
employees, visitors, and invitees, and LESSEE's employees, invitees, and customers, the exterior
driveways and entranceways, sidewalks, patios, and parking areas located at the Property (collectively
"Common Areas"), as depicted in Composite Exhibit `B," provided that the LESSOR retains the right
to make reasonable rules and regulations with reference to the use of parking areas, including the right
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 1 of 36
EXECUTION COPY
to provide for certain reserved parking, from time to time, determined by the LESSOR.
1.3. Notwithstanding the foregoing, LESSOR shall grant to LESSEE the exclusive
right to use the outdoor space adjacent to the Leased Premises, for outdoor seating, dining or display
purposes. Such exclusive right shall be limited to the area identified on Composite Exhibit `B" as the
"Outdoor Area."
1.3.1. LESSEE's liability insurance, as set forth herein, shall include coverage
for the Outdoor Area.
1.3.2. LESSEE shall maintain the Outdoor Area in good, clean and safe
condition, and appearance consistent with the overall character of the Property at all times.
1.3.3. Upon execution of this Lease, LESSEE shall provide to LESSOR,
LESSEE's Outdoor Seating Plan as to design and seating in the Outdoor Area, appended hereto as
Exhibit "C," and which is subject to LESSOR's approval and consent, which shall not be unreasonably
withheld. LESSOR reserves the right, at LESSOR's sole expense, to install canopies, awnings, or
coverings to LESSEE's Outdoor Area to create connectivity between the Leased Premises and
LESSOR's Property.
1.4. During the Lease term, LESSEE shall have the right to use, at no additional
cost to LESSEE, unreserved parking spaces in the LESSOR's Government Center parking lot. LESSOR
does not guarantee the availability of the aforementioned parking spaces. Parking is on a first come first
serve basis.
1.5. LESSEE acknowledges that LESSEE has inspected the Leased Premises and
upon completion of LESSOR's Work, as hereinafter defined in Section 10, hereby accepts same in "as
is" condition and further acknowledges that LESSOR has made no warranties and/or representations
regarding the condition of the Leased Premises, except as expressly stated in this Lease.
2. USE OF LEASED PREMISES. The Leased Premises may be used exclusively for the
operation of a retail caf6 and restaurant as "Crema Gourmet Espresso Bar" (the "Permitted Use"), and
for no other purposes without LESSOR's prior written consent, which consent may be withheld in
LESSOR's sole discretion. LESSEE shall never permit any activity or make any use of the Leased
Premises which is in violation of any governmental laws, rules or regulations, whether now existing or
hereafter enacted, or which is in violation of the general rules and regulations, as may be developed or
modified from time to time by LESSOR effective as of the date delivered to LESSEE or posted on the
Leased Premises, nor may LESSEE make any use of the Leased Premises not permitted, or otherwise
prohibited, by restrictive covenants which apply to the Leased Premises, if any. LESSEE may not make
any use that is or may be a nuisance or trespass, which increases any insurance premiums, or makes
such insurance unavailable to LESSOR on the Property. In the event of any increase in any of LESSOR's
insurance premiums which results from LESSEE's use or occupancy of the Leased Premises or
LESSEE's breach of this Section, LESSEE agrees to pay LESSOR the amount of such additional
increase within ten (10) days after demand therefor by LESSOR. Without limiting the foregoing, in no
event shall any change in use be permitted that would violate the terms of any exclusive use granted to
any other tenant on the Property. So long as LESSEE continuously operates the Leased Premises for the
Permitted Use, LESSOR shall not, without LESSEE's prior written approval, lease space within the
Property: (i) to anyone for the purpose of operating within the Property a food service or business
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 2 of 36
EXECUTION COPY
operation, the primary activity of which consists of operating a caf6 or restaurant.
3. TERM. This Lease shall be effective and shall be binding upon LESSOR and LESSEE
hereto on the Effective Date. The initial term of this Lease (the "Term") shall be for ten (10) years,
commencing on the Effective Date, and shall expire (unless sooner terminated or extended as herein
provided) at 6:00 P.M. Eastern Standard Time on the last day of the Term (the "Expiration Date"). Upon
completion of LESSOR's Work, as hereinafter defined in Section 10 ("Commencement Date"),
LESSOR shall deliver possession of the Leased Premises to LESSEE in "shell condition" so that
LESSEE may perform LESSEE's Work, as hereinafter defined in Section 11. If LESSOR, except for
reason of any Force Majeure, cannot deliver possession of the Leased Premises to LESSEE by February
1, 2026 (the "Anticipated Delivery Date"), such shall constitute a default by LESSOR, and LESSEE
shall have the right, but not the obligation, to terminate this Lease by giving LESSOR written notice of
termination within thirty (30) days from the date of default, or to provide LESSOR with additional time
to complete LESSOR's Work, and provided that LESSOR exercises reasonable efforts to complete
LESSOR's Work in a timely manner neither LESSOR nor LESSOR's agents shall be liable to LESSEE
for any loss or damage resulting from the delay or failure in delivery of possession of the Leased
Premises. Such right to terminate shall not be afforded to LESSEE if such delays are caused by LESSEE.
LESSEE, at its sole expense, agrees to deliver to LESSOR upon the termination of this Lease
the entire Leased Premises including all improvements, in a good state of repair and in first class
condition, ordinary wear and tear excepted.
4. COMMENCEMENT OF RENT. Unless expressly agreed otherwise in writing, the
date of commencement of payment of Rent (the "Rent Commencement Date") shall be the earlier of the
date (i) LESSEE commences business operations on the Leased Premises; or (ii) that is one hundred
eighty (180) days after delivery of possession of the Leased Premises. Delivery of possession of the
Leased Premises by LESSOR shall not occur prior to August 2025. The term "Lease Year" shall mean
each period of twelve (12) consecutive full calendar months commencing on the Rent Commencement
Date, except that if the Rent Commencement Date is not January 1, then the first Lease Year shall
commence on the Rent Commencement Date and shall continue for the balance of the calendar year in
which the Rent Commencement Date occurs until December 31 of said year, and each Lease Year after
the first Lease Year shall commence on January 1 and end on December 31 of said calendar year;
provided, however, that the final Lease Year shall terminate on the Expiration Date.
5. RENEWAL OPTION. Provided LESSEE is not in Default, LESSEE shall have two (2)
options to extend the Term for a period of five (5) years each (the "Extension Period"). During the
Extension Period, in addition to the continued obligation to pay Additional Rent and Percentage Rent,
LESSEE shall pay Base Rent (as hereinafter defined) in the amount that is the greater of: (i) Market
Rate Rent (as hereinafter defined), as determined by a qualified, independent appraiser, or (ii) three
percent (3%) more than the Base Rent due in the prior year end lease term. LESSEE shall give written
notice of LESSEE's intent to exercise each option to extend the term to LESSOR at least 180 days prior
to the expiration of the Term. LESSEE's options to extend this Lease for the Extension Period shall not
be assignable by LESSEE without the express written consent of LESSOR.
The term "Market Rate Rent" as used herein, shall mean the prevailing rental rate, as determined
by LESSOR at the commencement of the Extension Period, for renewals of space in the submarket in
which the Leased Premises are located, of equivalent quality, size, utility and location, with the length
of the applicable Extension Period and the credit standing of LESSEE to be taken into account. Within
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 3 of 36
EXECUTION COPY
thirty (30) days after receipt of LESSEE's notice to renew, if LESSOR believes that the Market Rate
Rent is greater than the Base Rent due in the final lease year, LESSOR shall deliver to LESSEE written
notice of the Market Rate Rent. LESSEE shall, within ten (10) days after receipt of LESSOR's notice,
notify LESSOR in writing whether LESSEE accepts or rejects LESSOR's determination of the Market
Rate Rent. If LESSEE timely notifies LESSOR that LESSEE accepts LESSOR's determination of
Market Rate Rent, then, on or before the commencement date of the Extension Period, LESSOR and
LESSEE shall execute an amendment to this Lease extending the Term on the same terms provided in
this Lease, except as follows: (a) Base Rent shall be adjusted to the Market Rate Rent; and (b) LESSOR
shall lease to LESSEE the Leased Premises in their then -current condition. If LESSEE rejects
LESSOR's determination of the Market Rate Rent, or fails to timely notify LESSOR in writing that
LESSEE accepts or rejects LESSOR's determination of the Market Rate Rent, time being of the essence
with respect thereto, LESSEE's rights under this Section shall terminate and LESSEE shall have no right
to renew this Lease.
6. RENT. LESSEE shall pay Rent (as hereafter defined) and the applicable Sales Tax to
LESSOR on or before the first (1st) day of each calendar month, in advance, during the Term, without
previous demand or notice therefor by LESSOR and without set off or deduction; provided, however, if
the Term commences on a day other than the first (Ist) day of a calendar month, then Rent and the Sales
Tax for such month shall be (i) prorated for the period between the Rent Commencement Date and the
last day of the month in which the Rent Commencement Date falls, and (ii) due and payable on the Rent
Commencement Date. As used in this Lease, the term "Rent" shall mean Base Rent (as hereinafter
defined) plus Percentage Rent (as hereinafter defined) plus Additional Rent (as hereinafter defined) plus
all other sums, charges or payments which LESSEE is obligated to make to LESSOR under this Lease
(which sums, charges or payments shall be due and payable on a timely basis without demand, notice,
set off or deduction). Notwithstanding anything contained herein to the contrary, LESSEE's obligation
to pay Rent under this Lease is completely separate and independent from any of LESSOR's obligations
under this Lease. A late charge in the amount of five percent (5%) of the amount then outstanding shall
be imposed on any late payments of Rent, and LESSOR shall be entitled to all remedies provided under
this Lease. If LESSOR presents LESSEE's check to any bank and LESSEE has insufficient funds to pay
for such check, then LESSOR shall be entitled to all remedies provided under this Lease, and a lawful
bad check fee or five percent (5%) of the amount of such check, whichever amount is less. All Rent
shall be made payable to "City of Sunny Isles Beach, Florida" and shall be sent, until written notice to
the contrary is given to the LESSEE by LESSOR, to the address stated in Section 32 of this Lease.
6.1. Security Deposit. Upon the Effective Date, LESSEE shall deposit with LESSOR
the sum of $10,214.17 (along with all applicable Florida sales and use tax), which sum LESSOR shall
retain as security for the performance by LESSEE of each of its obligations hereunder (the "Security
Deposit"). The Security Deposit shall not bear interest and may be comingled with LESSOR's other
deposits and/or LESSOR's other accounts. The Security Deposit shall secure the payment and
performance of LESSEE's obligations hereunder; provided, however, that LESSOR may apply the
Security Deposit to the payment of Rent if LESSEE is delinquent or fails to pay any Rent, but shall not
be required to do so. If, at any time, LESSEE fails to perform its obligations hereunder, then LESSOR
may, at its option, apply the Security Deposit, or any portion thereof required to mitigate or cure
LESSEE's default; provided, however, if prior to the Expiration Date or any termination of this Lease,
LESSOR depletes the Security Deposit, in whole or in part, then immediately following such depletion,
LESSEE shall restore the amount so used by LESSOR. Unless LESSOR uses the Security Deposit to
cure a default of LESSEE, or to restore the Leased Premises to the condition to which LESSEE is
required to leave the Leased Premises upon the expiration Date or any termination of the Lease, then
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 4 of 36
EXECUTION COPY
LESSOR shall, within thirty (30) days after the Expiration Date or any termination of this Lease, refund
to LESSEE any funds remaining in the Security Deposit. LESSEE may not credit against or deduct the
Security Deposit from any month's Rent.
6.2 Advance Rent. On the Effective Date, along with the Security Deposit, LESSEE
shall also pay an additional Twenty Thousand Four Hundred Dollars and No Cents ($20,400.00) (along
with all applicable Florida sales and use tax) to LESSOR in advance (the "Advance Rent"), and half of
such Advance Rent shall be applied to the first payment of Base Rent on the Rent Commencement Date,
and such other half of the Advance Rent shall be applied on the last payment of Base Rent prior to the
Termination Date.
6.3. Base Rent. The minimum annual base rent for the first year of the Term shall be
the sum of One Hundred Twenty -Two Thousand Four Hundred Dollars and No Cents ($122,400.00)
(the "Base Rent"). For the first twelve (12) months of the Term, beginning on the Rent Commencement
Date, Base Rent shall be payable, in advance, in equal monthly installments of Ten Thousand Two
Hundred Dollars and No Cents ($10,200.00) and thereafter shall be increased on the first anniversary of
the Rent Commencement Date and thereafter annually by three percent (3%).
6.4 Percentage Rent. LESSEE shall pay to LESSOR, in addition to the Base Rent, a
percentage rent ("Percentage Rent") equal to eight percent (8%) of the amount of LESSEE's Gross
Receipts (as hereinafter defined) for any Lease Year. The Percentage Rent for each Lease Year shall be
due and payable at such time as Gross Receipts of LESSEE first exceed the Breakpoint of One Million
Seven Hundred Thousand Dollars and No Cents ($1,700,000.00) for such Lease Year. The Percentage
Rent for each Lease Year shall be due and payable annually along with applicable sales and use taxes,
on or before the thirtieth (30th) day after the end of such Lease Year. LESSEE shall be responsible for
the timely payment of the applicable sales and use tax as required by law. LESSEE's obligation for the
payment of Percentage Rent shall survive the expiration or earlier termination of this Lease. LESSEE
hereby acknowledges that LESSEE's business reputation, intended use of the Leased Premises, potential
for payment of Percentage Rent and ability to generate patronage to the Leased Premises and the
Property have been relied upon by LESSOR and served significant and material inducements
contributing to LESSOR's decision to execute this Lease with LESSEE. In furtherance of the foregoing,
LESSEE hereby covenants and agrees: (i) to operate in the Leased Premises only under the trade name,
Crema Gourmet Espresso Bar, and under no other name or trade name, (ii) to continuously use, occupy
and operate the whole of the Leased Premises for the retail sale of its goods or services in accordance
with its permitted use and for no other purpose whatsoever during the minimum business hours of 7:00
a.m. to 9:00 p.m., Monday through Saturday, and 7:00 a.m. to 9:00 p.m. on Sunday, for a minimum of
98 hours a week, (iii) to report Gross Receipts in accordance with the provisions of this Section hereof.
Notwithstanding the foregoing, LESSEE shall be permitted to close its cafe and restaurant two (2) days
during each Lease Year to conduct inventory. LESSEE may also be closed for business on a day due to
severe inclement weather or on any other day that is recognized as a national business holiday. In
calculating the Percentage Rent, sales tax and coupons that are redeemed by LESSEE's customers shall
not be factored into the gross sales calculation; provided, however, that any gift certificates or coupons
sold by LESSEE for any consideration shall be included in Gross Receipts for the period in which they
are sold.
The term "Gross Receipts" as used herein shall mean the total of all sales and other receipts and
revenue by LESSEE and all permitted licensees, concessionaires and permitted sublessees of LESSEE
(if any), from all business conducted upon or from the Leased Premises, whether such sales be evidenced
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 5 of 36
EXECUTION COPY
by check, credit charge account, exchange or otherwise, and shall include, but not be limited to, the
amount received from the sale of goods, wares, merchandise and services performed on or at the Leased
Premises, together with the amount of all orders taken or received at the Leased Premises or sales
completed by delivery at the Leased Premises, whether such orders be filled from the Leased Premises
or elsewhere, and whether such sales be made by means of mechanical or other vending devices in the
Leased Premises. Each charge or sale upon installment or credit shall be treated as a sale for the full
price in the month during which such charge or sale shall be made. Gross Receipts shall not include the
amount of any refunds actually paid by LESSEE with respect to sales of merchandise for which cash
has been refunded, or allowances made on merchandise claimed to be defective or unsatisfactory,
provided such sales shall have previously been included in Gross Receipts. Additionally, Gross Receipts
shall not include the amount of any sales, use or Gross Receipts tax imposed by any federal, state,
municipal or governmental authority directly on sales and collected from customers, provided that the
amount thereof is added to the selling price and paid by the LESSEE to such governmental authority.
No franchise or capital stock tax and no income or similar tax base upon income or profits shall be
deducted from Gross Receipts whatsoever. The amount of LESSEE's uncollected checks shall be
deducted from Gross Receipts.
LESSEE shall report its Gross Receipts to LESSOR by the twentieth (20th) day after the end of
each quarter, and a statement thereof submitted to LESSOR showing the Gross Receipts for the Leased
Premises during the preceding quarter and for the Lease Year to date. The annual statements referred to
in this Section shall be in such form and style and contain such details and breakdowns as LESSOR may
reasonably require. If LESSEE fails to furnish to LESSOR any report required of LESSEE hereunder,
LESSOR may, in addition to its other remedies herein provided, assess as additional rent a fee of Twenty
Five Dollars ($25.00) per day until the required report is furnished and/or undertake an examination or
audit of LESSEE's books and records in order to determine gross Receipts, and LESSEE shall pay
LESSOR upon demand all costs and expenses incurred by LESSOR in connection therewith.
If LESSEE operates businesses at locations other than the Leased Premises, then LESSEE shall
utilize such system or devices for recording sales on a daily basis as maintained by LESSEE in its other
existing locations. LESSEE shall, at all times during the Term hereof, keep at the Leased Premises or at
the general office of LESSEE, full, complete and accurate books of account and records in accordance
with generally accepted accounting principles. LESSEE shall retain such books and records, as well as
all contracts, vouchers, checks, cash register receipts, inventory records, and other documents, papers
and computer related materials in any way relating to the operation of its business, from the Leased
Premises for at least thirty-six (36) months from the end of the Lease Year to which they are applicable,
or, if an audit is required or a controversy should arise between the parties hereto regarding the
Percentage Rent payable hereunder, until such audit or controversy is terminated. LESSOR or its duly
authorized representatives may from time to time during business hours inspect and/or audit any or all
of the records and information required to be maintained by LESSEE hereunder. LESSEE shall, upon
written request by LESSOR, make all such data available for such examination where LESSEE keeps
the same. If LESSOR's audit shows the Gross Receipts reported by LESSEE for any such Lease Year
to be understated, then LESSEE shall immediately pay any such deficiency and, if understated by two
percent (2%) or more, then LESSEE shall pay to LESSOR the cost of such audit. Additionally, should
LESSEE understate Gross Receipts by three percent (3%) or more in two (2) out of any three (3) Lease
Years or should any Annual Gross Receipts report be understated by five percent (5%) or more,
LESSOR shall have the right to terminate this Lease upon thirty (3 0) days' written notice to LESSEE
only if those discrepancies occurred as the result of fraud and not a scrivener's error, as determined by
LESSOR in LESSOR's sole discretion. In the event of a dispute as to any calculations of Gross Receipts
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 6 of 36
1:0.1000M Itile KV-61WI
or the Percentage Rent under this Section, the parties will mutually select a certified public accounting
firm to review the calculations and supporting information and to perform the necessary calculations.
Such accounting firm's calculations shall be conclusive and binding on the parties. The parties shall pay
all fees and costs of the accounting firm in equal shares.
On or before the fifteenth (15th) day after the end of each Lease Year (including for the final
Lease Year), LESSEE shall submit to LESSOR a copy of the Florida Department of Revenue Sales
Report and a written statement signed by LESSEE, and certified by it to be true and correct, showing in
accurate detail the amount of Gross Receipts from the Leased Premises for the preceding Lease Year.
Additionally, along with the payment of any Percentage Rent due for such Lease Year, LESSEE shall
submit to LESSOR, on or before the thirtieth (30th) day following the end of each Lease Year (including
after the final Lease Year), a written statement, signed by LESSEE and certified to be true and correct
by either a Certified Public Accountant or a financial officer to LESSEE reasonably acceptable to
LESSOR, showing in accurate detail the amount of Gross Receipts for the preceding Lease Year. The
annual statements referred to in this Section shall be in such form and style and contain such details and
breakdowns as LESSOR may reasonably require. If applicable, Percentage Rent payments shall be
adjusted in accordance with such annual statement. If LESSEE fails to furnish to LESSOR any report
required of LESSEE hereunder, LESSOR may, in addition to its other remedies herein provided, assess
as additional rent a fee of Twenty Five Dollars ($25.00) per day until the required report is furnished
and/or undertake an examination or audit of LESSEE's books and records in order to determine Gross
Receipts, and LESSEE shall pay LESSOR upon demand all costs and expenses incurred by LESSOR in
connection therewith.
6.5. Additional Rent. In addition to Base Rent, LESSEE shall pay to LESSOR the
following:
6.5.1. Payment of Taxes. Except as otherwise provided in this Lease, all costs,
expenses, sales or use taxes, ad valorem property taxes, or taxes of any nature or kind, special
assessments, connection fees, and any other charges, fees or like impositions incurred or imposed against
the Leased Premises, or any use thereof, including revenue derived therefrom, and any costs, expenses,
fees, taxes or assessments in or upon the real property or improvements constructed thereon shall be
made and paid by LESSEE in accordance with the provisions of this Lease, it being the intent of the
parties that, except as may be specifically provided for herein, LESSEE is responsible for paying all the
expenses and obligations that relate to the Leased Premises or any improvements thereon and that arise
or become due during the Term of this Lease. LESSEE shall not be responsible for income taxes
assessed on the rental payments, if any.
To the extent required by law and unless exempt by law, LESSEE shall pay to LESSOR Sales Tax, as
hereinafter defined, on all amounts paid as Rent hereunder, which sum is to be paid to the State of
Florida by the LESSOR in respect of sales or use taxes. Should such tax rate change under the Florida
Sales Tax Statute or other applicable statutes, LESSEE shall pay LESSOR the amounts reflective of
such changes. To the extent applicable, LESSEE shall pay LESSOR in conjunction with all sums due
hereunder, any and all applicable sales, use or other similar tax and any interest or penalties assessed
therein ("Sales Tax") simultaneously with such payment.
LESSOR shall invoice LESSEE for all applicable taxes, and the LESSEE shall be required to
pay LESSOR within ten (10) days of receipt of said Invoice. If LESSEE fails to timely pay any
taxes, LESSOR may pay them, and LESSEE shall repay such amount to LESSOR upon demand.
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 7 of 36
EXECUTION COPY
6.5.2. LESSEE's Proportionate Share (as hereinafter defined), if any, of
Operating Expenses (as hereinafter defined) in accordance with and in the manner as set forth herein.
6.5.3. The construction management fee equal to three percent (3%) of
LESSEE's total cost for LESSEE's Work in the Leased Premises, as set forth in Section 11.
6.6. Operating_Expenses. As used in this Lease the term "Additional Rent" shall mean
all payments of Sales Tax plus LESSEE's Proportionate Share of Operating Expenses.
6.6.1. As used herein, the term "Operating Expenses" shall mean all costs of
managing, operating, repairing, replacing, maintaining and insuring the Property and all parking and
surrounding areas serving the Leased Premises, as determined by standard accounting practices, and
shall include, by way of illustration but shall not be limited to, all costs and charges relating to: lawn
maintenance; landscaping; labor; materials; supplies; equipment and tools; permits; licenses; inspection
fees; management fees; Common Areas maintenance and repair expenses; legal and environmental
compliance; programming and activation services; and the amortization of costs (including debt service
and lease payments) of installation of capital investment items (other than the original materials and
equipment used to complete the Building and other structures on the Property) which are primarily for
the purpose of reducing operating cost, or enhancing the Property in a manner beneficial to LESSEE, or
as may be required by governmental authority; provided, however, the term "Operating Expenses" shall
not include Sales Tax, ad valorem property taxes, any nature of taxes, depreciation on structures on the
Property or equipment therein, mortgage interest, executive salaries, and real estate brokers'
commissions. Notwithstanding anything else herein, in the event of a total loss or casualty of the Leased
Premises, the difference between the amount of insurance paid out or received by LESSOR and the
replacement cost of the Leased Premises shall not be an Operating Expense. The annual statement of
Operating Expenses shall be accounted for and reported in accordance with standard accounting
principles employed by owners of similar retail rental properties to the Leased Premises (the "Annual
Statement").
For each calendar year (or part thereof if the Rent Commencement Date does not fall on January
1) during the Term, LESSOR shall estimate the amount of the Operating Expenses for such calendar
year. LESSOR shall send to LESSEE a written statement of the amount of LESSEE's Proportionate
Share of Operating Expenses and LESSEE shall pay to LESSOR, monthly, LESSEE's Proportionate
Share of such Operating Expenses plus any applicable sales or use taxes payable by LESSEE hereunder.
Within one hundred twenty (120) days after the end of each calendar year or within a reasonable time
thereafter, LESSOR shall send a copy of the Annual Statement to LESSEE. Pursuant to the Annual
Statement, LESSEE shall pay to LESSOR Additional Rent as owed or LESSOR shall adjust LESSEE's
Rent payments if LESSOR owes LESSEE a credit, such payment or adjustment to be made within thirty
(30) days after the Annual Statement is received by LESSEE. After the Expiration Date, LESSOR shall
send LESSEE the final Annual Statement for the Term, and LESSEE shall pay to LESSOR Additional
Rent as owed (which obligation shall survive expiration or earlier termination of this Lease) or if
LESSOR owes LESSEE a credit, then LESSOR shall pay LESSEE a refund. If this Lease expires or
terminates on a day other than December 31, then Additional Rent shall be prorated on a 365 -day
calendar year (or 366 if a leap year).
Notwithstanding any of the foregoing to the contrary, for the first Lease Year, LESSEE's
Proportionate Share of Operating Expenses shall not exceed the lesser of: (i) actual expenses per square
foot, or (ii) $15.00 per square foot. For the second Lease Year, and each Lease Year thereafter,
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 8 of 36
EXECUTION COPY
LESSEE's Proportionate Share of Operating Expenses shall be determined based on the actual
Operating Expenses per square foot; subject, however, to a ten percent (10.0%) limit on increases in
LESSOR's Controllable Operating Expenses (as hereinafter defined) over the immediately preceding
Lease Year; provided, however, that for the second Lease Year, the amount of LESSOR's Controllable
Operating Expenses shall be annualized.
As used herein, "LESSOR's Controllable Operating Expenses" shall mean all Operating
Expenses, less and except any Operating Expenses related to utility costs, insurance costs and taxes.
6.6.2. As used herein, "LESSEE's Proportionate Share" shall be determined by
dividing the amount of the total square footage of the Leased Premises as stated herein, plus the square
footage of the Outside Area, by the amount of the square footage of the total rentable space contained
in the Property.
No acceptance by LESSOR of a lesser sum than the Base Rent, administrative charges,
Additional Rent and other sums then due shall be deemed to be other than on account of the earliest
installment of such payments due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed as accord and satisfaction, and LESSOR may accept
such check or payment without prejudice to LESSOR's right to recover the balance of such installment
or pursue any other remedy provided in this Lease.
6.7. Net Lease. This Lease is what is commonly called a "triple net lease," it being
understood that Landlord shall receive the Base 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.
7. LESSOR'S SERVICES/UTILITIES. Provided that LESSEE is not then in default,
LESSOR shall cause to be furnished to the Property, or as applicable, during business hours of 7:00
A.M. to 9:00 P.M. Monday through Friday (excluding federal and state holidays), lawn and Common
Areas maintenance and repair. The Leased Premises are separately metered for gas, electrical, water and
sewage services. LESSEE shall be responsible for contracting directly with appropriate utilities services
providers for such services and will ensure that such services are provided to the Leased Premises during
the Term (including extensions and renewals). LESSEE shall also be responsible for procuring, at
LESSEE's sole cost, any cable, internet, wi-fi, and other communications services. Notwithstanding the
forgoing, LESSEE shall not cause or allow any satellite dishes, antennae or other similar equipment or
devices to be installed on the Leased Premises or Property without LESSOR's prior written consent,
which may be withheld in LESSOR's discretion. LESSEE shall not install equipment with unusual
demands for any of the foregoing without LESSOR's prior written consent, which LESSOR may
withhold if it determines that in its opinion such equipment may not be safely used in the Leased
Premises or that electrical service is not adequate therefor. There shall be no abatement or reduction of
Rent by reason of any of the foregoing services not being continuously provided to LESSEE.
LESSEE shall report to LESSOR immediately any defective condition in or about the Property
known to LESSEE and if such defect is not so reported and such failure to promptly report results in
other damage, LESSEE shall be liable for same.
LESSEE expressly agrees that LESSOR shall not be liable to LESSEE or any other person or
entity for any injury to persons or damage to property due to the Leased Premises or any part or
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 9 of 36
EXECUTION COPY
appurtenance thereof being improperly constructed or being or becoming out of repair, or arising from
the leaking of gas, water, sewer or steam pipes, or from problems with electrical service, or resulting
from the sprinkler system in the Leased Premises or rain water which leaks or flows from any part of
the Leased Premises, or for any theft, disappearance or loss of any property from the Leased Premises,
unless the condition causing such injury or damage results directly and solely from the negligence of
LESSOR or LESSOR's agents, employees, or persons under the control or direction of LESSOR.
8. LESSEE'S ACCEPTANCE AND MAINTENANCE OF LEASED PREMISES.
Subject to the completion of LESSOR's Work, as expressly set forth in Section 10, LESSEE's
occupancy of the Leased Premises shall constitute LESSEE's representation to LESSOR that LESSEE
has examined and inspected the Leased Premises, finds the Leased Premises to be satisfactory for
LESSEE's intended use, and constitutes LESSEE's acceptance of the Leased Premises in its "AS IS"
"WHERE IS" and "WITH ALL FAULTS" condition. Except as expressly stated in this Lease, LESSOR
makes no representation or warranties regarding the condition of the Leased Premises or the Property.
During LESSEE's move -in and move -out, a representative of LESSEE must be on-site with LESSEE's
moving company to insure proper treatment of the Property and the Leased Premises. Notwithstanding
the foregoing to the contrary, LESSEE shall have thirty (30) business days to inspect the Leased
Premises after delivery to LESSEE of the Leased Premises in its shell condition ("Inspection Period").
In the event that the result of LESSEE's inspection reveals any material defect, LESSEE shall deliver
written notice thereof to LESSOR within the Inspection Period. Such notice shall state with specificity
the nature of the alleged defect and LESSEE's proposed method of resolving or curing such defect.
LESSOR shall have fifteen (15) days from receipt of LESSEE's notice to elect to resolve or cure the
alleged defect or to dispute the alleged defect. If LESSOR fails to timely respond, then LESSOR shall
be deemed to have elected to accept the alleged defect. If the parties are unable to resolve any dispute
within forty five (45) days after LESSOR's response (or expiration of the time period for LESSOR's
response), then either party may elect to terminate this Lease. Notwithstanding the foregoing, LESSOR
hereby represents and warrants that, to the best of its knowledge, (i) the Property's structural
components, roof and roof membrane, foundation, fixtures and the interior of the Leased Premises will
be delivered to LESSEE in good condition and repair, (ii) the Property systems, including the electrical,
heating, ventilation and air conditioning systems, plumbing, utilities, and any sprinkler, lighting,
communications, security and fire/life safety systems serving the Property and Leased Premises will be
in good working order and condition; and (iii) there are no known Hazardous Substances located in or
around the Property or Leased Premises.
9. LESSEE'S MAINTENANCE OBLIGATIONS. LESSEE shall, at LESSEE's sole
cost and expense, be responsible for maintenance, repairs, and replacements to all elements of the
interior of the Leased Premises and the exterior doors and windows. Such responsibilities include
(without limitation) maintenance, repairs, and replacements of lighting fixtures (and bulb replacement),
electrical outlets and facilities, plumbing (and restroom and kitchen) facilities and fixtures, HVAC, and
drain maintenance and repairs. LESSEE shall, at LESSEE's sole cost and expense, be responsible for
janitorial services and trash removal, as well as security of the Leased Premises.
LESSEE shall promptly pay LESSOR upon demand therefor any and all costs associated with
any damage or destruction to the Property or the Leased Premises due to LESSEE's moving into or out
of the Leased Premises. LESSEE shall deliver at the end of this Lease each and every part of the Leased
Premises in good repair and condition, ordinary wear and tear and damage by casualty not caused by
LESSEE excepted. The delivery of a key or other such tender of possession of the Leased Premises to
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 10 of 36
EXECUTION COPY
LESSOR or to an employee of LESSOR shall not operate as a termination of this Lease or a surrender
of the Leased Premises except upon written notice by LESSOR.
LESSEE shall: (i) keep the Leased Premises and fixtures including (without limitation) inside
plumbing in good and operating order; (ii) make all repairs and replacements to the Leased Premises or
Property relating to or arising from the misuse or negligence of LESSEE, its agents, employees, invitees,
contractors, or visitors; (iii) repair and replace special equipment or decorative treatments installed by
or at LESSEE's request and that serve the Leased Premises only, except if this Lease is terminated due
to casualty loss or condemnation; (iv) not commit waste; and (v) conduct its business and control its
agents, employees, invitees, contractors, and visitors in such a manner as to not use, keep, or permit to
be used or kept, any noxious gas or substance or to do anything or create any noise or cause any vibration
whatsoever which, in the opinion of LESSOR, is objectionable or offensive to persons on the Property,
and thereby create any nuisance, public or private, or interfere with, annoy or disturb LESSOR in its
operation of the Property. Except for LESSEE's Work, as provided in Section 11. LESSEE shall not
make any structural or interior alterations of the Leased Premises without LESSOR's prior written
consent.
In the event that the exclusive right to use an Outdoor Area is granted under Section 1.3,
LESSEE's maintenance obligations under this Section shall expressly include the Outdoor Area, and as
an express condition of the use of the Outdoor Area, LESSEE shall, at its sole cost and- expense, be
responsible to keep the Outdoor Area (including any improvements) clean and well maintained
sufficient to maintain an ADA compliant pedestrian corridor. In the event that LESSEE fails to keep the
Outdoor Area clean and well maintained, LESSOR shall notify LESSEE of such non-compliance and if
the Outdoor Area is not brought into compliance with this section within three (3) business days of such
notice, LESSOR may, in its sole discretion, either: (i)perform the necessary maintenance and charge
LESSEE for such work; or (ii) revoke LESSEE's exclusive right to use the Outdoor Area.
10. LESSOR'S WORK. No later than February 1, 2026, LESSOR shall deliver the Leased
Premises to LESSEE with certain improvements, as more particularly set forth in Composite Exhibit B,
including but not limited to, a grease trap, an exhaust shaft, utilities stubbed for gas, plumbing, fire, and
electric, and the HVAC Unit (as more particularly set forth in Section 12), for use, distribution, and
operation by LESSEE in the Leased Premises, and LESSOR shall pay for any impact fees in connection
therewith. All work by LESSOR shall be done in strict conformity with all applicable building and
zoning codes and regulations or standards promulgated by any governmental agency having subject
matter jurisdiction.
If LESSOR fails to complete LESSOR's Work on or before February 1, 2026, such shall
constitute a default by LESSOR, and LESSEE shall have the right, but not the obligation, to terminate
this Lease by giving LESSOR written notice of termination within ten (10) days from the date of default.
11. LESSEE'S WORK. Upon completion of Lessor's Work, as set forth in Section 10, and
upon delivery of the Leased Premises to LESSEE, LESSEE shall promptly commence the improvements
to the Leased Premises in accordance with the plans and specifications submitted to and approved by
LESSOR within sixty (60) days of the Effective Date, to include all work necessary to conduct the
Permitted Use, as set forth herein (the "LESSEE Work"). Within thirty (30) days of LESSOR's approval
of the plans and specifications, LESSEE (at its sole cost and expense) shall apply for any permits
required to complete the LESSEE Work. LESSEE shall perform the LESSEE Work at its sole cost and
expense and shall be responsible for obtaining all necessary architectural and building plans, and state
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 11 of 36
EXECUTION COPY
and local governmental permits and approvals. LESSEE shall use general contractors and contractors
acceptable to LESSOR in LESSOR's reasonable discretion. LESSEE shall complete the LESSEE Work
not later than two hundred ten (210) days after the delivery of possession of the Leased Premises by
LESSOR. Notwithstanding the foregoing, the LESSEE Work shall comply with the LESSEE Design
and Construction Guidelines attached hereto as Exhibit "D", and by reference made a part hereof.
LESSOR shall provide LESSEE with final construction drawings for the Leased Premises within sixty
(60) days of the Anticipated Delivery Date; provided, however, that LESSOR reserves the right to make
any changes to such final construction drawings as may be reasonably necessary to facilitate the
completion of the Leased Premises (or any other improvements on the Property) in a timely manner, so
long as it provides any changes to the final construction drawings to LESSEE within five (5) business
days of receipt of any updated final construction drawings.
Within thirty (30) days of completion of LESSEE's Work, LESSEE shall pay to LESSOR a
Construction Management Fee equal to three percent (3%) of LESSEE's total cost for LESSEE's Work
in the Leased Premises. The Construction Management Fee shall be considered Additional Rent payable
to LESSOR by LESSEE.
12. HVAC MAINTENANCE. LESSEE shall be solely responsible for the costs to repair,
maintain, replace, and operate the HVAC Unit(s) for the Leased Premises. LESSEE shall (i) maintain,
repair, and replace when necessary all HVAC equipment which services the Leased Premises, and shall
keep the same in good condition through regular inspection and servicing, and (ii) maintain continuously
throughout the Term a service contract for the maintenance of all such HVAC equipment with a licensed
HVAC repair and maintenance contractor approved by LESSOR, which contract provides for the
periodic inspection and servicing of the HVAC equipment at least once every ninety (90) days during
the Term. LESSEE shall furnish LESSOR with copies of all such service contracts, which shall provide
that they may not be canceled or changed without at least 30 days' prior written notice to LESSOR. Any
major repairs and/or replacement, inclusive of any and all HVAC components will be LESSEE's
obligation.
13. LESSEE IMPROVEMENTS/RENOVATIONS. In connection with the LESSEE
Work, and if LESSEE in the future requires improvements, alterations, or renovations, LESSEE shall
provide LESSOR's manager with a complete set of construction drawings, and such agent shall notify
LESSEE of LESSOR's approval or denial of consent to such proposed alterations. For any
improvements, alterations, or renovations requested after the completion of the LESSEE Work (the
"Future Renovations"), if LESSOR grants its consent to such Future Renovations, as part of such notice,
the manager shall determine the actual cost of the work to be done in connection with any such Future
Renovations (which cost shall include a construction supervision fee of three percent (3%) to be paid to
LESSOR's manager). LESSEE may then either (i) agree to pay LESSOR to have the Future Renovations
done, or (ii) engage their own contractor to perform the Future Renovations, which contractor shall be
subject to the prior written consent of LESSOR. LESSEE shall be solely responsible for the costs of
Future Renovations to the Leased Premises under this Section.
14. LIENS. LESSEE shall keep the Leased Premises and the Property free from any liens of
any kind whatsoever, including (without limitation) any leasehold mortgage or pledge, judgement liens
or construction liens arising out of any work performed, materials furnished, or obligations incurred by
or on behalf of LESSEE. All Persons contracting with the LESSEE, or furnishing materials, labor, or
services to said LESSEE, or to its agents, or servants, as well as all persons, shall be bound by this
provision of the Lease Agreement. Should any claim of lien or other lien be filed against the Leased
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 12 of 36
EXECUTION COPY
Premises or the Property by reason of any act or omission of LESSEE or any of LESSEE's agents,
employees, contractors, or representatives, then LESSEE shall cause the same to be canceled and
discharged of record by bond or otherwise within ten (10) days after the filing thereof. Should LESSEE
fail to discharge such lien within such ten (10) day period, then LESSOR may discharge the same, in
which event LESSEE shall reimburse LESSOR, on demand, as additional rent, for the amount of the
lien or the amount of the bond, if greater, plus all administrative costs incurred by LESSOR in
connection therewith. The remedies provided herein shall be in addition to all other remedies available
to LESSOR under this Lease or otherwise. LESSEE shall not be deemed to be the agent of LESSOR, so
as to confer upon a laborer bestowing labor upon or within the real property underlying the Leased
Premises or upon materialmen who furnish material incorporated in the construction and improvements
upon the foregoing, a construction lien pursuant to Chapter 713, Florida Statutes, as same may be
amended from time to time, or an equitable lien upon the LESSOR's right, title or interest in and to the
Leased Premises. These provisions shall be deemed a notice under Section 713.01 (26), Florida Statutes
as well as Section 713.10(1) & (2)(b) Florida Statutes, as same may be amended from time to time, of
the "non -liability" of the LESSOR. LESSEE shall have no power to do any act or make any contract
that may create or be the foundation of any lien, mortgage or other encumbrance upon the reversionary
or other estate of LESSOR, or any interest of LESSOR in the Leased Premises. NO CONSTRUCTION
LIENS OR OTHER LIENS FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED TO THE
LEASED PREMISES SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN AND
TO THE LEASED PREMISES OR THE PROPERTY.
15. LESSOR'S RIGHTS TO MAKE REPAIRS. Notwithstanding anything to the contrary
set forth herein, if LESSEE fails to timely perform any of its maintenance obligations under this Lease
and does not commence performance of such maintenance obligations within fifteen (15) days after
receipt of notice from LESSOR (unless the damage is of such a nature that immediate repairs are
necessary under the circumstances to mitigate or prevent imminent risk of harm to persons or property)
specifying the work needed, and to thereafter diligently and. continuously pursuing completion of
unfulfilled maintenance obligations, then LESSOR shall have the right, but not the obligation, to
perform such maintenance, and any amounts so expended by LESSOR shall be paid by LESSEE to
LESSOR within thirty (30) days after written demand, with interest at the maximum rate allowed by
law (or the rate of ten percent (10%) per annum, whichever is less) accruing from the date of expenditure
through the date paid. Any failure of LESSEE to reimburse LESSOR within such 30 -day time period
shall constitute a default under this Lease.
16. LESSOR'S MAINTENANCE. Except for repairs and replacements that LESSEE must
make herein, LESSOR shall pay for and make all other repairs and replacements to the Common Areas,
and Property (including any fixtures and equipment that are part of the Common Areas). This
maintenance shall include the roof, foundation, exterior walls, interior structural walls, all structural
components, and all exterior systems, such as mechanical, electrical, and plumbing risers within the
Common Areas. Repairs or replacements required herein shall be made within a reasonable time
(depending on the nature of the repair or replacement needed) after receiving notice from LESSEE or
LESSOR having actual knowledge of the need for a repair or replacement. Notwithstanding the
foregoing, (i) LESSEE shall be responsible for and shall pay all costs of repairs and replacements which
are required to be made to repair or correct damage to the Leased Premises or the Outdoor Area caused
by the negligence or wrongful acts of LESSEE or LESSEE's employees, contractors, agents, invitees,
or customers; and (ii) LESSEE shall be responsible for and shall pay all costs of repairs and replacements
which are required to be made to repair or correct damage to the Common Areas caused by the
negligence or wrongful acts of LESSEE or LESSEE's employees, agents, or contractors.
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 13 of 36
1:0:41141811CO K4163 W4
17. LESSEE'S RESTRICTIVE COVENANT. LESSEE hereby expressly warrants,
requests and covenants to LESSOR as follows: LESSEE does not now, and will not during the Term of
this Lease (including any extensions or renewals), directly or through an entity affiliated with LESSEE,
operate the same or a similar business as the business constituting the Permitted Use within the corporate
limits of the City of Sunny Isles Beach. For purposes of this Section, an entity is deemed to be an affiliate
of LESSEE if: (i) such entity has the same manager as LESSEE; (ii) such entity shares 50% or more
common ownership with the LESSEE; or (iii) such entity is owned, controlled, or managed by LESSEE,
or any members or managers of LESSEE.
18. DAMAGES TO LEASED PREMISES. If the Leased Premises shall be partially
damaged by fire or other casualty insured under LESSOR's insurance policies, then upon receipt of the
insurance proceeds, LESSOR shall, except as otherwise provided herein, promptly repair and restore the
Leased Premises (exclusive of improvements or alterations made by LESSEE, LESSEE's trade fixtures,
decorations, signs, and personal property) substantially to the condition thereof immediately prior to
such damage or destruction; limited, however, to the extent of the insurance proceeds received by
LESSOR and the availability of building materials and supplies. If by reason of such occurrence: (i) the
Leased Premises is rendered wholly untenantable; (ii) the Leased Premises is damaged in whole or in
part as a result of a risk which is not covered by LESSOR's insurance policies; (iii) the Leased Premises
is damaged in whole or in part during the last two (2) years of the Term; or (iv) the Property containing
the Leased Premises is damaged (whether or not the Leased Premises is damaged) to an extent of twenty-
five percent (25%) or more of the fair market value thereof, then, in any such circumstance, LESSOR
may elect either to repair the damage as aforesaid, or to cancel this Lease by written notice of
cancellation given to LESSEE within ninety (90) days after the date of such occurrence, and thereupon
this Lease shall terminate. LESSEE shall vacate and surrender the Leased Premises to LESSOR within
fifteen (15) days after receipt of such notice of termination. In addition, LESSEE may also terminate
this Lease by written notice given to LESSOR at any time between the one hundred eighty-first(181st)
and one hundred ninety-sixth (196th) days after the occurrence of any such casualty, if LESSOR has
failed to restore the damaged portions of the Leased Premises to a tenantable condition within one
hundred eighty (180) days of such casualty. However, if LESSOR is prevented by Force Majeure, from
completing the restoration within said one hundred eighty (180) day period, then LESSOR shall have
an additional period beyond said one hundred eighty (180) days equal to the number of days constituting
such Delays in which to complete such restoration work; and LESSEE may not elect to terminate this
Lease until said additional period required for completion has expired, unless such additional period
exceeds an additional sixty (60) days. In such case, LESSEE's fifteen (15) day notice of termination
period shall begin to run upon the expiration of LESSOR's additional period for restoration set forth in
the preceding sentence. Upon the termination of this Lease as aforesaid, LESSEE's liability for the Rent
and other charges reserved hereunder shall cease as of the effective date of the termination of this Lease,
subject, however, to the provisions for abatement of Rent hereinafter set forth.
Unless this Lease is terminated as aforesaid, this Lease shall remain in full force and effect, and
LESSEE shall promptly repair, restore, or replace LESSEE's improvements, trade fixtures, decorations,
signs, and personal property in the Leased Premises in a manner and to at least a condition equal to that
existing prior to their damage or destruction, and the proceeds of all insurance carried by LESSEE on
said property shall be held in trust by LESSEE for the purposes of such repair, restoration, or
replacement.
If, by reason of such fire or other casualty, the Leased Premises is rendered wholly untenantable,
then the Rent payable by LESSEE shall be fully abated, or if only partially damaged, such Rent and
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 14 of 36
EXECUTION COPY
other charges shall be abated proportionately as to the amount by which LESSEE's average monthly net
operating income from its business operations on the Leased Premises is reduced by reason of the partial
damage to the Leased Premises (unless this Lease is terminated, as aforesaid) from the date of such
casualty until the Leased Premises have been substantially repaired and restored, or until LESSEE's
business operations are restored in the entire Leased Premises, whichever shall first occur. For purposes
of calculating the amount of Rent to be abated in the event a portion of the Leased Premises is rendered
unusable, the parties shall use an independent certified public accounting firm selected by LESSOR,
subject to LESSEE's reasonable approval. LESSEE shall provide such third -party firm with all past and
current operating and financial information as may be requested to determine the amount and extent to
which any decrease in LESSEE's average monthly net income generated from its operations in the
Leased Premises (if any) has resulted solely and directly from the reduction in the usable space of the
Leased Premises resulting from the casualty. Such third -party's determination shall be binding on the
parties. If such determination would result in a reduction of rent payable by LESSEE hereunder by more
than thirty percent (30%), then either LESSOR or LESSEE shall have the right to elect to terminate this
Lease. If neither party elects to terminate this Lease, then LESSEE shall continue the operation of
LESSEE's business in the Leased Premises or any part thereof not so damaged during any such period
to the extent reasonably practicable from the standpoint of prudent business management.
Notwithstanding the foregoing, in the case of damages or other casualty caused by the negligence or
other wrongful conduct of LESSEE or of LESSEE's employees, subtenants, licensees, contractors, or
invitees, or their respective agents or employees, there shall be no abatement of Rent. Except for the
abatement of the Rent hereinabove set forth, LESSEE shall not be entitled to, and hereby waives, all
claims against LESSOR for any compensation or damage for loss of use of the whole or any part of the
Leased Premises and/or for any inconvenience or annoyance occasioned by any such damage,
destruction, repair, or restoration.
19. ASSIGNMENT -SUBLEASE. Without first obtaining the written consent of LESSOR,
which shall not be unreasonably withheld, LESSEE shall not: (a) assign, convey, mortgage, pledge,
encumber, or otherwise transfer (whether voluntarily, by operation of law, or otherwise) this Lease or
any interest hereunder; (b) allow any lien to be placed upon LESSEE's interest hereunder; (c) sublet the
Leased Premises or any part thereof; or (d) permit the use or occupancy of the Leased Premises or any
part thereof by anyone other than LESSEE. Any attempt to consummate any of the foregoing without
LESSOR's consent shall be of no force or effect. Any assignment or sublease to which LESSOR may
consent (one consent not being any basis that LESSOR should grant any further consent) shall not relieve
LESSEE of any or all of its obligations hereunder. For the purpose of this Section, the word
"assignment" shall be defined and deemed to include the following: (i) if LESSEE is a partnership, the
withdrawal or change, whether voluntary, involuntary or by operation of law, of partners owning thirty
percent (30%) or more of the partnership, or the dissolution of the partnership; (ii) if LESSEE consists
of more than one person, an assignment, whether voluntary, involuntary, or by operation of law, by one
person to one of the other persons that is a LESSEE; (iii) if LESSEE is a corporation, any dissolution or
reorganization of LESSEE, or the sale or other transfer of a controlling percentage (hereafter defined)
of capital stock of LESSEE other than to an affiliate or subsidiary or the sale of fifty-one percent (51%)
in value of the assets of LESSEE; (iv) if LESSEE is a limited liability company, the change of members
whose interest in the company is fifty percent (50%) or more. The phrase "controlling percentage"
means the ownership of, and the right to vote, stock possessing at least fifty-one percent (51%) of the
total combined voting power of all classes of LESSEE's capital stock issued, outstanding and entitled
to vote for the election of directors, or such lesser percentage as is required to provide actual control
over the affairs of the corporation. Acceptance of Rent by LESSOR after any non -permitted assignment
shall not constitute approval thereof by LESSOR. Notwithstanding the foregoing provisions of this
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 15 of 36
EXECUTION COPY
Section, LESSEE may assign this Lease without LESSOR's consent (but with prior written notice of
such assignment) to: (1) any corporation or partnership that controls, is controlled by, or is under
common control with, LESSEE; or (2) any corporation resulting from the merger or consolidation with
LESSEE, or (3) to any entity that acquires all of LESSEE's assets as a going concern of the business
that is being conducted on the Leased Premises, provided, however, that in each such instance, the
assignee (w) is a bona fide entity and not an entity created or facilitated for the purpose of avoiding the
consent required herein, (x) is a franchisee of LESSOR with principals providing a personal guaranty or
has a net worth equal to or greater than that of LESSEE as of the date hereof and/or as of the effective
date of such assignment, (y) assumes the obligations of LESSEE hereunder in writing (a copy of such
instrument shall be provided to LESSOR), and (z) continues the same Permitted Use as provided herein.
The failure to provide LESSOR with prior written notice of any such assignment (along with a copy of
the assignment instrument) shall be a default hereunder.
In no event shall this Lease be assignable by operation of any law, and LESSEE's rights
hereunder may not become, and shall not be listed by LESSEE as an asset under any bankruptcy,
insolvency, or reorganization proceedings. LESSEE is not, may not become, and shall never represent
itself to be an agent of LESSOR, and LESSEE acknowledges that LESSOR's title is paramount, and
that it can do nothing to affect or impair LESSOR's title. LESSEE shall pay all out-of-pocket costs and
expenses incurred by LESSOR in connection with any assignment (whether or not consent is required)
or sublease transaction, including LESSOR's reasonable attorneys' fees.
If this Lease shall be assigned or the Leased Premises or any portion thereof sublet by LESSEE
at a rental that exceeds the rentals to be paid to LESSOR hereunder, attributable to the Leased Premises
or portion thereof so assigned or sublet, then any such excess shall be paid over to LESSOR by LESSEE.
If LESSOR assists LESSEE in finding a permissible subtenant; LESSOR shall be paid a fee for such
assistance in addition to a fee in an amount necessary to cover the subtenant's improvements to the
Leased Premises or any portion thereof so assigned or sublet.
LESSOR shall have the right to transfer and assign, in whole or in part, all of its rights and obligations
hereunder, in the Property and all other property referred to herein, and in such event and upon such
transfer no further liability or obligation shall thereafter accrue against LESSOR hereunder.
20. INSURANCE REQUIREMENTS. At all times during the term of this Lease
Agreement, LESSEE, at its expense, shall keep or cause to be kept in effect the following insurance
coverages, with all policies to have LESSOR added as an additional insured:
20.1. A general liability insurance policy, in standard form, insuring LESSEE, and
LESSOR as an additional insured on a primary and non-contributory status in favor of LESSOR, against
any and all liability for bodily injury or property damage arising out of or in connection with this Lease
and the license granted herein with a policy limit of not less than One Million Dollars ($1,000,000.00)
per occurrence and Two Million Dollars ($2,000,000.00) general aggregate and shall name the LESSOR
as an additional insured on a primary and non-contributory status in favor of LESSOR. All such policies
shall cover the activities under the Lease, including, but not limited to the possession, use, occupancy,
maintenance, repair, and construction of additions, modifications, renovations or demolition of the
Leased Premises or portions thereof. This policy shall not be affected by any other insurance carried by
LESSOR.
20.2. Workers' Compensation Insurance to be in compliance with the "Workers'
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 16 of 36
EXECUTION COPY
Compensation Law" of the,State of Florida and all applicable federal laws. In addition, the policy(ies)
shall include Employers' Liability with a limit of One Hundred Thousand Dollars ($100,000.00) for
each accident.
20.3 Business Automobile Liability for all vehicles owned or used by LESSEE and
LESSEE's contractors that are involved in the operation of the Leased Premises with limits of no less
than One Million Dollars ($1,000,000.00) limits per occurrence, including for Hired and Non -Owned
Auto Liability coverage, with LESSOR as an additional insured on a primary and non-contributory
status in favor of LESSOR.
20.4. Fire and All Risk Property coverage (including flood), with an endorsement for
increased cost of compliance, on the structures, improvements and fixtures located upon the Leased
Premises in an amount equate to not less than ninety percent (90%) of its full insurable value, and shall
name the LESSOR and LESSEE as Loss Payees on the policy. The deductible shall be no more than
ten percent (10%) of the value of the structures and improvements located upon the Leased Premises.
The proceeds of such policy shall be exclusively used as provided in Section 9.3(i) below. At any time
during the term of this Lease upon request from LESSEE, LESSOR may secure Fire and All Risk
Property coverage for the improvements on the Leased Premises, if possible, for the benefit of LESSEE
at LESSEE's expense. Parties may revise coverage requirements from time to time by mutual consent
of the contract administrators.
20.5. A liquor liability insurance policy, in standard form, insuring LESSEE, and
LESSOR as an additional insured on a primary and non-contributory status in favor of LESSOR, against
any and all liability for bodily injury or property damage arising out of or in connection with this Lease
and the license granted herein with a policy limit of not less than One Million Dollars ($1,000,000.00)
general aggregate and shall name the LESSOR as an additional insured on a primary and non-
contributory status in favor of LESSOR. All such policies shall cover the activities under the Lease,
including, but not limited to the possession, use, occupancy, maintenance, repair, and construction of
additions, modifications, renovations or demolition of the Leased Premises or portions thereof. This
policy shall not be affected by any other insurance carried by LESSOR.
20.6. All of the policies of insurance provided for in this Lease:
A. shall be in the form and substance approved by the Florida Office of
Insurance Regulations ("FLOIR")
B. shall be issued only by companies licensed by FLOIR,
C. Certificates of Insurance pertaining to same shall be delivered to
LESSOR, at least fourteen (14) days prior to the Effective Date of the
Lease Term,
D. shall be with a carrier having an A Best's Rating of not less than A, Class
VII,
E. shall bear endorsements showing the receipt by the respective companies
of the premiums thereon or shall be accompanied by other evidence of
payment of such premiums to the insurance companies, including
evidence of current annual payment, if on any installment payment basis,
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 17 of 36
EXECUTION COPY
and shall provide that they may not be canceled by the insurer for thirty
(30) days after service of notice of the proposed cancellation upon
LESSOR and shall not be invalidated as to the interest of LESSOR by any
act, omission or neglect of LESSEE.
20.7. Waiver of Subrogation for General Liability, Workers Compensation, Business
Automobile, and Umbrella Policies. Each of the parties, LESSOR and LESSEE, hereby releases the
other from any and all liability or responsibility to the other or anyone claiming through or under them by
way of subrogation or otherwise for any loss or damage to property caused by fire or any other perils
insured in policies of insurance for any loss or damage to property caused by fault or negligence covering
such property, even if such loss or damage shall have been caused by the fault or negligence of the other
party, or anyone for which such parry may be responsible, including any other licensees or occupants of
the Leased Premises; provided however, that this release shall be applicable and in force and effect only
to the extent that such release shall be lawful at the time and in any event only with respect to loss or
damage occurring during such time as the releaser's policies shall contain a clause or endorsement to
the effect that any such release shall not adversely affect or impair said policies or prejudice the right of
the releaser to coverage thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of LESSOR and LESSEE agrees that it will request its insurance carriers to include
in its policies such a clause or endorsement. If extra costs shall be charged therefore, each party shall
advise the other thereof and of the amount of the extra cost and the other party, at its election, may pay
the same, but shall not be obligated to do so.
20.8. Umbrella or Excess Liability. LESSEE agrees to maintain either a Commercial
Umbrella or Excess Liability at a limit of liability not less than $1,000,000 Each Occurrence,
$2,000,000. Aggregate. LESSEE agrees to endorse LESSOR as an "Additional Insured" on the
Commercial Umbrella/Excess Liability, unless the Certificate of Insurance states the Commercial
Umbrella/Excess Liability provides coverage on a pure/true follow -form basis, or LESSOR is
automatically defined as an Additional Protected Person. Umbrella or Excess Policy must be follow -
form coverage over the Commercial General Liability, Automobile Liability, and Employers' Liability
policies.
20.9. Public Construction Bond. LESSEE or LESSEE's contractor shall furnish a
Public Construction Bond to LESSOR, as an Obligee, in an amount not less than one hundred percent
(100%) of the price of LESSEE's contract with its contractor(s). The bond furnished by LESSEE or
LESSEE's contractor shall incorporate by reference the terms of this Lease as fully as though they were
set forth verbatim in such bonds. In the event the price of LESSEE's contract with its contractor is
adjusted by change order, the penal sum of the bond shall be deemed increased by like amount. The
bond furnished by LESSEE or LESSEE's contractor shall be in form required by LESSOR and in
conformity with Section 255.05, Florida Statutes, shall be recorded in the Public Records of Miami -
Dade County before construction commences, and shall be executed by a surety, or sureties, reasonably
suitable to LESSOR. The Public Construction Bond shall continue in effect through the contract term
between LESSEE and its contractor(s). The bonds shall be with a surety company authorized to do
business in the State of Florida and having been in business with a record of successful continuous
operation for at least five (5) years. The Bond shall guarantee all work and materials furnished under
the Agreement including losses resulting from defects in the materials or improper performance of
Services under the Agreement that may appear or be discovered during performance of the Services or
during any applicable warranty period after completion of all Services, and for latent defects.
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 18 of 36
EXECUTION COPY
21. INDEMNIFICATION. Subject to the foregoing, LESSEE shall defend, fully indemnify
and hold LESSOR harmless from and against any and all claims arising out of: (i) LESSEE's use of the
Leased Premises or any part thereof, and if applicable, the Outdoor Area and Common Area or any part
thereof, (ii) any activity, work, or other thing done, permitted.or suffered by LESSEE in or about the
Leased Premises or the Property, or any part thereof, and if applicable, the Outdoor Area or any part
thereof (iii) any breach or default by LESSEE in the performance of any of its obligations under this
Lease, or (iv) any act or negligence of LESSEE, or any officer, agent, employee, contractor, servant,
invitee, customer, or guest of LESSEE; and in each case from and against any and all damages, losses,
liabilities, lawsuits, costs and expenses (including attorneys' fees at all tribunal levels) arising in
connection with any such claim or claims as described in (i) through (iv) above, or any action brought
thereon. Excluded from this indemnity shall be all lawsuits, penalties, damages, settlements, judgments,
decrees, costs, charges, and other expenses whatsoever including attorneys' fees or liabilities of every
kind and nature which occur as a result of actions by LESSOR's invitees or guests.
If such action is brought against LESSOR, LESSEE upon notice from LESSOR shall defend the
same through counsel selected by LESSEE's insurer, or other counsel acceptable to LESSOR. LESSEE
assumes all risk of damage or loss to its property or injury or death to persons in, on, or about the Leased
Premises, from all causes except those for which the law imposes liability on LESSOR regardless of
any attempted waiver thereof, and LESSEE hereby waives such claims in respect thereof against
LESSOR. The provisions of this Section shall survive the termination of this Lease.
LESSOR and LESSEE (as the "Releasing Party") releases the other (as the "Released Party"),
to the extent of its insurance coverage, from any and all liability for any loss or damage caused by fire,
any of the extended coverage casualties, or any other casualty insured against, even if such fire or other
casualty shall be brought about by the fault or negligence of the Released Party, or any persons claiming
under the Released Party; provided, however, this release shall be in force and effect only with respect
to loss or damage occurring during such time as the Releasing Party's policies of fire and extended
coverage insurance shall contain a clause to the effect that this release shall not affect such policies or
the right of the Releasing Parry to recover thereunder. LESSOR and LESSEE agree that each of their
respective fire and extended coverage insurance policies shall include such a subrogation clause so long
as the same is obtainable. Except as expressly provided herein, nothing contained in this Lease shall be
deemed to release either party hereto from liability for damages resulting from the fault or negligence
of said party or its agents or from responsibility for repairs necessitated thereby or by any default thereof
hereunder.
Notwithstanding anything to the contrary in this Lease, LESSOR agrees that LESSOR, at all
times, will indemnify and hold LESSEE harmless from all losses, damages, liabilities, and expenses
(including reasonable legal fees and court costs) which may arise or be claimed against LESSEE, or any
injuries or damages to the persons or property of any persons arising from: (i) any acts or omissions of
LESSOR (or persons within LESSOR's employment or control) occurring within any areas of the
Property, controlled by LESSOR outside the Leased Premises, except to the extent arising from
LESSEE's negligence or willful misconduct, (ii) any negligence or willful misconduct of LESSOR or
its employees, agents or contractors, or (iii) LESSOR's failure to comply with the terms and provisions
of this Lease and/or applicable laws. Nothing in this Lease specifically is intended to nor shall it be
construed as an additional waiver of sovereign immunity beyond the express written contractual
obligations of LESSOR contained within this Lease. Excluded from the LESSOR's indemnification
obligations herein are any claims for which LESSOR, as a municipality, is immune from suit under the
doctrine of sovereign immunity or for any amount of a claim exceeding the limitations of liability
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 19 of 36
EXECUTION COPY
established by Section 768.28, Florida Statutes.
22. SIGNS. LESSEE shall submit a Sign Design Package in accordance with LESSOR's
sign standards and Code of Ordinances for LESSOR's approval, which approval shall not be
unreasonably withheld. LESSEE may not erect, install or display any sign or advertising material upon
the Property exterior, the exterior of the Leased Premises (including any exterior doors), or the exterior
walls thereof, or in any window therein, without the prior written consent of LESSOR. LESSEE, at
LESSEE's expense, may install signage in such locations as may be approved by LESSOR, which shall
include, but not be limited to, a marquis sign for the Property and a sign on the monument located just
outside of the Leased Premises facing Collins Avenue. Any signage installed by LESSEE must be
approved by LESSOR, in advance and in writing, and be in compliance with all local zoning ordinances.
LESSOR shall permit LESSEE to include its signage on the Property's monument sign, provided that
such installation shall be at LESSEE's sole expense.
23. ACCESS TO LEASED PREMISES. LESSOR shall have the right, at all reasonable
times, either itself or through its authorized agents, to enter the Leased Premises (i) to make repairs,
alterations, or changes as LESSOR deems necessary, (ii) to inspect the Leased Premises, and (iii) to
show the Lease Premises to prospective purchasers. LESSOR shall have the right, either itself or through
its authorized agents, to enter the Leased Premises at all reasonable times for inspection to show
prospective tenants if within one hundred eighty (180) days prior to the Expiration Date as extended by
any exercised option. LESSEE, its agents, employees, invitees, customers, and guests, shall have the
right of ingress and egress to common and public areas of the Property, provided LESSOR by reasonable
regulation may control such access for the comfort, convenience, safety and protection of all persons in
the Property, or as needed for making repairs and alterations. LESSEE shall be responsible for providing
access to the Leased Premises to its agents, employees, invitees, customers, and guests after hours, but
in no event shall LESSEE's use of and access to the Leased Premises after hours compromise the
security of the Property. LESSOR shall have the right to enter the Leased Premises at any time in the
event of an emergency.
24. DEFAULT AND TERMINATION. If LESSEE: (i) fails to pay when due any Rent,
or any other sum of money which LESSEE is obligated to pay, as provided in this Lease; or (ii)
materially breaches any other agreement, covenant, or obligation herein set forth and such breach shall
continue and not be remedied within thirty (30) days after LESSOR shall have given LESSEE written
notice specifying the breach, or if such breach cannot, with due diligence, be cured within said period
of thirty (30) days, then within a commercially reasonable time period (not to exceed ninety (90) days)
and LESSEE does not promptly commence and thereafter act in good faith and exercise due diligence
to cure the breach within ninety (90) days after notice thereof from LESSOR; or (iii) files (or has filed
against it and not stayed or vacated within sixty (60) days after filing) any petition or action for relief
under any creditor's law (including bankruptcy, reorganization, or similar action), either in state or
federal court; or (iv) makes any transfer in fraud of creditors as defined in Section 548 of the United
States Bankruptcy Code (11 U.S.C. 548, as amended or replaced), has a receiver appointed for its assets
(and appointment shall not have been stayed or vacated within thirty (30) days), or makes an assignment
for benefit of creditors; then LESSEE shall be in default hereunder, and, in addition to any other lawful
right or remedy which LESSOR may have, LESSOR, at its option, in addition to such other remedies as
may be available under Florida law, may do the following: (1) terminate this Lease and LESSEE's right
of possession; or (2) terminate LESSEE's right to possession but not this Lease and/or proceed in
accordance with any and all of the following remedies:
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 20 of 36
1:0.140181 IN) eraill WA
24.1. LESSOR may, without further notice, re-enter the Leased Premises in accordance
with applicable law and dispossess LESSEE by summary proceedings or otherwise, as well as the legal
representative(s) of LESSEE and/or other occupant(s) of the Leased Premises, and remove their effects
and hold the Leased Premises as if this Lease had not been made, and LESSEE hereby waives the service
of notice of intention to re-enter or to institute legal proceedings to that end; and/or at LESSOR's option.
24.2. All Base Rent and all Additional Rent for the balance of the Term will, at the
election of LESSOR, be accelerated and the present worth of same (as reasonably determined by
LESSOR) for the balance of the Term, net of amounts actually collected by LESSOR, shall become
immediately due thereupon and be paid, together with all expenses of any nature which LESSOR may
incur such as (by way of illustration and not limitation) those for attorneys' fees, brokerage, advertising,
and refurbishing the Leased Premises in good order or preparing them for re -rental; and/or at LESSOR's
option.
24.3. LESSOR may re -let the Leased Premises, or any part thereof, either in the name
of LESSOR or otherwise, for a term or terms which may at LESSOR's option be less than or exceed the
period which would otherwise have constituted the balance of the Term, and may grant concessions or
free rent or charge a higher rental than that reserved in this Lease; provided, however, LESSOR shall
have no obligation to re -let the Leased Premises, or any part thereof, and shall in no event be liable for
failure to re -let the Leased Premises, or any part thereof, or, in the event of any such re -letting, for refusal
or failure to collect any rent due upon such re -letting, and no such refusal or failure shall operate to
release LESSEE of any liability under this Lease or otherwise to effect or reduce any such liability;
and/or at LESSOR's option.
24.5. LESSEE or its legal representative(s) will also pay to LESSOR as agreed upon
damages, in addition to such other damages that LESSOR may be legally entitled to, any deficiency
between the Base Rent and all Additional Rent hereby charged and/or agreed to be paid and the net
amount, if any, of the rents collected on account of this Lease or leases of the Leased Premises for each
month of the period which would otherwise have constituted the balance of the Term.
24.6. All rights and remedies of LESSOR are cumulative, and the exercise of any one
of such rights and remedies shall not be an election excluding LESSOR at any other time from exercise
of a different or inconsistent remedy. No exercise by LESSOR of any right or remedy granted herein
shall constitute or effect a termination of this Lease unless LESSOR shall so elect by written notice
delivered to LESSEE. The failure of LESSOR to exercise its rights in connection with this Lease or any
breach or violation of any term, or any subsequent breach of the same or any other term, covenant or
condition herein contained shall not be a waiver of such term, covenant or condition or any subsequent
breach of the same or any other covenant or condition herein contained.
24.7. No payments of money by LESSEE to LESSOR after the expiration or
termination of this Lease after the giving of any notice by LESSOR to LESSEE shall reinstate or extend
the Term, or make ineffective any notice given to LESSEE prior to the payment of such money. After
the service of notice or the commencement of a suit, or after final judgment granting LESSOR
possession of the Leased Premises, LESSOR may receive and collect any sums due under this Lease,
and the payment thereof shall not make ineffective any notice or in any manner affect any pending suit
or any judgment previously obtained.
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 21 of 36
EXECUTION COPY
24.8. To the fullest extent permitted by applicable Florida law, Tenant hereby
absolutely, unconditionally and irrevocably waives the following:
24.8.1. Any right LESSEE may have to interpose or assert any claim or
counterclaim in any action or proceeding brought by LESSOR under this Lease other than a compulsory
counter -claim that would be barred from assertion altogether if not asserted in the proceedings brought
by LESSOR. If LESSEE violates this Subsection, LESSOR and LESSEE stipulate that any such claim
or counterclaim shall be severed and tried separately from the action or proceeding brought by LESSOR
pursuant to applicable rules of procedure and laws. This subsection shall in no way impair the right of
LESSEE to commence a separate action against LESSOR for any violation by LESSOR of the
provisions of this Lease or to which LESSEE has not waived any claim pursuant to the provisions of
this Lease so long as notice is first given to LESSOR, and a reasonable opportunity is granted to
LESSOR to correct such violation. In no event shall LESSOR be responsible for any consequential
damages incurred by LESSEE, including lost profits or interruption of business, as a result of any default
by LESSOR. LESSEE shall in all events comply with the provisions of Section 83.232, Florida Statutes,
with respect to any action or proceeding brought by LESSOR under this Lease;
24.8.2. Any and all rights of redemption of the Leased Premises or any goods
therein granted by or under any present or future laws in the event LESSEE is evicted or dispossessed
of the same in accordance with this Lease or LESSOR obtains possession of the same in accordance
with this Lease;
24.8.3. The benefit of all laws now existing or hereafter in effect, exempting any
goods on the Leased Premises owned by LESSEE from distraint, levy, or sale in any legal proceedings
taken by LESSOR in accordance with applicable laws to enforce any rights or remedies under this Lease;
24.8.4. The benefit of all laws existing now or hereafter in effect regarding any
limitation as to the goods upon which, or the time within which, distress is to be made after removal of
goods of LESSEE from the Leased Premises, and LESSEE further relieves LESSOR of the obligation
of proving or identifying the goods distrained, it being the purpose and intent of this provision that all
goods of LESSEE upon the Leased Premises shall be liable to distress for rent at any time after
LESSEE's default beyond the applicable cure period under this Lease;
24.8.5. All rights relating to the landlord/tenant relationship under any law,
ordinance, or statute, to the extent that such law, ordinance or statute might limit the time period
respecting LESSOR's right to cause the distrained goods to be sold. LESSEE hereby specifically and
knowingly authorizes LESSOR to sell any goods distrained for rent at a public auction sale to be held
at any time at least fifteen (15) days after the distraint without appraisement and condemnation of the
goods, but upon ten (10) days' notice to LESSEE of the date, place and terms of sale, including
LESSOR's right to purchase all or any of the property; and
24.8.6. The requirement under Section 83.12, Florida Statutes (or any
successor statute) that LESSOR in the distress for rent action file a bond payable to LESSEE in at least
double the sum demanded by LESSOR. In the case of the distress for rent action under this Lease, no
bond whatsoever will be required of LESSOR.
24.9. LESSEE further agrees that LESSOR may obtain an order for summary
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 22 of 36
EXECUTION COPY
ejectment from any court of competent jurisdiction without prejudice to LESSOR's rights to otherwise
collect rents from LESSEE.
24.10. In the event LESSOR breaches any of its material covenants contained in this
Lease and fails to cure such breach within thirty (30) days after receipt of written notice, LESSOR
shall be in default hereunder. Notwithstanding the foregoing, if LESSOR's breach is of such a nature
that it is not possible to cure such breach within said 30 -day period, then LESSOR shall have a
commercially reasonable time period (not to exceed ninety (90) days from receipt of written notice) to
cure such breach.
25. MULTIPLE DEFAULTS. Should LESSEE default in the payment of Advance Rent,
Base Rent, Additional Rent, or any other sums payable by LESSEE under this Lease on two (2) or more
occasions during any twelve (12) month period, regardless of whether any such default is cured, then,
in addition to all other remedies otherwise available to LESSOR, LESSEE shall, within ten (10) days
after demand by LESSOR, post a security deposit in, or increase the existing Security Deposit by, a sum
equal to three (3) months' installments of Base Rent. Should LESSEE breach or fail to perform its
obligations under this Lease on two (2)or more occasions during any twelve (12) month period and
timely cure such breaches, then in addition to all other remedies available to LESSOR, any notice
requirements or cure periods otherwise set forth in this Lease with respect to a default by LESSEE shall
not apply upon the occurrence of any third (3rd) breach or default by LESSEE during such 12 month
period.
26. PROPERTY OF LESSEE. LESSEE, at its sole expense, agrees to deliver to LESSOR
upon the termination of this Lease the entire Leased Premises including all improvements, in a good
state of repair and in first class condition, ordinary wear and tear excepted. Provided LESSEE is not in
default hereunder, LESSEE may remove all fixtures and equipment which it has placed in the Leased
Premises; provided, however, LESSEE repairs all damages caused by such removal. If LESSEE does
not remove its property from the Leased Premises upon termination (for whatever cause) of this Lease,
such property shall be deemed abandoned by LESSEE, and LESSOR may dispose of the same in
whatever manner LESSOR may elect without any liability to LESSEE. Without limiting the foregoing,
if LESSEE removes any fixtures or built-in equipment (such as walk-in coolers, restaurant ventilation
hoods or equipment, sinks and plumbing fixtures, lighting fixtures, etc.), LESSEE shall use contractors
approved by LESSOR in writing and in advance, and such approval may not be unreasonably withheld.
In such cases, LESSEE shall, at its expense, cause the Leased Premises and all affected parts of the
Property to be fully restored and secured in good condition with ceilings and drywall repaired and
painted, plumbing (water, sewer and gas lines) capped by a Florida licensed plumber, electrical lines
wired and capped by a Florida licensed electrician and any other damage to the Property repaired.
27. QUIET ENJOYMENT. If LESSEE promptly and punctually complies with each of its
covenants and obligations hereunder, LESSEE shall have and enjoy peacefully the possession of the
Leased Premises during the Term hereof, provided that no action of LESSOR or other tenants working
in any other space in the Property, or in repairing or restoring the Property, shall be deemed a breach of
this covenant, or give to LESSEE any right to modify this Lease either as to Term, Rent, payables or
other obligations to be performed hereunder by LESSEE.
28. INSOLVENCY OR BANKRUPTCY. Subject to the provisions hereof respecting
severability, should LESSEE at any time during the Lease Term suffer or permit the appointment of a
receiver to take possession of all or substantially all of the assets of LESSEE, or an assignment of LESSEE
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 23 of 36
EXECUTION COPY
for the benefit of creditors, or any action taken or suffered by LESSEE under any insolvency,
bankruptcy, or reorganization act, such action shall at LESSOR's option, constitute a breach and default
of this Lease by LESSEE and LESSEE agrees to provide adequate protection and adequate assurance of
future performance to the LESSOR which will include, but not be limited to the following:
28.1. All monetary and non -monetary defaults existing prior to the breach or default
referenced above shall be cured within the time specified above that shall include all costs and attorneys'
fees expended by LESSOR to the date of curing the default.
28.2. All obligations of the LESSEE must be performed in accordance with the terms
of this Lease.
28.3. If at any time during the pendency of the bankruptcy proceeding the LESSEE or
its successor in interest fails to perform any of the monetary or non -monetary obligations under the terms
of this Lease, or fails to cure any pre -filing default, or fails to make additional security deposit required
under the Lease for the adequate assurance of future performance clause above, the LESSEE HEREBY
STIPULATES AND AGREES TO WAIVE ITS RIGHTS TO NOTICE AND HEARING AND TO
ALLOW THE LESSOR TOTAL RELIEF FROM THE AUTOMATIC STAY UNDER 11 U.S.C.§ 362
TO ENFORCE ITS RIGHTS UNDER THIS LEASE AND UNDER STATE LAW INCLUDING BUT
NOT LIMITED TO ISSUANCE AND ENFORCEMENT OF A JUDGMENT OF EVICTION, WRIT
OF ASSISTANCE AND WRIT OF POSSESSION.
29. HOLDING OVER. LESSEE will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to LESSOR. If LESSEE retains possession of the Leased
Premises or any part thereof after such termination, then LESSOR may at its option, serve written notice
upon LESSEE that such holding over constitutes any one of: (i) renewal of this Lease for one year, and
from year to year thereafter, (ii) creation of a month to month tenancy, upon the terms and conditions
set forth in this Lease, or (iii) creation of a tenancy at sufferance, in any case upon the terms and
conditions set forth in this Lease; provided, however, that the rent shall, in addition to all other sums
which are to be paid by LESSEE hereunder, whether or not as additional rent, be equal to double the rent
being paid to LESSOR under this Lease immediately prior to such termination. If no such notice is served,
then a tenancy at sufferance shall be deemed to be created at the rent in the preceding sentence. LESSEE
shall also pay to LESSOR all damages sustained by LESSOR resulting from a retention of possession
by LESSEE, including the loss of any proposed subsequent LESSEE for any portion of the Leased
Premises. The provisions of this Section shall not constitute a waiver by LESSOR of any right of re-
entry as herein set forth; nor shall receipt of any rent or any other act in apparent affirmance of the
tenancy operate as a waiver of the right to terminate this Lease for a breach of any of the terms, covenants
or obligations herein on LESSEE's part to be performed.
30. ADA GENERAL COMPLIANCE. LESSEE, at LESSEE's sole expense, shall cause
the interior of the Leased Premises to comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and municipal authorities now in force which shall
impose any duty upon LESSOR or LESSEE with respect to the use, occupation or alteration of the
Leased Premises, and LESSEE shall fully comply with The Americans With Disabilities Act of 1990
(the "ADA"). LESSOR's responsibility for compliance with ADA shall include the Common Areas of
the Property, but not the Leased Premises. If LESSEE receives any notices alleging violation of ADA
relating to any portion of the Leased Premises or of the Property; any written claims or threats regarding
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 24 of 36
110:4 Wel IIIto)\[KQWA
non-compliance with ADA and relating to any portion of the Property or of the Leased Premises; or any
governmental or regulatory actions or investigations instituted or threatened regarding non-compliance
with ADA and relating to any portion of the Property or of the Leased Premises, then LESSEE shall,
within ten (10) days after receipt of such, advise LESSOR in writing, and provide LESSOR with copies
of any such claim, threat, action or investigation (as applicable).
31. RADON GAS. The following notification is provided pursuant to Florida law: "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 gas and radon testing may be obtained from your County public health unit."
32. NOTICES.
32.1. Except as provided in subparagraph (c) below, whenever it is provided herein that
notice, demand, request or other communication shall or maybe given to, or served upon, either of the
parties by the other, or either of the parties shall desire to give or serve upon the other any notice,
demand, request or other communication with respect hereto or with respect to any matter set forth in
this Lease, each such notice, demand, request or other communication shall be in writing and any law or
statute to the contrary notwithstanding shall not be effective for any purpose unless the same shall be
given by mailing the same by registered or certified mail, postage prepaid, return receipt requested,
addressed to the party at the address set forth below, or at such other address or addresses and to such
other person or firm as LESSOR may from time to time designate by notice as herein provided, with a
simultaneous copy via electronic mail (e-mail).
32.2. All notices, demands, requests or other communications hereunder shall be
deemed to have been given or served for all purposes hereunder forty-eight (48) hours after the time that
the same shall be deposited in the United States mail, postage prepaid, in the manner aforesaid, provided,
with a simultaneous copy via electronic mail (e-mail), however, that for any distance in excess of five
hundred (500) miles, air mail service or Federal Express or similar carrier shall be utilized, if available.
AS TO LESSOR: City Manager
City of Sunny Isles
Beach 18070 Collins
Avenue Sunny Isles
Beach, FL 33160 Tel:
(305) 792-1701
smorrisRa,sibfl.net
With copy to: City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Tel: (305) 792-1701
aboileau ,ngnlaw.com
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 25 of 36
EXECUTION COPY
AS TO LESSEE: Yani Sotiropoulos
Crema
220 Miracle Mile, Suite 200
Coral Gables, FL 33134
Tel: (786) 296-5729
yani ,sphospitality roue com
With a copy to: Marx Rosenthal PLLC
1 SE 3rd Avenue, Suite 1210
Miami, FL 33131
Tel: (305) 577-0276
team(amarxrosenthal.com
33. BROKER'S COMMISSIONS. LESSEE and LESSORS represent and warrant to each
other that neither of them have dealt with any real estate broker, finder or other person, with respect to
this Lease in any manner, except the Colliers International and Avenue Real Estate Partners who will
be compensated by LESSOR. Each party shall indemnify and hold the other harmless from any and all
damages resulting from claims that may be asserted against either party by any other broker, finder or
other person (including, without limitation, any substitute or replacement broker claiming to have been
engaged by a party in the future), claiming to have dealt with a party in connection with this Lease or
any amendment or extension hereto. The provisions of this paragraph shall survive the termination of
this Lease. Excluded from the LESSOR's indemnification obligations in this Section are any claims for
which the LESSOR, as a municipality, is immune from suit under the doctrine of sovereign immunity
or for any amount of a claim exceeding the limitations of liability established by Section 768.28, Florida
Statutes.
34. ENVIRONMENTAL COMPLIANCE.
34.1. LESSEE's Responsibility. LESSEE shall not (either with or without negligence)
cause or permit the escape, disposal or release of any biologically active or other hazardous substances,
or materials. LESSEE shall not allow the storage or use of such substances or materials in any manner
not sanctioned by law or in compliance with the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into the Property or Leased
Premises any such materials or substances except to use in the ordinary course of LESSEE's business,
and then only after written notice is given to LESSOR of the identity of such substances or materials.
LESSEE covenants and agrees that the Leased Premises will at all times during its use or occupancy
thereof be kept and maintained so as to comply with all now existing or hereafter enacted or issued
statutes, laws, rules, ordinances, orders, permits and regulations of all state, federal, local and other
governmental and regulatory authorities, agencies and bodies applicable to the Leased Premises,
pertaining to environmental matters or regulating, prohibiting or otherwise having to do with asbestos
and all other toxic, radioactive, or hazardous wastes or material including, but not limited to, the Federal
Clean Air Act, the Federal Water Pollution Control Act, and the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as from time to time amended (all hereafter
collectively called "Laws"). LESSEE shall execute affidavits, representations and the like, from time to
time, at LESSOR's request, concerning LESSEE's best knowledge and belief regarding the presence of
hazardous substances or materials on the Leased Premises.
34.2. LESSEE's Liability. LESSEE shall hold LESSOR free, harmless, and
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 26 of 36
EXECUTION COPY
indemnified from any penalty, fine, claim, demand, liability, cost, or charge whatsoever which LESSOR
shall incur, or which LESSOR would otherwise incur, by reason of LESSEE's failure to comply with
this Section, including but not limited to: (i) the cost of bringing the Leased Premises into compliance
with all Laws and in a non -contaminated state, the same condition as prior to occupancy; (ii) the
reasonable cost of all appropriate tests and examinations of the Leased Premises to confirm that the
Leased Premises have been brought into compliance with all Laws; and (iii) the reasonable fees and
expenses of LESSOR's attorneys, engineers, and consultants incurred by LESSOR in enforcing and
confirming compliance with this Section.
34.3. Property. For the purposes of this Section, the Leased Premises shall include the
real estate covered by this Lease; all improvements thereon; all personal property used in connection
with the Leased Premises (including that owned by LESSEE); and the soil, ground water, and surface
water of the Leased Premises.
34.4. Inspections by LESSOR. LESSOR and its engineers, technicians, and consultants
(collectively the "Auditors") may, from time to time as LESSOR deems appropriate, conduct periodic
tests and examinations ("Audits") of the Leased Premises to confirm and monitor LESSEE's compliance
with this Section. Such Audits shall be conducted in such a manner as to minimize the interference with
LESSEE's Permitted Use; however in all cases, the Audits shall be of such nature and scope as shall be
reasonably required by then existing technology to confirm LESSEE's compliance with this Section.
LESSEE shall fully cooperate with LESSOR and its Auditors in the conduct of such Audits. The cost of
such Audits shall be paid by LESSOR unless an Audit shall disclose a material failure of LESSEE to
comply with this Section, in which case, the cost of such Audit, and the cost of all subsequent Audits
made during the Term and within thirty (30) days thereafter (not to exceed two (2) such Audits per Lease
Year), shall be paid for on demand by LESSEE.
34.5. LESSOR's Liability. Provided, however, the foregoing covenants and
undertakings of LESSEE contained in this Section shall not apply to any condition or matter constituting
a violation of any Law: (i) which existed prior to the commencement of LESSEE's use or occupancy of
the Leased Premises; (ii) which was not caused, in whole or in part, by LESSEE or LESSEE's agents,
employees, officers, partners, contractors, customers, or invitees; or (iii) to the extent such violation is
caused by, or results from the acts or neglects of LESSOR or LESSOR's agents, employees, officers,
partners, contractors, guests, or invitees.
34.6. LESSEE's Liability After Termination of Lease. The covenants contained in this
Section shall survive the expiration or termination of this Lease, and shall continue for so long as
LESSOR and its successors and assigns may be subject to any expense, liability, charge, penalty, or
obligation against which LESSEE has agreed to indemnify LESSOR under this Section.
35. WAIVER OF JURY TRIAL. LESSOR and LESSEE each hereby irrevocably,
knowingly and voluntarily waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other or their successors in respect to any matter arising out of or in
connection with this Lease, the relationship of LESSOR and LESSEE, LESSEE's use or occupancy of
the Leased Premises, and/or any claim for injury or damage, or any emergency or statutory remedy.
36. FORCE MAJEURE. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of a hurricane, severe
weather or other natural catastrophe, labor strike, lockout, inability to procure materials, epidemic,
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 27 of 36
EXECUTION COPY
pandemic, governmental shutdowns or closures, failure of power, riot, insurrection, war or other reason
of a like nature not the fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for a period equivalent to the period
of such delay. The provisions of this Section shall not operate to excuse LESSEE from prompt payment
of fixed monthly Base Rent, Additional Rent or any other payment required by the terms of this Lease.
37. SOVEREIGN IMMUNITY. Nothing contained in this Lease is intended to nor shall it
be construed as a waiver by LESSOR of any protections under sovereign immunity, Section 768.28,
Florida Statutes, or any other similar provision of law. LESSOR, being a municipal entity and state
subdivision, as referenced in Section 768.28, Florida Statutes, agrees to be responsible to the limits set
forth in such statute for its own negligent acts or intentional tortious actions, which result in claims or
suits against either party, and agrees to be liable only to such to the statutory limits, whether applicable
or not, for any damages proximately caused by said acts or omission, or intentional tortious acts.
38. CONDEMNATION. LESSEE waives any claim of loss or damage, and any right or
claim to any part of an award that results from the exercise of eminent domain power of any
governmental body, regardless of whether the loss or damage arise because of condemnation of all or
part of the Leased Premises. If any eminent domain power that is exercised interferes with LESSEE's
use of the Leased Premises, the Rents under this Lease will be proportionately abated. If a partial taking
or condemnation renders the Leased Premises unsuitable for LESSEE's purposes under this Lease, the
Term will cease as of the date the condemning authority requires possession. If an eminent domain
power is exercised, LESSEE has no claim against LESSOR for the value of an unexpired term of this
Lease.
39. CAPTIONS. The captions and headings herein are for convenience and reference only
and should not be used in interpreting any provision of this Lease.
40. APPLICABLE LAW. This Lease shall be governed by and construed under the laws of
the State of Florida. The venue for any action relating to the construction, interpretation, or enforcement
of this Lease shall be in the state courts of Miami -Dade County, Florida. If any provision of this Lease,
or portion thereof, or the application thereof to any person or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this Lease shall not be affected thereby, and each provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law. Time is of the essence in this
Lease.
41. SUCCESSORS. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon LESSOR, its successors, and assigns; and shall be binding
upon LESSEE, its heirs, executors, administrators, successors, and assigns; and shall inure to the benefit
of LESSEE and only such assigns of LESSEE to whom the assignment by LESSEE has been consented
to by LESSOR.
42. RECORDS. Each party shall maintain its own respective records and documents
associated with this Lease in accordance with the records retention requirements applicable to public
records, as applicable. Each party shall be responsible for compliance with any public documents
request served upon it pursuant to Chapter 119, Florida Statutes, to the extent Chapter 119 may be
applicable to that entity. IF THE LESSEE HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE LESSEE'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS LEASE, CONTACT THE CUSTODIAN OF PUBLIC RECORDS
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 28 of 36
EXECUTION COPY
AT (305) 792-1703, CityClerk&sibfl.net, 18070 Collins Avenue, 4th Floor, Sunny Isles Beach, Florida
33160.
LESSEE shall comply with the specific requirements of public records laws:
A. Keep and maintain public records required by the LESSOR to perform the service.
B. Upon request from LESSOR's custodian of public records, provide LESSOR with a
copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in this chapter or as
otherwise provided by law.
C. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if the LESSEE
does not transfer the records to LESSOR.
D. Upon completion of the Lease, transfer, at no cost, to LESSOR all public records in
possession of the LESSEE or keep and maintain public records required by LESSOR
to perform the service. If the LESSEE transfers all public records to LESSOR upon
completion of the Lease, the LESSEE shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure requirements.
If the LESSEE keeps and maintains public records upon completion of the Lease, the
LESSEE shall meet all applicable requirements for retaining public records. All
records stored electronically must be provided to LESSOR, upon request from
LESSOR's custodian of public records, in a format that is compatible with the
information technology systems of LESSOR.
43. AMENDMENTS IN WRITING. This Lease and the Exhibits attached hereto and
forming a part hereof set forth all the covenants, promises, agreements, conditions, and understandings
between LESSOR and LESSEE concerning the Leased Premises, and there are no covenants, promises,
agreements, conditions, or understandings, oral or written, between them other than are herein set forth.
Except as herein otherwise provided, no subsequent alteration, amendment, change, or addition to this
Lease shall be binding upon LESSOR and LESSEE unless reduced to writing and signed by both parties.
44. NO THIRD PARTY BENEFICIARIES. The parties expressly acknowledge that it is
not their intent to create or confer any rights or obligations in or upon any third person or entity under
this Lease. None of the parties intend to directly or substantially benefit a third party by this Lease. The
parties agree that there are no third -party beneficiaries to this Lease and that no third parry shall be
entitled to assert a claim against any of the parties based on this Lease. Nothing herein shall be construed
as consent by any agency or political subdivision of the State of Florida to be sued by third parties in
any manner arising out of any contract.
45. RELATIONSHIP OF THE PARTIES. Nothing in this Lease shall create a partnership,
joint venture, employment relationship, borrower and lender relationship, or any other relationship
between LESSOR and LESSEE, other than the relationship of landlord and tenant.
46. NON-DISCRIMINATION. LESSEE shall not discriminate against any person in the
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 29 of 36
EXECUTION COPY
performance of its duties, responsibilities, and obligations under this Lease because of race, age,
religion, color, gender, sexual orientation, national origin, marital status, disability, or sexual orientation.
47. PREPARATION OF AGREEMENT. This Lease has been negotiated and prepared by
the parties and their respective counsel and should any provision of this Lease require judicial
interpretation, the court interpreting or construing the provision shall not apply the rule of construction
that a document is to be construed more strictly against one parry.
48. MISCELLANEOUS.
A. The invalidity of any portion of this Lease shall not have any effect on the balance hereof.
B. LESSOR may sell the Leased Premises or the Property without affecting the obligations
of LESSEE hereunder upon the sale of the Leased Premises or the Property, LESSOR shall be relieved
of all responsibility for the Leased Premises and shall be released from any liability thereafter accruing
under this Lease. If any Security Deposit or prepaid Rent has been paid by LESSEE, LESSOR shall
transfer the Security Deposit or prepaid Rent to LESSOR's successor and, upon such transfer, LESSOR
shall be released from any liability for return of the Security Deposit or prepaid Rent.
C. This Lease may not be recorded without LESSOR's prior written consent, but LESSEE
agrees on request of LESSOR to execute a memorandum hereof for recording purposes.
D. The singular shall include the plural, and the masculine, feminine or neuter includes the
other.
E. If requested by LESSOR, LESSEE shall furnish appropriate legal documentation
evidencing the valid existence in good standing of LESSEE, and the authority of any person signing this
Lease to act for LESSEE. If LESSEE signs as a corporation, each of the persons executing this Lease
on behalf of LESSEE does hereby covenant and warrant that LESSEE is a duly authorized and existing
corporation, that LESSEE has and is qualified to do business in the State of Florida, that the corporation
has a full right and authority to enter into this Lease and that each of the persons signing on behalf of
the corporation is authorized to do so.
F. The submission of this Lease to LESSEE for review does not constitute a reservation of
or option for the Leased Premises, and this Lease shall become effective as a contract only upon the
execution and delivery by both LESSOR and LESSEE.
G. Time is of the essence of this Lease.
H. This Lease may be executed in several counterparts, each of which shall be deemed an
original, and all of such counterparts together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO FOLLOW]
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 30 of 36
EXECUTION COPY
IN WITNESS OF THE FOREGOING, THE PARTIES HAVE SET THEIR HANDS AND
SEALS
City
AS TO LESSOR:
le
,CMC
CITY OF SUNNY ISLES BEACH,
a munic alc oration of the State
of Florida
isa Svechin�, Mayor
By:
J�A&1�;
Stan Morris
City Manager
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
By:4"6�—
/Alain
E. Boileau, for Nabors,
Giblin & Nickerson, P.A.,
City Attorney
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 31 of 36
RV \x bra 00(jo
[Witness Print Name]
EXECUTION COPY
AS TO LESSEE
CREMA DOWNTOWN
a Florida corporation
Owner
Dated: day of February, 2025.
LEASE AGREEMENT - CREMA DOWNTOWN CORP. Page 32 of 36
EXECUTION COPY
EXHIBIT A
(LEGAL DESCRIPTION OF "PROPERTY")
A portion of Parcel 1, Replat of Tract "A", SUNNY ISLES SHORES, Section "A", according to the Plat
thereof, recorded in Plat Book 64, at Page 74, of the Public Records of Dade County, Florida, being
more particularly described as follows:
Commence at the NE corner of Parcel 1 of Replat of Tract "A", SUNNY ISLES
SHORES, Section "A", Plat Book 64, at Page 74, of the Public Records of Dade County,
Florida; thence run S 6 06'20" W`along the East line of said Parcel 1 for a distance of
250.00 feet to the Point of Beginning of the tract of land herein described; thence continue
S 6 06'20" W along the said East line of Parcel I for a distance of 299.145 feet; thence
run due West along a line parallel with and 200.00 feet Northerly of the Southerly
line of said Parcel 1 as. measured along the East line of said Parcel 1, for a distance of
250.00 feet; thence run N 6 06'20" E along a line parallel to said East line of Parcel 1 for
a distance of 60.00 feet; thence run due West along a line parallel with and 260.00 feet
Northerly of the South line of said Parcel 1, as measured along the said East line of Parcel
1 for a distance of 200.00 feet to a point on the West line of said Parcel 1; thence N 6 06'
20" E along said West line of Parcel 1 for a distance of 239.145 feet; thence run due East
for a distance of 450.00 feet to the Point of Beginning
LEASE AGREEMENT - CREMA DOWNTOWN CORP Page 33 of 36
EXECUTION COPY
EXHIBIT B.
(SKETCH OF PROPERTY DEPICTING LEASED PREMISES,
COMMON AREAS, AND PARKING AND DESCRIPTION OF LESSOR'S WORK)
LEASE AGREEMENT - CREMA DOWNTOWN CORP Page 34 of 36
O
w W O j_
W w `
O `
0
�
W 0
2
i
.16
e,
b,
}
W
06
rf
z
n
C
Z
4
W
J
Q
nn .M
LL
rr
U
m
V/ 06
c,
nn jj
v
rr
COMPOSITE EXHIBIT "B"
DESCRIPTION OF LESSOR'S WORK
A. UTILITIES: Water, electrical service, sanitary sewer outlet, and gas, of adequate capacity
for normal requirements as outlined below will be brought to the Leased Premises, capped at
riser and ready for LESSEE tie-in.
B. LEASEHOLD IMPROVEMENTS TO BE PERFORMED BY LESSOR AT LESSOR'S EXPENSE:
LESSOR shall incorporate in such construction as to the Leased Premises only those items of work
hereafter set forth, and LESSOR shall not be responsible for the performance or the provision of
any other work in the Leased Premises. LESSOR agrees the following Leasehold Improvements
(excluding those items described in this Section to be provided by LESSEE) will be substantially
complete upon delivery of the Leased Premises to LESSEE:
1. Demising Walls: LESSOR shall provide demising walls between the restaurant and building
department in accordance with LESSOR's architect's plan, subject to the City of Sunny Isles
Beach's approval, and compliance with Miami -Dade County code. Demising walls shall
meet minimum fire code ratings based on occupancy class separation.
2. HVAC:
a. LESSOR to provide a 15 ton capacity HVAC system to LESSEE per code loads,
without distribution ducts, for the given restaurant sizing. Final size to be based
on calculations of airflow required.
b. HVAC capacity available shall be as follows:
Cooling: 100-175 sf/ton
Ventilation: 10-15 cfm/person at 70 people/1,000 sf
3. Exhaust Systems:
a. LESSOR to provide wall louver horizontal shaft(s) for kitchen hot air exhaust to the
exterior of Building for connection of LESSEE's hood scrubber exhaust system with
intermediate access as required by code for exhaust duct clean out. LESSEE's hood
scrubber(s) system shall be electrostatic that is approved by LESSOR. Size to be
provided by LESSEE.
b. Hot air exhaust systems to roof fans or exterior wall louvers with inline fans will
be provided by LESSEE upon approval of the LESSOR's architect and MEP engineer.
COMPOSITE EXHIBIT "B"
LESSOR will provide adequate space on roof for LESSEE's rooftop equipment. All
rooftop parapet and equipment screening to be by LESSOR.
c. Dishwasher, toilet room and boiler flue stacks will run to roof or horizontally to
Building exterior walls at locations coordinated with LESSOR's architect. LESSOR
will provide a common exhaust ventilation areaway or space for LESSEE to install
typical exhaust systems. Locations must be per LESSOR's architect's plan of space,
City of Sunny Isles Beach approvals, and/or Miami -Dade County code.
4. Refrigeration: LESSOR has no obligations regarding LESSEE's refrigeration.
5. Electrical Service:
a. Electrical service empty conduit with sufficient power capacity for normal
operational requirements will be provided to a location in rear of space where
LESSEE can connect to its electrical service panel. LESSEE shall pay for all deposits
for electrical meter. Temporary lighting requirements will be provided to comply
with Florida Building Code and life safety codes (temporary and emergency
lighting required as a result of LESSEE's build -out shall be provided for by LESSEE).
LESSEE shall pay for deposits for Temporary Power for Construction and meter.
b. Power capacity available shall be as follows: 208 volt 3-phase, with two 200 amp
panels.
6. Telephone/Data/CATV/Satellite: Telephone/Data service conduit: one (1) two-inch (2")
and one (1) one -inch (1") empty conduit from main telephone room to rear of space
where LESSEE can connect its service.
7. Water/Sewer:
a. LESSOR will provide the stub -up for all water and sewer lines connections to the
Leased Premises. LESSEE shall pay all deposits for water meters. All water service
lines shall be terminated and capped off with shut-off valve at ceiling space. Any
backflow preventer requirements based on LESSEE's use and occupancy type shall
be provided by LESSEE as part of the LESSEE's Work.
b. Utility connections:
Four -inch (4") sanitary capped
COMPOSITE EXHIBIT "B"
(3) separate Four -inch (4"6") grease waste capped
Three-inch (3") vent capped
Two -inch (2") cold water capped
8. Gas Service: One and half inch (1.5") natural gas main line capped and stubbed to rear of
Leased Premises with minimum 5 psi pressure.
9. Store Fronts: Storefronts in accordance with LESSOR's architect's plan to City of Sunny
Isles Beach and Miami -Dade County code.
10. Grease Traps: LESSOR to provide shared grease traps with sufficient capacity for LESSEE
to tie into and LESSEE will be responsible for sewer charged which is billed as part of the
water bill. Final size to be determined based on design calculations.
11. Floor Slab: LESSOR has no obligations regarding floor slabs.
12. Sprinkler System: LESSOR shall provide a sprinkler main and distribution, based upon an
open and undivided space with open ceilings. All sprinkler distribution shall be based on
ordinary hazard occupancy and delivered to LESSEE with upright heads if required by City
of Sunny Isles Beach or Miami -Dade County code.
13. Hazardous Materials: All of LESSOR's work shall be free of hazardous materials including
asbestos.
14. Patio: LESSOR to extend the outside patio approximately 5' to the east and provide a
sidewalk connection to the street, to the extent permissible under City's Code of
Ordinances. LESSOR will modify the landscape and irrigation as needed. LESSOR will
demolish the existing patio wall.
EXECUTION COPY
EXHIBIT C
(OUTDOOR SEATING PLAN)
LEASE AGREEMENT - CREMA DOWNTOWN CORP Page 35 of 36
EXECUTION COPY
EXHIBIT D
(LESSEE'S DESIGN AND CONSTRUCTION GUIDELINES)
LEASE AGREEMENT - CREMA DOWNTOWN CORP Page 36 of 36
V)
LU
J
V)
z
z
Z)
N
I -
w
Z)
O
C7
Q
X
LU
w
U
w
z
O
d
z
w
LU
CL
z
9
V)
w
O
LU
H
Z
4 'I�-�I•il� I�3t4i� �i . I ,�'*
d aun Nit
M
A�
.�,� .� .:,,t
o, :a°I ��
1 KItCNEN
tl
� z
�S
■
.�N��
SF
=•� _ ill �y �I I, I I� ��, I �, 3 � ,� �,-,'�� �r �� �y�'�,5�
!P \AAA.
y���T � i r�'f 1`,� __i F����II �Ii Ik Tlk {1•�� '� i
Kv
'. A' c' Sn t '� � � t � - il„ i.� a �+il �1,���e'E •��a� �"d ; ,r `-
G
r �
1
�}f
Y
I
r
.�N��
SF
=•� _ ill �y �I I, I I� ��, I �, 3 � ,� �,-,'�� �r �� �y�'�,5�
!P \AAA.
y���T � i r�'f 1`,� __i F����II �Ii Ik Tlk {1•�� '� i
Kv
'. A' c' Sn t '� � � t � - il„ i.� a �+il �1,���e'E •��a� �"d ; ,r `-
■
Ll
.-1
f, s
1
=d,U14
r
)•q ' }Try ,✓ � I f h r,
uj
lel
owCD
l cm
LL- LU
LLI
LLJ
LL. 25
LA—
--7: 7
7
Law Offices
Marx Rosenthal PLLC
1 S.E. 3RD AvENUE
SUITE 1210
MIAMI, FLORIDA 33131
James A. Marx, Esq.
Board Certified in Real Property Law
Admitted in Florida, New York, D.C.
Tames@MarXRosenthal.com
February 26, 2025
City of Sunny Isles Beach
Attn. Alian E. Boileau, Esq.
18070 Collins Ave
Sunny Isles Beach, FL 33160
TELEPHONE (305) 577-0276
FACSIMILE (305) 577-9917
Steven Rosenthal, Esq.
Admitted in Florida and New York
Steve@MarxRosenthal.com
VIA FEDERAL EXPRESS
Re: Lease Agreement between the City of Sunny Isles Beach and Crema
Downtown Corp.
Dear Mr. Boileau,
In connection with the above-mentioned matter, enclosed please find the original wet signed
Guaranty and Lease Agreement signed by Crema Downtown Corp. At Mr. Marx request, kindly
share a copy of the fully executed agreements once executed by the city.
Should you have any questions or need anything additional, please contact our office.
Paralegal to James Marx
Enclosures
"rY Of 5'./K T,
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
MEMORANDUM
TO: Honorable Mayor and City Commissioners
VIA: Stan Morris, City Manager
FROM: Susan Simpson, Deputy City Manager
Genesis Cuevas, Purchasing Manager
DATE: November 21, 2024
RE: Lease Agreement with Crema Espresso Bar for the Operation of a Cafe
RECOMMENDATION:
Staff recommends approval of this Resolution.
REASONS:
Through Resolution Number 2024-3721, the City Commission authorized the City Manager to enter into
a lease agreement with Crema Espresso Bar to operate the city owned cafe space that is being built at
18050 Collins Avenue.
Following extensive negotiations, the attached lease agreement is presented for your approval. This
represents months of work to bring to you the best rental option for this space. With limited parking
and other challenges, large scale restaurants such as the previous tenant was not an option. Approval of
this item will secure a long-term revenue income to the City of no less than $1,619,179 over the next 10
years.
For this project, the City utilized a broker that has the expertise in the industry to advertise this project
to a larger and more sophisticated clientele. They reviewed initial inquiries and assisted us in sorting
through the many proposals, knowing who is reliable and successful in the industry. They further
assisted in negotiating the terms of the Letter of Interest which was the basis for the lease. As
professional restaurant brokers, they know the market. They know what is trending, what is in demand,
and what would provide a long-term benefit to the city. We fully vetted this agency and were satisfied
with their work as they guided us through this very special market. For their services, and those of the
broker for the lessee, the City as lessor is responsible for paying the broker fees. Broker fees are 3% of
Item Number: 9.11
547
the initial lease term. At an estimated $1,619,179 for the initial term, the broker fees equate to
$48,575.36 to our broker Colliers and $48,575.36 to their broker Avenue Real Estate Partners for a total
of $97,150.73.
ADDITIONAL INFORMATION:
Lease details include:
• Leased space: 1,440 square feet of interior space with 1,700 square feet of outdoor patio area.
• Lease term: initial 10 year lease with two options to renew for 5 years each.
• Lease payments:
• Base rent: $85 / sq foot of interior space= $122,400 annually
• Percentage rent: 8% on gross revenues in excess of $1.7 million. Similar locations earn over
$2 million annually as an example.
• Taxes and utilities
• Shared maintenance of common areas at $15 / sq foot= $21,600 annually
• Deposit:
• Security deposit: $10,200
• Advance Rent: $20,400
• Total upon signing: $30,600
• Estimated dates:
o City to deliver shell to operator between August 2025 and February 2026
o Operator to commence operations 180 days from delivery of shell. Full rent commences no
later than this date regardless of delays to the opening date.
• Insurance requirements have been reviewed and approved by our Risk Manager and insurance
broker.
• Several in-person site visits, including taste tests and customer reviews, were conducted and
considered in this recommendation.
• Operating hours: proposed 7 days per week between 7:00 a.m. and 9:00 p.m.
• Menu: menu is standard across all of their locations and includes all day breakfast as well as lunch
and dinner options.
FUNDING SOURCE:
This is a revenue generating agreement. Funding for the broker fees will be paid out of the Professional
Services line item in the City Manager's budget, account# 001-2-5120-430000.
ATTACHMENTS:
Resolution (Revised on 11/20/24)
Lease Agreement
Design Concept
Item Number: 9.R
548