HomeMy WebLinkAboutOrdinance 2026-653ORDINANCE 2026 - (A
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, APPROVING A FIRST AMENDMENT TO THE LEASE AGREEMENT
BETWEEN THE CITY OF SUNNY ISLES BEACH AND LA PLAYA BEACH ASSOCIATES,
LLC. FOR THE LEASED PREMISES LOCATED AT 18590 COLLINS AVENUE, SUNNY
ISLES BEACH, FLORIDA; AUTHORIZING THE MAYOR TO EXECUTE SAID LEASE
AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on May 1611, 2024, via Ordinance No. 2024-612, the City Commission of the
City of Sunny Isles Beach, Florida, (the "City") approved a Lease Agreement with La Playa Beach
Associates, LLC. ("Lessee") of the land located at 18590 Collins Avenue, Sunny Isles Beach,
Florida ("Leased Premises"); and
WHEREAS, the Lease Agreement included an initial term of 42-months; and
WHEREAS, the Lessee has expressed their desire to extend the initial term of the Lease
Agreement for an additional 24-months ("Lease Extension"); and
WHEREAS, the City Commission wishes to approve the First Amendment to Lease
Agreement between the City and the Lessee for the Leased Premises to add a 24-month Lease
Extension, for a total initial lease term of Sixty -Six (66) months, with five (5) one (1) year renewal
options at the City's sole discretion, attached hereto, in substantially the form, as Exhibit "A".
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, AS FOLLOWS:'
Section 1. Incorporation of Recitals. The foregoing "WHEREAS" clauses are hereby ratified
and confirmed as being true and correct and are hereby made a specific part of this Ordinance
upon adoption hereof.
Section 2. Approval of First Amendment. The City Commission hereby approves the First
Amendment to Lease Agreement between the City and the Lessee for the Leased Premises to
add a 24-month Lease Extension, for a total initial lease term of Sixty -Six (66) months, with five
(5) one (1) year renewal options at the City's sole discretion, attached hereto, in substantially
the form, as Exhibit "A".
Section 3. Effective Date. This Ordinance will become effective immediately upon adoption
at second reading.
I Additions to existing text are shown by underline, changes to existing text on second reading are shown by
double underline, deletions on first reading are shown as stFikethFeugh and deletions on second reading are shown
as
@BCL@F4143FD5 Page 1 of 2 27
PASSED AND ADOPTED on first reading this ice'"day of April, 2026.
PASSED AND ADOPTED on second reading this ay of May, 2026.
y e.
Larisa Svechin, Mayor
T '
'TT: t APPROVED AS TO FORM
r AND LEGAL SUFFICIENCY:
• r
uri io Betan ur, CIVIC, City Clerk A ain E. Boileau, for Nabors, Giblin
& Nickerson, P.A., City Attorney
First Reading
Second Reading
5VA&—S� Motion: I�AUW- -,-�Fp-sepj-
SecondPUDKDil* bjyLe . :3-VSW
Vote on First Reading:
Mayor Svechin
Vice Mayor Viscarra
Commissioner Joseph
Commissioner Lama
Commissioner Stuyvesant
. . �.1. i...4 P.- 1
(Yes)
(No)
(Yes)
(No)
(Yes)
(No)
(Yes)
(No)
(Yes)
(No)
Vote on Second Reading:
Mayor Svechin
'�
(Yes)
(No)
Vice Mayor Viscarra
(Yes)
(No)
Commissioner Joseph
(Yes)
(No)
Commissioner Lama
(Yes)
(No)
Commissioner Stuyvesant
(Yes)
(No)
@BCL@F4143FD5 Page 2 of 2 28
EXECUTION COPY
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (hereinafter "First
Amendment"), is made and entered into this b* day of,4frr4 2026 (hereinafter "Effective
Date"), by and between: "I
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
LA PLAYA BEACH ASSOCIATES, LLC, a foreign limited
liability company organized under the laws of the State of Delaware,
whose principal address is 1300 Brickell Avenue, Miami, FL 33131
(hereinafter "LESSEE").
WITNESSETH:
WHEREAS, LESSOR and LESSEE are parties to that certain Lease Agreement, dated
July 10, 2024 (hereinafter "Lease") providing for the lease to LESSEE of certain premises located
at 18590 Collins Avenue, Sunny Isles Beach, FL 33160, as more particularly described in the
Lease, appended hereto as Exhibit 1; and
WHEREAS, LESSOR and LESSEE desire to amend certain terms of the Lease pursuant
to the terms, provisions, and conditions set forth in this First Amendment;
NOW THEREFORE, in consideration of the mutual covenants exchanged herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the LESSOR and LESSEE agree as follows:
1. RECITALS; DEFINED TERMS. The recitals set forth above are true and correct
and are incorporated herein by reference. All capitalized terms contained in this First Amendment
that are not otherwise defined shall have the respective meanings ascribed to them in the Lease.
2. TERM OF LEASE. Article 2, Section 2.1, of the Lease is amended as follows:
Term. The Term of this Lease commences on the "Effective Date" and runs for an
initial period of femme six -six (42 66) months, unless the parties terminate the
Lease earlier, with options for five (5) twelve (12) month renewals thereafter at the
LESSOR's sole discretion. LESSOR and LESSEE shall have the mutual right to
terminate this Lease upon sixty (60) days advance written notice to the non -
terminating party however this termination right shall not apply to the initial ferty-
twe six -six (42- 66) month Term.
3. Except as amended herein, the Lease remains unmodified and in full force and effect
and is hereby ratified and confirmed. The agreements and terms contained in this First Amendment
FIRST AMENDMENT TO LEASE AGREEMENT Pagel of 4
29
EXECUTION COPY
shall bind and inure to the benefit of the parties hereto, and their successors and assigns. This First
Amendment may not be changed orally, and changes may be effected only by written instrument
signed by both LESSOR and LESSEE. In the event of a conflict between this First Amendment and
the Lease, this First Amendment shall control. This First Amendment may be executed in several
counterparts and by PDF or facsimile signatures, each of which shall constitute an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, LESSOR and LESSEE have executed this First Amendment as
of the Effective Date.
MIN I 140 WWI
AS TO LESSOR:
[ itness Print Name]
ANGEL COLLINS
_,� Notary Public . State of Florida
P`= Commission k HH 440134
My Comm. Expires Sep 4, 2027
Bonded through National Notary Assn.
[Witness $runt Name]
A'TT IT:
C
clgr� •�
rJ
CITY OF SUNNY ISLES BEACH,
a municipal corpqyatieR
of the State
of Florida
IM
Larisa Svechin, Mayor
By: 5u�x
Stan Morris, City Manager
Dated: day of! 12026
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
1�� •
CMC By:7*�z
A ain E. Boileau, for Nabors,
Giblin & Nickerson, P.A.,
City Attorney
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
FIRST AMENDMENT TO LEASE AGREEMENT
Page 2 of 4
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WITNESSES
[Witness Print Name]
[Witne s Print Name]
WITNESSES
zDocuSlgned by:
G;.l
Ana Gil
[Witness Print Name]
DocuSlgned by:
8 28C3EOE351 73..:
Melissa Botello
[Witness Print Name]
EXECUTION COPY
AS TO LESSEE
LA PLAYA
a fore.rikho
Dated: day of April'1026
LA PLAYA BEACH ASSOCIATES, LLC,
a foreign limited liability company
L
uSlgned by:
By:UQFVOL (Ac'ery
Rnn Choron
EDUARDOIMERY
Dated: day of April 2026
5/19/2026
FIRST AMENDMENT TO LEASE AGREEMENT Page,3 of4
EXHIBIT 1
FIRST AMENDMENT TO LEASE AGREEMENT
Page 4 of 4
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LEASE AGREEMENT
C
THIS LEASE AGREEMENT ("Lease"), is made and entered into this day of` I
2024 (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
LA PLAYA BEACH ASSOCIATES, LLC, a foreign limited
liability company organized under the laws of the State of Delaware,
whose principal address is 1300 Brickell Avenue, Miami, FL 33131
(hereinafter "LESSEE").
WITNESSETH:
WHEREAS, LESSOR is the owner of the Leased Premises (as described below) and
LESSOR intends to grant a leasehold interest in its fee simple interest in the Leased Premises; and
WHEREAS, the LESSEE is a foreign limited liability company organized under the laws
of the State of Delaware; and
WHEREAS, LESSEE wishes to lease the Leased Premises for use as a temporary Sales
Center for the St. Regis Residences; and
WHEREAS, during the Lease Term, as defined herein, LESSEE will make improvements
to the Leased Premises, including replacement of fencing along Collins Avenue, donation and
planting of trees and shrubbery, installation of an irrigation system, and installation of pavers
throughout to provide designated parking areas and mitigate flooding; and
WHEREAS, the City Commission adopted on second reading by Ordinance No. on
May , 2024 approving the Lease of the Leased Premises for an initial term of forty-two
(42) months to the LESSEE, with options for five (5) one (1) year renewal terms thereafter, at the
LESSOR's sole discretion, and authorizing execution of the Lease by the Mayor and City Manager,
a copy of said Ordinance being attached hereto as Exhibit A; and
NOW THEREFORE, in consideration of the mutual covenants exchanged herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the LESSOR and LESSEE agree as follows:
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ARTICLE 1.
LEASE OF LEASED PREMISES
1.1 Lease. On the terms and conditions set forth in this Lease, and in consideration of
the LESSEE's periodic payment of rents and performance of all other obligations and terms of this
Lease, as of the Effective Date (hereinafter defined) the LESSOR hereby leases to LESSEE and
LESSEE hereby leases from LESSOR and LESSOR grants LESSEE a possessory interest in and
to the Leased Premises described below for the Term of the Lease.
1.2 Leased Premises. A Sketch and Description of the Leased Premises that LESSOR
leases to LESSEE and LESSEE rents from LESSOR is attached hereto as Exhibit B which is
located at 18590 Collins Avenue, Sunny Isles Beach, FL 33160.
Whenever used herein, the term "Leased Premises" shall include the real estate described
above and all attachments and improvements and appurtenances hereafter constructed, installed,
placed upon, and shall include the phrase "or any portion thereon,"
LESSEE hereby leases the Leased Premises from LESSOR subject to, and LESSEE hereby
agrees to comply with: (i) all applicable building codes, zoning regulations, and municipal, county,
state and federal laws, ordinances and regulations governing or regulating the Leased Premises or
its use by LESSEE; (ii) all covenants, easements and restrictions of record pertaining to the Leased
Premises; and (iii) the terms, conditions and restrictions contained within this Lease.
1.3 Limitations on Grant of Leasehold Interest. Except to the extent modified by
the terms of this Lease, the grant of a Leasehold interest by LESSOR to LESSEE upon the Leased
Premises is subject to the following:
1.3.1 Each condition, restriction and limitation recorded against the Leased
Premises as of the Effective Date of this Lease; and
1.3.2 Existing or future land planning, land use or zoning laws, building codes,
ordinances, statutes or regulations of any governmental entity or agency for the United States of
America, State of Florida, Miami -Dade County or City of Sunny Isles Beach, or any other
governmental agency having jurisdiction over the Leased Premises and with legal authority to
impose such restrictions; and
1.3.3 Each question of title and survey that may arise in the future as to the
Leased Premises, but LESSEE acknowledges that it has had the opportunity to examine the
boundary lines and the LESSOR's present title to the Leased Premises, and that it is satisfied with
respect to the accuracy and sufficiency of both; and
1.3.4 LESSEE's satisfactory performance of all of the terms and conditions
contained in this Lease; and
1.3.5 Underground and overhead utilities facilities, including, but not limited
to, water, wastewater, stormwater and electrical lines, telephone and telecommunications facilities
lines and septic tank, if any.
2
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1.3.6 LESSEE's satisfaction with the results of its Due Diligence Investigation
of the Leased Premises during the Due Diligence Investigation Period.
1.3.7 The Director of the Planning & Zoning Department shall have approved
the proposed construction contained in the Plan and Specifications pursuant to Section 4.3, 4.4,
and 4.5 through and consistent with the applicable criteria and procedures set forth in the City's
Land Development Regulations
1.4 Quiet Enjoyment. Except as otherwise expressly set forth herein, LESSOR
represents and warrants that it has full right and authority to enter into this Lease and that LESSEE,
while paying the Rent and performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the Leased Premises for the term hereof without
hindrance or molestation from LESSOR subject to the terms and provisions of this Lease.
1.5 Contract Administrator. The Contract Administrator for LESSOR under this
Lease shall be the City Manager, or his designee. The Contract Administrator for LESSEE under
this Lease shall be Ron Choron. In the administration of this Lease, as contrasted with matters of
policy, all parties may rely upon instructions or determinations made by the respective Contract
Administrator.
ARTICLE 2.
.TERM OF LEASE
2.1 Term. The Term of this Lease commences on the "Effective Date" and runs for an
initial period of forty-two (42) months, unless the parties terminate the Lease earlier, with options
for five (5) twelve (12) month renewals thereafter at the LESSOR's sole discretion. LESSOR and
LESSEE shall have the mutual right to terminate this Lease upon sixty (60) days advance written
notice to the non -terminating party however this termination right shall not apply to the initial
forty-two (42) month Term.
2.2 Recordation Memorandum of Lease. A Memorandum of Lease, to be executed
by both parties contemporaneous with the execution of this Lease, shall be recorded by LESSEE,
at LESSEE'S expense, in the Public Records of Miami -Dade County, Florida on or about the
Effective Date of this Lease.
2.3 LESSEE's Right to Terminate Lease. In the event that any of the conditions set
forth in Subsections 1.3.6 and 1.3.7 are not met or achieved within the applicable time periods
described herein, then LESSEE shall have the absolute right to terminate this Lease upon delivery
or written notice to LESSOR without liability of any kind.
ARTICLE 3.
RENT AND ADDITIONAL PAYMENTS
3.1 Amount and Payment of Rent. As rent for the Leased Premises, commencing on
the Effective Date, and continuing on the first day of each and every successive calendar month
thereafter for the first 18 months of the Lease Term, LESSEE shall pay to LESSOR the monthly
rent of Five Thousand Dollars and No Cents ($5,000.00). Commencing on the first day of the 19th
month of the Lease Term, and continuing on the first day of each and every successive calendar
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month thereafter through the balance of the Lease Term, which includes any renewal terms,
LESSEE shall pay to LESSOR the monthly rent of Ten Thousand Dollars and No Cents
($10,000.00). Rent shall be payable to City of Sunny Isles Beach and delivered to City of Sunny
Isles Beach, Finance Department, 18070 Collins Avenue, FL 33160, Attn: Finance Director.
3.2 CPI Increases. Beginning May 1, 2025, the Amount of Rent shall be modified
annually to reflect the change in the Consumer Price Index ("CPI") based on a twelve (12) month
average. The "CPI" shall be the revised Consumer Price Index for all Urban Consumers for all
items — U.S. City Average, published by the Bureau of Labor Statistics, U.S. Department of Labor,
1982-84=100 (CPI-U). In no event shall the Amount of Rent be reduced and any increase shall not
exceed 4% of the current Rent per year.
3.3 Late Fees. If any payment of rent due to LESSOR under this Lease Agreement
shall not be paid within five (5) days of the date when due, LESSEE shall pay, in addition to the
payment then due, an administrative charge equal to five percent (51/o) of the past due payment.
All rent payments due LESSOR under this Lease Agreement shall bear interest at the maximum
rate allowed by law, accruing from the date the obligation arose through the date payment is
actually received by LESSOR.
3.4 Taxes, Fees, Special Assessments, etc. 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.
Except as otherwise provided in this Lease, beginning on the Effective Date, all costs, expenses,
sales or use 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, to the
extent applicable, 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.
LESSOR shall invoice LESSEE for all applicable taxes, and the Tenant shall be required to
pay LESSOR within ten (I 0) 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.
LESSEE shall not be required to pay any Targeted Taxes. For purposes of this Lease Agreement,
"Targeted Taxes" shall mean any Tax created, levied, assessed, confirmed, adjudged, charged or
imposed on or against (A) the activities conducted at the Leased Premises by LESSEE, or any of
its affiliates or invitees, or any income, revenues, profits or other consideration generated
therefrom (unless the Tax applies to substantially all other businesses or persons in the jurisdiction
of the applicable governmental entity or income, revenues, profits or other consideration
4
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therefrom); (B) the gross receipts or income of the direct or indirect owners of LESSEE (unless
the Tax is one of general application levied against or imposed on the gross receipts or income of
all people, enterprises or owners of enterprises, as the case may be, within the jurisdiction of the
applicable governmental entity); (C) any capital gain on or appreciation in the investment in the
Leased Premises (unless the Tax is one of general application); or (D) the sale of any asset or
ownership interest in the LESSEE or any of its affiliates (unless the Tax is one of general
application). The term "Tax" shall mean any general or special, ordinary of extraordinary, tax
imposition, assessment, levy, usage fee, excise or similar charge (including any ad valorem or
other property taxes), however measured, regardless of the manner of imposition or beneficiary,
that is imposed by a governmental entity.
3.5 Additional Rent Payments. In addition to the monthly rent due under Section 3.1
and sums due under Sections 3.2 and 3.3 hereof, all other payments that LESSEE is obligated to
make under this lease shall be considered "Additional Rent" regardless of whether the payments
are so designated. Except as provided in Paragraph 3.7 hereof, "LESSEE's Challenge of Tax," all
additional payments are due and payable within thirty (30) days after rendition of a statement
therefor, with the exception of ad valorem taxes which must be paid within thirty (30) days when
due.
3.6 Utility or service charges. LESSEE agrees to pay all charges for utility service
including, but not limited to charges for gas, electricity, telephone, telecommunications or other
illumination, heating, air conditioning, water & sewer, storm water utility fees, and other similar
service charges attributed to the Leased Premises.
3.7 LESSEE's Responsibilities regarding Governmental Charges or Services
Giving Rise to Liens. Subject to the provisions of Section 3.3 and Section 3.7 respecting
LESSEE's right to challenge the validity of any Tax, tax claim, assessment, fee or other
governmental charge against the Leased Premises, the use thereof, improvements thereto or
personalty located thereon, the LESSEE must pay all Taxes and other governmental fees, charges
or assessments that are related to the Leased Premises or personalty situated thereon or operations
conducted thereon and that arise during the Lease Term. LESSEE shall pay all such Taxes and
other charges when due and before any fine, penalty, interest or other cost is added, becomes due,
or is imposed by operation of law for nonpayment. These Taxes and other charges include, but are
not necessarily limited to the following:
(a) All Taxes, assessments, water, sewer, connection fees, garbage rates and
charges, public utility charges, excise levies, licenses and permit fees;
(b) All such charges whether they are general or special, ordinary or
extraordinary, foreseen or unforeseen, imposed upon the Leased Premise or use thereof or
improvements thereto or personalty situated thereon;
(c) All such charges that are assessed, levied, confirmed or imposed upon the
Leased Premises or use thereof or improvements thereto or personalty situated thereon;
(d) All such charges that arise from, become payable from, or with respect to,
or become a lien on any of the following:
(i) All or any part of the Leased Premises or use thereof or
improvements thereto or personalty situated thereon;
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(ii) All or part of the improvements on the Leased Premises or
personalty situated thereon;
(iii) Any appurtenance to the Leased Premises;
(iv) The rent and income received by the LESSEE from any subtenant
or licensee;
(v) Any use or occupation of the Leased Premises;
(vi) Sales or use Tax arising from LESSEE's operations or the
operations of any sub lessees or licensees; or
(vii) Any Taxes or charges applicable to the rents paid under this Lease.
3.8 LESSEE's Challenge of Tax. LESSEE may contest the validity of any Tax, tax
claim, or charge or assessment, described herein without being in default for nonpayment of Taxes
under this Lease and challenge any such Tax as a Targeted Tax, provided LESSEE complies with
terms and conditions of this Section. The LESSEE must give LESSOR written notice of LESSEE's
intention to contest.
3.9 LESSOR'S Remedy for LESSEE'S Nonpayment. If LESSEE fails, refuses, or
neglects to pay any Taxes, fees, assessments, or other governmental charges under this Article,
unless challenged as provided in Section 3.7 of this Lease, the LESSOR may pay them. On the
LESSOR's demand, the LESSEE must pay the LESSOR all amounts LESSOR has paid, plus
expenses and attorney's fees reasonably incurred in connection with such payments, together with
interest at the rate of twelve per cent (12%) per annum from the date LESSOR paid such
outstanding Taxes, fees, assessments or other governmental charges, up to but not exceeding the
maximum rate of interest allowable under Florida law. On the day the LESSOR demands
repayment or reimbursement from LESSEE, the LESSOR is entitled to collect or enforce these
payments in the same manner as a payment of rent.
ARTICLE 4.
USE OF PREMISES
4.1 Permissible Uses. The Leased Premises shall be used by LESSEE for the purpose
of establishing a temporary structure for use as a Sales Center for the St. Regis Residences.
4.2 Compliance With Regulations of Public Bodies. LESSEE covenants and agrees
that it shall, at its own cost and expense, make such improvements on the Leased Premises, perform
such acts and do such things as shall be lawfully required by any public body having jurisdiction
over the Leased Premises, in order to comply with the requirements relating to sanitation, fire
hazard, zoning, setbacks, environmental requirements, and other similar requirements designed to
protect the public, worker and recreational use environments. LESSEE shall not use the Leased
Premises, nor shall the Leased Premises suffer any such use during the Term of this Lease, which
is in violation of any of the statutes, laws, ordinances, rules or regulations of the federal, state,
county, municipal government or any other governmental authority having jurisdiction over the
Leased Premises.
4.3 Site Plan; Plans and Specifications for Improvements. It is the understanding of
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the parties that LESSEE desires or plans to undertake construction of a temporary structure and
additional improvements to the Leased Premises in order to undertake the Permissible Uses set
forth in Section 4.1, including but not limited to:
(a) Removing the existing rotting wood fence and installing a new wood fence
along Collins Avenue.
(b) Planting trees at the Sales Center and upon termination of the Lease,
donating said trees and planting them around the perimeter of the site, within the interior of the
fence along Collins Avenue.
(c) Installation of a hedge along the interior of the fence for added aesthetic
appeal.
(d) Installation of an irrigation system to ensure proper maintenance and
watering of the planted trees and landscaping.
(e) Implementation and installation of pavers throughout the site to provide
designated parking areas and to mitigate mud accumulation.
4.4 LESSEE shall make such improvements at its own cost and expense. As a condition
precedent, LESSEE shall submit to the City Manager a Leasehold Site Plan, including temporary
building footprint and all elevations of the proposed renovations and additions, including plans
and specifications therefor, for approval by the Director of the Planning & Zoning Department
and/or the City Commission, through and consistent with the applicable criteria and procedures set
forth in the City's Land Development Regulations. The failure of the Director of the Planning &
Zoning Department and/or the City Commission to approve the Leasehold Site Plan shall give
LESSEE a right to terminate this Lease without liability upon delivery of written notice to
LESSOR.
4.5 Improvements. LESSEE shall not construct any improvements upon the Leased
Premises that are not reflected on the approved Leasehold Site Plan. LESSEE shall not construct
any improvements, nor perform any alteration, modification or demolition of improvements upon
the Leased Premises without first (i) providing the Planning & Zoning Director (the "Director")]
with a complete set of plans and specifications therefor and (ii) securing from the Director and/or
City Commission written approval indicating that the proposed construction, alteration,
modification or demolition is acceptable which approval shall not be unreasonably withheld,
conditioned, or delayed. As a condition of acceptance the Director and/or City Commission may
impose reasonable conditions based upon applicable codes and regulations. Any improvements
constructed upon the Leased Premises shall be at the LESSEE's sole cost and expense. Upon
expiration or termination of this Lease any improvements made upon the Leased Premises, except
for trees, shrubbery, fencing, irrigations systems, and pavers, shall be removed from the Leased
Premises at no additional cost to the City. However, at LESSOR's sole election, LESSOR may
enter into negotiations with LESSEE for the right to retain the Sales Center upon lease termination
in lieu of removal and remediation of the Leased Premises.
4.6 Alterations, Additions, Modifications or Demolitions. LESSEE shall not make
any material alterations, additions, modifications or demolitions to the Leased Premises that are
not in accordance with the process outlined in Section 4.3, 4.4, or 4.5 above.
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4.7 Liability for Personal Property. All personal property, placed or moved onto the
Leased Premises is at the sole risk of LESSEE or other owner of such personal property. LESSOR
shall not be liable for any damage to such personal property, or for personal injuries to LESSEE
or any of LESSEE's subtenants, agents, servants, employees, contractors, guests, or invitees or to
trespassers on the Leased Premises that arise from any person's tortious acts or omissions,
regardless of the status of the person; provided, however, that if the damage or injury is caused by
LESSOR's tortious acts or omissions, then, to the extent the damage or injury in question is caused
by LESSOR's tortious acts or omissions, then LESSEE's liability to LESSOR hereunder shall be
proportionately abated.
4.8 Liability for Damages or Injuries. LESSOR shall not be liable for any damage
or injury incurred or sustained in, on or about the Leased Premises when such damage or injury
results from the tortious acts or omissions of any person, including LESSEE's guests, invitees,
servants, agents, employees, or contractors, or trespassers on the Leased Premises; provided,
however, that if the damage or injury is caused by LESSOR's negligence, tortious acts, or
omissions, then, to the extent the damage or injury in question is caused by LESSOR's negligence, tortious
acts, or omissions, then LESSEE's liability to LESSOR hereunder shall be proportionately abated.
4.9 Due Diligence Investigation. LESSEE shall have the right and option to conduct
a due diligence investigation ("Due Diligence Investigation") of the Leased Premises to determine
the environmental, regulatory compliance, electrical, water, sewer and utility operating systems
conditions, and any other investigations as it deems appropriate in connection with its Lease of the
Leased Premises . and the improvements contemplated by LESSEE. The Due Diligence
Investigation shall be conducted during a thirty (30) day period commencing at the Effective Date
(the "Due Diligence Investigation Period"). LESSEE may conduct a Phase I Environmental
Assessments of the Leased Premises. If LESSEE is satisfied with its Due Diligence Investigation,
then on or before the expiration of the Due Diligence Investigation Period, LESSEE shall
communicate its acceptance of the Leased Premises and the effectiveness of the Lease. If LESSEE
is not satisfied with the condition of the Leased Premises, in its discretion, and LESSOR and
LESSEE are unable to agree upon accommodations for such unsatisfactory conditions, then at
LESSEE's sole option, LESSEE may terminate this Lease upon delivery of written notice to
LESSOR on or prior to the expiration of its Due Diligence Investigation Period and neither party
shall have any further obligations to the other except for any indemnity obligations that survive
termination.
4.10 ADA. LESSEE shall have the continuing obligation of compliance with the
Americans With Disabilities Act, as same may be amended from time to time, with respect to the
Leased Premises. To the extent that LESSEE's Due Diligence Investigation reveals any substantial
non-compliance with the Americans with Disabilities Act or some other area of material non-
compliance with applicable governmental regulations, then LESSOR and LESSEE shall
reasonably negotiate relative responsibility for such non-compliance during the Due Diligence
Investigation Period.
4.11 Emergency Use. This Lease Agreement is subordinate to any emergency use
invoked pursuant to Section 252.42, Florida Statutes (2023), as amended or revised, or invoked
pursuant to any applicable emergency management program or plan.
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ARTICLE 5.
HAZARDOUS SUBSTANCES
5.1 Definitions. For the purpose of administering this Article, the following terms shall
have the meaning as set forth below:
(a) Environmental Agency means a governmental agency at any level of
government having jurisdiction over Hazardous Substances and Hazardous Substances Laws and
the term as used herein shall also include a court of competent jurisdiction when used as a forum
for enforcement or interpretation of Hazardous Substances Laws.
(b) Hazardous Substances means any hazardous or toxic substances, materials
or wastes, including, but not limited to those substances, materials and wastes listed in the United
States Department of Transportation Hazardous Materials Table, 49 CFR 172.101 or by the
Environmental Protection Agency as hazardous substances, 40 CFR Part 302, as now in effect or
as same may be amended from time to time, or such substances, materials and wastes which now
or hereafter become regulated under any applicable local, state or federal law, including, without
limitation, any material, waste or substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated
byphenyls, (iv) radon, (v) any substance designated as a "hazardous substance" pursuant to Sec. 311 of the
Clean Water Act, 33 U.S.C. Sec. 1251, et seq. or listed pursuant to Sec. 307 of the Clean Water Act, 33
U.S.C. Sec. 1317, (vi) defined as "hazardous waste" pursuant to Sec. 1004 of the Resource Conservation
and Recovery Act, 42 U.S.C. Sec. 6901, et seq., (vii) defined as a "hazardous substance pursuant to Sec.
101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601,
et seq., or (viii) designated as a "hazardous substance" as defined in Chapter 403, Part IV, Florida Statutes,
or (ix) any other similar federal, state or local regulations.
(c) Hazardous Substances Laws means all local, state and federal laws,
ordinances, statutes, rules, regulation and orders as same may now exist or may from time to time
be amended, relating to industrial hygiene, environmental protection and/or regulation, or the use,
analysis, generation, manufacture, storage, disposal or transportation of Hazardous Substances.
5.2 LESSOR'S Consent Required. After the Effective Date no Hazardous Substances
shall be brought upon or kept or used in or about the Leased Premises by any person whomsoever,
unless LESSEE first obtains written consent from the LESSOR'S Contract Administrator.
Nothing herein shall prohibit the use of gas powered automobiles, painting and decorating
products normally used to paint or decorate a structure or products used to clean the Leased
Premises.
5.3 Compliance With Hazardous Substances Laws. During the Lease Term, and
with respect to Hazardous Substances brought onto the Leased Premises by any person
whomsoever other than LESSOR, its agents, employees, contractors, or licensees, LESSEE shall
have the absolute responsibility to ensure that the Leased Premises are used at all times and all
operations or activities conducted thereupon are in compliance with all Hazardous Substances
Laws. With respect to Hazardous Substances brought on to the Leased Premises during -the Lease
Term by any person whomsoever, other than LESSOR, its agents, employees, contractors, or
licensees, LESSEE shall be absolutely liable to LESSOR for any violation of Hazardous
Substances Laws: Notwithstanding anything in this Section or Lease to the contrary, LESSOR
expressly acknowledges and agrees that LESSEE shall have no liability to LESSOR, or any party
claiming through or on behalf of LESSOR, for any losses, damages, liabilities, costs, expenses,
actions, penalties, or fines caused by or resulting from the presence on, or contamination of, any
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portion of the Leased Premises, or the land underlying thereon, of any Hazardous Substances,
unless such Hazardous Substances were brought onto the Leased Premises by LESSEE, its agents,
contractors or employees and LESSOR agrees to hold harmless and indemnify LESSEE from,
and to assume all duties, responsibilities and liabilities at the sole cost and expense of LESSOR
for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to
any claims in connection herewith, to the extent arising from subsurface or other contamination of
the Leased Premises or the land underlying with Hazardous Substances brought onto the Leased
Premises by LESSOR.
5.4 Hazardous Substances Handling.
(a) With respect to Hazardous Substances brought onto the Leased Premises
during the Lease Term by any person whomsoever, other than LESSOR, its agents, servants,
employees, contractors or licensees, LESSEE shall ensure that any and all authorized activities
conducted upon the Leased Premises by any such person other than LESSOR, its agents, servants,
employees, contractors or licensees be conducted only in compliance with all Hazardous
Substances Laws and all conditions of any and all permits, licenses and other Environmental
Agency approvals required for any such activity conducted upon the Leased Premises.
(b) LESSEE covenants that in any activities conducted upon the Leased
Premises by any person whomsoever, other than LESSOR, its agents, servants, employees,
contractors or licensees, that Hazardous Substances shall be handled, treated, dealt with and
managed in conformity with all applicable Hazardous Substances Laws and prudent industry
practices regarding management of such Hazardous Substances.
(c) Upon expiration or earlier termination of the term of the Lease, LESSEE
shall cause all Hazardous Substances which are bought upon the Leased Premises subsequent to
the Effective Date by any person whomsoever, other than LESSOR, its agents, servants,
employees, contractors or licensees, to be removed from the Leased Premises and to be transported
for use, storage or disposal in accordance and in compliance with all applicable Hazardous
Substances Laws; provided, however, that LESSEE shall not take any remedial action in response
to the presence of Hazardous Substances in or about the Leased Premises, nor enter any settlement
agreement, consent decree or other compromise in respect to any claims relating to any Hazardous
Substances Laws in any way connected with the Leased Premises, without first notifying LESSOR
of LESSEE's intention to do so and affording LESSOR reasonable opportunity to appear,
intervene, or otherwise appropriately assert and protect LESSOR's interest with respect thereto.
5.5 Notices. If at any time, including during the Due Diligence Investigation Period,
LESSEE shall become aware or have reasonable cause to believe that any Hazardous Substance
has come to be located on or beneath the Leased Premises, LESSEE shall immediately upon
discovering such presence or suspected presence of the Hazardous Substance give written notice
of that condition to LESSOR.
(a) In addition, LESSEE shall immediately notify LESSOR in writing of (i) any
enforcement, cleanup, removal or other governmental or regulatory action instituted, completed or
threatened pursuant to any Hazardous Substances Law, (ii) any written claim made or threatened
by any person against LESSEE, the Leased Premises, or improvements located thereon relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from or claimed to
result from any Hazardous Substances, and (iii) any reports made to any Environmental Agency
arising out of or in connection with any Hazardous Substances in or removed from the Leased
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Premises or any improvements located thereon, including any complaints, notices, warnings or
asserted violations in connection therewith.
(b) LESSEE shall also supply to LESSOR as promptly -as possible, and, in any
event, within five (5) days after LESSEE first receive's or sends the same, copies of all claims,
reports, complaints, notices, warnings or asserted violations relating in any way to the Leased
Premises or improvements located thereon or LESSEE's use thereof.
5.6 Environmental Liabilities.
(a) LESSOR acknowledges that LESSEE shall not be responsible to or liable
to LESSOR for any violation of Hazardous Substances Laws which occurred prior to the Effective
Date of this Lease or for the presence of such Hazardous Substances found on, within or below the
Leased Premises where the presence of such Hazardous Substances predate the Effective Date and
the Due Diligence Investigation Period. LESSOR agrees that LESSEE shall have been provided
adequate time and opportunity during the Due Diligence Investigation Period and prior to the
effectiveness of the Lease, to search the Leased Premises for Hazardous Substances or violations
of Hazardous Substances Law.
(b) Hazardous Substances not revealed prior to the Effective Date hereof, but
subsequently discovered, including, but not limited to, during the Due Diligence Investigation
Period on, under or within the Leased Premises at levels that are in violation of the Hazardous Substances
Laws shall be the absolute responsibility of the LESSEE, unless
(i) The LESSEE reasonably demonstrates by a preponderance of the
evidence that the presence of such Hazardous Substances on, under
of within the Leased Premises predates the Effective Date and are
part of a comprise the Environmental Baseline, or
(ii) LESSEE demonstrates by a preponderance of the evidence that the
presence of such Hazardous Substances on, under or within the
Leased Premises after the Effective Date hereof was caused by the
acts or omissions of LESSOR, its agents, servants, employees,
contractors or licensees., provided such acts or omissions of the
LESSOR'S agents, servants, employees, contractors or licensees are
with the scope and course of their duties.
5.7 Hazardous Substances Indemnification.
(a) LESSEE agrees to and shall indemnify, defend, and hold LESSOR harmless
of and from any and all claims, demands, fines, penalties, causes of action, liabilities, damages,
losses, costs and expenses (including attorneys' fees and expert witness fees) that LESSOR may
sustain (unless it be proven by a preponderance of the evidence that any of the foregoing was
caused by LESSOR'S negligence or willful misconduct or that of LESSOR's agents, prior
occupants or tenants of the Leased Premises, servants, employees, contractors or licensees acting
within the course and scope of their employment), occurring during the Lease Term and which
resulted from Hazardous Substances brought upon the Leased Premises, during the Lease Term by
any person whomsoever, other than LESSOR, its agents, servants, employees, contractors, acting
during the course and scope of their employment or licensees or guests and invitees of the
LESSOR.
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(b) The indemnification contained in this Section shall survive the termination
of the Lease until the expiration of the applicable statute of limitations for such claim or cause of
action. This indemnification shall not extend to any claim, demand, fine, penalty, cause of action,
liability, damage, loss, cost or expense related to the presence of Hazardous Substances that are
documented in the Environmental Baseline.in addition, and not in limitation of the foregoing,
LESSEE agrees to and shall indemnify, defend, and hold LESSOR harmless from and against any
and all claims, demands, suits, losses, damages, assessments, fines, penalties, costs or other
expenses (including attorneys' fees expert witness fees and court costs) arising from or in any way
related to, damage to the environment, costs of investigation charged by Environmental Agencies,
personal injury, or damage to property, due to a release of Hazardous Substances on, under, above,
or about the Leased Premises or in the surface or groundwater located on or under the Leased
Premises, or gaseous emissions (excluding methane, radon and other naturally occurring gases)
from the Leased Premises or any other condition existing on the Leased Premises resulting from
Hazardous Substances where any of the foregoing occurred during the Lease Term as a result of
Hazardous Substances brought onto the Leased Premises by any person whomsoever authorized by
LESSEE, other than LESSOR, its agents, servants, employees, contractors or licensees acting during the
course and scope of their ,employment.
(c) LESSEE further agrees that its indemnification obligations shall include,
but are not limited to, liability for damages resulting from the personal injury or death of any
employee or volunteer of LESSEE, regardless of whether LESSEE has paid the employee under
the Workers' Compensation Laws of the State of Florida, or other similar federal or state
legislation for the protection of employees.
(d) The terms "property damage" as used in this Article includes, but is not
limited to, damage to the property of the LESSEE, LESSOR and of any third parties caused by or
resulting from LESSEE's breach of any of the covenants in this Article and shall include remedial
activities performed by an Environmental Agency or by LESSEE pursuant to directives from an
Environmental Agency.
(e) LESSEE shall further indemnify, defend, and hold LESSOR harmless from
and against any and all liability, including, but not limited to, all damages directly arising out of
the use, generation, storage or disposal of Hazardous Substances in, on, under, above or about the
Leased Premises during the Lease Term, including, without limitation, the cost of any required or
necessary inspection required by law, audit, clean up required by law, or detoxification or
remediation required by law and the preparation of any closure or other required plans, consent
orders, license applications, or the like, whether such action is required by law or not, to the full
extent that such action is attributable to the use, generation, storage or disposal of Hazardous
Substances in, on, under, above or about the Leased Premises during the Lease Term, and all fines
and penalties associated with any of the foregoing.
(f) LESSEE agrees that the foregoing obligations to indemnify, defend, and
hold LESSOR harmless extends to and includes all reasonable attorneys' fees, experts' fees and
costs incurred in the defense of any of the foregoing claims or demands as well as indemnifying
LESSOR for any and all reasonable attorneys' fees, experts' fees and costs incurred by LESSOR
in LESSOR's enforcement of the provisions of this Article respecting Hazardous Substances. The
indemnification provided in this Lease shall survive the termination of this Lease, but shall end,
with respect to any claim or cause of action, with the expiration of any applicable statute of
limitation for such claim or cause of action.
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(g) LESSEE's obligation to indemnify, defend, and hold LESSOR harmless
pursuant to this Article shall be with respect to claims, damages, fines, penalties, causes of action,
liabilities, losses, costs and expenses, including attorneys' fees and experts' fees, which resulted
from Hazardous Substances brought in, on, under, above or about the Leased Premises during the
term of this Lease by any person whomsoever, other than LESSOR, its agents, servants,
employees, contractors or licensees acting during the course and scope of their employment. or
guests and invitees of the LESSOR and during the four events permitted to the LESSOR by this
Lease.
(h) LESSEE's maximum liability to LESSOR pursuant to this Section 5.7 shall
be capped at the aggregate amounts payable under commercial liability insurance obtained by
LESSEE pursuant to Section 9.3.
ARTICLE 6.
CONDITION OF PREMISES
6.1 LESSEE'S Acceptance and Maintenance of Leased Premises.
(a) "AS IS" Condition. LESSEE acknowledges that during the Due Diligence
Investigation Period hereof it has performed sufficient inspections of the Leased Premises in order
to fully assess and make itself aware of the condition of the Leased Premises, and that LESSEE is
leasing the Leased Premises in an "AS IS" condition. Except as may be expressly set forth in or
required by this Lease, LESSEE acknowledges that the LESSOR has made no other
representations or warranties as to the condition or status of the Leased Premises and that LESSEE
is not relying on any other representations or warranties of the LESSOR, any broker(s), or any
agent of LESSOR in leasing the Leased Premises. Except as may be expressly set forth in or
required by this Lease, LESSEE acknowledges that neither LESSOR nor any agent or employee
of LESSOR has provided any other representations, warranties, promises, covenants, agreements
or guaranties of any kind or character whatsoever, whether express or implied, oral or written, past,
present or future, of, as to, concerning or with respect to:
(i) The nature, quality or condition of the Leased Premises, including,
without limitation, the water, soil and geology;
(ii) The habitability, merchantability or fitness for a particular purpose
of the Leased Premises; or
(iii) Any other matter with respect to the Leased Premises.
LESSEE shall maintain the Leased Premises in a good state of repair and in a condition consistent
with the Permissible Uses for the Leased Premises as set forth in Section 4.1 hereof. LESSEE shall
not suffer or permit the commission of any waste or neglect of the grounds, landscaping, buildings,
the fixtures and equipment that LESSEE brings, constructs or places on the Leased Premises.
LESSEE shall repair, replace and renovate the Leased Premises, including the structure and all the
improvements located thereon as often as is necessary to keep these items in a good state of repair.
Damage to Leased Premises. On LESSOR's demand, LESSEE shall repair all damages to the
Leased Premises that are incurred or sustained during the Lease Term, where such damages are
not caused by LESSOR or any of its agents, servants, employees, contractors or licensees;
provided, however, that if the damage or injury is caused by LESSOR's tortious acts or omissions,
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or if the tortious acts or omissions of LESSOR's agents, servants, employees, contractors or
licensees acting within the scope and course of their duties, then, to the extent the damage or injury
in question is caused thereby, then LESSEE's liability to LESSOR hereunder shall be
proportionately abated.
6.2 Condition at End of Lease Term. At the earlier of the expiration of the Lease
Term or termination of this Lease, LESSEE shall quit the Leased Premises and surrender them to
LESSOR in accordance with this Paragraph 6.2. The Leased Premises must be in good order and
condition at the time of surrender thereof, regular wear and tear excepted. At the time of surrender
all landscaping shall be in a healthy and vibrant condition. All improvements on the Leased
Premises , except for the temporary Sales Center, shall become the property of LESSOR, free of
any right, title or claim of LESSEE, including but not limited to, trees, shrubbery, fencing,
irrigation systems, and pavers. However, at LESSOR's sole election, LESSOR may enter into
negotiations with LESSEE for the right to retain the Sales Center upon lease termination in lieu of
removal and remediation of the Leased Premises. LESSEE shall remove all personal property that
belongs to LESSEE, or any of LESSEE'S agents, servants, employees, independent contractors, or
subtenants and shall repair all damage to the Leased Premises caused by such removal.
ARTICLE 7.
LIENS
7.1 Liens against the Leased Premises. LESSEE shall have no power or authority to
incur any indebtedness giving a right to a lien of any kind or character upon the right, title or
interest of LESSOR in and to the real property within the Leased Premises, and no person shall
ever be entitled to any lien, directly or indirectly derived through or under the LESSEE, or its
agents, servants, employees, contractors, or officers or on account of any act or omission of said
LESSEE as to LESSOR's right, title, or interest in and to the real property within the Leased
Premises. 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 such lien be filed against the real property within the Leased
Premises, LESSEE shall discharge the same within thirty (30) days thereafter, by paying the same
or by filing a bond, or otherwise, as permitted by law. 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.
ARTICLE 8.
ENTRY AND INSPECTION OF PREMISES
8.1 LESSOR'S Inspection and Entry Rights. LESSOR, or any agent thereof, shall
be entitled to enter the Leased Premises during any reasonable business hours with prior twenty-
four (24) hours' written notice to LESSEE, taking into account LESSEE'S operations, for any of
the following reasons:
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(i) To examine the Leased Premises;
(ii) To make all repairs, addition(s) or alteration(s) that LESSOR deems
necessary for safety or preservation of the Leased Premises or improvements located thereon, after
thirty (30) days advance notice in writing to LESSEE that the Leased Premises or any portion
thereof is in need of maintenance or repair and LESSEE fails to take appropriate curative actions;
or
(iii) To remove signs, fixtures, alterations or additions that do not conform to
the terms of this Lease after thirty (30) days advance notice in writing to LESSEE that the Leased
Premises or any portion thereof is not in compliance with the terms of the Lease and LESSEE fails
to take appropriate curative actions;
Provided that nothing herein shall be construed in such a manner as to impose upon LESSOR the
obligation to so enter the Leased Premises and perform any act referenced above.
8.2 Liability for Entry. LESSEE, and any agent, servant, employee, independent
contractor, licensee, or subtenant claiming by, through or under LESSEE, or any invitees thereof
shall have no claim or cause of action against LESSOR because of LESSOR's entry or other action
taken under this .Article, except to the extent that any such claim or cause of action is due to the
intentional or negligent conduct of LESSOR, its agents, servants, employees, contractors or
licensees acting within the scope and course of their duties .
ARTICLE 9.
INSURANCE AND INDEMNIFICATION
9.1 Indemnity.
(a) LESSEE shall protect, defend, indemnify, and hold harmless the LESSOR,
its officers, officials, employees, and agents from and against any and all lawsuits, penalties,
damages, settlements, judgments, decrees, costs, charges, and other expenses including attorneys'
fees or liabilities of every kind, nature or degree, arising out of or in connection with the rights,
responsibilities and obligations of LESSEE under this Lease, conditions contained therein, the
location, construction, repair, maintenance, use, or occupancy of the Leased Premises, or the
breach or default by LESSEE of any covenant or provision of this Lease, hereinafter, "Claims,"
except for any occurrence arising out of or resulting from the intentional torts or negligence of the
LESSOR, its officers, officials, agents, and employees acting within the scope and course of their
duties and employment. 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. Nothing herein shall be deemed a waiver of LESSOR's sovereign
immunity.
(b) Without limiting the foregoing, any and all such claims, suits, causes of
action relating to personal injury, death, damage to property, defects in construction, rehabilitation
or restoration of the Leased Premises, alleged infringement of any patents, trademarks, copyrights
or of any other tangible or intangible personal or real property right, or any actual or alleged
violation of any applicable statute, ordinance, administrative order, rule or regulation or decree of
any court, is included in the indemnity.
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(c) LESSEE further agrees to investigate, handle, respond to, provide defense
for, and defend any such claims at its sole expense and agrees to bear all other costs and expenses
related thereto, even if the claim is groundless, false, or fraudulent, and if called upon by the
LESSOR, LESSEE shall assume and defend not only itself but also the LESSOR in connection
with any claims, suits, or causes of action, and any such defense shall be at no cost or expense
whatsoever to LESSOR, provided that the LESSOR (exercisable by the LESSOR's Risk Manager)
shall retain the right to select counsel of its own choosing at its own expense.
9.2 LESSOR'S Liability. In no event shall LESSOR'S liability for any breach of this
Lease exceed the amount of insurance proceeds arising from claims under LESSEE's insurance
policies obtained pursuant to Section 9.3. This provision is not intended to be a measure or agreed
amount of LESSOR'S liability with respect to any particular breach and shall not be utilized by
any court or otherwise for the purpose of determining any liability of LESSOR hereunder except
only as a maximum amount not to be exceeded in any event. Nothing contained in this Paragraph
shall be construed to permit LESSEE to offset against Rents due a successor LESSOR a judgment
(or other judicial process) requiring the payment of money by reason of any default of a prior
landlord, except as otherwise specifically set forth herein. Nothing herein shall be deemed a waiver
of LESSOR's sovereign immunity.
9.3 Insurance. 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:
(a) 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.
(b) Workers' Compensation Insurance to be in compliance with the "Workers'
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.
(c) 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.
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(d) 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 to revise
coverage requirements from time to time by mutual consent of the contract administrators.
(e) All of the policies of insurance provided for in this Lease:
(i) shall be in the form and substance approved by the Florida Office of
Insurance Regulations C F10IR')
(ii) shall be issued only by companies licensed by F101R,
(iii) Certificates of Insurance pertaining to same shall be delivered to
LESSOR, at least fourteen (14) days prior to the Effective of the
Lease Term,
(iv) shall be with a carrier having an A Best's Rating of not less than A,
Class VII,
(v) 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, and
(vi) 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.
(a) Umbrella coverage with limits not less than: (1) $5,000,000 each occurrence
and aggregate and (2) follow -form coverage over Commercial General Liability, Automobile
Liability, and Employers' Liability policies.
(fj In any case where the original policy of any such insurance shall be
delivered to LESSEE, a duplicated original of such policy shall thereupon be delivered to
LESSOR's Risk Manager. All insurance policies shall be renewed by LESSEE, and certificates
evidencing such renewals, bearing endorsements or accompanied by other evidence of the receipt
by the respective insurance companies of the premiums thereon, shall be delivered to LESSOR's
Risk Manager, at least thirty (30) days prior to their respective expiration dates.
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(g) LESSOR does not in any way represent that the, types and amounts of
insurance required hereunder are sufficient or adequate to protect LESSEE's or contractor's
interests or liabilities but are merely minimum requirements established by LESSOR's Risk
Management Division.
(h) Any and all net insurance proceeds received by or on account of LESSEE
under the Lease shall be deposited with LESSEE, and said funds shall be exclusively used for the
purpose of reconstruction or repair, as the case may be, of any of the structures, improvements or
fixtures located within the Leased Premises so damaged or destroyed. Such reconstruction and
repair work 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. Should the costs of regulations or repair exceed the amount of funds available from
the proceeds of such insurance policy, then, and in such event, such funds shall be used as far as
the same will permit in paying the costs of reconstruction or repair.
9.4 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 party 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.
ARTICLE 10.
ASSIGNMENTS AND SUBLETTING
10.1 Assignment and Subletting. LESSEE may not assign this Lease or any portion of
its leasehold interest, nor lease or sublet the use of the Leased Premises to another person,
corporation, company or other business entity by oral or written assignment or sublease agreement
without the consent of the LESSOR which shall not be unreasonably withheld, conditioned, or
delayed. Nothing herein shall restrict the LESSEE from entering into management, concessions
and operations agreements for the Leased Premises or require LESSOR approval of same.
10.2 Permitted Transferee. Notwithstanding the foregoing, LESSEE shall have the right
to assign this Lease or sublease all or any portion of the Premises without the need to seek the
LESSOR's consent to any of the following "Permitted Transferee": (a) any successor corporation
or other entity resulting from a merger, consolidation or reorganization; and (b) any entity which
controls, is controlled by, or is under common control with LESSEE. LESSEE shall give LESSOR
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written notice of such assignment or sublease to a Permitted Transferee within thirty (30) days of
its completion. Any Permitted Transferee shall assume in writing all of LESSEE's obligations
under this Lease.
ARTICLE 11.
LESSOR'S REMEDIES
11.1 Remedies for Nonpayment of Rent or Additional Rent. LESSOR has the same
remedies for LESSEE's failure to pay rent as LESSEE's failure to pay additional rent.
11.2 Accord and Satisfaction. If LESSEE pays or LESSOR receives an amount that is
less than the amount stipulated to be paid under any Lease provision, that payment is considered
to be made only on account of an earlier payment of that stipulated amount. No endorsement or
statement on any check or letter may be deemed an accord and satisfaction. LESSOR may accept
any check or payment without prejudice to LES SOR's right to recover the balance due or to pursue
any other available remedy.
11.3 Abandonment of Leased Premises or Delinquency in Rent. If LESSEE
abandons or vacates the Leased Premises before the end of the Lease Term (except for periods of
damage, destruction, renovation, major repairs or force majeure outside of LESSEE's control), or
if LESSEE is in arrears in rent or additional rent payments, LESSOR may cancel this Lease, subject
to the notice and opportunity to cure provisions set forth in Section 11.4. Upon cancellation,
LESSOR shall be entitled to peaceably enter the Leased Premises as LESSEE's agent to regain or
relet the Leased Premises. LESSOR shall incur no liability for such entry. As LESSEE's agent,
LESSOR may relet the Leased Premises with or without any improvements, fixtures or personal
property that may be upon it, and the reletting may be made at such reasonable price, in such terms
and for such duration as LESSOR determines and for which LESSOR receives rent. LESSOR shall
apply any rent received from reletting to the payment of the rent due under this Lease. If, after
deducting the expenses of reletting the Leased Premises, LESSOR does not realize the full rental
provided under this Lease, LESSEE shall pay any deficiency. If LESSOR realizes more than the
full rental, LESSOR shall pay the excess to LESSEE on LESSEE's demand, after deduction of the
expenses of reletting. Notwithstanding the foregoing, LESSOR is not obligated to relet the Leased
Premises and LESSOR may, if it so elects, merely regain possession of the Leased Premises.
11.4 Dispossession on Default; Notice and Opportunity to Cure.
(a) If LESSEE defaults in the performance of any covenant or condition of this
Lease, LESSOR may give LESSEE written notice of that default with sufficient specificity to
allow LESSEE to identify the default. If LESSEE fails to cure a default in payment of rent or
additional rent within twenty (20) days after written notice is given, LESSOR may terminate this
Lease. For defaults other than nonpayment of rent or additional rent, LESSEE shall cure such
default within twenty (20) days after written notice is given or within such greater period of time
as specified in the notice; provided however, that if the nature of LESSEE's default is such that
more than the specified period of time is reasonably required for its cure, then LESSEE shall not
be deemed to be in default if LESSEE shall commence the cure of such default within said period
of time and thereafter diligently prosecutes the same to completion.
(a) If the default (other than for nonpayment of rent or additional rent) is of
such a nature that it cannot be completely cured within time specified, LESSOR may terminate
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this Lease only if LESSEE fails to proceed with reasonable diligence and in good faith to cure the
default. Thereafter, if LESSEE fails to proceed with reasonable diligence and in good faith to cure
the default, termination of this Lease may occur only after LESSOR gives not less than an
additional ten (10) days' advance notice to LESSEE. On the date specified in the notice, the term
of this Lease will end, and, LESSEE shall quit and surrender the Leased Premises to LESSOR, except that
LESSEE will remain liable as provided under this Lease.
(b) Upon termination of the Lease, LESSOR may peaceably re-enter the Leased
Premises without notice to dispossess LESSEE, any legal representative of LESSEE, or any other
occupant of the Leased Premises. LESSOR may retain possession through summary proceedings
or otherwise and LESSOR shall then hold the Leased Premises as if this Lease had not been made.
11.5 Damages on Default. If LESSOR retakes possession under Section 11.4, LESSOR
shall have the following rights:
(a) LESSOR shall be entitled to any rent and additional rent that is due and
unpaid, and those payments will become due immediately, and will be paid up to the time of the
re-entry, dispossession, or expiration, plus any expenses (including, but not limited to attorneys'
fees, brokerage fees, advertising, administrative time, labor, etc.) that LESSOR incurs in returning
the Leased Premises to good order and/or preparing it for re -rental, if LESSOR elects to re -rent,
plus interest on rent and additional rent when due at the rate of twelve (12.0%) percent per annum.
(b) LESSOR shall be entitled, but is not obligated, to re -let all or any part of the
Leased Premises in LESSOR's name or otherwise, for any duration, on any terms, including but
not limited to any provisions for concessions or free rent, or for any amount of rent that is higher
than that in this Lease.
(c) LESSOR's election to not re -let all or any part of the Leased Premises shall
not release or affect LESSEE's liability for damages. Any suit that LESSOR brings to collect the
amount of the deficiency for any rental period will not prejudice in any way LESSOR's rights to
collect the deficiency for any subsequent rental period by a similar proceeding. In putting the
Leased Premises in good order or in preparing it for re -rental, LESSOR may alter, repair, replace,
landscape of decorate any part of the Leased Premises in any way that LESSOR considers
advisable and necessary to re -let the Leased Premises. LESSOR's alteration, repair, replacement,
landscape or decoration will not release LESSEE from liability under this Lease.
(d) LESSOR is not liable in any way for failure to re -let the Leased Premises,
or if the Leased Premises are re -let, for failure to collect the rent under the re -letting. LESSEE will
not receive any excess of the net rents collected from re -letting over the sums payable by LESSEE
to LESSOR under this Section.
11.6 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 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:
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(a) All monetary and non -monetary defaults existing prior to the breach or
default referenced above shall be cured within the time specified above
thatshall include all costs and attorneys' fees expended by LESSOR to the
date of curing the default.
(b) All obligations of the LESSEE must be performed in accordance with the
terms of this Lease.
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
HE 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.
11.7 Condemnation. LESSEE may prosecute 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 a partial taking or condemnation renders the Leased
Premises unsuitable for LESSEE's purposes under this Lease, the LESSEE shall have the option
to terminate this Lease. If an eminent domain power is exercised, LESSEE shall have a claim for
the unamortized portion of LESSEE's capital investment in renovating the Leased Premises and
making the improvements specified herein against LESSOR for the value of an unexpired term of
this Lease.
11.8 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.
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11.9 Cumulative Remedies. LESSOR's remedies contained in the Lease are in addition
to the right of a Landlord under Florida Statutes governing non-residential Landlord -Tenant
relationships and to all other remedies available to a Landlord at law or in equity.
ARTICLE 12.
NUSCELLANEOUS
12.1 Requirement for Notice. LESSEE shall give LESSOR prompt written notice of
any accidents on, in, over, within, under and above the Leased Premises in which damage to
property or injury to a person occurs.
12.2 Notices.
(a) Except as provided in subparagraph (c) below, whenever it is provided
herein that notice, demand, request or other communication shall or may be 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).
(b) 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) 792-1776
smorris@sibfl.net
With copy to: City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Tel: (305) 792-1776
aboileauna,ngnlaw.com
AS TO LESSEE: Ron Choron
La Playa Beach Associates, LLC
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1300 Brickell Avenue
Miami, FL 33131
Tel: (786)402-3610
rlchoron@fortuneintlgroup.com
sebastians@chateaugroW.net
casey@srresidencessunnyislesbeach.com
With copy to: Alex D. Sirulnik, Esq.
2199 Ponce De Leon Blvd.,
Suite 301
Coral Gables, FL 33157
Tel: (305) 443-7211
ads@siruiniklaw.com
12.3 Time Is Of The Essence. Time is of the essence as to the performance of all terms
and conditions under this Lease.
12.4 LESSOR'S Cumulative Rights. LESSOR's rights under the Lease are
cumulative, and, LESSOR'S failure to promptly exercise any rights given under this Lease shall
not operate of forfeit any of these rights.
12.5 Modifications, Releases and Discharges. No modification, release, discharge or
waiver of any provision of this Lease will be of any effect unless it is in writing and signed by the
LESSOR and LESSEE.
12.6 Time. In computing any period of time expressed in day(s) in this Lease, the day
of the act, event, or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included unless it is a Saturday, Sunday,
or legal holiday, in which event the period shall run until the end of the next day which is neither
a Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than
seven (7) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the
computation.
12.7 Captions. The captions, headings and title of this Lease are solely for convenience
of reference and are not to affect its interpretation.
12.8 Survival. All obligations of LESSEE hereunder not fully performed as of the
expiration or earlier termination of the Term of this Lease shall survive the expiration or earlier
termination of the Term hereof.
12.9 LESSOR Delays; Causes beyond Control of LESSOR. Whenever a period of
time is herein prescribed for action to be taken by LESSOR, LESSOR shall not be liable or
responsible for, and there shall be excluded from the computation for any such period of time, any
delays due to causes of any kind whatsoever which are beyond the control of LESSOR.
12.10 Pledge or Security Interest. In connection with any financing of the
improvements, LESSEE shall not voluntarily pledge, grant a security interest, or any interest
therein without the prior written consent of LESSOR, which such consent shall not be
unreasonably withheld, denied, or delayed. Any such financing of security interest in this Lease
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by LESSEE, shall require the approval of the City Commission of the City of Sunny Isles Beach.
12.11 Interpretation of Lease; Severability. This Lease shall be construed in
accordance with the laws of the State of Florida. If any provision hereof, or its application to any
person or situation, is deemed invalid or unenforceable for any reason and to any extent, the
remainder of this Lease, or the application of the remainder of the provisions, shall not be affected.
Rather, this Lease is to be enforced to the extent permitted by law. Each covenant, term, condition,
obligation or other provision of the Lease is to be construed as a separate and independent covenant
of the party who is bound by or who undertakes it, and each is independent of any other provision
of this Lease, unless otherwise expressly provided. All terms and words used in this Lease,
regardless of the number or gender in which they are used, are deemed to include any other number
and other gender as the context requires.
12.12 Successors. This Lease shall be binding on and inure to the benefit of the parties,
their successors and assigns.
12.13 No Waiver of Sovereign Immunity. Nothing contained in this Lease is intended
to serve as a waiver of sovereign immunity by any agency to which sovereign immunity may be
applicable.
12.14 No Third Party Beneficiaries. Except as maybe expressly set forth to the contrary
herein, 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 intends 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 party 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.
12.15 Non -Discrimination. LESSEE shall not discriminate against any Person in the
performance of duties, responsibilities and obligations under this Lease because of race, age,
religion, color, gender, national origin, marital status, disability or sexual orientation.
12.16 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 AT (305) 792-1703, CityClerk&sibfl.net, 18070 Collins Avenue, 41'
Floor, Sunny Isles Beach, Florida 33160.
(a) LESSEE shall comply with the specific requirements of public records laws:
(i) Keep and maintain public records required by the City to perform the
service.
(ii) Upon request from the City's custodian of public records, provide the City
with a copy of the requested records or allow the records to be inspected or
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copied within a reasonable time at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law.
(iii) 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
the City.
(iv) Upon completion of the Lease, transfer, at no cost, to the City all public
records in possession of the LESSEE or keep and maintain public records
required by the City to perform the service. if the LESSEE transfers all
public records to the City 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 the City, upon request
from the City's custodian of public records, in a format that is compatible
with the information technology systems of the City.
12.17 Entire Agreement. This document incorporates and includes all prior negotiations,
correspondence, conversations, agreements, and understandings applicable to the matters
contained herein and the parties agree that there are no commitments, agreements, or
understandings concerning the subject matter of this Lease that are not contained in this document.
Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon
any prior representations or agreements, whether oral or written.
12.18 Preparation of Agreement. The parties acknowledge that they have sought and
obtained whatever competent advice and counsel as was necessary for them to form a full and
complete understanding of all rights and obligations herein and that the preparation of this Lease
Agreement has been their joint effort.
12.19 Waiver. The parties agree that each requirement, duty and obligation set forth
herein is substantial and important to the formation of this Lease and, therefore, is a material term
hereof. Any party's failure to enforce any provision of this Lease shall not be deemed a waiver of
such provision or modification of this Lease. A waiver of any breach of a provision of this Lease
shall not be deemed a waiver of any subsequent breach and shall not be construed to be a
modification of the terms of this Lease.
12.20 Venue. Any controversies or legal problems arising out of this Lease and any
action involving the enforcement or interpretation of any rights hereunder shall be submitted to
the jurisdiction of the State courts of the Eleventh Judicial Circuit in and for Miami -Dade County,
Florida. To that end, LESSEE expressly waives whatever other privilege to venue it may otherwise
have.
12.21 Force Majeure. Neither party shall be obligated to perform any duty, requirement
or obligation under this Lease if such performance is prevented by fire, hurricane, earthquake,
explosion, wars, sabotage, accident, flood, pandemics, acts of God, strikes, or other labor disputes,
riot or civil commotions, or by reason of any other matter or condition beyond the control of either
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party, and which cannot be overcome by reasonable diligence and without unusual expense
("Force Majeure"). In no event shall a lack of funds alone on the part of LESSEE be deemed
Force Maj cure.
12.22 RADON GAS. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be obtained
from your county public health unit.
terms and conditions as set forth above.
12.23 No Encumbrance. The LESSOR shall never be obligated to encumber, pledge, or
subordinate its fee simple interest in the Leased Premises to the lien, encumbrance or interest of
LESSEE or any party claiming by or through or under LESSEE
12.24 Improvements. Upon termination of this Lease, whether by expiration of the term
hereof or by reason of default on the part of LESSEE, or for any other reason whatsoever, other
than the wrongful termination of this Lease by LESSOR, the improvements, except for the
temporary Sales Center, shall merge with the title of the land, free of any claim of LESSEE and
all persons and corporations claiming under or through LESSEE (except for trade fixtures and
personal property of LESSEE that can be removed without damage to the Improvements).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS OF THE FOREGOING, THE PARTIES HAVE SET THEIR HANDS
AND SEALS
WITNESSES
fitness Print Name]
4[itness Print Name]
AS TO LESSOR:
CITY OF SUNNY ISLES BEACH,
a municipal co on of the State
of Florida
By:
Larisa Svechin, Mayor
By:
Stan Morris
City Manager
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
By:
ain E. B ileau, for Nabors,
Giblin & Nickerson, P.A.,
City Attorney
[ADDITIONAL SIGNATURE PAGE TO FOLLOW]
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WITNESS
Docu9lpned by:
A" G-d
FB5DTg,1FMB491...
Ana GPI
[Witness Print Name]
[Witness Print Name]
WITNESS
[Witness Print Name]
[Witness Print Name]
AS TO LESSEE
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EXECUTION COPY
LA PLAYA BEACH ASSOCIATES, LLC,
a foreign limited liability company,
licuftned by:
—By: opss6rr
Manue ross opf
7/2/2024
Dated-.2— day ofJtme, 2024.
LA PLAYA BEACH ASSOCIATES,. LLC,
a foreign limited liability company,
Docuftned by:
E� Eduardo Imery
BY:.7ABEBtDD10B54A8...
Ran Charon 6/25/2024
Dated: 2. ' _`day of June, 2024.
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DocuSign Envelope ID: 2F824D49-F88D-4ED1-6861-25C656447OE2
EXHIBIT A
29
EXECUTION COPY
61
DocuSign Envelope ID: 2F824D49-F88D-4ED1-B861-25C6564470E2
EXHIBIT B
30
62
cfrx QF syN �'T'a
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
FROM: Stan Morris, City Manager
DATE: May 14, 2026
RE: First Amendment to Lease Agreement of City Owned Land for the St. Regis
Residence Sales Center
RECOMMENDATION:
This item is presented for your consideration.
REASONS:
Through Ordinance 2024-612, the City Commission approved a lease agreement with La Playa Beach
Associates, LLC for the city owned empty parcel located at 18801 Collins Avenue to be used as a Sales
Center for their project named St. Regis Residences. That agreement included an initial term of 42
months, with renewals as agreed to mutually.
The team for St. Regis Residences is building a custom sales center that has taken longer than
anticipated to complete. Therefore, at the request of the lessee, this amendment will extend the initial
term by 24 months to bring the total initial term to 66 months.
ADDITIONAL INFORMATION:
All other terms and conditions remain the same.
FUNDING SOURCE:
No Funding is required as this is a revenue generating agreement.
ATTACHMENTS:
Ordinance
First Amendment - La PLaya
Item Number: 8.0
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