HomeMy WebLinkAboutReso 2015-2370 RESOLUTION NO. 2015- 2370
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, APPROVING THE
GATEWAY PARK RESTAURANT LEASE AGREEMENT
BETWEEN THE CITY OF SUNNY ISLES BEACH AND FLY ME
TO THE MOON, LLC, IN SUBSTANTIALLY THE SAME FORM
ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING
THE CITY ATTORNEY AND THE CITY MANAGER TO DO ALL
THINGS NECESSARY TO EFFECTUATE THE TERMS OF THIS
RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Sunny Isles Beach, Florida (the "City"), is the owner of the
Gateway Park and Parking Garage located at 151-215, and 337 Sunny Isles Boulevard; and
WHEREAS, the City desires to lease to Fly Me To The Moon, LLC ("Lessee") a 15,500
square feet indoor restaurant facility with an adjacent outdoor dining area consisting of 2,500
square feet located on the ground level at the restaurant space at Gateway Park, together with the
concession area that is part of the build-out of the parking garage shell (the "Leased Premises");
and
WHEREAS, the City and Fly Me To The Moon, LLC desire to enter into the Gateway
Park Restaurant Lease Agreement in substantially the same form attached hereto as Exhibit "A".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approving the Gateway Park Restaurant Lease Agreement. The Gateway Park
Restaurant Lease Agreement between the City of Sunny Isles Beach and Fly Me To The Moon,
LLC, is hereby approved in substantially the same form as the attached Exhibit"A".
Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute the
Agreement in substantially the same form as the attached Exhibit "A".
Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are authorized to do all things necessary to effectuate the terms of this Resolution.
Section 4. Effective Date. This Resolution shall become effective upon adoption.
Approving Gateway Park Restaurant Lease Agreement Page 1 of 2
PASSED AND ADOPTED this I S 441 day of �, �� 2015.
Geol.!, H. Scholl, Mayor
ATTEST:
.Jane A. Hines, MMC, City Clerk
APPROVE i • S TO FORM
AND L0/ ` F FICIENCY:
"A lel
ATOM
a i rk e t,r ity Attorney
Moved by: t GQ, PAtyr G1/411-0
Seconded by: f cOL4m,MJ
Vote: S-o
Mayor Scholl t/(Yes) (No)
Vice Mayor Gatto t/(Yes) (No)
Commissioner Aelion ✓(Yes) (No)
Commissioner Goldman Yes) (No)
Commissioner Levin (Yes) (No)
Approving Gateway Park Restaurant Lease Agreement Page 2 of 2
i✓
LEASE AGREEMENT FE ERtu4N a3,
THIS LEASE AGREEMENT (this "Lease") is dated as of Asserga 2015
("Effective Date") by and among CITY OF SUNNY ISLES BEACH, FLORIDA, a municipal
corporation of the State of Florida ("Lessor"), and FLY ME TO THE MOON, LLC,
("Lessee").
Preliminary Statements
WHEREAS, Lessor is the owner of Gateway Park and Parking Garage located at 151-
215, and 331 Sunny Isles Boulevard (the "Property" or "Gateway Park") in Sunny Isles Beach,
Florida, as specifically described in Exhibit"A"; and
WHEREAS, Lessor desires to lease to Lessee the Leased Premises (as hereinafter
defined),on the terms and conditions set forth below;and
WHEREAS, as a component of this Lease, Lessor agrees to provide Lessee with the
exclusive right to operate the concession at Gateway Park during the term of this Lease.
NOW, THEREFORE, for and in consideration of the foregoing and for other good and
valuable consideration and of the mutual agreements hereinafter set forth, Lessor and Lessee
hereby covenant and agree as follows:
1. • Leased Premises,Use, and Common Area.
Description. Lessor agrees to lease to Lessee all upon and subject to'the terms and
conditions set forth herein, a 15,500 square feet indoor restaurant facility with an adjacent
outdoor dining area consisting of 2,500 square feet located on the ground level at the restaurant
space at Gateway Park, as more particularly described in Exhibit "B" hereto (the `Premises")
together with the concession area that is part of the build-out of the parking garage shell and all
rights,easements and appurtenances thereto belonging (hereinafter collectively referred to as the
"Leased Premises"). Lessee is permitted to use the Leased Premises for a restaurant,and to grant
to third party vendors the right to operate a high-end gourmet food market, and to grant to third
party vendors the right to operate the concession area built into the parking garage shell, and for
no other purpose whatsoever (the "Permitted Use"). All third party vendors that will be
operating food markets and the concession area shall be approved in writing by the City Manager
or his/her designee and such approval shall be provided within thirty (30) days of submission by
the Lessee. City Manager's approval shall not be unreasonably withheld. For the purpose of
this Section, the term "restaurant space" means the 15,500 square feet indoor restaurant facility
located on the ground level of the parking garage.
1.1 Common Area. As long as this Lease Agreement remains in effect and Lessee is
not in default hereunder, Lessee shall have the non-exclusive right, in common with the Lessor,
invitees, and the general public, to use the common areas of Gateway Park, which include, but
are not limited to: walkways, landscaped areas, patios, sidewalks, recreational facilities,
restrooms,stairways,elevators,and parking areas.
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2, Construction of Improvements/Build-Out.
2.1 Lessee Build-Out Obligations. Lessee at its own expense will construct or cause
to be constructed on the Leased Premises the installation of all furnishing, fixtures, and
equipment for the operation of the restaurant, (the "Improvements"), substantially in accordance
with the Final Plans and Specifications (the "Final Plans") to be prepared by Lessee and
submitted to Lessor for approval. The Final Plans shall be submitted to the City Manager or
designee within one hundred and twenty (120) days of the execution of this Lease. The Final
Plans shall provide specific details and layout for the"Fly Me to the Moon"restaurant and high.
end gourmet food market concept which is generally described in Exhibit "C". The
Improvements will be constructed by Lessee in a good and workmanlike manner utilizing new
and first grade materials, free and clear of all mechanics', laborers' and materialmen's liens and
claims and in compliance with all applicable building, zoning and other laws, ordinances,
regulations and orders of the federal, state, and county or other governmental authorities having
jurisdiction over the Leased Premises, Lessee shall obtain all necessary permits, licenses and
approvals, including building permits, from applicable governmental authorities for construction
of the Improvements. Lessor agrees to waive building fees imposed by Lessor with respect to
City building permit applications filed by Lessee. Lessor and its representatives shall have the
right to inspect the Leased Premises during the course of construction of the Improvements.
2,2 Cost of Improvements. Lessee has represented the cost of Improvements to be at
least the sum of Three Million Four Hundred Thousand Dollars ($3,400,000.00) (the "Lessee's
Contribution") for the Improvements to be constructed on the Leased Premises. Lessee shall
provide Lessor with proof of expenditures for Improvements. Any change orders requested by
Lessee to the general contractor for Gateway Park shall be at the expense of the Lessee and must
be approved by the City Manager or his/her designee.
2.3 Time for Completion of Improvements. The Lessee's Improvements shall be
completed no later than one hundred eighty (180) days from the date the Lessor provides Lessee
with possession of the Leased Premises. The Lessor may grant the Lessee an extension of time to
complete the Improvements upon written request by the Lessee. Such written requests shalt be
provided to the Lessor as soon as the Lessee is aware of the need for such extension. Prior to
accepting possession of the Leased Premises, Lessee shall provide a One Million Dollars
($1,000,000.00)Performance Bond to Lessor,to ensure completion of the Improvements.
2.4 Lessor's Build-Out Obligations., Subject to the conditions herein, Lessor agrees
to provide a lump sum payment not to exceed One Million Two Hundred Fifty Thousand Dollars
($1,250,000.00) ("Lessor's Contribution") to Lessee for the construction of Lessee's
Improvements. Notwithstanding the foregoing, Lessor's Contribution shall be the lesser of
36365% of the Lessee's actual cost for the Improvements, or One Million Two Hundred Fifty
Thousand Dollars ($1,250,000). By way of example, if the total cost of Improvements is
$3,000,000, Lessor's Contribution shall be One Million One Hundred Two Thousand Nine
Hundred Fifty Dollars $1,102,950 ($3,000,000 x .36765 =$1,102,950). Lessor further agrees to
construct the restaurant "Shell" for the Leased Premises. The Shell shall consist of the exterior
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and interior walls for the restaurant facility, utility connections, and roof structure. Upon
completion,all interior Improvements and fixtures shall be the property of the Lessor.
2.5 Time of Payment of Lessor's Contribution. Lessor agrees to provide Lessee with
Lessor's Contribution within thirty (30) days of the following conditions being satisfied: (i)
issuance of Certificate of Occupancy for the restaurant facility; (ii) submittal to Lessor of
releases of liens from Lessee's contractors and sub-contractors; (iii) issuance of all appropriate
licenses to operate a restaurant facility in Sunny Isles Beach; and (iv) submittal of written proof
to Lessor that Lessee has made Lessee's Contribution.
3. Term. The term of this Lease (the "Initial Term") shall be for a period of Twenty (20)
years commencing on the Effective Date (as hereinafter defined) and shall terminate on the
Effective Date in the Twentieth (20th) year, unless earlier terminated in accordance with the
terms of this Lease or applicable law. As used herein, the "Effective Date" means the date on
which this Lease is executed by the last of the parties hereto. Lessee shall have the right to renew
or extend the Term for Two (2) additional terms of five (5) years (a "Renewal Term" and
collectively with the "Initial Term", the "Lease Term"), provided that Lessee is not in default at
the time of the renewal of the applicable term. If Lessee is not in default, Lessee shall have the
right to extend the Lease by giving Lessor written notice of its election to extend the term of this
Lease not less than one hundred fifty (150) days prior to the expiration of the Initial Term or
Renewal Term. All of the terms and conditions of this Lease shall remain in full force and effect
during each Renewal Term,if exercised. Each period of one year commencing on the.Effective
Date shall constitute a"Lease Year".
4. Rent.
4.1 Base Rent. Lessee shall pay directly to Lessor, in lawful United States currency,a
guaranteed monthly payment of Twenty Thousand and No/100 Dollars ($20,000.00) (the "Base
Rent") plus all applicable sales tax. Rent is due no later than the Fifteenth (15th) day of each
month. Rent shall be payable to the City of Sunny Isles Beach C/O the City's Finance
Department located at 18070 Collins Avenue, Sunny Isles Beach, FL 33160. Rent shall
commence upon the "Rent Commencement Date", as hereinafter defined.
4.2 Rent Commencement Date. The "Rent Commencement Date" shall be one
hundred eighty (180) days from the date of issuance of a Temporary Certificate of Occupancy or
a Certified of Occupancy for the Leased Premises. Commencing on the Effective Date, Lessee is
obligated to use its best possible efforts to diligently pursue and obtain on the earliest possible
date all necessary building permits and licenses at Lessee's sole cost and expense to construct
Lessee's Improvements. Lessee's performance of this Lease shall not be excused under any
circumstances if the failure or inability to obtain such licenses or permits is due to the neglect or
omission of Lessee. Lessor shall provide Lessee with all reasonable cooperation in obtaining
such building permits and licenses.
4.3 Percentage Rent. In addition to the payment of Base Rent, Lessee shall pay to
Lessor as additional rent, the amount,if any(the"Percentage Rent"), by which (a) the product of
(i) Gross Sales, as hereinafter defined, for a particular calendar quarter of a full or partial Lease
Year, multiplied by (ii) eight percent (8%), exceeds (b) the Base Rent for a calendar quarter as
provided in Paragraph 4.1 of this Lease for the Lease Year, By way of example, when Base Rent
for a calendar quarter totals Sixty Thousand and No/l00 Dollars ($60,000.00), and the Gross
Sales for such quarter is $1,000,000, then Lessee shall pay to Lessor as Percentage Rent an
additional $20,000 ($1,000,000 x 0.08 = $80,000 - $60,000 = $20,000). The Percentage Rent
shall be paid on a quarterly basis during the Lease Year, on or before the thirtieth (30th) day of
the month following the end of each Lease Year quarter.
4.4 Gross Sales. The term "Gross Sales" as used herein shall be construed to include
the entire amount of the actual sales price, whether for cash or otherwise, of all sales of
merchandise or services and all other receipts whatsoever of all business conducted in or from
the Leased Premises or concession area by Lessee or third party vendors approved by City
Manager or designee. A "sale" shall be deemed to have been consummated for the purposes of
this Lease, and the entire amount of the sales price shall be included in Gross Sales, at such time
that (i) the transaction is initially reflected in the books or records of Lessee or a concessionaire
(if a concessionaire makes the sale), or (ii)Lessee or such concessionaire receives all or any
portion of the sales price, or(iii) the applicable goods or services are delivered to the customer,
whichever first occurs, irrespective of whether payment is made in installments, the sale is for
cash or for credit, or otherwise, or all or any portion of the sales price has actually been paid at
the time of inclusion in Gross Sales or at any other time. Deductions shall be allowed for direct
or indirect discounts, rebates, or other reductions on sales to employees or others, The Lessor
shall be entitled to review and analyze deductions taken by Lessee for direct or indirect discounts
or rebates. If Lessee's deductions exceed the industry standard amount of 3%, Lessor may
require that the deductions for direct or indirect discounts or rebates in excess of 3% be
calculated into the Gross Sales for the period in question. The term 'Gross Sales" shall not
include,however, any sums collected and paid out by Lessee for any sales or excise tax imposed
by and accounted for by Lessee to any duly constituted governmental authority, nor shall it
include the exchange of merchandise between the stores of Lessee or related companies, if any,
where such exchange of goods or merchandise is made solely for the convenient operation of the
business of Lessee and not for the purpose of consummating a sale which has theretofore been
made in or from the Leased Premises and/or for the purpose of depriving Lessor of the benefit of
a sale which otherwise would be made in or from the Leased Premises, nor shall the term include
the amount of returns to shippers or manufacturers, nor proceeds from the sale of trade fixtures.
There shall be deductible from Gross Sales the amount of any cash or credit refund made upon
any sale in or from the Leased Premises, previously included in "Gross Sales" hereunder, not to
exceed the sum so previously included, where the merchandise sold is thereafter returned by the
purchaser and accepted by Lessee. The term "merchandise" as used in this Lease shall include,
but not be limited to, food and beverages.
4.5. Late Charge. If any installment of the Base Rent or Percentage Rent, any
Imposition or any other payment provided for under this Lease which is payable by Lessee is not
received by Lessor within fifteen(15) days after notice, Lessee shall immediately pay Lessor the
amount of Five Hundred ($500) Dollars as a late charge (the"Late Charge"). Lessee agrees that
the Late Charge represents a fair and reasonable estimate of the costs that Lessor will incur by
reason of any such late payment by Lessee. Acceptance of the Late Charge by Lessor shall not
constitute a waiver of Lessee's default with respect to the overdue amount, not prevent Lessor
from exercising any other rights and remedies available to Lessor under this Lease,
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4.6. Interest on Overdue Amounts. The Base Rent, Percentage Rent and all other
amounts due Lessor under this Lease which are not paid when due shall bear interest at a per
annum rate equal to the"Prime Rate"(or substantial equivalent)announced from time to time (as
adjusted monthly) plus 10 %, from the date due until paid; provided, however, that if such rate
shall exceed the lawful rate of interest which Lessor is entitled to charge under applicable law,
then the per annum rate of interest on any such overdue amounts shall be the maximum rate
permitted by applicable law.
4.7. Additional Rent. Unless otherwise expressly provided, all monetary obligations
of Lessee to Lessor of any type or nature, other than Base Rent or Percentage Rent, shall be
denominated as additional rent. Except as otherwise expressly provided, all additional rent
payments are due five (5)days after delivery of an invoice. Lessor shall have the same rights and
remedies for defaults in the payment of additional rent as provided in this Lease for defaults in
the payment of Base Rent. The term"Rent" or"rent"when used in this Lease shall include Base
Rent, Percentage Rent and all forms of additional rent, All Base Rent shall be paid to Lessor
without demand, setoff, or deduction whatsoever, except as specifically provided in this Lease, at
Lessor's notice address indicated in this Lease, or at such other place as Lessor shall designate in
writing to Lessee. All Percentage Rent shall be paid to Lessor without demand, setoff, or
deduction whatsoever, except as specifically provided in this Lease, at Lessor's notice address
indicated in this Lease, or at such other place as Lessor shall designate in writing to Lessee. If
any payment of rent due from Lessee shall be overdue by five(5) days or more, Lessor shall be
entitled to charge Lessee the late charges and interest provided for in Section 4,5 and Section 4.6
of the Lease. Lessee's obligations to pay rent are covenants independent of Lessor's obligations
under this Lease. Lessee shall also pay monthly to Lessor, any sales, use, or other tax(excluding
state and federal income tax) now or hereafter imposed by the United States of America, the
State of Florida, or any political subdivision of them, on any form of rent due under this Lease,
or in substitution for any rent, notwithstanding the fact that the law imposing the tax may
endeavor to impose it on Lessor.
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4.8. Lessor's Lien. To secure the payment of all rent due and to become due
hereunder and the faithful performance of this Lease, Lessee hereby gives to Lessor an express
first and prior contractual lien and security interest on all property now or hereafter acquired
(including fixtures, equipment, chattels, and merchandise) which may be placed in the Leased
Premises and also upon all proceeds of any insurance which may accrue to Lessee by reason of
destruction of or damage to any such property. Such property shall not be removed from the
Leased Premises without the prior written consent of Lessor until all arrearages in rental and
other sums of money then due to Lessor hereunder shall first have been paid.All exemption laws
are hereby waived in favor of said lien and security interest. This lien and security interest are
given in addition to Lessor's statutory lien and shall be cumulative thereto. Lessor shall, in
addition to all of its rights hereunder, also have all of the rights and remedies of a secured party
under the Uniform Commercial Code as adopted in the State of Florida (the"UCC") and Lessee
hereby authorizes Lessor to file one or more financing statements thereunder. To the extent
permitted by law, this Lease shall constitute a security agreement under Article 9 of the UCC.
4.9. Net Lease. Other than the Lessor's obligations set forth in this Lease,this Lease is
what is commonly called a "Net Lease", it being understood that Lessor shall receive the Base
Rent and Percentage Rent free and clear of any and all taxes,other Impositions,liens, charges,or
expenses of any nature whatsoever incurred in connection with the ownership and operation of
the Premises,other than the Lessor's obligations set forth herein.
4.10. Licenses, Fees, Taxes. Lessee shall pay, on or before their respective due dates,
to appropriate collecting authorities, all federal, State, County, and City taxes, licenses, permits,
assessments, and fees, which are now or may subsequently be levied upon or apportioned to the
Leased Premises or the leasehold estate granted by this Lease, or upon Lessee, or upon any of
Lessor's property used in connection with this Lease, or upon any rentals or other sums payable
to any applicable this Lease, including, but not limited t y pp licable ad valorem, sales or excise taxes,
and shall maintain in current status all federal, State, County and City licenses and permits, now
or subsequently required for the operation of the business conducted by Lessee including,but not
limited to, occupational licenses.
4.11. Payment of Utilities. From and after the Effective Date, Lessee shall pay when
due all water, wastewater, electric, telephone, solid waste, recycling, and all other utility and
costs of any and all types whatsoever which are now or hereafter charged or assessed with
respect to operations at the Leased Premises. Lessee shall pay all fees or charges relative to the
foregoing promptly prior to delinquency. Lessor represents and warrants that the utilities which
will be provided to the Leased Premises are or will be separately metered.
4.12. Right to Contest Taxes. Lessee shall have the right, at its sole cost and expense,
to contest the amount or validity, in whole or in part, of any Taxes by appropriate proceedings
diligently conducted in good faith, but no such contest shall be carried on or maintained by
Lessee after the time limit for the payment of any Taxes unless Lessee shall (i) pay the amount
involved under protest; (ii) procure and maintain a stay of all proceedings to enforce any
collection of any Taxes, together with all penalties, interest, costs and expenses,by a deposit of a
sufficient sum of money, or by such undertaking, as may be required or permitted by law to
accomplish such stay; or (iii) deposit with Lessor, as security for the performance by Lessee of
its obligations hereunder with respect to such Taxes, 100% of such contested amount or such
other reasonable security as may be demanded by Lessor to insure payment of such contested
Taxes and all penalties, interest, costs and expenses which may accrue during the period of the
contest. Upon the termination of any such proceedings, Lessee shall pay the amount of such
Taxes or part thereof, as finally determined in such proceedings, together with its costs, fees
(including all reasonable attorneys' fees and expenses),penalties or other liabilities in connection
therewith; provided, however, that if Lessee has deposited cash or cash equivalents with Lessor
as security under clause (iii) above, then, so long as no default exists under this Lease, Lessor
shall arrange to pay such Taxes (or part thereof) together with the applicable costs, fees and
liabilities as described above out of such cash or cash equivalents and return any unused balance,
if any, to Lessee. Lessee shall have the right, at its cost and expense, to seek a reduction in the
valuation of the Leased Premises as assessed for tax purposes and to prosecute any action or
proceeding in connection therewith. Provided Lessee is not in default hereunder,Lessee shall be
authorized to retain any tax refund of any tax paid by Lessee. Lessee shall provide written notice
to Lessor if Lessee exercises the right to contest taxes.
5. Right to Examine Books. Notwithstanding the acceptance by Lessor of payments of
Percentage Rent, as defined in Section 43, Lessor shall have the right to Percentage Rents,
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respectively, and the right to examine, make extracts from and copy, at the Leased Premises or
(at the option of Lessor) at the corporate headquarters office of Lessee in the United States,
Lessee's and all concessionaires' books, source documents, accounts, records and sales tax
reports filed with applicable government agencies in order to verify the amount of Gross Sales
in and from the Leased Premises, Lessee shall make all such documents and records available at
the Leased Premises (or at Lessee's corporate headquarters, if elected by Lessor) upon five (5)
days' prior written notice from Lessor, as the case may be.
5.1 Audit. At its option, Lessor may at any time, upon ten (10) days' prior written
notice to Lessee,arrange for an auditor selected by Lessor to conduct a complete audit(including
a physical inventory) of the entire records and operations of Lessee, including those in
connection with any concessionaire concerning business transacted upon or includable in Gross
Sales from the Leased Premises during the period covered by any statement issued by Lessee.
Audit shall be conducted as to cause the least amount of disruption to the operation of. Lessee's
business. Lessee shall make available to Lessor auditor at the Leased Premises (or at Lessee's j }
corporate headquarters, if elected by Lessor within ten (10) days following Lessor's notice
requiring such audit, all of the books, source documents, accounts and records referred to in this
Lease and any other materials which such auditor deems necessary or desirable for the purpose
of making such audit. Lessee shall promptly pay to Lessor the amount of any deficiency in
percentage rent payments respectively, disclosed by any such audit. If such audit shall disclose
that Lessee's statement of Gross Sales is at variance to the extent of three percent (3%) or more,
Lessor,as the case may be, may bill to Lessee the amount of any deficiency and the cost of such
audit, which shall be paid by Lessee within ten(10) days after Lessee's receipt of the applicable
invoice; in the event Lessee fails to pay such discrepancy and costs, Lessor may terminate this
Lease as set forth below and/or shall have such other rights and remedies as may be provided
herein or at law arising by virtue of Lessee's failure to pay Percentage Rent. Prior to the
finalization of the auditor's report and submission of an invoice to Lessee, Lessee shall have no
less than thirty (30) days to review and analyze the auditor's draft report and present argument if
it disagrees with the auditor's draft findings. In addition to the foregoing, and in addition to all
other remedies available to Lessor, in the event Lessor or Lessor's auditor, shall reasonably
schedule a date for an audit of Lessee's records in accordance with this Section, and Lessee shall
fail to be available or shall otherwise fail to comply with the requirements for such audit, Lessee
shall pay all costs and expenses associated with the scheduled audit.
5.2 Audit Penalties. In addition to all other remedies available to Lessor, in the event E
that any such audit shall disclose that Lessee's records and other documents as referred to in this
Section and such other materials provided by Lessee to Lessor's auditor are inadequate,
ate,Lessor,in the
opinion of Lessor or Lessor 's auditor, to accurately disclose Lessee's
as the case may be, shall be entitled to collect as additional rent from Lessee an amount equal to
percentage rent due for such understatement together with interest at eighteen percent (18%)per
annum and the cost of such audit and attorney fees if an attorney is required to bring suit, action,
or other proceeding to enforce the terms of this Sections Lessor's exercise of the foregoing
remedy shall in no way limit or otherwise affect Lessor's ability to exercise other remedies
available to it, nor shall Lessee's obligations pursuant to the terms, covenants and conditions of
this Lease (including, without limitation, Lessee's obligation with respect to reporting Gross
Sales and payment of Percentage Rent) be in any manner reduced or diminished by the exerc se
of such remedy. In the event that Lessee shall, following the exercise of such remedy,provide
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Lessor all records and documentation as required to be provided pursuant to the terms of this
Lease so as to permit Lessor's auditor to accurately establish Lessee's Gross Sales for the period
in question,then Lessee shall be permitted a credit with respect to any amount of additional rent
collected by Lessor from Lessee pursuant to this paragraph, with such credit to be applied first
against the installment of percentage rent due from Lessee for the period in question, with any
remaining credit to be applied against the next installment of Percentage Rent payable by Lessee.
Neither the provisions of this Section nor any other provisions in this Lease shall restrict
Lessor's rights to discovery in any litigation or arbitration proceeding.
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6. Maintenance and Repairs.
6.1 Lessee's Obligations. Lessee shall, at its sole cost and expense, maintain in good
repair, order, and serviceable condition the Leased Premises and every part thereof, including,
without limitation, all plumbing, ventilation, heating, air conditioning, and electrical systems and
equipment in, on, or exclusively serving, the Leased Premises, and all windows, doors, plate
glass, interior walls, and ceilings which are part of the Leased Premises, and nearby exterior
walkways utilized by patrons of the Leased Premises.
6.2 Lessor's Obligations. Lessor have the obligation to repairr and maintain the
foundation, exterior walls, roof and utilities beyond connection to the restaurant facility on the
Leased Premises, including structural or nonstructural, ordinary or extraordinary.
6.3 Parties' Rights. If either party refuses or neglects to make repairs or maintain the
Leased Premises, or any part thereof, in a manner reasonably satisfactory to the other, without
prejudice to any other remedy, upon giving ten (10) days prior written notice, such party shall
have the right to perform such maintenance or make such repairs on behalf of and for the account
of the other. In the event a party so elects, the other shall pay the cost of such repairs,
maintenance, or replacements within five (5) days following receipts of a bill therefor. Lessee l
agrees to permit Lessor or its agent to enter the Premises, upon reasonable notice by Lessor,
during normal business hours for the purpose of inspecting the Premises.
6.4 Americans with Disabilities Act(ADA)
(a) Lessor's Warranty. Lessor warrants and represents that to Lessor's
knowledge the Leased Premises are in compliance with the requirements of Title III of the
Americans with Disabilities Act of 1990, as amended (the "ADA") and the regulations and
accessibility guidelines of the ADA and any similar state or local laws, collectively called the
"ADA Laws".
(b) Lessee's Warranty. Lessee agrees that it shall conduct its occupancy and
use of the Leased Premises in accordance with the ADA Laws (including, but not limited to,
modifying its policies, practices, and procedures, and providing auxiliary aids and services to
disabled persons).
(c) Parties' Indemnity. Lessor and Lessee agree to indemnify and hold , F
harmless the other from any claims or causes of action resulting from their failure to comply with
their respective obligations in paragraph 6.4.
7. Damage by Fire or Other Casualty.
7.1 Obligations to Rebuild. If any portion of the Leased Premises is damaged or
destroyed by fire or other casualty, Lessee shall forthwith give notice thereof to Lessor. Lessee
shall obtain a cost estimate from a licensed architect or contractor approved by Lessor for such
repair, restoration, rebuilding or replacement, and Lessee shall, at its sole costs and expense,
promptly repair, restore, rebuild or replace the damaged or destroyed improvements, fixtures or 1 4
equipment, and complete the same as soon as reasonably possible, to the condition they were in
prior to such damage or destruction, except for such changes in design or materials as may then
be required by law. In such event, Lessor shall,to the extent and at the times the proceeds of the
insurance are made available to Lessor, and only so long as Lessee shall not be in default under
this Lease, deliver such funds to Lessee for making such repairs, restoration, rebuilding and
replacements.
7.2 Minor Damage. If the Leased Premises or any part of it shall be damaged
by fire,the elements, or other casualty but not rendered reasonably unleaseable or unusable, Rent
shall continue unabated. The Premises shall be repaired and restored promptly to the condition
they were in prior to such casualty, and to the extent that such damage is covered by Lessee's
insurance,the proceeds shall be used to make the necessary repairs.
if
7.3 Major Damage. If all or part of the Leased Premises are damaged by fire or
other casualty and if the fire or other casualty damages the Premises or the common areas of the
Leased Premises necessary for Lessee's use and occupancy of the Leased Premises, Lessee
ceases to use any portion of the Leased Premises as a result of such damage, and the damage
does not result from the negligence of Lessee or any other Lessee's concessionaires or third party
vendors, then during the period the Leased Premises or portion thereof are rendered unusable by
such damage and repair, Lessee's Base Rent under Paragraph 4 above shall be proportionately
reduced based upon the extent to which the damage and repair prevents Lessee from conducting,
and Lessee does not conduct,its business at the Leased Premises.
7.4 Casualty during Last Twelve Months. Notwithstanding the foregoing, if the
Leased Premises are destroyed or so damaged by fire, the elements, or other casualty during the
last twelve (12)months of the Initial Term or the then-running Renewal Term,Lessee may elect
not to rebuild and to terminate this Lease; provided that Lessor shall receive insurance proceeds
in the full amount of the casualty loss. In the event that Lessee elects to terminate the Lease
under this Section and the insurance proceeds are less than the amount of the unpaid rent for the
balance of the Lease Term, Lessee agrees to pay the difference to Lessor in. cash (or cash
equivalent)within five(5) days after receipt of a bill from Lessor.
8. Sale of Food, Liquor and Concession. During the Term of this Lease, Lessor grants
Lessee the exclusive license to sell food, beverage, and liquor within the Leased Premises.
Lessee shall also have the right to permit third party vendors to sell food, beverages, and liquor F
within the Leased Premises, subject to the approval process by the City Manager or his/her
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designee as contained in Section 1.1 of this Lease. Lessee shall obtain permission from the City
Manager or designee before selling the aforementioned items in other areas of Gateway Park or
for requesting a permit to use Gateway Park for any other purpose. Lessor warrants that as of the
Effective Date of this Lease Agreement it has the full authority to grant to the Lessee the right to
sell food, beverage, and liquor within the Leased Premises and that there is no prohibition from
doing so seven (7) days a week during Hours of Operation as defined in Exhibit "C". The
Lessee shall be provided with the opportunity to operate the concession that is part of the Leased I 4
Premises for Gateway Park during the term of this Lease, unless Lessee is in default
("Concession"). The right to operate the Concession shall be granted in one (1) year increments
commencing the date the restaurant opens for business. The Lessor reserves the absolute right to
take over the operation of the Concession at the end of any one year increment provided the
Lessor notifies the Lessee at least thirty (30) days prior to the expiration of any one year
increment, even if no default by Lessee occurs under this Lease. If the Lessor has not taken over
the operation of the Concession as indicated herein, the Lessee's right to operate the Concession 3
shall automatically renew each year for the term of this Lease. Notwithstanding any provision in ( E
this Lease Agreement, the City has the authority to permit other vendors to sell food,beverages
or other items within Gateway Park outside of the Leased Premises.
9. Compliance with Laws. Lessee shall promptly comply with all laws, orders, and
regulations of all county,municipal, state, federal, and other applicable governmental authorities,
including environmental laws, and all recorded covenants and restrictions affecting the Leased
Premises, now in force, or that may hereafter be in force, pertaining to Lessee or its use of the
Leased Premises. Lessee shall not engage in or commit any discriminatory practice in violation
of applicable laws, statutes, ordinances, and rules regulations. If, as a result of Lessee's use of
the Leased Premises or the making of any alterations by Lessee, any additions, alterations, or
improvements shall be required to be made by Lessee to any part of the Lease Premises to
comply with any requirements of the Americans with Disabilities Act of 1990, as amended, the
Florida Americans with Disabilities Accessibility Implementation Act and/or any other related
state or local laws, Lessee shall, at Lessor's option, promptly make all such required additions,
alterations, or improvements at Lessee's sole cost and expense or shall reimburse Lessor on i
demand for the costs incurred by Lessor in doing so. F
10. Hazardous Substances. Lessee shall not cause or permit any Hazardous Substance (as
defined below) to be used, stored, generated or disposed of on or in the Premises or the Leased
Premises, by Lessee, Lessee's agents, employees, contractors or invitees without first obtaining
Lessor's written consent, except, with the prior written consent of Lessor, for small quantities of
Hazardous Substances customarily used in connection with general office uses. If any
Hazardous Substances are used, stored, generated or disposed of on or in the Premises or the
Leased Premises, or if the Premises or Leased Premises,become contaminated in any manner by
Lessee or its employees, agents, guests or invitees or otherwise become affected by any release
or discharge of a Hazardous Substance caused in whole or in part by Lessee or its employees,
agents, guests or invitees, Lessee shall immediately notify Lessor of the release or discharge of a
Hazardous Substance and Lessee shall indemnify, defend and hold harmless Lessor from and
against any and all claims, damages, fines, judgments, penalties, costs liabilities, or losses
(including without limitation, a decrease in value of the Premises or the Leased Premises,
damages caused by loss or restriction of rentable or usable space, or any damages caused by
adverse impact on marketing of the space, and any and all sums paid for settlement of claims,
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attorneys' fees, consultant, and expert fees) arising during or after the Term, and arising as a
result of such use, generation, storage, disposal, contamination, release or discharge, This
indemnification includes without limitation, any and all costs incurred because of any
investigation of the site or any cleanup, removal, or restoration mandated by federal, state or
local agency or political subdivision. Without limitation of the foregoing, if Lessee causes or
permits the presence of any Hazardous Substance on the Premises or Leased Premises, and the f
same results in any contamination, release or discharge, Lessee shall promptly, at its sole ' {
expense, take any and all necessary actions to return the Leased Premises or the Premises to the ! i
conditions existing prior to the presence of any such Hazardous Substance on the Leased
Premises or the Premises and in compliance with all applicable laws. Lessee shall first obtain {
Lessor's approval for any such remedial action and the approval of the contractors doing the
work. Lessor shall have the right to do the work, at Lessee's sole cost and expense, if Lessor
determines an emergency exists or if necessary to protect the health and safety of other lessees of 1 I,
the Premises or Leased Premises. As used herein, "Hazardous Substance" means any and all
material or substances that are defined as "hazardous waste", "hazardous materials", or a f,
"hazardous substance" pursuant to federal, state or local governmental law and any substance ,
that is toxic, ignitable, reactive, or corrosive. "Hazardous Substance" includes, but is not
restricted to, asbestos, polychlorobiphenyls, and petroleum products. 1
11. Liability and Indemnification.
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11.1 Lessor's Liability. Lessor shall not be liable to Lessee, Lessee's agents, or
Lessee's customers, clients, invitees, licensees, contractors, third party vendors, or employees t
for any damage, injury, loss,compensation, claim or expense, including claims based on, arising t
out of, or resulting from any cause whatsoever pertaining to the Leased Premises (including the
intentional misconduct or criminal acts of third artier , except to the extent such damage,injury, of
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loss, compensation, claim or expense is caused by Lessor's negligence or willful misconduct,
and Lessee waives all claims against Lessor for any loss or damage against which Lessee is
insured, or for which Lessee is required to maintain insurance under this Lease, nor shall Lessor
be liable in any event for any interruption of or loss to Lessee's business, and Lessee waives all
claims against Lessor based on loss of business or profits or other consequential damages or for
punitive or special damages of any kind. l
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11.2 Lessee's Indemnity. Lessee shall defend, indemnify, and hold Lessor, Lessor's
agents, employees, officers, directors, officials and Lessor's interest in the Lease, the Premises
and the Leased Premises harmless from and against all costs, damages, claims, liabilities and i
expenses (including, but not limited to, court costs and reasonable attorneys' fees) suffered by or
claimed against Lessor, directly or indirectly, based on, arising out of or resulting from (i) the s
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control, maintenance, management, occupancy, possession, repair, or use of the Premises or
Leased Premises, or the business conducted by Lessee therein, (ii) the condition, repair, and/or
maintenance of the Premises or Leased Premises, (iii) any injury to person or property or loss of I
life sustained in,on or about the Premises or Leased.Premises, (iv) any negligent act or omission
by Lessee or Lessee's agents, employees, officers, directors officials, licensees, invitees, or
contractors, or (v) any breach or default by Lessee in the performance or observance of its
covenants or obligations under this Lease, but excluding any costs, damages, claims, liabilities, i
and expenses to the extent that the same are proximately caused by the gross negligence or x
willful misconduct of Lessor. F
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11.3 Independent Covenants. In the event that at any time during the Term of the
Lease, Lessee shall have a claim against Lessor, Lessee shall not have the right to deduct the
amount allegedly owed to Lessee from any rent or other sums payable to Lessor under this
Lease, it being understood that Lessee's sole remedy for recovering upon such claim shall be to
institute an independent action against Lessor. Notwithstanding anything to the contrary
contained in this Lease, if any provision of this Lease expressly or impliedly obligates Lessor not
to unreasonably withhold its consent or approval, an action for declaratory judgment or specific
performance shall be Lessee's sole right and remedy in any dispute as to whether Lessor has
breached such obligation.
12. Insurance. Lessee shall maintain throughout the Term or any Renewal Term all C:
insurance required to be maintained by the Lessee under the Lease, which insurance shall name
Lessor as an additional insured and/or loss payees, as applicable. Lessee shall also maintain
throughout the Term, the following additional insurance: (a) comprehensive general liability
insurance covering injury, death and property damage occurring in the Building, including (i)
Premises and Operations; (ii) Independent Contractors, (iii) Products and/or Completed
Operations Hazard, (iv) Broad Form Property Damage, (v) Broad Form Contractual Coverage
applicable to this Lease Agreement, including the hold harmless and indemnification provisions
contained herein; (vi) personal injury coverage with employee and contractual exclusions
removed,with minimum limits of coverage equal to those required for bodily injury liability and !
property damage liability; (vii) Builders Risk; and (vii:l) Business Interruption(not less than six
months of minimum monthly rent) with a combined single limit of not less than Three Million
Dollars ($3,000,000) per occurrence for Bodily Injury Liability and Property Damage Liability;
(b)worker's compensation insurance on all employees of Lessee, as required by the laws of the
State of Florida; (c) liquor liability in an amount not less than One Million Dollars ($1,000,000)
per occurrence; and (d) Business Automobile Liability with minimum limits of One Million
Dollars ($1,000,000) per occurrence for Bodily Injury Liability and Property Damage Liability,
with coverage to be provided on a form no more restrictive than the latest edition of the Business
Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Services
Office, and must include: (i) Owned Vehicles; and (ii) Hired and Non-Owned Vehicles. Each
policy of insurance required to be maintained by Lessee hereunder, (1) shall name Lessor as
additional insureds and/or loss payees thereunder, as applicable, (ii) shall contain waiver of
subrogation and severability of interests endorsements, (iii) shall in all events be in an amount
sufficient to prevent Lessor from being a co-insurer of any loss covered under the applicable
policy or policies and shall require not less than thirty (30) days' prior written notice of any
cancellation or modification. On or prior to the Effective Date, Lessee shall deliver to Lessor
binding certificates or other binding evidence of all such insurance (on an ACCORD 27 form or
other form acceptable to Lessor), together with true copies of each such policy and evidence of
payment thereof; and thereafter, at least fifteen (15) days prior to the expiration of any policy,
Lessee shall deliver to Lessor such original certificates as shall evidence a renewal or new policy
to take the place of the policy that is expiring together with true copies of each such policy and
evidence of payment therefor. Lessee's insurances are primary and non-contributory to the
Lessor's insurance program.
13. Alterations. Except for the Improvements discussed in Section 2, Lessee shall not make
any alterations, additions, or improvements on or to the Leased.Premises without first obtaining
the written consent of Lessor and all alterations, additions, and improvements shall be performed
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at the sole expense of Lessee. All alterations, additions and improvements shall be performed in
accordance with such restrictions and regulations as Lessor may impose in connection therewith,
including the applicable terms of the Lease. Without limiting the generality of the foregoing,
Lessee shall pay to Lessor (or if Lessor requests,) all fees required by the Lease or otherwise
imposed by Lessor in connection with any alterations, additions or improvements requested to be
performed by Lessee and until such amounts are paid in full, Lessor shall have no obligation to
consider or act upon Lessee's request to make such alterations, additions or improvements.
14. Liens. Lessor hereby notifies all mechanics, materialmen and other lienors that pursuant
to Florida Statutes §713.10, any liens under Florida Statutes Chapter 713 shall extend to, and
only to, the right, title and interest of the person who contracts for the improvement in question
and that neither the interest of Lessor nor any superior interest in the Leased Premises, shall be
subject to liens for any improvements, services or materials made by, contracted for or otherwise
authorized by Lessee or by any employee, contractor or agent of Lessee, and that Lessee has no
power, authority or permission to create any such lien. Lessee agrees that prior to contracting for
or otherwise authorizing any improvements, services or materials to be made in or delivered to
the Leased Premises, Lessee shall notify the applicable contractor of the foregoing provisions.
Lessee further agrees that upon request of Lessor, Lessee shall execute a notice which sets forth
the foregoing provisions, which notice may be recorded by Lessor in Miami-Dade County.
Further, Lessee agrees to indemnify, defend, and save Lessor harmless from and against any
damage or loss, including reasonable attorneys' fees, incurred by Lessor as a result of any liens
or other claims arising out of or related to work performed in the Leased Premises by or on
behalf of Lessee.
15. Assignment and Subletting. Lessee shall not mortgage, encumber, transfer, or assign
this Lease in whole or in part, or further sublet or permit occupancy of the Leased Premises, or
any part thereof or interest therein or enter into any other arrangement which does or may require
the consent of the Lessor, including any of the foregoing effected by operation of law (each a
"Transfer"), without the prior written consent of Lessor, which consent of Lessor shall not be
unreasonably withheld. Lessor's withholding of such consent shall be deemed unreasonable if
Lessor does not consent for any reason. The sale or other transfer of majority partnership
interest in or any capital stock of, or the issuance of majority additional partnership interest in or
any capital stock of Lessee or any partner in Lessee or any entity directly or indirectly owning or
controlling Lessee or any partner in Lessee shall be deemed a Transfer which requires Lessor's
prior written consent, except with respect to capital stock which is publicly traded, Lessor shall
be notified of any sale or transfer of any partnership interest in the Lessee, No Transfer shall
relieve Lessee from any of its obligations under this Lease. Notwithstanding anything to the
contrary contained herein, Lessor shall have the option, exercisable by notice to Lessee, to
recapture all of the Leased Premises, or at the option of Lessor, the portion of the Leased
Premises subject to the proposed Transfer in the event that less than all of the Leased Premises is
subject to the proposed Transfer. Such recapture notice shall cancel and terminate this Lease
with respect to the space being recaptured as of effective date of the proposed Transfer. If this
Lease shall be canceled with respect to less than all of the Leased Premises, then the Base Rent
and the Additional Rent shall be prorated on the basis of the number of net rentable square feet
retained by Lessee in proportion to the number of net rentable square feet contained in the
Leased Premises and this Lease as so modified shall continue in full force and effect. If consent
I
is once given by Lessor to a Transfer, Lessor shall not be barred or in any way limited from
subsequently refusing to consent to any further or subsequent Transfer.
16. Access. to Premises. Lessee shall allow Lessor, their agents, contractors, or employees
access to the Leased Premises throughout the Term at all reasonable times with reasonable prior
notice for the purpose of inspecting or of making any repairs, additions, improvements, or
alterations to the Leased Premises or any property owned by or under the control of either party,
or to exhibit the Leased Premises to prospective lessees or assignees of the Leased Premises
during the last 12 months of the Term.
17, Default and Remedies.
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17.1 Default. The occurrence of any one or more of the following events shall
constitute a default by Lessee under this Lease:
(i) Unless previously consented in writing by Lessor, the failure of
Lessee to operate the Leased Premises with the Permitted Use for more than 30
consecutive days, other than failure to operate caused, in the reasonable opinion
of Lessor, by a casualty to the Leased Premises.
(ii) The failure by Lessee to make any payment of Base Monthly Rent,
Percentage Rent Impositions or any other payment required to be made by Lessee
hereunder, where such failure shall continue for a period of 7 days.
(iii) Except as otherwise provided in this Lease,the failure by Lessee to
observe or perform any of the non-monetary covenants, conditions, or provisions
of this Lease to be observed or performed by Lessee, where such failure shall
continue for a period of 30 days after written notice hereof from Lessor to Lessee;
provided, however, that if the nature of Lessee's noncompliance is such that more
than 30.days are reasonably required for its cure, then Lessee shall not be deemed
to be in default if Lessee commences such cure within said 30-day period and
thereafter diligently prosecutes such cure to completion and the final
determination thereof.
iv The admission by Lessee of its inability to pay debts as they
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mature.
(v) Institution by or against Lessee of any bankruptcy, insolvency,
reorganization, receivership or other similar proceeding involving the creditors of
Lessee which,if instituted against Lessee is not dismissed within 60 days after the
commencement thereof;
(vi) The issuance of filing of any judgment, attachment, levy,
garnishment or the commencement of any related proceeding or the
commencement of any other judicial process upon with respect to Lessee, all or
substantially all of the assets of Lessee or the Leased Premises.
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(vii) Sale or other disposition by Lessee of substantially all of its assets
or property.
(viii) Dissolution, merger, consolidation, termination of existence,
insolvency, business failure or assignment for the benefit of creditors of or by
Lessee.
(ix) Any material statement, representation or information made or
furnished by or on behalf of Lessee to Lessor in connection with or to induce
Lessor to enter into this Lease shall prove to be materially false or misleading
when made or furnished,
17.2 Remedies. Upon the occurrence of a default by Lessee pursuant to the foregoing
Section or otherwise in under this Lease, Lessor may at any time thereafter, with or without
notice or demand and without limiting Lessor in the"exercise of any right or remedy which
Lessor may have by reason of such default:
(i) Terminate Lessee's right to possession of the Leased Premises by
any lawful means, in which case this Lease and the term hereof shall terminate
and Lessee shall immediately surrender possession of the Leased Premises to
Lessor. In such event, Lessor shall be entitle, at its option, and without notice to
Lessee, to accelerate the remaining rent due and to recover from Lessee all
damages incurred by Lessor by reason of Lessee's default.
(ii) Maintain Lessee's right to possession of the Leased Premises by
any lawful means, in which case this Lease and the term hereof shall continue in
effect whether or not Lessee shall have vacated or abandoned. the Leased
Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights
and remedies under the Lease, including the right to recover the rent as it becomes
due hereunder,
(iii) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state of Florida.
17.3 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies provided in this
Section or otherwise available at law or in equity.
17.4 No Accord and Satisfaction. No payment by Lessee or receipt by Lessor of any
lesser amount than the amount stipulated to be paid hereunder shall be deemed other than on
account of the earliest stipulated Base Rent,Percentage Rent, Additional Rent, or other sums due
under this Lease; nor shall any endorsement or statement on any check or letter be deemed an
accord and satisfaction, and Lessor's right to recover the balance due or to pursue any other
remedy available to Lessor shall not be limited thereby.
17.5 Waivers. No failure by Lessor to insist upon the strict performance of any term,
covenant, agreement, provision, condition, or limitation of this Lease or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance by Lessor of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any such breach or of any
such term, covenant, agreement, provision, condition or limitation. No term, covenant,
agreement,provision,condition, or limitation of this Lease to be kept, observed, or performed by
Lessee, and no breach thereof, shall be waived, altered, or modified except by a written
instrument executed by Lessor. No waiver of any breach shall affect or alter this Lease, but each
and every term, covenant, agreement, provision, condition, and limitation of this Lease shall
continue in full force and effect as to any other then existing or subsequent breach thereof.
18. Bankruptcy or Insolvency.
18.1 Liquidation. In the event that Lessee shall become a debtor under Chapter 7 of
the Bankruptcy Reform Act of 1978, as amended (the "Bankruptcy Code"),and Lessee's trustee
or Lessee shall elect to assume this Lease for the purpose of assigning the same or otherwise,
such election and assignment may be made only if the provisions of this Section are satisfied. If
Lessee or Lessee's trustee shall fail to assume this Lease within 120 days after the entry of an
order for relief; this Lease shall be deemed to have been rejected. Immediately thereupon,
Lessor shall be entitled to possession of the Leased Premises without further obligation to Lessee
or Lessor shall be entitled to possession of the Premises without further obligation to Lessee or
Lessee's trustee and this Lease, upon the election of Lessor, shall terminate,but Lessor's right to
be compensated for damages shall survive,whether or not this Lease shall be terminated.
18.2 Reorganization. In the event that a voluntary petition for reorganization is filed
by Lessee, or an involuntary petition is filed against Lessee under Chapter 11 of the Bankruptcy
Code, or in the event of the entry of an order for relief under Chapter 7 in a case which is then
transferred to Chapter 11, Lessee's trustee or Lessee, as debtor-in-possession, must elect to
assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or
the transfer thereto, or Lessee's trustee or the debtor-in-possession shall be deemed to have
rejected this Lease. Immediately thereupon, Lessor shall be entitled to possession of the Leased
Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the
election of Lessor, shall terminate, Lessor's right to be compensated for damages under the
Bankruptcy Code, shall survive, whether or not this Lease shall be terminated.
19. Condemnation.
In the event the Leased Premises are taken or condemned by any public or quasi-judicial
authority exercising the right of eminent domain, this Lease shall terminate as of the date the
condemning authority takes possession of the Leased Premises with the same force and effect as
though such date were the date fixed herein for expiration of the Term and the entire amount of
any award for such taking shall belong to Lessor, except for moving, business interruption and
other amounts attributable to Lessee's business, if any, awarded to Lessee. Upon such
termination, the parties shall be immediately relieved of all obligations under this Lease.
20. End of Term.
20,1 Surrender. Lessee shall, at the termination or expiration of this Lease, surrender
the keys to the Leased Premises to Lessor. Lessee shall surrender the Leased Premises at the
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expiration or sooner termination of the Lease Term vacant, free of all occupancies and tenancies,
free of all Lessee's personal property and equipment, broom clean, and in the same condition as
when Lessee took possession, reasonable wear and tear excepted. Lessee's alterations,
improvements, and furnishings and fixtures shall remain to the extent required by the Lease.
Upon the expiration of this Lease, or if Lessor re-enters or re-takes possession of the Leased
Premises prior to normal expiration of this Lease, Lessor shall have the right, but not the
obligation, to remove from the Leased Premises all personal property located therein belonging
to Lessee,and either party may place the property in storage at the expense and risk of Lessee.
20.2 Holding Over. Any holding over at the expiration or sooner termination of this
Lease with the consent of Lessor shall be at Lessor's option be on a month-to-month basis at
double the monthly Base Rent and Percentage Rent prior to the expiration or sooner termination
hereof, which tenancy may thereafter be terminated as provided by the laws of Florida. During
any holdover without Lessor's consent, Lessee shall pay as fair rental value damages double the
rate of rental on a monthly basis as was in effect immediately prior to the termination of this
Lease, plus any other damages, consequential or otherwise, suffered by Lessor and arising from
or out of, or in connection with, such holdover, and shall be bound by all the terms and
conditions of this Lease. Lessee shall defend, indemnify, and hold harmless Lessor from any
damages, losses, costs and expenses (including reasonable attorneys' fees) resulting from such
holdover.
21. Successors and Assigns. The covenants and agreements of this Lease shall be binding
on and inure to the benefit of the successors, assigns, and transferees of Lessor and the permitted
successors, assigns,and transferees of Lessee.
22. Notices. All notices, demands, requests, consents, approvals or other communications
(collectively, "Notices") required or permitted to be given hereunder or which are given with
respect to this Lease shall be effective only if in writing and delivered by personal service, or
delivered to an overnight courier service with guaranteed next day delivery or mailed by
registered or certified mail, return receipt requested, postage prepaid, addressed as hereinafter
provided. Any Notice to any of the parties hereto shall be provided to:
If to Lessor: City Manager and City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach,Florida 33160
If to Lessee: FLY ME TO THE MOON, LLC
a/k/a Passion Restaurant Group
Carlos Galan,President/CEO
1000 South Miami Avenue
Miami,FL 33130
With a copy to: Seth Z. Joseph
Seth Z. Joseph,P.A.
255 Alhambra Circle, Suite 1250
Coral Gables, FL 33134
Any party may change its address for Notices by Notice to the other party. The aforesaid
attorneys for the parties hereto are hereby respectively authorized to give any Notice permitted
under this Lease. Any Notice given as provided herein shall be deemed received as follows: if
delivered by personal service, on the date so delivered; if delivered to an overnight courier
service, on the business day immediately following delivery to such service; and if mailed, on
the third business day after mailing. Rejection or other refusal to accept or the inability to
deliver any Notice because of a changed address of which no Notice was given shall be deemed
to be receipt of the Notice sent.
Any Notices required under Section 83.20,Florida Statutes, shall be deemed to have been
fully given,made,sent, and received if sent in compliance with this section.
23. Radon Gas. Lessee is hereby advised that radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit. The foregoing disclosure is
provided to comply with state law and is for informational purposes only and does not create any
representation, warranty, liability or obligation of Lessor.
24. Estoppel Certificates, From time to time, Lessee, within five (5) days' after written
request therefor from Lessor, shall execute and deliver to Lessor an estoppel certificate in a form
generally consistent with the requirements of institutional lenders or as otherwise required by
Lessor or certified to Lessor, and any lender, purchaser, or prospective purchaser of the interest
of Lessor. In addition, if requested, Lessee shall provide any financial information concerning
Lessee and Lessee's business operations that may be reasonably requested by Lessor, or any
lender, purchaser, or prospective purchaser of the interest of Lessor. Any such statement,
delivered pursuant to this Lease may be relied upon by Lessor, and any owner, prospective
purchaser,lender, or prospective lender.
25. Subordination. This Lease and all of Lessee's rights hereunder are subject and
subordinate to the Lease and all ground or underlying leases, and mortgages which may now or
hereafter affect the Leased Premises or the real property on which the same is situated or any
interest therein, to all renewals, modifications, consolidations, replacements and extensions
thereof, and to all rights, interests, and title of any lender, mortgagee, fee title holder, or ground
lessor secured thereby. The foregoing provisions shall be self-operative and no further
instrument of subordination shall be required to give effect to the same. Within five days after
written request therefor from Lessor, Lessee shall execute and deliver to Lessor or to such other
party as Lessor may direct, a subordination agreement confirming such subordination and
containing such other provisions as are generally consistent with the requirements of institutional
lenders or as otherwise required by Lessor.
26. Brokers. Lessor and Lessee each represents that it has not dealt with any brokers in
connection with this Lease. Each party agrees with the other to indemnify and hold the other
harmless from and against any and all loss, liability, damage, cost, and expense(including court
costs and reasonable attorneys' fees)which the other may incur or sustain in connection with any
claim or action arising out of any fact or occurrence that would constitute a breach by such
indemnifying party of any representation,warranty or agreement contained in this Section.
27, Impossibility of Performance. For purposes of this Lease, the term "Unavoidable
Delay" shall mean any delays due to strikes, lockouts, civil commotion, warlike operations,
invasion, rebellion, hostilities, military or usurped power, sabotage, government regulations or
controls, inability to obtain any material, utility, or service because of governmental restrictions,
hurricanes, floods, or other natural disasters, acts of God, or any other cause beyond the direct
control of the party delayed (not including the insolvency or financial condition of that party or
the increased cost of obtaining labor and materials). Notwithstanding anything in this Lease to
the contrary, if Lessee or Lessor shall be delayed in the performance of any act required under
this Lease by reason of any Unavoidable Delay, then provided notice of the Unavoidable Delay
is given to the other party within ten (10) days after its occurrence, performance of the act shall
be excused for the period of the delay and the period for the performance of the act shall be
extended for a reasonable period, in no event to exceed a period equivalent to the period of the
delay;provided that, if the Lease does not excuse Lessor from the performance of any obligation
of Lessor under the Lease for an Unavoidable Delay described above, then Lessee shall
correspondingly not be excused under this Section or this Lease with respect to the same
Unavoidable Delay for which Lessor is not excused under the Lease.
28. Signage. Lessee shall not erect any sign on or about the Property or visible from the
exterior of the Leased Premises without the Lessor's prior written approval, subject to the further
requirements of the Lease.
29. Attorney's Fees. In any suit, action, or other proceeding, including arbitration or
bankruptcy, arising out of or in any manner relating to this Lease or the Leased Premises,
including (a) the enforcement or interpretation of either party's rights or obligations under this
Lease whether in contract, tort, or both, or (b) the declaration of any rights or obligations under
this Lease the prevailing party, as determined by the court or arbitrator, shall be entitled to
recover from the losing party its reasonable attorneys' fees and disbursements (including
disbursements that would not otherwise be taxable as costs in the proceeding). In addition, if
Lessor becomes a party to any suit or proceeding that is caused by Lessee's actions, inactions, or
negligence that affects the Leased Premises or involving this Lease or Lessee's interest under
this Lease, other than a suit between Lessor and Lessee, or if Lessor engages counsel to collect
any of the amounts owed under this Lease, or to enforce performance of any of the agreements,
conditions, covenants, provisions, or stipulations of this Lease, without commencing litigation,
then the costs, expenses, and reasonable attorneys' fees and disbursements incurred by Lessor
shall be paid to Lessor by Lessee. All references in this Lease to attorneys' fees shall be deemed
to include all legal assistants',paralegals', and law clerks' fees and shall include all fees incurred
through all post judgment and appellate levels and in connection with collection, arbitration, and
bankruptcy proceedings.
30. Miscellaneous.
30.1 Severability. In the event any one or more of the provisions contained in this
Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity,illegality or unenforceability shall not affect any other provision of this Lease, but this
Lease shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein. Furthermore, in the event that the application of any provision of this Lease to
any person or circumstance shall for any reason be held to be invalid, illegal or unenforceable, in
whole or in part, or in any respect or to any extent, then, and in any event, such invalidity,
illegality or unenforceability shall not be deemed to affect the application of such provision to
the extent that such application is legal, valid and enforceable nor the application of such
provision to any person or entity or circumstance against whom or which such application is
legal, valid and enforceable.
30,2 Entire Agreement. This Lease contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any and all prior and contemporaneous
negotiations, representations, understandings and agreements, whether written or oral, all of
which are merged into this Lease.
30.3 Survival. All of the provisions of this Lease which could require enforcement or
application after the expiration or any earlier termination of this Lease (including, without
limitation, all indemnities contained in this Lease) shall survive the expiration or any earlier
termination of this Lease.
30.4 Time of the Essence. Time is of the essence for each of the parties to perform its
obligations under this Lease.
30.5 Interpretation. The captions used in this Lease are for convenience of reference
only and shall not be construed to extend, limit or modify the scope or meaning of the respective
paragraphs to which they relate. This Lease shall not be construed more strictly against one
party than against the other merely by virtue of the fact that this Lease may have been physically
prepared by one of the parties, or such party's counsel, it being agreed that all parties and their
respective counsel have mutually participated in the negotiation and preparation of this Lease.
30.6 No Recording. Neither this Lease nor any notice or memorandum hereof shall be
recorded or otherwise filed, and any attempt by or on behalf of Lessee to do so shall constitute a
default under this Lease and shall entitle Lessor to exercise any and all remedies provided for
herein,at law and/or in equity.
30.7 Counterparts. This Lease may be executed in one or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making proof of this Lease to
produce or account for more than one such counterpart, executed by all of the parties hereto.
30.8 Modifications., Waivers., Remedies Cumulative. No amendment, modification,
waiver or discharge of this Lease, or any provision hereof (including, without limitation, this
sentence) shall be valid or effective unless in writing and signed by the party against whom
enforcement of such amendment, modification, waiver or discharge is sought and then only to
the extent set forth in such writing. No delay or omission of any party in exercising any right,
power or remedy accruing under or pursuant to this Lease, at law, in equity, or otherwise, shall
exhaust or impair any right, power or remedy of any party or shall be construed to waive any
such right,power or remedy. Every right, power and remedy of the parties under this Lease may
be exercised from time to time and as often as may be deemed expedient by any party in its sole
discretion. No right, power or remedy conferred upon or reserved to the parties is exclusive of
any other right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and remedy given
under this Lease or under any other instrument executed in connection herewith, or now or
hereafter existing at law, in equity, or otherwise. No obligation of any party under this Lease
shall be deemed waived by any course or pattern of conduct by any party.
30.9 Relationship. Nothing herein shall be deemed to create any partnership, joint
venture, or principal-agent relationship between the parties, and neither party shall act toward
third parties or the public in any manner which would indicate any such relationship other than
Lessor-Lessee.
30.10 Governing Law. This Lease shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Florida, excluding its choice of law principles,
Venue for any dispute shall be in Miami-Dade County,Florida,
30.11 Mediation, Lessor and Lessee agree that if a dispute develops between them
arising from or in connection with this Lease, they will submit to non-binding mediation to
address any controversy or claim arising out of, or relating to this Lease. Prior to the beginning
of the mediation process, Lessor and Lessee may agree that if there is one or more disputed items
that remain unresolved at the end of the mediation, the parties will proceed with binding
mediation where the mediator will render a final and binding decision on those unresolved items.
If agreed to, the Settlement Agreement shall be binding upon the parties and shall be enforceable
in any court of competent jurisdiction. Both parties shall share the cost of the dispute resolution
process equally.
30.12 Facsimile Execution. Facsimile copies (i.e., telecopies) of counterparts of this
Lease, executed by all of the parties hereto, shall be considered for all purposes, including
delivery, as originals.
31. Jury Trial Waiver, TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES
HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER,
REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS LEASE,
WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH
RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING TO
THIS LEASE; AND BOTH PARTIES AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
EACH OF THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO
CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR
HAS NOT BEEN WAIVED. FURTHER, EACH OF THE PARTIES HERETO HEREBY
CERTIFIES THAT NO OTHER PARTY NOR ANY REPRESENTATIVES, AGENTS
OR ATTORNEYS OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THE PROVISIONS OF
THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO THE ACCEPTANCE OF
THIS LEASE BY THE OTHER PARTIES HERETO.
IN WITNESS WHEREOF, the parties have signed this Lease under seal as of the day and
date first above written.
LESSOR:
ATTEST: CITY OF SU Y ISLES BEACH, FLORIDA,a
Municipa orp i ation of the State of Florida
A.
. - By:
JAN NE M C,CITY CLERK GEOR "BUD" SCHOLL,MAYOR
APPROVED AS 0 FORM AND
LEG-∎ '.U 11 I' CY:
*AM )/`
S OTTINOT CITY TTO I EY
LESSEE:
FLY ME TO THE MOON,LLC a/k/a PASSION
RESTAURANT GROUP
By:
CARLOS GALAN,PRES 1 ENT/CEO
Ii
EXHIBIT "A"
DESCRIPTION OF PROPERTY
EXHIBIT "A"
Parcel 1
Folio No. 31-2214-007-0030
Lot 2, 3, 4, less the Right of Way of the SECOND REVISED PLAT OF BELLA VISTA
SUBDIVISION, according to the plat thereof, as recorded in Plat Book 50, Page 76, of
the Public Records of Miami-Dade County, Florida, situated at 151 Sunny Isles
Boulevard, Sunny Isles Beach,Florida 33160.
Parcel 2
Folio No. 31-2214-007-0040
Lots 5, 6, and 6-A less the Right of Way of the SECOND REVISED PLAT OF BELLA
VISTA SUBDIVISION, according to the Plat thereof, recorded in Plat Book 50, at Page
76 of the Public Records of Miami-Dade County, Florida, situated at 215 Sunny Isles
Boulevard, Sunny Isles Beach, Florida 33160.
Parcel 3
Folio No.31-2214-007-0050
Lot 7 less the Right of way of the SECOND REVISED PLAT OF BELLA VISTA
SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 50, at Page 76, of
the Public Records of Miami-Dade County,Florida.
Parcel 4
Folio No. 3 1-2214-007-0060
Lot 8 of the SECOND. REVISED PLAT OF BELLA VISTA, according to the Plat
thereof, as recorded in Plat Book 50, at Page 76, of the Public Records of Miami-Dade
County, Florida, situated at 287 Sunny Isles Boulevard, Sunny Isles Beach, Florida
33160. i{
EXHIBIT "B"
LEASED PREMISES
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EXHIBIT "C"
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DESCRIPTION OF"FLY ME TO THE MOON RESTAURANT CONCEPT"
The restaurant will feature a "Cheap & Chic" Theme; fine dining and affordable international
cuisine where two can have a two course meal and a bottle of wine for less than $50.00. The
restaurant space will be an open floor plan and the kitchen will have a picture window. An open
bar counter will divide the restaurant from a gourmet food market. The market space will be an
open space floor plan with multiple gourmet food vendors representing the top kitchens of
Miami and the world. The market will feature communal tables for patrons to enjoy the top
cuisine and beverages the City has to offer in a relaxed and vibrant atmosphere. The diverse
menu of restaurant and offerings of the market will appeal to a large audience.
HOURS OF OPERATION: The"Fly Me to the Moon"restaurant and market serves lunch and
dinner and will be open from 11:00 a.m. to 11:00 p.m, daily("Hours of Operation"). The City
Manager shall have authority to approve adjustments to the hours of operation.