HomeMy WebLinkAboutReso 2003-581
RESOLUTION NO. 2003- ~'61
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, PRELIMINARILY
APPROVING THE LEASE AGREEMENT BETWEEN THE CITY
OF SUNNY ISLES BEACH AND ROMACORP; AUTHORIZING
THE CITY ATTORNEY AND THE CITY MANAGER TO
NEGOTIATE THE TERMS OF THE ATTACHED LEASE BY
AND BETWEEN THE CITY OF SUNNY ISLES BEACH AND
ROMACORP, TO BE APPROVED IN ITS FINAL FORM AT THE
NEXT PUBLIC HEARING OF THE CITY COMMISSION;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City has purchased the property located at 18050 Collins Avenue for the
purposes of building a government center and re-building the Roma restaurant; and
WHEREAS, the City's staff has been negotiating with RomaCorp., on the terms of the
lease by and between the City of Sunny Isles Beach and RomaCorp., Inc.; and
WHEREAS, only this week a final lease has been delivered to the City for its review and
upon initial review, it appears as though the items requested by the City to be included in the
lease have been so included, but there may be other items that need to be negotiated; and
WHEREAS, there is no meeting until the end of August or beginning of September, the
City Manager and City Attorney are requesting preliminary approval as to the attached least
between the City of Sunny Isles Beach and RomaCorp., Inc., and the authority to negotiate a
final lease to be brought back before the City Commission for final approval;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH AS FOLLOWS:
Section 1. Approval of Lease. The City Commission hereby preliminary approves the lease
between the City of Sunny Isles Beach and RomaCorp., Inc., attached hereto as Exhibit "A."
Section 2. Authority of City Manager and City Attorney. The City Commission hereby
grants the City Manager and City Attorney the authority to negotiate the final lease which shall
be ratified at the next City Commission meeting.
Section 3.
Effective Date. This Resolution shall become effective upon adoption.
Roma Lease Preliminary Approval Res.
Legislation/Resolutions/Attorney
LMD:ch
1
PASSED and ADOPTED this 1 ih day of July, 2003.
ATTEST:
~~
Jane A~ Hifles, A~ting City Clerk
, " ,)
"',,}
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APPROVED AS TO FORM
AND. G SUFFICIENCY:
VOTE: S-o
Mayor Samson
Vice Mayor Ede1cup
Commissioner Goodman
Commissioner Iglesias
Commissioner Kauffman
Roma Lease Preliminary Approval Res.
LegislationlResolutions/ Attorney
LMD:ch
Attorney
(yes) V
(yes) V
(yes)~
(yes) V
(yes)1
Motion by: ~~~ G:t:b\)Yt\ffi
Second by: "\t.. '((\~QY: t4lL ~ Q"j f2-
(no)_
(no)
(no)_
(no)_
(no)_
2
LEASE
BETWEEN
CITY OF SUNNY ISLES BEACH
AND
ROMACORP, INC.
t~Ht~'" "~"
ARTICLE 1
ARTICLE 2
2.1
2.2
2.3
2.4
2.5
2.6
ARTICLE 3
3.1
3.2
3.3
3.4
3.5
ARTICLE 4
4.1
4.2
4.3
4.4
4.5
ARTICLE 5
5.1
5.2
5.3
5.4
5.5
5.6
ARTICLE 6
6.1.
6.2.
TABLE OF CONTENTS
Page
FUNDAMENTAL LEASE PROVISIONS ..................................................... 1
TERM AND RENT ......................................................................................... 1
Term....................................................................................................................... 1
Rent........................................................................................................................ 2
Impositions............................................................................................................. 3
Late Charge............................................................................................................ 3
Interest on Overdue Amounts .......... ............... ............................................. .......... 3
Net Lease................................................................................................................ 4
USE OF THE PREMISES ............................................................................... 4
Use.........................................................................................................................4
Condition of Premises............................................................................................ 4
Compliance With Law...... ........... ....... ..... .............. ....... ..................... ........ ............ 4
Environmental Compliance................................................................................... 4
Permits and Licenses.............................................................................................. 6
TAXES AND UTILITIES ......................... ...... .............. ........ ........ .......... ........ 6
Payment of Taxes................................................................................................... 6
Definition of "Taxes" ............................................................................................. 6
Tenant's Right to Contest Taxes... .............................. ....................... .................... 7
Payment of Utilities............................................................................................... 8
Interruption in Utility Service.......................................................................... ...... 8
INSURANCE AND INDEMNIFICATION..................................................... 8
Tenant's Insurance................................................................................................. 8
Policy Form..............................................:............................................................. 9
Subrogation Waiver ........... ....... ................... ... .............. .... ...... ............. ....... ... ........ 9
Payment of Insurance ................... ......... ..... ............ ............. ............. ............... ....... 9
"
Insurance Use Restrictions ........ ......... .......... ..... ..l........ ... ...... ............................... 9
Indemnification ... ...... ...................... .................. ........ ........ ........... ..... ............ .... ... 10
MAINTENANCE AND REPAIRS ............................................................... 10
Tenant's Obligations............................................................................................ 10
Landlord's Obligations ..................... ... .................. ............ ....... .......... ... ......... ..... 10
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6.3.
ARTICLE 7
7.1
7.2
7.3
7.4
7.5
ARTICLE 8
8.1
8.2
ARTICLE 9
9.1
9.2
9.3
ARTICLE 10
10.1
10.2
ARTICLE 11
11.1
11.2
11.3
ARTICLE 12
12.1
ARTICLE 13
13.1
13.2
ARTICLE 14
14.1
14.2
ARTICLE 15
TABLE OF CONTENTS
(continued)
Page
Landlord's Rights.................................................................................................. 11
ALTERATIONS ... ............................ .... ........... .................... ......... ................. 11
Consent to Alterations.......................................................................................... 11
Ownership of Alterations .......... ............................ ................. .............................. 11
Alterations Required by Law............................................................................... 11
General Conditions Relating to Alterations......................................................... 11
Liens..................................................................................................................... 12
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD...................... 12
Obligation to Rebuild........................................................................................... 12
Casualty During Last Twelve Months .................................................................12
EMINENT DOMAIN .................................................................................... 13
Total Taking......................................................................................................... 13
Partial Taking....................................................................................................... 13
Distribution of Award ............. ....... ......... .................. .......... .... ..................... ........ 13
ASSIGNMENT AND SUBLETTING ........................................................... 14
Landlord's Consent Required ............. .......... ........... ........ ........ .................... ........ 14
No Release of Tenant............ ....... ...... ........... ............ .................. ....... .......... ........ 14
DEFAULT; REMEDIES .............. ..... ...... .............. ............. ........... ................ 15
Default.................................................................................................................. 15
Remedies.............................................................................................................. 16
Cumulative Remedies ................. ......... ........... ...... ........... ............... ......... .... ........ 16
REPRESENTATIONS AND WARRANTIES; FINANCIAL REPORTING......... 16
Representations and Warranties........................................................................... 16
RESERVED.......................................................................... ......................... 17
Liens......................................................................~.............................................. 17
Prohibition and Indemnity Against Mechanic's and Materialman's Liens.......... 17
BANKRUPTCY OR INSOL VENCY............................................................ 18
Liquidation .... ................ .... ...... .......... ... ............... .......... .... ..... ............... ..... .......... 18
Reorganization................................................................................................ ..... 18
GENERAL PROVISIONS.. ......... ......... ..... ......... .................. ..... .......... .......... 18
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TABLE OF CONTENTS
(continued)
Page
15.1 Quiet Enjoyment.................................................................................................. 18
15.2 Definition of Rent................................ ................................................................ 18
15.3 Subordination .......................... ........ ...................................... ... ........ .................... 18
15.4 Surrender of Premises ........... ........... ............................... ..................... ......... ....... 19
15.5 Estoppel Certificates............................................................................................ 19
15.6 Severability ................................................................. ... ........ .............................. 19
15.7 Entire Agreement................................................................................................. 19
15.8 Notices ......................... ................... ............................ ... ........ ....................... .... ... 19
15.9 Waivers .................... ................... .......................... ..................................... .......... 19
15.10 Recording............................................................................................................. 20
15.11 Holding Over....................................................................................................... 20
15.12 Choice of Law...................................................................................................... 20
15.13 Attorneys ' Fees.................................................................................................... 20
15 .14 Waiver of Jury Trial................... ................. ......... ....... ............. .......... .................. 20
15.15 Liability of Landlord............................................................................................ 20
15 .16 No Merger....................................................................................................... ..... 20
15.17 Interpretation........................................................................................................ 21
15.18 Relationship of the Parties ...... ....................................... ....... ............................... 21
15.19 Successors.................................................................................... ........................ 21
15.20 Modifications ....................................................................................................... 21
15.21 Brokerage Fees..................................................................................................... 21
15.22 Waiver of Redemption ......... ............................... ............................... .................. 21
15.23 Not Binding Until Executed.......................... ............. .............. ............................ 21
15.24 Counterparts......................................................................................................... 21
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In consideration of the rents and covenants set forth below, Landlord (as hereinafter
defined) hereby leases to Tenant (as hereinafter defined), and Tenant hereby leases from
Landlord, the Premises (as hereinafter defined), upon the following terms and conditions:
ARTICLE 1
FUNDAMENTAL LEASE PROVISIONS
The provisions in this Article shall be referred to in this Lease as the "Fundamental Lease
Provisions." Unless otherwise defined herein, capitalized terms used in this Lease shall have the
meanings listed in the Fundamental Lease Provisions.
Commencement Date: July 28
, 2003
Landlord:
City of Sunny Isles Beach
17070 Collins Avenue, Suite 250
Sunny Isles Beach, Florida 33160
Tenant:
Romacorp, Inc.
9304 Forest Lane
Dallas, Texas 75243
FAX: (214) 343-7777
Tenant's EID No.:
13-4010466
Premises:
18050 Collins Avenue
Sunny Isles Beach, Florida 33160
Initial Term:
20 years, commencing on the Commencement Date
Renewal Terms:
2 terms of 5 year(s) each, with rent due thereunder at the then existing fair
market as determined by Landlord in its sole reasonable discretion.
Base Monthly
Rent:
$20,000.00, subject to proration and adjustment as provided in Article 2
Percentage Rent:
8 % of Net Sales
Permitted Use:
A Tony Roma's restaurant
ARTICLE 2
TERM AND RENT
2.1 Term. The Initial Term of this Lease shall be as set forth in the Fundamental
Lease Provisions. Provided Tenant is not then in default under this Lease, Tenant shall have the
option to extend the Initial Term by the number of successive Renewal Terms described in the
Fundamental Lease Provisions by giving Landlord written notice of its election to extend the
term of this Lease by the succeeding Renewal Term not less than 90 days prior to expiration of
the Initial Term or the then running Renewal Term, as the case may be. The terms and
conditions of this Lease shall apply during each Renewal Term. The Initial Term, as it may be
extended by one or more Renewal Terms shall be hereinafter referred to as the "Lease Term."
2.2 Rent.
2.2.1 Base Monthly Rent. For the use and occupancy of the Premises, Tenant
shall pay Landlord the Base Monthly Rent, in advance, commencing on the Commencement Date
and continuing on the first day of each calendar month thereafter during the Lease Term, without
any offset or deduction. Should the Lease Term commence on a day other than the first day of a
calendar month, then the rental for such first fractional month shall be computed on a daily basis
for the period from the Commencement Date to the end of such calendar month at an amount
equal to 1/3Oth of the Base Monthly Rent for each day. Should the Lease Term end on a day
other than the last day of a calendar month, then the rental for such fractional month shall be
computed on a daily basis at an amount equal to 1I30th of the Base Monthly Rent for each day.
Tenant shall pay Landlord the Base Monthly Rent in lawful money of the United States without
deduction, setoff or counterclaim.
2.2.2 Percentage Rent.
(i) In addition to the Base Monthly Rent, Tenant shall pay to Landlord
Percentage Rent equal to the amount by which eight percent (8%) of all Net Sales (as hereinafter
defined) during each full or partial calendar year exceed the total annual Base Rent provided
under Paragraph 2.1.1. of this Lease for such year. Percentage Rent shall be payable on a
quarterly basis during the calendar year, on or before the thirtieth (30th) day of the month
following the end of each quarter, such Percentage rent to be equal to eight percent (8%) of
Tenant's Net Sales for the same lease quarter.
(ii) The term "Net Sales" as used in this Lease shall include the entire
gross receipts of every kind and nature from the sales and services made in, upon, or from (e.g.
catering services) the premises, and promotional events, whether upon credit, for cash or credit;
excepting therefrom sales and similar taxes attributable to such sales which are charged to and
collected from the customer, customer discounts, refunds, voids, all complimentary or
promotional meals, and all meals of employees, management or corporate personnel attendant to
the extent no money is received for any of them.
(iii) Tenant shall, in connection with all sales, utilize point of sale
equipment which properly records all such sales. Tenant shall k~ep in the demised premises or at
some other location a permanent and accurate set of books and;'records of all sales and revenues
derived from business conducted in the demised premises, including: catering records; records
of voids and refunds; tax reports; liquor tax returns; and such other records as may be needed to
permit an effective audit of sales. All such records shall be retained and preserved for at least
twenty- four (24) months after the end of the calendar year to which they relate, and shall be
subject to inspection and audit by Landlord and its agents at all reasonable times. On or before
the 30th day after each lease year during the term hereof, including renewals, tenant shall prepare
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and deliver to Landlord at the place then fixed for payment of rent a statement of Net Sales
during the preceding lease year in such form as Landlord may require, certified to be correct by
Tenant or Tenant's authorized representative.
(iv) On or before the 30th day after the expiration of each lease year and
the 30th day after the expiration or termination of this Lease, Tenant shall deliver to Landlord at
the place last fixed for the payment of rent a statement, certified to be accurate and correct by
Tenant or Tenant's authorized representative, showing Net Sales during the lease year preceding
the date on which such statement is due. In the event any provision of this Lease or the
enforcement thereof by Landlord, requires accounting for Net Sales and the payment of
Percentage Rent for any period less than twelve (12) months, such shorter period shall be treated
as one (1) year for the purposes of an annual statement and such statement shall be delivered to
Landlord within thirty (30) days after termination of such shorter period. With each such annual
statement or statements for a shorter period, tenant shall pay to Landlord any and all sums due
hereunder and then remaining unpaid for the entire period covered by such statement.
(v) In the event Landlord desires to audit the reports of Net Sales
submitted by Tenant (not to exceed one (1) time per year) Landlord shall have the right to cause
its auditors to audit all books and records, wherever located, pertaining to sales made in or upon
the demised premises. Tenant shall promptly pay to Landlord any deficiency or Landlord shall
promptly refund to Tenant any overpayment, as the case may be, which is established by such
audit.
2.3 Impositions. In addition to the Rent, Tenant shall pay to the parties respectively
entitled thereto all impositions, insurance premiums and Taxes (as defined in Article 4),
(collectively, the "Impositions"). If any such Impositions are allocated to Tenant, rather than
charged directly against Tenant or the demised premises, Landlord shall provide Tenant with
such support for such charges as Tenant may reasonably request. Tenant shall furnish to
Landlord, promptly upon request of Landlord official receipts or other satisfactory proof
evidencing payment of such Impositions.
2.4 Late Charge. If any installment of the Base Minimum Rent, any Imposition or any
other payment provided for under this Lease which is payable by Tenant is not received by
Landlord within five (5) days after notice, Tenant shall immediately pay Landlord the amount of
Five Hundred ($500) Dollars as a late charge (the "Late Charge"). Landlord and Tenant agree
that the Late Charge represents a fair and reasonable estimate of the costs that Landlord will
incur by reason of any such late payment by Tenant. Acceptance of the Late Charge by Landlord
shall not constitute a waiver of Tenant's default with respect to the overdue amount, nor prevent
Landlord from exercising any other rights and remedies availabl~ to Landlord under this Lease.
2.5 Interest on Overdue Amounts. The Basic Monthly Rent and all other amounts due
Landlord under this Lease which are not paid when due shall bear interest at a per annum rate
equal to the "federal funds rate" (or substantial equivalent) announced from time to time (as
adjusted monthly) plus 2%, from the date due until paid; provided, however, that if such rate
shall exceed the lawful rate of interest which Landlord is entitled to charge under applicable law,
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then the per annum rate of interest on any such overdue amounts shall be the maximum rate
permitted by applicable law.
2.6 Net Lease. This Lease is what is commonly called a "triple net lease," it being
understood that Landlord shall receive the Base Monthly Rent free and clear of any and all
Taxes, other Impositions, liens, charges, or expenses of any nature whatsoever incurred in
connection with the ownership and operation of the Premises.
ARTICLE 3
USE OF THE PREMISES
3.1 Use. Tenant shall use the Leased Premises solely for the Permitted Use. Tenant
may not use the Premises for any other purpose without obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
3.2 Condition of Premises. Landlord has constructed the foundation, building shell
and roof of the Leased Premises and delivered the Leased Premises to Tenant for finish out.
Such finish out to be solely at Tenant's cost.
3.3 Compliance With Law.
3.3.1 Tenant shall, at Tenant's sole expense, comply in all material respects
with all applicable laws, ordinances, orders, rules, regulations, of any governmental authorities
and with any directive of any public officer which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises or the use or occupation thereof or signage
thereon, including, without limitation, any governmental law or statute, rule, regulation,
ordinance, code, policy or rule of common law now or hereafter in effect relating to the
environment, health or safety.
3.3.2 Tenant shall not use or permit the Premises to be used in any manner
which will result in waste or the creation of a nuisance, and Tenant shall maintain the Premises
free of any objectionable noises, odors, or disturbances.
3.4 Environmental Compliance.
3.4.1 Tenant shall, at its sole cost and expense at all times during the Term,
comply in all respects with the Environmental Laws (as defined below) in its use and operation
of the Premises.
3.4.2 Tenant shall not use the Premises for tqe purpose of storing Hazardous
Materials (as defined below) except in full compliance with thb Environmental Laws and other
applicable law, and shall not cause the release of any Hazardou~ Material.
3.4.3 Tenant shall notify Landlord promptly and in reasonable detail in the
event that Tenant becomes aware of or suspects (i) the presence of any Hazardous Material on
the Premises (other than any Permitted Hazardous Materials, as defined below), or (ii) a violation
of the Environmental Laws on the Premises.
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3.4.4 If Tenant uses or permits the Premises to be used so as to subject Tenant,
Landlord or any occupant of the Premises to a claim of violation of the Environmental Laws
(unless contested in good faith by appropriate proceedings), Tenant shall, at its sole cost and
expense, immediately cease or cause cessation or'such use or operations and shall remedy and
fully cure any conditions arising therefrom.
3.4.5 At its sole cost and expense, Tenant shall (i) immediately pay, when due,
the cost of compliance with the Environmental Laws within the Premises, and (ii) keep the
Premises free of any liens imposed pursuant to the Environmental Laws. Tenant shall, at all
times, use, handle and dispose of any Permitted Hazardous Material in a commercially
reasonable manner and in compliance with the Environmental Laws and applicable industry
standards. Tenant shall cooperate with Landlord in any program between Landlord and any
governmental entity for proper disposal and/or recovery of any Permitted Hazardous Material.
3.4.6 Tenant shall indemnify, save and hold Landlord harmless from and
against any claim, liability, loss, damage or expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of any violation of the covenants of Tenant
contained in this Section by Tenant, or out of any violation of the Environmental Laws by
Tenant, its owners, employees, agents, contractors, customers, guests and invitees, which
indemnity obligation shall survive the expiration or termination of this Lease.
3.4.7 In the event that Tenant fails to comply with any of the foregoing
requirements of this Section, after the expiration of the cure period permitted under the
Environmental Laws, if any, Landlord may, but shall not be obligated to (i) elect that such failure
constitutes a default under this Lease; and/or (ii) take any and all actions, at Tenant's sole cost
and expense, that Landlord deems necessary or desirable to cure any such noncompliance.
Tenant shall reimburse Landlord for any costs incurred by Landlord in exercising its optiOflS
under this subsection within 5 days after receipt of a bill therefor.
3.4.8
ofthe Lease Term.
The provisions of this Section shall survive the expiration or termination
Capitalized terms used in this Section and not otherwise defined herein shall have the
following meanings:
"Hazardous Materials" means any of the following as defined by the
Environmental Laws: solid wastes; medical or nuclear waste or materials; toxic or
hazardous substances; natural gas, liquefied natural gas or synthetic fuel gas; petroleum
products or derivatives, wastes or contaminants (including, without limitation,
polychlorinated biphenyls); paint containing lead; ur~~formaldehyde foam insulation;
asbestos (including, without limitation, fibers and friable asbestos); explosives, and
discharges of sewage or effluent.
"Environmental Laws" means all requirements of environmental, ecological,
health, or industrial hygiene laws or regulations or rules of common law related to the
Property, including all requirements imposed by any law, rule, order, or regulation of any
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federal, state, or local executive, legislative, judicial, regulatory, or administrative agency,
board, or authority, which relate to (i) noise; (ii) pollution or protection of the air, surface
water, ground water, or land; (iii) solid, gaseous, or liquid waste generation, treatment,
storage, disposal, or transportation; (iv) exposure to Hazardous Materials; or (v)
regulation of the manufacture, processing, distribution and commerce, use, or storage of
Hazardous Materials.
"Permitted Hazardous Material" means any Hazardous Material which is
necessary and commercially reasonable for the provision of any good or service related to
the Permitted Use.
3.5 Permits and Licenses. Tenant shall be solely responsible to apply for and secure
any building permit or permission of any duly constituted authority for the purpose of doing any
of the things which Tenant is required or permitted to do under the provisions of this Lease.
ARTICLE 4
TAXES AND UTILITIES
4.1 Payment of Taxes. Tenant shall pay the Taxes (as defined in the following
Section) applicable to the Premises during the Lease Term. Landlord shall provide Tenant with
copies of any tax bills applicable to the Premises promptly after receipt of such bills. All such
payments shall be made at least 10 days prior to the delinquency date of such payment. Tenant
shall promptly furnish Landlord with satisfactory evidence that such Taxes have been paid. If
any such Taxes paid by Tenant shall cover any period of time prior to or after the expiration of
the Lease Term, Landlord shall reimburse Tenant to the extent required. If Tenant shall fail to
pay any such Taxes, Landlord shall have the right (but not the obligation) to pay the same, in
which case Tenant shall repay such amount plus any penalties and interest resulting therefrom to
Landlord within 5 days after receipt of a bill therefor.
4.2 Definition of "Taxes". As used herein, the term "Taxes" shall include:
4.2.1 any form of real estate tax or assessment, ad valorem tax or gross
receipts tax, imposed by any authority having the direct or indirect power to tax, including any
city, county, state, or federal government, or any school, agricultural, sanitary, fire, street,
drainage, or other improvement district thereof, on, against or with respect to the Premises, this
Lease, any legal or equitable interest of Landlord or any superior landlord in the Premises or in
the real property of which the Premises are a part, Landlord's right to rent or other income
therefrom, and Landlord's business of leasing the Premises;
4.2.2 any tax, fee, levy, assessment, penallY, interest or other charge (i) in
substitution of, partially or totally, any tax, fee, levy, assessment, or charge hereinabove included
within this definition of Taxes, or (ii) any tax or increase in any tax which is imposed as a result
of a transfer, either partial or total, of Landlord's interest in the Premises to Tenant, or (iii) which
is imposed by reason of this transaction, any modifications or changes hereto, or any transfers
hereof; and
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4.2.3 all inspection fees, taxes, bonds, permits, certificates, assessments and
sales, use, property or other taxes, fees or tolls of any nature whatsoever (together with any
related interest or penalties) now or hereafter imposed against Landlord or Tenant by any federal,
state, county or local governmental authority upon or with respect to the Premises or the use
thereof or upon the possession, leasing, use, operation or other disposition thereof or upon the
rents, receipts or earnings arising therefrom or upon or with respect to this Lease; and
4.2.4 all taxes assessed against and levied upon trade fixtures, furnishings,
equipment, and all other personal property of Tenant contained in the Premises or elsewhere,
which Tenant shall cause to be separately assessed and billed directly to Tenant.
Tenant shall pay when due or reimburse and indemnify and hold Landlord harmless from and
against any Taxes. Notwithstanding the foregoing, the term "Taxes" shall not include any
general income taxes, inheritance taxes, and estate taxes imposed upon Landlord.
4.3 Tenant's Right to Contest Taxes.
4.3.1 Tenant 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 Tenant after the
time limit for the payment of any Taxes unless Tenant 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 Landlord, as security for the performance by Tenant of its obligations
hereunder with respect to such Taxes, 100% of such contested amount or such other reasonable
security as may be demanded by Landlord 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, Tenant shall pay the amount of such Taxes or part
thereof, as finally determined in such proceedings, together with any costs, fees (including all
reasonable attorneys' fees and expenses), penalties or other liabilities in connection therewith;
provided, however, that if Tenant has deposited cash or cash equivalents with Landlord as
security under clause (iii) above, then, so long as no default exists under this Lease, Landlord
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 Tenant. Otherwise, Landlord shall return to Tenant all amounts, if any, held by or on
behalf of Landlord which were deposited by Tenant in accordance with such clause (iii).
4.3.2 Tenant shall have the right, at its cost aqd expense, to seek a reduction in
the valuation of the Premises as assessed for tax purposes': and to prosecute any action or
proceeding in connection therewith. Provided Tenant is not indefault hereunder, Tenant shall be
authorized to retain any tax refund of any tax paid by Tenant.
4.3.3 Landlord agrees that whenever Landlord's cooperation is required in any
proceeding brought by Tenant to contest any tax, Landlord will reasonably cooperate therein,
provided same shall not entail any cost, liability or expense to Landlord. Tenant shall pay,
- 7 -
indemnify and save Landlord harmless of and from, any and all liabilities, losses, judgments,
decrees, costs and expenses (including all reasonable attorneys' fees and expenses) in connection
with any such contest and shall, promptly after the final settlement, fully pay and discharge the
amounts which shall be levied, assessed, charged or imposed or be determined to be payable
therein or in connection therewith, and Tenant shall perform and observe all acts and obligations,
the performance of which shall be ordered or decreed as a result thereof. No such contest shall
subject Landlord to the risk of any civil liability or the risk of any criminal liability, and Tenant
shall give such reasonable indemnity or security to Landlord as may reasonably be demanded by
Landlord to insure compliance with the foregoing provisions of this Section.
4.4 Payment of Utilities. Tenant shall pay to the utility companies or other parties
entitled to payment the cost of all water, heat, air conditioning, gas, electricity, telephone, and
other utilities and services provided to or for the Premises, including, without limitation,
connection fees and taxes thereon.
4.5 Interruption in Utility Service. Landlord shall not be liable in damages or
otherwise for any failure or interruption of any utility or other service being furnished to the
Premises, and no such failure or interruption shall entitle Tenant to any abatement of, set off or
reduction in the amounts payable to Landlord hereunder or otherwise entitle Tenant to terminate
this Lease.
ARTICLE 5
INSURANCE AND INDEMNIFICATION
5.1 Tenant's Insurance. From and after taking possession of the Premises, Tenant
shall carry and maintain, at its sole cost and expense, the following types and amounts of
msurance:
Insurance Type
Commercial General
Liability
Amount of Coverage
$1,000,000 per occurrence and
$2,000,000 in the aggregate
Risks Covered
bodily injury, property damage
Property Damage
full replacement value
"all risk", including sprinkler
damage
loss of earnings by at least the
r>.erils of fire and lightning,
,extended coverage, vandalism,
malicious mischief and sprinkler
leakage
Business Interruption
not less than six installments of
Minimum Monthly Rent
Worker's compensation
as required by law
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5.2 Policy Form.
5.2.1 Tenant shall obtain all policies of insurance required by Section 5.1
issued in the names of Ten ant and Landlord, as their respective interests may appear. In addition,
all such policies providing coverage for physical damage shall include a loss payee endorsement
in favor of Landlord. The Tenant shall cause copies of such policies of insurance or originally
executed certificates thereof to be delivered to Landlord prior to Landlord's execution of this
Lease, and not less than 30 days prior to any renewal thereof. As often as any such policy shall
expire or terminate, Tenant shall procure and maintain renewal or additional policies with like
terms. None of such policies shall contain any co-insurance requirements and all such policies
shall provide for written notice to Landlord not less than 10 days prior to any modification,
cancellation, lapse, or reduction in the amounts of insurance, and shall further provide that any
loss otherwise payable thereunder shall be payable notwithstanding any act or negligence of
Landlord or Tenant which might, absent such provision, result in a forfeiture of all or part of the
payment of such loss. 'All general liability, property damage, and other casualty policies shall be
written on an occurrence basis as primary policies, not contributing with or in excess of coverage
which Landlord may carry.
5.2.2 Tenant's obligations to carry the insurance provided for above may be
brought within the coverage of an "umbrella" policy or policies of insurance carried and
maintained by Tenant; provided, however, that such policy or policies shall (i) have limits of not
less than $2,000,000, (ii) name Landlord and any mortgagee or beneficiary of Landlord as
additional insureds as their interests may appear, and (iii) provide that the coverage afforded
Landlord will not be reduced or diminished by reason of the use of such blanket policies. Tenant
agrees to permit Landlord at all reasonable times to inspect any policies of insurance of Tenant
which Tenant has not delivered to Landlord.
5.3 Subrogation Waiver. Landlord (for itself and its insurer) hereby waives any
rights, including rights of subrogation, and Tenant (for itself and its insurer) hereby waives any
rights, including rights of subrogation, each may have against the other on account of any loss or
damage occasioned to Landlord or Tenant, as the case may be, to their respective property, the
Premises or its contents that are caused by or result from risks insured against under any
insurance policies carried by the parties hereto and in force at the time of any such damage. The
foregoing waivers of subrogation shall be operative only so long as available in the jurisdiction
where the Premises are located and so long as no policy of insurance is invalidated thereby.
5.4 Payment of Insurance. In the event that Tenant shall fail to obtain the insurance
policies required hereunder or to pay the premiums due for the insurance policies required
hereby, Landlord shall have the right, but not the obligation, to pay the same in which case
Tenant shall repay such amount plus any penalties or additionaJ amounts resulting therefrom to
Landlord within 5 days after receipt of a bill therefor.
5.5 Insurance Use Restrictions. Tenant shall not carry any stock or goods or do
anything in, on, or about the Premises which will substantially increase the insurance rates upon
the building of which the Premises are a part.
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5.6 Indemnification. Tenant shall indemnify Landlord for, defend Landlord against,
and save Landlord harmless from, any liability, loss, cost, injury, damage or other expense or risk
whatsoever that may occur or be claimed by or with respect to any person(s) or property on or
about the Premises and resulting directly or indirectly from
5.6.1 the use, misuse, occupancy, possession or disuse of the Premises by
Tenant or other persons claiming through or under Tenant, or their respective agents, employees,
licensees, invitees, guests or other such persons;
5.6.2 Tenant's maintenance of the condition of the Premises;
5.6.3 any work or thing done in respect of construction of, in or to the
Premises or any part of the improvements now or hereafter constructed on the Premises (other
than work by or on behalf of Landlord);
5.6.4 any use, possession, occupation, operation, or management of the
Premises or any part hereof;
5.6.5 any failure to, or to properly, use, possess, occupy, operate, maintain or
manage the Premises or any part thereof;
5.6.6 the condition, including environmental conditions, of the Premises or any
part thereof;
5.6.7 any negligence on the part of Tenant or any of its agents, contractors,
servants, employees, licensees or invitees;
5.6.8 any accident, injury or damage to any person or property occurring in, on
or about the Premises;
5.6.9 any failure on the part of Tenant to perform or comply with any of the
covenants, agreements, terms or conditions contained in this Lease on its part to be performed or
complied with.
ARTICLE 6
MAINTENANCE AND REPAIRS
6.1. Tenant's Obligations. Tenant shall, at its sole cost and expense, maintain in good
repair, order, and serviceable condition the interior of the 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 Premises; and all windows, doors, plate
glass, interior walls, and ceilings which are part of the Premises.
6.2 Landlord's Obligations. Landlord have the obligation to repair and maintain the
foundation, exterior walls, roof and utilities beyond connection to the building on the Premises,
including structural or nonstructural, ordinary or extraordinary.
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6.3 Parties' Rights. If either party refuses or neglects to make repairs or maintain the
Premises, or any part thereof, in a manner reasonably satisfactory to the other, without prejudice
to any other remedy, upon giving 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 5 days following receipt of a bill therefor. Tenant agrees to permit Landlord
or its agent to enter the Premises, upon reasonable notice by Landlord, during normal business
hours for the purpose of inspecting the Premises.
ARTICLE 7
AL TERA nONS
7.1 Consent to Alterations. Subject to the prior written consent of Landlord, which
consent shall not be unreasonably withheld, Tenant may, at its sole cost and expense, make
alterations, replacements, additions, changes, and improvements (collectively referred to in this
Article as "Alterations") to the Premises as it may find necessary or convenient for its purposes,
but only after giving Landlord written notice thereof, together with copies of all architectural
plans and specifications relating to any such Alteration.
7.2 Ownership of Alterations. All Alterations made on the Premises shall become the
property of Landlord at the expiration or termination of the Lease Term and shall be surrendered
with the Premises.
7.3 Alterations Required by Law. Tenant shall, at its sole cost and expense, make any
Alteration to or on the Premises, or any part thereof, which may be necessary or required by
reason of any law, rule, regulation, or order promulgated by competent government authority.
704 General Conditions Relating to Alterations. Any Tenant Alteration shall be
subject to the following conditions:
704.1 No Alteration shall be undertaken until Tenant shall have procured and
paid for all required permits and authorizations of all municipal departments and governmental
subdivisions having jurisdiction.
704.2 Any Alteration involving an estimated cost of more than $100,000 shall
be conducted under the supervision of a licensed architect or engineer selected by Tenant and
satisfactory to Landlord, and shall be made in accordance with detailed plans and specifications
and cost estimates prepared by such architect or engineer and approved in writing in advance by
Landlord.
704.3 Any Alteration shall be made promptly and in a good workmanlike
manner, by property qualified and licensed personnel, and in compliance with all applicable
permits and authorizations and building and zoning laws and all laws, and in accordance with the
orders, rules and regulations of the Board of Fire Insurance Underwriters, if applicable, and any
other body hereafter exercising similar functions having or asserting jurisdiction over the
Premises.
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7.4.4 No Alteration shall tie-in or connect any improvements to any building
on the Premises with any property outside the Premises without the prior written consent of
Landlord.
7.4.5 No Alteration shall reduce the value of the Premises or impair the
structural integrity of any building comprising a part of the Premises.
7.5 Liens. In connection with Alterations or otherwise, Tenant shall do all things
necessary to prevent the filing of any mechanic's or materialman's liens against the Premises, or
any part thereof, or upon any interest of Landlord by reason of labor, services or materials
supplied or claimed to have been supplied to Tenant, or anyone holding the Premises, or any part
thereof, through or under Tenant. If any such lien shall at any time be filed against all or any
portion of the Premises, Tenant shall either cause same to be discharged of record within 30 days
after the date of filing' of same or, if Tenant in good faith determines that such lien should be
contested, Tenant shall either (i) bond over such lien in accordance with applicable law, or (ii)
furnish such security as Landlord shall determine to be necessary and/or required to prevent any
foreclosure proceedings against all or any portion of the Premises during the pendency of such
contest. If Tenant shall fail to discharge or bond over such lien or fail to furnish such security
within such period, then, in addition to any other right or remedy of Landlord resulting from said
default of Tenant, Landlord may, but shall not be obligated to, discharge the same either by
paying the amount claimed to be due or by procuring the discharge of such lien by giving security
or in such other manner as is, or may be, prescribed by law, and Tenant agrees to reimburse
Landlord within 5 days after demand for all costs, expenses, and other sums of money spent in
connection therewith.
ARTICLE 8
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD
8.1 Obligation to Rebuild. If any portion of the Premises is damaged or destroyed by
fire or other casualty, Tenant shall forthwith give notice thereof to Landlord. Tenant shall obtain
an estimate from a licensed architect or contractor of the cost to complete such repair, restoration,
rebuilding or replacement, and Tenant shall, at its sole cost and expense, promptly repair, restore,
rebuild or replace the damaged or destroyed improvements, fixtures or 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, Landlord shall, to the extent and at the times the proceeds of the insurance are made
available to Landlord, and only so long as Tenant shall not be in default under this Lease, deliver
such funds to Tenant for the making such repairs, restoration, rebuilding and replacements.
;;
8.2 Casualty During Last Twelve Months. Notwithstanding the foregoing, if the
Premises is damaged or destroyed by fire or other casualty during the last twelve (12) months of
the Initial Term or the then-running Renewal Term, Tenant may elect not to rebuild and to
terminate this Lease; provided that Landlord shall receive insurance proceeds in the full amount
of the casualty loss. In the event that Tenant elects to terminate this Lease and the insurance
proceeds are less than the amount of the unpaid rent for the balance of the Lease Term, Tenant
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agrees to pay the difference to Landlord in cash (or cash equivalent) within 5 days after receipt of
a bill from Landlord.
ARTICLE 9
EMINENT DOMAIN
9.1 Total Taking. If the entire Premises are taken under the power of eminent domain
by any public or quasi-public authority, this Lease shall terminate and expire as of the date of
such taking, and Tenant shall be entitled to make a claim for the loss of business and investment,
Landlord and Tenant shall each thereafter be released from any further liability accrued under
this Lease. In the event that Tenant shall have paid any rent for any period beyond the date of
such taking, Landlord shall reimburse same, pro rata.
9.2 Partial Taking. In the event that (i) more than 25% of the floor area of the
Premises, or of the parking area serving the Premises and owned by the Landlord, is taken under
the power of eminent domain by any public or quasi-public authority, (ii) by reason of any
appropriation or taking, regardless of the amount so taken, the remainder of the Premises is not
one undivided parcel of property, or (iii) as a result of any taking, regardless of the amount so
taken, the remainder of the Premises is rendered unsuitable for the continued operation of
Tenant's business, Tenant shall have the right to terminate this Lease as of the date Tenant is
required to vacate a portion of the Premises, by giving the other notice of such election within 30
days after receipt by Tenant from Landlord of written notice that the Premises have been so
appropriated or taken. Landlord agrees immediately after learning of any appropriation or taking
to give to Tenant notice in writing thereof. In the event of such termination, both Landlord and
Tenant shall thereupon be released from any liability thereafter accruing hereunder. If Tenant
elects not to terminate this Lease, Tenant shall remain in that portion of the Premises not so taken
and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion of the Premises
as soon as possible to a complete unit of like quality and character as existed prior to such taking.
Landlord agrees to reimburse Tenant for the cost of restoration, but in no event shall Landlord's
obligation to reimburse Tenant for the cost of restoring the remaining portion of the Premises
exceed the amount of award of compensation that Landlord receives for a partial taking of that
portion of the Premises resulting in the need for restoration. So long as this Lease is not
terminated in the manner provided above, there shall be an equitable adjustment of the rent
payable by Tenant hereunder by reason of such partial taking. Tenant hereby waives any
statutory rights of termination which may arise by reason of any taking of the Premises under the
power of eminent domain unless Landlord is the .condemning authority.
9.3 Distribution of Award. The entire award or compensation in such eminent
domain proceeding, whether for a total or partial taking or fqr diminution in the value of the
leasehold or for the fee shall be distributed to Landlord, provided however, that Tenant may
apply for award of the value of Tenant's personal property, loss of income, relocation costs,
improvements and the value of the leasehold interest created hereby, according to the law in
effect in the jurisdiction where the Premises are located. This provision shall not apply if
Landlord is the condemning authority.
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ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 Landlord's Consent Required.
10.1.1 Tenant shall not assign this Lease or Tenant's interest in and to the
Premises without obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Any attempted assignment without such consent shall be void, and shall
constitute a default by Tenant under this Lease. For purposes of this Article, the terms "assign"
and "assignment" shall include any (i) act attempting to, or document purporting to, assign,
transfer, enter into license or concession agreements for, change ownership of, or hypothecate
this Lease or Tenant's interest in and to the Premises or any part thereof, (ii) change in the
majority ownership of Ten ant.
10.1.2 Notwithstanding the foregoing subsection, Tenant shall have the right to
assign this Lease without the consent of, but with notice to, Landlord, to any entity which is an
affiliate or a wholly-owned subsidiary of Tenant.
10.1.3 Any permitted assignee, transferee, licensee, concessionaire, or
mortgagee shall agree for the benefit of Landlord to be bound by, assume, and perform all of the
terms, covenants, and conditions of this Lease.
10.1.4 Notwithstanding anything contained herein to the contrary and except for
any arrangement for the provision of liquor service, Tenant shall not sublet, assign or enter to a
management arrangement for the Premises on any basis such that the rent or other amounts to be
paid by any subtenant, assignee or manager thereunder would be based, in whole or in part, on
the income or profits derived from the business activities of such subtenant, assignee or manager
on the Premises.
10.2 No Release of Ten ant.
10.2.1 No assignment shall release Tenant of Tenant's obligation or alter the
primary liability of Tenant to pay the rent and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. In the event of default by any
assignee of Tenant or any successor Tenant, in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting remedies
against such assignee. Landlord may consent to subsequent assignments of this Lease or
amendments or modifications to this Lease with assignees of Tenant, upon notice to Tenant, or
any successor of Tenant, and after obtaining Tenant's or sucl}"'successor's consent thereto, and
such action shall not relieve Tenant ofliability under this Lease~
10.2.2 Notwithstanding the foregoing subsection, in the event of an assignment
otherwise in compliance with this Article, Landlord may, but shall have no obligation to, release
Tenant from its primary liability under this Lease. In order to obtain such release, Tenant shall
submit a written request to Landlord therefor, together with the following information for the
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proposed assignee: name; most recently prepared annual and quarterly financial statements
(including a balance sheet and an income statement); and a description of the length and nature
of the experience of the proposed assignee and its principals (if a closely held entity) in the
business proposed to be conducted by the assignee on the Premises. In the event that Landlord
consents to such release, Landlord shall so notify Tenant in writing.
ARTICLE 11
DEFAULT; REMEDIES
11.1 Default. The occurrence of anyone or more of the following events shall
constitute a default by Tenant under this Lease:
11.1.1 Unless previously consented in writing by Landlord, the failure of Ten ant
to operate the Premises with the Permitted Use for more than 30 consecutive days, other than
failure to operate caused, in the reasonable opinion of Landlord, by a casualty to the Premises.
11.1.2 The failure by Tenant to make any payment of Base Monthly Rent,
Impositions or any other payment required to be made by Tenant hereunder, where such failure
shall continue for a period of 7 days.
11.1.3 Except as otherwise provided in this Lease, the failure by Tenant to
observe or perform any of the non-monetary covenants, conditions, or provisions of this Lease to
be observed or performed by Tenant, where such failure shall continue for a period of 30 days
after written notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's noncompliance is such that more than 30 days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within said 30-day
period and thereafter diligently prosecutes such cure to completion and the final determination
thereof.
11.1.4 The admission by Tenant of its inability to pay debts as they mature.
11.1.5 Institution by or against Tenant of any bankruptcy, insolvency,
reorganization, receivership or other similar proceeding involving the creditors of Tenant which,
if instituted against Tenant is not dismissed within 60 days after the commencement thereof;
11.1.6 The issuance or filing of any judgment, attachment, levy, garnishment or
the commencement of any related proceeding or the commencement of any other judicial process
upon or with respect to Tenant, all or substantially all of the assets of Ten ant or the Premises.
11.1.7 Sale or other disposition by Tenant of "'substantially all of its assets or
property.
11.1.8 Dissolution, merger, consolidation, termination of existence, insolvency,
business failure or assignment for the benefit of creditors of or by Tenant.
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11.1.9 Any material statement, representation or information made or furnished
by or on behalf of Tenant to Landlord in connection with or to induce Landlord to enter into this
Lease shall prove to be materially false or misleading when made or furnished.
11.2 Remedies. Upon the occurrence of a default by Tenant pursuant to the foregoing
Section or otherwise in under this Lease, Landlord may at any time thereafter, with or without
notice or demand and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default:
11.2.1 Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease and the term hereof shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled, at its
option, and without notice to Tenant, to accelerate the remaining rent due and to recover from
Tenant all damages incurred by Landlord by reason of Ten ant's default.
11.2.2 Maintain Tenant's right to possession of the Premises by any lawful
means, in which case this Lease and the term hereof shall continue in effect whether or not
Tenant shall have vacated or abandoned the Premises. In such event Landlord shall be entitled to
enforce all of Landlord's rights and remedies under the Lease, including the right to recover the
rent as it becomes due hereunder.
11.2.3 Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the jurisdiction where the Premises are located.
11.3 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.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES; FINANCIAL REPORTING
12.1 Representations and Warranties. To induce Landlord to enter into this Lease,
Tenant represents and warrants to Landlord as follows:
12.1.1 This Lease is an enforceable obligation of Tenant.
12.1.2 Tenant is not a foreign corporation, foreign partnership, foreign trust or
foreign estate (as such terms are defined in the Internal Revenue Code of 1986, as amended) and
the regulations promulgated thereunder).
12.1.3 There are no actions, suits or proceedings pending, or to the best of
Tenant's knowledge, threatened, against or affecting it or the Premises which, if adversely
determined, would materially impair the ability of Tenant to satisfy its obligations under or
relating to this Lease.
12.1.4 Tenant has all required certificates of occupancy, building permits,
certificates of environmental impact approval, all zoning, building, housing, safety, fire and
- 16-
health approvals and all other material permits and licenses required by any governmental
authority and necessary or advisable to operate, occupy or use the Premises for the Permitted
Use, all or which are unexpired, and to the extent obtainable, permanent and unconditional, and,
without cost or risk to Landlord, are hereby assigned, to the extent assignable, to Landlord.
ARTICLE 13
RESERVED
13.1 Liens Landlord shall have a lien against all of the property of the Tenant which
may be located on the Lease Premises, for unpaid rent or other charges. Tenant hereby pledges
and assigns to Landlord all the furniture, fixtures, goods and chattels of Tenant which shall or
may be brought or put on said Premises as additional security for the payment of Tenant's
monetary obligation under this Lease. Notwithstanding the foregoing, Landlord agrees that his
lien shall be subordinate to the lien of any financing or lease hereafter obtained (other than from
any parent, subsidiary or affiliated entity of Tenant) for the purpose of acquiring or leasing any
equipment, machinery or trade fixtures for use in the operation of Tenant's business on the
Premises. Tenant agrees that Landlord's lien may be enforced by distress, foreclosure or
otherwise at the election of the Landlord. This provision shall be deemed to constitute a security
agreement as that term is defined and utilized in the Uniform commercial Code in force in the
State of Florida.
13.2 Prohibition and Indemnity Against Mechanic's and Materialman's Liens.
(a) Landlord and Tenant shall use their best efforts to prevent the creation of any lien
against the Premises on account of labor or materials furnished in connection with any
construction, maintenance, repairs or alterations each shall undertake. If any such lien is filed
against the Premises, the party contracting for such work (the "Contracting Party") shall cause
such lien to be released within ninety (90) days after actual notice of the filing thereof or within
thirty (30) days of actual notice shall furnish to the other party a bond or other security
reasonably satisfactory to the other, conditioned to indemnify the other against the foreclosure of
such lien. The Contracting Party shall have the right, after notice to the other, to contest in good
faith and with all due diligence any such lien and shall not be required to pay any claim secured
by such lien; provided that (i) such lien would not impair the rights or be satisfied out of the
interest of the other in the Premises by reason of such delay, and (ii) the Contracting Party will, at
its expense, defend the other and pay all costs reasonably incurred by the other relating to the
contest if the other is joined in any suit pertaining thereto or if any such lien is placed upon the
other's interest in the Premises.
/.
(b) In no event shall anything contained in tbis Paragraph, or elsewhere in this
Lease, be deemed to subject Landlord's interest in the Premises to the lien of any person doing
work for or furnishing materials at the instance and request of Tenant. Tenant shall have no
authority to create any liens for labor or materials on or against the Landlord's interest in the
Premises and all persons contracting with Tenant for the erection, installation, alteration or repair
of any building or other improvement in, on or to the Premises, and all materialmen, contractors,
subcontractors, sub subcontractors, mechanics and laborers are hereby charged with notice that
- 17 -
they must look solely and only to the Tenant's interest in the Premises to secure the payment of
any bill for work done or material furnished during the Term of this Lease and, specifically, not
to Landlord or Landlord's interest.
ARTICLE 14
BANKRUPTCY OR INSOLVENCY
14.1 Liquidation. In the event that Tenant shall become a debtor under Chapter 7 of
the Bankruptcy Reform Act of 1978, as amended (the "Bankruptcy Code"), and Tenant's trustee
or Tenant 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
Tenant or Tenant'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,
Landlord shall be entitled to possession of the Premises without further obligation to Tenant or
Tenant's trustee and this Lease, upon the election of Landlord, shall terminate, but Landlord's
right to be compensated for damages shall survive, whether or not this Lease shall be terminated.
14.2 Reorganization. In the event that a voluntary petition for reorganization is filed by
Tenant, or an involuntary petition is filed against Tenant 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, Tenant's trustee or Tenant, 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 Tenant's trustee or the debtor-in-possession shall be deemed to have
rejected this Lease. Immediately thereupon, Landlord shall be entitled to possession of the
Premises without further obligation to Tenant or Tenant's trustee, and this Lease, upon the
election of Landlord, shall terminate. Landlord's right to be compensated for damages under the
Bankruptcy Code, shall survive, whether or not this Lease shall be terminated.
ARTICLE 15
GENERAL PROVISIONS
15.1 Quiet Enioyment. Subject to the terms and conditions of this Lease, Tenant shall
have the quiet and peaceful possession of the Premises.
15.2 Definition of Rent. All monetary obligations of Tenant to Landlord under the
terms of this Lease, including, without limitation, the Taxes, insurance premiums and other
Impositions payable hereunder shall be deemed to be "rent".
15.3 Subordination. Subject to Article 13 hereof this I,-ease shall be subordinate to any
superior lease, mortgage, deed of trust, or any other hypothe~tion or security now existing or
hereafter placed upon the Premises and to any and all advances made on the security thereof and
to all renewals, modifications, consolidations, replacements, and extensions thereof and Tenant
hereby agrees, upon request by Landlord, to execute and deliver to Landlord and its lender(s) a
subordination, non-disturbance and attornment agreement in the form reasonably prescribed by
such lender(s) with respect to any such superior lease, mortgage, deed of trust, hypothecation, or
security.
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15.4 Surrender of Premises. Except for changes resulting from eminent domain
proceedings and Landlord approved alterations, at the expiration or sooner termination of the
Lease Term, Tenant shall surrender the Premises in good condition, reasonable wear and tear
excepted, and shall surrender all keys for the PremIses to Landlord at the place then fixed for the
payment of rent and shall inform Landlord of all combinations on locks, safes and vaults, if any,
in the Premises. Tenant may at such time remove all of Tenant's moveable equipment,
machinery, trade fixtures and other personal property, and restore to original condition any
Alterations not previously approved by Landlord, and shall repair any damage to the Premises
caused thereby, and any or all of such property not so removed shall become the exclusive
property of Landlord or be disposed of by Landlord, without further notice to or demand upon
Tenant.
15.5 Estoppel Certificates. Each party (each a "Responding Party") shall at any time
upon not less than 10 days' prior written notice from the other party (each a "Requesting Party")
execute, acknowledge, and deliver to the Requesting Party a statement in a form prescribed by
Landlord certifying and acknowledging the following: (i) that this Lease represents the entire
agreement between Landlord and Tenant, and is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease, as so modified, is
in full force and effect) and the date to which the Minimum Monthly Rent and other charges are
paid in advance, if any; and (ii) that there are not, to the Responding Party's knowledge, any
uncured defaults on the part of the Requesting Party, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any prospective purchaser or
encumbrances of the Premises or of the business of the Requesting Party.
15.6 Severability. The invalidity of any provision of this Lease as determined by a
court of competent jurisdiction shall in no way affect the validity of any other provision hereof.
15.7 Entire Agreement. This Lease constitutes the entire agreement between Landlord
and Tenant and supersedes all prior agreements between them with respect to the Premises,
whether written or oral.
15.8 Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by facsimile, personal delivery, certified mail, return receipt requested
or by nationally recognized overnight courier service delivered to Tenant or to Landlord, as the
case may be, at the FAX numbers or addresses for each set forth in the Fundamental Lease
Provisions. Either party may by notice to the other specify a different FAX number or address
for notice purposes. A copy of all notices required or permitted to be given to Landlord
hereunder shall be concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereafter designate by notice to Tenant.
15.9 Waivers. No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent default by Tenant of the same of any
other provision. Landlord's consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent act by Tenant.
The acceptance of rent hereunder by Landlord shall not be a waiver of any preceding default by
Tenant hereunder, other than the failure of Tenant to pay the particular rent so accepted,
- 19-
regardless of Landlord's knowledge of such preceding default at the time of acceptance of such
rent.
15.10 Recording. Either Landlord or Tenant shall, upon request of the other, execute,
acknowledge, and deliver to the other a "short form" memorandum of this Lease for recording
purposes. Such memorandum shall be in the form prescribed by Landlord. In addition, any
termination agreement shall be similarly recorded, which agreement shall survive the termination
of this Lease.
15.11 Holding Over. If Tenant remains in possession of the Premises or any part thereof
after the expiration or termination of the Lease Term, such occupancy shall be a tenancy from
month-to-month upon all the provisions of this Lease pertaining to the obligations of Tenant and
Tenant shall thereby waive its rights of notice to quit, but Tenant's right as to any Renewal Term
shall terminate. The monthly rent due during such hold-over period shall be equal to 150% of
the Minimum Monthly Rent then in effect, and Tenant shall continue to be obligated to pay all
Impositions and other amounts required to be paid by the terms of this Lease.
15.12 Choice of Law. The laws of Florida shall govern the validity, performance, and
enforcement of this Lease.
15.13 Attornevs' Fees. Should either party institute any action or proceeding to enforce
any provision hereof or for a declaration of such party's rights or obligations hereunder, the
prevailing party shall be entitled to receive from the losing party such amounts as the court may
adjudge to be reasonable attorneys' fees and expenses for services rendered to the party
prevailing in any such action or proceeding, and such fees shall be deemed to have accrued upon
the commencement of such action or proceeding and shall be enforceable whether or not such
action or proceeding is prosecuted to judgment.
15.14 Waiver of Jury Trial. LANDLORD AND TENANT EACH HEREBY WANE
ALL RIGHT TO A TRIAL BY JURY IN ANY CLAIM, ACTION, PROCEEDING OR
COUNTERCLAIM BY EITHER LANDLORD OR TENANT AGAINST THE OTHER ON
ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
THE RELATIONSHIP OF LANDLORD AND TENANT AND/OR TENANT'S USE OR
OCCUPANCY OF THE PREMISES.
15.15 Liability of Landlord. In the event of any sale or other transfer of Landlord's
interest in the Premises, Landlord shall be relieved of all liabilities and obligations of Landlord
hereunder arising after the date of such transfer. Notwithstanding anything contained herein to
the contrary, Landlord shall have no personal liability in respect of any of the terms, covenants,
conditions or provisions of this Lease, and in the event of a bre,~ch or default by Landlord of any
of its obligations under this Lease, Tenant and any persons claiming by, through or under Tenant
shall look solely to the equity of the Landlord in the Premises for the satisfaction of Tenant's
and/or such persons' remedies and claims for damages.
15.16 No Merger. There shall be no merger of this Lease, or the leasehold estate created
by this Lease, with any other estate or interest in the Premises, or any part thereof, by reason of
- 20-
the fact that the same person, firm, corporation or other entity may acquire or own or hold,
directly or indirectly, (i) this Lease or the leasehold estate created by this Lease, or any interest in
this Lease or in any such leasehold estate, and (ii) any such other estate or interest in the Premises
or any part thereof; and no such merger shall occur unless and until all persons, corporations,
firms and other entities having an interest (including a security interest) in (1) this Lease or the
leasehold estate created by this Lease; and (2) any such other estate or interest in the Premises, or
any part thereof, shall join in a written instrument effecting such merger and shall duly record the
same.
15.17 Interpretation. The captions by which the Articles and Sections of this Lease are
identified are for convenience only and shall have no effect upon the interpretation of this Lease.
Whenever the context so requires, singular numbers shall include the plural, the plural shall refer
to the singular, the neuter gender shall include the masculine and feminine genders, and the terms
"Landlord" and "Tenant" and "person" shall include corporations, limited liability companies,
partnerships, associations, other legal entities, and individuals.
15.18 Relationship of the Parties. Nothing in this Lease shall create a partnership, joint
venture, employment relationship, borrower and lender relationship, or any other relationship
between Landlord and Tenant, other than the relationship oflandlord and tenant.
15.19 Successors. This Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective personal and legal representatives, heirs, successors, and
aSSIgns.
15.20 Modifications. This Lease may not be altered, amended, changed, waived,
terminated, or modified in any manner except by a written instrument executed by Landlord and
Tenant.
15.21 Brokerage Fees. Landlord and Tenant each represent and warrant that they have
not employed a broker in connection with the execution of this Lease. Landlord and Tenant shall
each indemnify and hold the other harmless from and against any claim or claims for brokerage
or other commissions arising from such party having employed a broker contrary to its
representation in this Section.
15.22 Waiver of Redemption. To the extent permitted by law, Tenant hereby waives
any and all rights of redemption with respect to this Lease. Tenant hereby waives any rights it
may have to any notice to cure or vacate or to quit provided by any current or future law;
provided that the foregoing shall not be deemed to waive any notice expressly provided in this
Lease.
15.23 Not Binding Until Executed. This Lease does not constitute an "offer" and is not
binding until fully executed and delivered by Landlord.
15.24 Counterparts. This Lease may be executed in one or more counterparts, each of
which shall be an original, and all of which together shall constitute one and the same instrument.
- 21 -
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
first set forth above.
LANDLORD:
Its
tY\ A-'-(O ~
ATTEST:
.-S~ f\~
Jane A. Hines, Acting City Clerk
TENANT:
By
Its !ftt"ideJ
.&-
G~
J4dL1 ~ a>>
Print ame: I:.):c...fl;z. . \-\. \::..\-\-
- 22-
EXHIBIT A
DESCRIPTION OF PREMISES
A portion of Parcel 1, Replat of Tract "A", SUNNY ISLES SHORES, Section "A", according to
the Plat thereof, recorded in Plat Book 64, at Page 74, of the Public Records of Dade County,
Florida, being more particularly described as follows:
Commence at the NE corner of Parcel 1 of Replat of Tract "A", SUNNY ISLES
SHORES, Section "A", Plat Book 64, at Page 74, of the Public Records of Dade
County, Florida; thence run S 6 06' 20" W along the East line of said Parcel 1 for
a distance of 250.00 feet to the Point of Beginning of the tract of land herein
described; thence continue S 6 06' 20" W along the said East line of Parcel 1 for a
distance of 299.145 feet; thence run due West along a line parallel with and
200.00 feet Northerly of the Southerly line of said Parcel 1 as measured along the
East line of said Parcell, for a distance of 250.00 feet; thence run N 6 06' 20" E
along a line parallel to said East line of Parcel 1 for a distance of 60.00 feet;
thence run due West along a line parallel with and 260.00 feet Northerly of the
South line of said Parcell, as measured along the said East line of Parcel 1 for a
distance of 200.00 feet to a point on the West line of said Parcel 1; thence N 6 06'
20" E along said West line of Parcel 1 for a distance of 239.145 feet; thence run
due East for a distance of 450.00 feet to the Point of Beginning.
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FIRST ADDENDUM TO LEASE
BETWEEN
THE CITY OF SUNNY ISLES BEACH AND ROMACORP, INC.
The Tenant, Romacorp, Inc., acknowledges that Landlord, the City of Sunny Isles Beach, will be
constructing its City Hall on the adjoining property during the opening and operation of the Tony
Roma Restaurant. The Tenant and Landlord agree to use due care to warn, or to exclude,
licensees and invitees from areas reasonably foreseeable as dangerous because of operations or
activities or conditions of the construction site for the City Hall center, and Landlord will so
advise Landlord's contractors of Landlord's obligations hereunder. Each party shall hold the
other harmless for injuries to person or property and any and all claims and actions arising from
the failure to honor its obligations hereunder.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Addendum to the
Lease as of the date(s) set forth below.
LANDLORD:
TENANT:
By:
By:
Its
rnt1~o~
Its
~. {~r;:.l'..~,.~
A,l.pn~ ." .'
.!,i1~["~l\h~
> ............... , . .
'Jane{\. H~es, ACJing City Clerk
~ '
WITNESS:
l2 c; xi--
Print Name: /Jih"c:/' fl. 5lun
DATE: C\U~\~)21n~
DATE:
First Addendum to Lease
" .......____.,,.,_____11
1
EXHIBIT A
DESCRIPTION OF PREMISES
A portion of Parcel 1, Replat of Tract "A", SUNNY ISLES SHORES, Section "A", according to
the Plat thereof, recorded in Plat Book 64, at Page 74, of the Public Records of Dade County,
Florida, being more particularly described as follows:
Commence at the NE corner of Parcel 1 of Replat of Tract "A", SUNNY ISLES
SHORES, Section "A", Plat Book 64, at Page 74, of the Public Records of Dade
County, Florida; thence run S 6 06' 20" W along the East line of said Parcel 1 for
a distance of 250.00 feet to the Point of Beginning of the tract of land herein
described; thence continue S 6 06' 20" W along the said East line of Parcel 1 for a
distance of 299.145 feet; thence run due West along a line parallel with and
200.00 feet Northerly of the Southerly line of said Parcell as measured along the
East line of said Parcell, for a distance of 250.00 feet; thence run N 6 06' 20" E
along a line parallel to said East line of Parcel 1 for a distance of 60.00 feet;
thence run due West along a line parallel with and 260.00 feet Northerly of the
South line of said Parcell, as measured along the said East line of Parcel 1 for a
distance of 200.00 feet to a point on the West line of said Parcell; thence N 6 06'
20" E along said West line of Parcel 1 for a distance of 239.145 feet; thence run
due East for a distance of 450.00 feet to the Point of Beginning.
- 23 -
N"' ti Cityof SunnyIsles Beach CityCommission
so \.r, S.
David Samson,Mayor
°� ° 17070 Collins Avenue, Suite 250 Norman Edelcup,Kee Mayor
Sunny Isles Beach,Florida 33160 GerryDn y Iglesias,
Commissioner
i Ulna Kauffman,
Commissioner
Lila I4uRwq Commissioner
305) 947-0606 City Hall
°� .. 1305) 947-06 Fax ChristopherJ.Russo,CCityManager
<„r• (
FLP 4 (305) 947-2150 Building Department Lynn M.Dannheisser,City Attorney
OF suM ^�0Jane A.Hiner,Acting City Clerk
(305) 947-5107 Fax
Memorandum
TO: The Honorable City Commission
FROM: Lynn M. Dannheisser, City Attorney
DATE: July 17, 2003
RE: PRELIMINARY APPROVAL OF ROMA CORP., LEASE
RECOMMENDATION:
It is recommended that the City Commission approve the attached Resolution.
REASON(S):
Attached you will find a letter to Richard Peabody, Chief Financial Officer of RomaCorp, dated
June 12, 2001, outlining the City's conversations with RomaCorp, on terms and conditions for
the lease of the new structure being constructed at 18050 Collins Avenue. As you can see, we
have been in negotiations with RomaCorp, for quite some time but did not receive a final copy of
the lease until a couple of days ago. On first glance, it appears that RomaCorp has included the
terms as outlined in the attached letter. That lease is contained as Exhibit "A” to the Resolution
before you. We would request from this City Commission because this is the last meeting of the
summer that you approve preliminarily the lease between the City of Sunny Isles Beach and _
RomaCorp and grant the City Manager and I authority to continue to finalize the lease, which
shall be brought before you at the next City Commission meeting, for final approval.
In the interim, however, RomaCorp will be moving into a newly constructed structure and we
will finalize the lease prior to that move-in date.
LMD:ch
Abt3 O n)
Agenda Item I 0
Date 7—I,- V S