HomeMy WebLinkAboutR-2012-046 - Authorized a Lease Agreement for the Pier Restaurant with Quarterdeck RESOLUTION NO. 2012-046
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
EXECUTE A LEASE AGREEMENT FOR THE CITY FISHING PIER
RESTAURANT WITH DANIA BEACH QUARTERDECK, LLC; PROVIDING
FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS,in October,2011,the City requested Letters of Interest("RLI")for the leasing of
the Fishing Pier Restaurant in the City of Dania Beach; and
WHEREAS, the City received one (1) response to the request for Letters of Interest from
Quarterdeck Properties,L.C.; and
WHEREAS, upon review of the response from Quarterdeck Properties, L.C., by the City
Commission and proper City officials, it was recommended by City staff that the City award the
lease to Dania Beach Quarterdeck, LLC;
NOW THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That that certain Lease Agreement with Dania Beach Quarterdeck, LLC,
attached in substantial form as Exhibit"A"is approved,in connection with the leasing of the Fishing
Pier Restaurant and the proper City officials are authorized to execute such Agreement.
Section 2. That the City Manager and City Attorney are authorized to make minor
revisions to such Lease Agreement as are deemed necessary and proper for the best interests of the
City.
Section 3. That all Resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 4. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED and ADOPTED on May 8, 2012.
ATTEST:
LOUISE STILSON, CMC PATRICIA A. FLURY
CITY CLERK MAYOR
's Frgsr���
APPROVED AS TO 1 10RM CORRECTNESS:
1 �i4
THOM S J. BR
CITY ATTO Y
2 RESOLUTION#2012-046
LEASE AGREEMENT
BETWEEN
CITY OF DANIA BEACH
AND
DANIA BEACH QUARTERDECK, LLC
TABLE OF CONTENTS
SECTION1. DEFINITIONS ..................................................................................................I
SECTION2. DEMISE ............................................................................................................4
SECTION3. TERM................................................................................................................5
SECTION 4. RENT ALLOWANCE ......................................................................................5
SECTION 5. RIGHTS AND USES OF TENANT.................................................................8
SECTION 6. CONSTRUCTION OF IMPROVEMENTS BY TENANT..............................9
SECTION 7. OPERATIONAL REQUIREMENTS OF TENANT; PARKING ..................11
SECTION 8. OBLIGATIONS OF TENANT.......................................................................12
SECTION 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS..................13
SECTION 10. MAINTENANCE AND REPAIR...................................................................14
SECTION 11. INSURANCE REQUIREMENTS FOR LANDLORD AND TENANT........15
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES....................................17
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES .....................................................................................................18
SECTION14. INDEMNITY...................................................................................................18
SECTION 15. RIGHTS OF ENTRY RESERVED.................................................................19
SECTION 16. ASSIGNMENT AND SUBLETTING............................................................20
SECTION 17. DEFAULT; REMEDIES.................................................................................21
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE........................................................26
SECTION19. SURRENDER.................................................................................................26
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE.............................................26
SECTION 21. REMOVAL OF PROPERTY..........................................................................26
SECTION22. NOTICES ........................................................................................................27
SECTION 23. ENVIRONMENTAL COMPLIANCE............................................................28
SECTION 24. NON-DISCRIMINATION................................
SECTION 25. MISCELLANEOUS........................................................................................29
EXHIBIT"A" LANDLORD'S PARCEL
EXHIBIT"B" FISHING PIER
EXHIBIT`B-1" LICENSED AREAS
EXHIIBIT"C" LEASED PREMISES
EXHIBIT"C-1" KIOSK AREAS
EXHIBIT"D" FOOD MENU
EXHIBIT"E" RULES AND REGULATIONS
EXHIBIT"F-1" TENANT'S WORK
EXHIBIT"F-2" LANDLORD'S WORK
EXHIBIT"G" PARKING LOT
EXHIBIT"H" GUARANTY
G:Wgreements\2012 Agreements and Contracts\Quarterdeck Lease Agreement(05-08-121).doc
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") dated as of , 2012 by
and between the CITY OF DANIA BEACH, a Florida municipal corporation, having an
address at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 (`Landlord"), and
DANIA BEACH QUARTERDECK, LLC, a Florida limited liability company, having an
address at ("Tenant").
RECITALS
1. Landlord owns certain real property located in Broward County, Florida as more
particularly described in Exhibit"A", a copy of which is attached to this Lease and incorporated
by this reference (the "Parcel") upon which Landlord constructed a certain fishing pier as more
particularly depicted in Exhibit `B", a copy of which is also attached to this Lease and
incorporated by this reference (the"Pier").
2. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, a
portion of the Pier as more particularly described on Exhibit "C", a copy of which is attached to
this Lease and by this reference made a part of it (the "Premises") for the purposes stated in this
Lease, subject to the terms and conditions of this Lease.
NOW THEREFORE in consideration of the Premises and the mutual covenants
contained in this Lease, and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
The terms set forth below, when used in this Lease, shall be defined as follows:
(a) "ADA" shall have the meaning described in Section 6.
(b) "Additional Rent" shall mean any sum or payment due under this Lease from
Tenant to Landlord other than Base Rent. If no date is specified for the payment of Additional
Rent, the same shall be due and payable within thirty (30) days after written demand therefor by
Landlord.
(c) "Affiliate" shall mean any person that, directly or indirectly controls, is controlled
by, or is under common control with, Tenant.
(d) "Applicable Laws" shall have the meaning described in Section 9.
(e) "Approval Obli ag tion" shall have the meaning described in Section 4(a).
(f) "Assignment" shall have the meaning described in Section 16.
(g) "Bankruptcy Code" shall have the meaning described in Section 17.
1
(h) "Base Rent" shall be the sum of One Hundred Twenty Thousand Dollars
($120,000.00) per year, payable by Tenant to Landlord and increased annually in accordance
with the provisions of Section 4(a).
(i) "Cash Allowance" shall have the meaning described in Section 4(i)
0) "City" shall mean the City of Dania Beach in its capacity as a municipal
government, and not as Landlord under this Agreement.
(k) "County" shall mean Broward County, a political subdivision of the State.
(1) "CPA" shall have the meaning described in Section 4.
(m) "Effective Date" shall mean the date of mutual execution and delivery of this
Lease.
(n) "Expiration Date" shall have the meaning described in Section 3(a)
(o) "First Installment" shall have the meaning described in Section 4(i)(1).
(p) "Force Majeure" shall mean any event which results in the prevention or delay of
performance by either Landlord or Tenant of its obligations under this Lease and which is
beyond the reasonable control of such party including, but not limited to fire, earthquake,
hurricane, tornado, unusual storm, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
(q) "Gross Revenue" means any and all revenues (whether cash, credit or barter) paid
to or collected by or on account of Tenant (and any Subtenant(s) of tenant) derived from the
operation of the Premises by Tenant and any Subtenant(s) (and any party that succeeds to the
interest of Tenant and any Subtenant(s)). Gross Revenue shall expressly exclude all (i) insurance
loss proceeds which are applied toward restoration of the Improvements; (ii) any award or
payment made by a governmental authority in connection with the exercise of any right of
eminent domain, condemnation, or similar right or power; (iii) sales taxes; (iv) employee meals,
if free or discounted for such employees and their immediate family members, and (v) the
proceeds of any sale of Tenant's business to a third party.
(r) "Hazardous Materials" shall have the meaning described in Section 23.
(s) "HVAC Allowance" shall have the meaning described in Section 10(d).
(t) "Improvements" means any fixtures, permanently affixed equipment, structures,
improvements and alterations constructed within the Premises.
(u) "Kiosk" shall mean a free standing concession unit. Provided Tenant is not in
default, Tenant may be permitted the use of up to a total of three (3) Kiosks to be located in the
areas depicted on Exhibit "C-1", a copy of which is attached to this Lease and by this reference
made a part of it. Each Kiosk shall not exceed one hundred fifty (150) square feet and the
design, construction, installation and use of each Kiosk shall be subject to City approval in
accordance with Section 6.
2
(v) "Landlord's Work" shall mean any and all Improvements and repairs to be
performed by Landlord as detailed on Exhibit "F-2" which is incorporated into this Lease by this
reference, and shall be completed in accordance with Section 6.
(w) "Lease" or "Agreement" shall mean this Lease Agreement, including any
supplements, modifications or amendments to it.
(x) "Lease Year" shall mean the consecutive twelve (12) month period which
commences on the Rent Commencement Date and each anniversary thereafter except that if the
Rent Commencement Date is a date other than the first day of a month, then the first Lease Year
shall include the remaining days of such month after the Rent Commencement Date, however the
first Lease Year shall be deemed to have commenced as of the first day of the first full month
next following the Rent Commencement Date.
(y) "Licensed Areas" shall have the meaning described in Section 2(b).
(z) "Notices" shall have the meaning described in Section 22.
(aa) "Parcel" shall mean the real property owned by the City known as Ocean Park
consisting of a 26.5 acre beachfront park which includes the Pier upon which the Pier and
Premises are located and expressly includes the Dry Dock. The Parcel is more particularly
described in Exhibit"A".
(bb) "Parking Lot" and similar words shall have the meaning described in Section 7.
(cc) "Percentage Sum shall mean seven percent (7%) of the amount of the Gross
Revenue derived from the Premises by Tenant and any Subtenant(s) (or any party who succeeds
to the interest of Tenant or any Subtenant(s)).
(dd) "Permitted Uses" shall have the meaning described in Section 5.
(ee) "Person" shall mean any individual, trust, estate, partnership, joint venture,
company, corporation, association, or any other legal entity or business enterprise.
(ff) "Premises" shall mean that portion of the Pier containing approximately six
thousand two hundred fifty (6,250) square feet as more particularly described in Exhibit "C",
together with all improvements now existing or hereafter constructed on the Premises, the
equipment permanently affixed in and to the Premises, such as electrical, plumbing, sprinkler,
fire protection and fire alarm, HVAC system, steam, sewage, drainage, refrigerating,
communications, gas and other systems and their pipes, wires, mains, lines, tubes, conduits,
equipment and fixtures together with all appurtenances, rights, privileges, permits and easements
benefiting, belonging or pertaining to them; provided, however, the Premises specifically
excludes any electrical,plumbing or other utilities owned by Landlord which service the Pier.
(gg) "Rent" shall mean the collective amount of the Base Rent,Percentage Sum and all
items of Additional Rent due under this Lease from time to time.
(hh) "Rent Commencement Date" shall mean the date set forth in Section 4(a).
3
(ii) "Required Use" shall mean a casual nautically themed neighborhood grill and bar
serving those items on the food menu set forth in Exhibit "D", a copy of which is and by this
reference made a part of it.
6j) "Reserved Parking Area" shall have the meaning described in Section 7(d).
(kk) "Rules and Regulations" shall mean the rules and regulations in Exhibit "E", a
copy of which is attached and it is incorporated into this Lease by this reference, and the same
may be adopted, rescinded or amended from time to time by Landlord.
(11) "Second Installment" shall have the meaning described in Section 4(i)(2).
(mm) "State" shall mean the State of Florida.
(nn) "Statement" shall have the meaning described in Section 4.
(oo) "Sublease" shall have the meaning described in Section 16.
(pp) "Subtenant" shall mean any Person that uses or occupies the Premises or any
portion of them pursuant to an agreement including, but not limited to, a Sublease as defined in
Section 17(b), license or concession, whether oral or written, between Tenant and such Person.
(qq) "Successors" shall have the meaning described in Section 16.
(rr) "Taking" shall have the meaning described in Section 13.
(ss) "Tenant" shall mean Dania Beach Quarterdeck, LLC, a Florida limited liability
company, having an address at 1015 S.E. 16th Street, Fort Lauderdale, Florida 33316 and
successors and assigns as permitted by this Lease.
(tt) "Tenant's Work" shall mean any and all Improvements to be performed by
Tenant in order to open and operate the Premises for the Required Use as set forth on the plans
and specifications attached to this Lease as Exhibit."F-1" which is incorporated into this Lease
by this reference, and shall be completed in accordance with Section 6.
(uu) "Term" and similar words shall be as defined in Section 3.
(vv) "Upgraded System" shall have the meaning described in Section 10(d).
SECTION 2. DEMISE.
(a) Demise. Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord upon the terms and conditions of this Lease.
(b) License for Ingress/Egress. As additional consideration for the lease of the
Premises by Landlord to Tenant, Landlord also grants Tenant (i) a non-exclusive license (for use
in conjunction with the general public) for ingress and egress to and from the Premises and the
Pier including, specifically, the ramp up to the Pier as shown on Exhibit `B"; and (ii) an
exclusive license for the use of the sandy beach area within the northern corporate limits of the
City as existing as of the date of this Lease and one hundred (100) yards south of the Pier as
4
shown on Exhibit `B-1" (the "Licensed Areas") for the purpose of providing food and non-
alcoholic beverage services by Tenant to the general public, it being understood and agreed that
Landlord will not license or permit any other person or entity to provide food and beverage
services within the Licensed Areas. The foregoing license and use right shall continue only
while and for so long as Tenant is not in default beyond any notice and cure period under this
Lease. In all events the license(s) granted in this Lease shall terminate upon the expiration or
earlier termination of this Lease.
(c) Uses. Tenant agrees to operate the Premises primarily for the Required Use and
other ancillary Permitted Uses in accordance with Section 5.
(d) As Is. Except as expressly provided to the contrary in this Lease, the Premises
and all components constituting the same, are leased in "AS IS CONDITION" without any
representation or warranty as to fitness for any particular use or purpose whatsoever.
(e) Covenant of Quiet Enjoy. Landlord covenants that, upon paying the Rent
specified and performing and observing all of the other terms, covenants and conditions of this
Lease on Tenant's part to be performed and observed, Tenant shall peacefully and quietly have,
hold and enjoy the Premises during the Term, subject to the rights of Landlord set forth in this
Lease.
SECTION 3. TERM.
(a) Term. The term ("Initial Term") of this Lease shall commence on the Effective
Date and shall terminate on the last day of the tenth (loth) Lease Year of this Lease (the
"Expiration Date"), unless sooner terminated or extended as provided in this Lease.
(b) Renewal Term(s). If Tenant is not in default under this Lease either at the time of
its exercise of an option to renew or at the commencement of a Renewal Term, Tenant shall have
the option to extend the Initial Term for up to four (4) separate, consecutive, additional renewal
term(s) of five (5) years each (each, a "Renewal Term"). Tenant shall exercise its options to
renew the Term by giving Landlord written notice of the same not less than six (6) months prior
to the then expiration of the Initial Term or the Renewal Term, as the case may be. If Tenant fails
to timely exercise a renewal in the time period or in the manner provided in this Lease, such
renewal shall be deemed to have lapsed and terminated, and shall be of no further force or effect
without any action or notice required on the part of Landlord. All of the terms and conditions of
this Lease, other than the amount of Rent, as discussed below, shall remain in full force and
effect during each Renewal Term. If Tenant timely exercises a renewal for a Renewal Term as
set forth above, the Expiration Date shall be the last day of the Renewal Term then in effect,
unless sooner terminated as provided in this Lease. The Initial Term, as extended by a Renewal
Term, if applicable, shall be referred to as the "Term". The failure or inability to exercise the
first Renewal Term shall be a de facto termination of the right to exercise the second Renewal
Term.
SECTION 4. RENT ALLOWANCE.
(a) Base Rent. Provided Tenant has complied with its Approval Obligation (as
defined below), the Rent Commencement Date shall be one hundred eighty (180) days following
5
Tenant's receipt of all necessary building permits required to commence Tenant's Work within
the confines of the restaurant building. Commencing on the Effective Date, Tenant 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 Tenant's sole cost and expense (referred to in this
Lease as Tenant's "Approval Obligation"). Tenant'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 Tenant. Landlord shall provide Tenant with all reasonable
cooperation in obtaining such building permits and licenses. Should Tenant fail to fulfill its
Approval Obligation then the Rent Commencement Date shall be deemed to have occurred as of
the date which is one hundred eighty (180) days from the Effective Date.
Commencing on the Rent Commencement Date, Tenant shall pay to Landlord the Base
Rent, which Base Rent shall be paid in equal monthly installments on or before the first day of
each month in advance. Commencing on the first anniversary of the Rent Commencement Date
and the anniversary of such date throughout the Initial Term and any Renewal Term(s), Base
Rent shall increase by three percent(3%)per annum.
(b) Base Rent for Renewal Terms. The Base Rent for each Renewal Term shall be at
the same Base Rent in effect as of the Lease Year immediately prior to the commencement of
each applicable Renewal Term increased by three percent(3%)per annum.
(c) Percentage Sum. It is the intent of the parties that Tenant shall pay to Landlord,
as Rent, the greater of the Base Rent or the Percentage Sum on Gross Revenue for each Lease
Year. If in any Lease year, the Percentage Sum is greater than the Base Rent for that Lease year,
Tenant shall pay to Landlord the difference between the Base Rent and the Percentage Sum.
Tenant will furnish to Landlord certified gross sales reports detailing its and any Subtenants'
Gross Revenues for each Lease Year (the "Statement"), together with a calculation of the
Percentage Sum within forty-five (45) days after the close of each Lease Year. The Statement
shall be prepared both in accordance with generally accepted accounting principles and
consistent with the form required by the State for the reporting of sales tax. In order to effectuate
the intent of the parties, Tenant shall maintain sufficiently detailed daily and summarized
monthly financial records of sales, receipts, banking deposits and State sales tax reporting for
sales and revenue generated or derived from the Premises for a period of three (3) calendar years.
Tenant shall, in addition to providing Landlord with the Statement, deliver true and complete
copies of all monthly sales tax reports filed by Tenant with the State. The Statement will be
certified by Tenant as a true and correct determination of the Percentage Sum based on the Gross
Revenue for the applicable Lease Year and shall be accompanied by Tenant's payment of the
difference between the Base Rent for such Lease Year and the Percentage Sum due based on
Gross Revenue received for such Lease Year, if any. Within three (3) months after Landlord's
receipt of the annual Statement, Landlord shall have the right at any time during business hours,
and upon seven (7) days' prior notice to Tenant, to inspect and audit, or cause to be inspected
and audited, by a certified public accountant (the "CPA") selected by Landlord, the business
records, bookkeeping and accounting records, sales and income tax records and returns and other
records of Tenant with respect to the Premises, including the books and records of Tenant in
relation to any Subtenant(s). Landlord and Tenant shall fully cooperate with each other and the
CPA. If any inspection by the CPA discloses an understatement by Tenant of the Percentage
Sum due Landlord for the applicable Lease Year and if the Percentage Sum is in excess of the
Base Rent due Landlord for the Lease Year, then Tenant shall pay to Landlord, within fifteen
6
(15) days after receipt of the inspection or report, the amount due with respect to such
understatement, plus interest (at the rate of 18.00%) from the date originally due until the date of
payment. Tenant shall also reimburse Landlord for its reasonable costs incurred in conducting
an audit in the event the CPA determines a discrepancy of more than three percent (3%) in the
amount of Gross Revenues reported by Tenant.
(d) Licenses, Fees and Taxes. Tenant shall pay, on or before their respective due
dates, to the 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 Premises or the leasehold estate granted by this Lease, or upon Tenant, or
upon any of Tenant's property used in connection with this Lease, or upon any rentals or other
sums payable under this Lease, including, but not limited to any applicable ad valorem, sales or
excise taxes, and shall maintain in current status all federal, State, County and City licenses and
permits, now or subsequently required for the operation of the business conducted by Tenant
including, but not limited to, occupational licenses. Notwithstanding the foregoing, Tenant shall
not be responsible for any impact fees due to the City in connection with its operation of the
Premises for the Required Use.
(e) Proration. Rent, including all taxes, assessments and other expenses in
connection with the Premises shall be prorated for any partial Lease Year. If the Rent
Commencement Date is on a day other than the first day of a month, Rent for such partial month
shall be prorated based on a thirty (30) day month, regardless of the actual amount of days in
such month.
(f) Utilities. From and after the Effective Date, Tenant shall pay when due all water,
wastewater, electric, telephone, solid waste, recycling, and all other utility and other costs of any
and all types whatsoever which are now or hereafter charged or assessed with respect to
operations at the Premises and any Kiosks. Tenant shall pay all fees or charges relative to the
foregoing promptly prior to delinquency. Landlord represents and warrants that the aforesaid
utilities which will be provided to the Premises are or will be separately metered and will not
include any such utilities consumed on any other portion of the Pier.
(g) Late Payments - Interest. Landlord shall be entitled to collect interest at the rate
of 18% from the date any sum is due to Landlord until the date paid on any amounts that are not
paid within ten (10) days of their due date under this Lease. The right of Landlord to require
payment of such interest and the obligation of Tenant to pay same shall be deemed to be
Additional Rent and shall not be in lieu of the right of Landlord to enforce other provisions in
this Lease and to pursue other remedies provided by law.
(h) Place of Pam. All payments of Rent required to be made by Tenant to
Landlord under this Lease shall be made payable to "City of Dania Beach — Finance
Department" and shall be paid to Landlord at 100 West Dania Beach Boulevard, Dania Beach,
Florida 33004 or to such other office or address as may be substituted by Landlord for such
address. All Rent (together with sales tax) shall be payable without demand, offset or deduction,
other than as set forth in this Lease.
(i) Allowance. Provided Tenant is not in default under this Lease and that the actual
and reasonable costs of Tenant's Work shall not be less than Seventy Hundred Fifty Thousand
7
Dollars ($750,000.00), Landlord shall pay Tenant a cash allowance in the lesser amount of Two
Hundred Fifty Thousand Dollars ($250,000.00) or one third (1/3) of Tenant's demonstrated
actual out of pocket hard cost Improvements (i.e., exclusive of permit costs, impact fees and debt
costs of any kind or nature) constituting Tenant's Work as evidenced by paid receipts (the "Cash
Allowance"). Tenant shall provide Landlord with a signed certificate setting forth the total cost
of Tenant's Work no later than thirty (30) days following the Rent Commencement Date. The
Cash Allowance shall be paid by Landlord to Tenant as follows:
(1) The sum of $62,500.00 within thirty (30) days following Landlord's
receipt of a certificate from the licensed architect employed by Tenant stating that Tenant's
Work is 25% complete (the"First Installment");
(2) The sum of $62,500.00 within thirty (30) days following Landlord's
receipt of a certificate from the licensed architect employed by Tenant stating that Tenant's
Work is 50% complete (the "Second Installment");
(3) The sum of $62,500.00 within thirty (30) days following Landlord's
receipt of a certificate from the licensed architect employed by Tenant stating that Tenant's
Work is 75% complete (the "Third Installment"); and
(4) The sum of $62,500.00 within thirty (30) days following the later of(i)
Landlord's receipt of a duly executed lien waiver from Tenant's general contractor with an
affidavit stating all contractors have been paid in full; (ii) the issuance of a Certificate of
Occupancy for the Premises; and (iii) Landlord's receipt of a certificate from the licensed
architect employed by Tenant stating that Tenant's Work is 100% complete.
SECTION 5. RIGHTS AND USES OF TENANT.
(a) Use. Tenant shall commencing as of the Rent Commencement Date, subject only
to the duration of a Force Majeure, continuously use and operate the entire Premises for the
Required Use. In addition to the Required Use, Tenant shall be permitted to use the Premises for
the following ancillary uses ("Permitted Uses"):
(1) Retail sales of food items, alcoholic beverages and other beverages to the
beach and Pier patrons in compliance with and subject to Applicable Laws;
(2) Such other compatible uses as permitted under Applicable Law for which
Landlord has given its prior written consent.
(b) Alcoholic Beverages. The sale of alcoholic beverages by Tenant and any
Subtenant(s) shall only be permitted (i) within the restaurantibar area of the Premises for on
Premises consumption and (ii) in compliance with and subject to Applicable Laws. In no event
shall alcoholic beverages be sold from any Kiosk. Notwithstanding the foregoing, and the
provisions of Section 2(b) above, the sale and consumption of alcoholic beverages in the
Licensed Areas and/or in or about the Kiosks will not be prohibited hereunder if the City
subsequent to the Effective Date (x) adopts an ordinance allowing the same and (y) approves the
same for the Premises.
8
(c) Prohibited Uses. Tenant shall be expressly prohibited from using the Premises for
the following:
(1) Adult arcade, adult bookstore/adult video store, adult booth, adult dancing
establishment, adult entertainment establishment, adult motel, or adult theater, as such terms are
defined in City Ordinances from time to time.
(2) The sale or distribution of alcoholic beverages except as expressly
provided in Section 5(b) above.
(3) Any use that requires the storing of hazardous substances, materials or
both at the Premises in violation of Applicable Law.
(4) Any use of the Premises for residential purposes.
(5) Any use which is not a Permitted Use as set forth in Section 5(a) above.
(6) Any use prohibited by Applicable Laws.
(d) Radius Restriction. As a material inducement for Landlord's entry into this Lease
and in order to enable Landlord to maximize its Percentage Sum rent under this Lease, Tenant
covenants and agrees that neither it nor any of its Affiliates shall manage, own, operate or
otherwise have any direct or indirect interest in any restaurant within a five (5) mile radius of the
Premises throughout the Term other than the continued operation of Tenant's Affiliated
Quarterdeck locations located at 1541 Cordova Road, Fort Lauderdale, Florida and 2933 East
Las Olas Boulevard, Fort Lauderdale, Florida.
SECTION 6. CONSTRUCTION OF IMPROVEMENTS BY TENANT.
(a) Schedule for Development of Premises. Except as otherwise set forth in
paragraph 0) below entitled"Landlord's Work", Tenant shall perform at its sole expense (subject
to reimbursement in the form of the Cash Allowance to be paid by Landlord pursuant to Section
4 of this Lease)the Tenant's Work. Tenant agrees that all work constituting Tenant's Work shall
be completed by the Rent Commencement Date. The completion of Tenant's Work shall be
evidenced by a certificate of occupancy issued by the City. Tenant shall be responsible for all
costs and expenses for the planning, design, engineering, installation, and construction of
Tenant's Work.
(b) Compliance with Applicable Laws. All Tenant's Work and subsequent
Improvements constructed or installed by Tenant, its agents, or contractors, in or upon the
Premises shall conform to all Applicable Laws, including, but not limited to Equal Opportunity
Employment laws, the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et SeMc., and
the Florida Building Code. Notwithstanding the foregoing, Landlord represents and warrants
throughout the Term that access to the Premises from the ramp and elevator to and from the
Parking Lot shall be ADA compliant.
9
(c) Ownership of Improvements. Unless otherwise set forth in this Lease, upon
completion, all Improvements including, but not limited to, all installed and permanently
attached restaurant equipment such as stoves, sinks, coolers, refrigerators, freezers, dishwashers,
and any additions and alterations of a permanent nature made to the Premises by Tenant, or at
Tenant's direction (but excluding unattached, movable trade fixtures, furnishings and equipment
owned by Tenant), shall become and remain Landlord's property free and clear of any liens and
encumbrances whatsoever upon the expiration or earlier termination of this Lease.
(d) Encumbrances. Tenant represents, warrants and covenants to Landlord that the
Premises shall be at all times kept free and clear of all liens, claims and encumbrances created by
or through Tenant (other than those created or consented to by Landlord). If any claim of lien or
notice of lien shall be filed against the Premises created by or through Tenant, Tenant shall,
within thirty (30) calendar days after notice of any such filing, cause the same to be discharged
of record by payment, deposit, transfer bond, or order of a court of competent jurisdiction.
Tenant shall not be deemed to be Landlord's agent so as to confer upon any contractor or
subcontractor providing labor or services to the Premises (whether in connection with Tenant's
Improvements or otherwise) a construction lien, mechanic's lien or both against Landlord's
estate under the provisions of Chapters 255 and 713, Florida Statutes, as amended from time to
time. The foregoing shall be contained in a notice or memorandum disclaiming such liability on
the part of Landlord which shall be recorded in the Public Records of. Broward County in
accordance with Chapters 255 and 713, Florida Statutes.
(e) Required Governmental Approvals. Tenant, at its sole cost and expense, shall
obtain all required governmental approvals from all governmental agencies having jurisdiction
over the Premises for any Improvements constructed or to be constructed by Tenant, including
but not limited to departments, divisions or offices of the State, County, City, and the federal
government.
(f) Contractor Indemnity. Tenant shall require any contractor performing any work
in connection with its Improvements to indemnify and hold Landlord (including its elected
officials, officers, employees and agents) harmless from any and all loss, damage, cost, or
expense, including, but not limited to, attorney fees and court costs through all trial and appellate
levels with respect to personal injury, property damage or both caused by such contractor, its
subcontractors, agents and employees in connection with performing such work.
(g) Contractor Insurance. Tenant shall require any contractor performing work on the
Premises to provide, pay for and maintain in force, during the time such work is being
performed, the following insurance policies: (i) comprehensive general liability with minimum
limits of One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars
($2,000,000.00) annual aggregate; (ii) a minimum of One Million Dollars ($1,000,000.00)
combined single limit automotive liability; (iii) Workers' Compensation and employer's liability
insurance in the amounts specified in Section 11, below. With respect to the insurance to be
obtained, Tenant shall provide to Landlord not less than thirty (30) calendar days prior to
commencement of the construction of the Improvements at the Premises, certificates of such
applicable insurance evidencing the insurance coverage as specified above and expressly
including Landlord (including its elected officials, officers, employees and agents) as an
additional named insured as its interests may appear. If the initial insurance expires prior to the
completion of the improvements, renewal certificates of insurance shall be furnished thirty (30)
10
calendar days prior to the date of their expiration. Insurance shall not be canceled, modified, or
restricted, without thirty (30) calendar days' prior written notice to Landlord, and policies must
be endorsed to provide the same. Carriers shall meet the insurance ratings specified in Section
I I(b) below.
(h) Alterations During the Term. Except for the work required to perform the
Tenant's Work as described in Exhibit D attached hereto, Tenant shall not cut, drill into,
disfigure, deface or injure any part of the Premises or perform or undertake any alteration,
addition, improvement or construction to or in the Premises, other than minor or cosmetic
alterations which are interior and nonstructural in nature, without Landlord's prior written
consent, which consent shall neither be unreasonably withheld nor delayed except, however, that
Landlord may withhold or delay consent at Landlord's sole discretion, for any alteration or
Improvement which (i) will alter or affect any portion of the plumbing, heating, ventilating, air
conditioning, mechanical, electrical and other building systems, installations and facilities of the
Premises or structure, facade, wall, roof, or foundation of the Premises, the Pier or both; (ii) will
detract from the use or character of the Premises or be visible from the exterior of the Premises;
(iii) will require amendment of any certificate of occupancy for the Premises; (iv) will require
the consent of any insurer under any of Landlord's or Tenant's policies of insurance covering the
Premises; or (v) void or otherwise adversely impair any applicable roofing guaranty in effect.
All alterations and Improvements by Tenant shall be performed at the sole cost of Tenant other
than for Tenant's Cash Allowance.
(i) Requirements During the Term. The foregoing requirements set forth in this
Section 6 shall be applicable for the construction and installation of all Improvements and
alterations during the Term including without limitation Tenant's Work.
(j) Landlord's Work. Landlord shall perform, at its sole cost and expense, and in
accordance with all Applicable Laws, the Improvements and repairs specified on Exhibit "F-2"
attached hereto. Tenant expressly acknowledges that Landlord's Work will be undertaken and
performed subsequent to the Effective Date. Tenant agrees to cooperate with Landlord and
permit Landlord reasonable access into the Premises to the extent necessary to enable Landlord
to complete Landlord's Work.
SECTION 7. OPERATIONAL REOUIREMENTS OF TENANT; PARKING.
(a) Name. The Premises, when operational, shall be identified by the trade name of
"Dania Beach Quarterdeck Seafood Bar and Neighborhood Grill". Tenant shall conduct its
business at the Premises under such name throughout the Term and shall file all necessary
documentation required to do so in accordance with Applicable Laws required to do so
including, but not limited to, fictitious name registration with the Florida Secretary of State.
(b) Operating Schedule. Tenant shall generally provide its services not less than six
(6) days a week except for any holidays as determined by Tenant, with daily hours of operation
no less than as follows: 11:00 a.m. (EST) to 10:00 p.m. (EST) and as otherwise permitted by
Applicable Laws. During the Term, such days and hours of operation may be modified, altered,
varied, supplemented, increased or decreased only with the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed since it is the intent of the parties
11 I
that the days and hours of operation meet the needs and desires of the residents of the City and
the economic practicality of Tenant as mutually determined by the parties.
(c) Quality of Services. Tenant shall conduct its operations in a first class, neat,
sanitary and professional manner and in accordance with and subject to the terms and conditions
of this Lease and all Applicable Laws. Tenant shall ensure at all times that its standards of
operation are commensurate with the service, food and quality of its Affiliates and other similar
restaurants in the State. Tenant shall control the conduct, demeanor, performance and
appearance of its officers, members, employees, agents, volunteers, independent contractors,
representatives, guests, and invitees consistent with the operation of a first class restaurant
establishment and otherwise in accordance with Applicable Laws. Tenant shall post and enforce
strict behavior and usage policies on and about the Premises, which policies, at a minimum, shall
prohibit fighting, reckless actions, abusive language, and misbehavior.
(d) Parking. Tenant shall have the non-exclusive right in common with the general
public to utilize the Landlord's municipal parking lot consisting in excess of six hundred (600)
parking spaces located immediately west of the Pier (the "Parking Lot") as shown on
Exhibit"G", a copy of which is attached to this Lease and incorporated by this reference.
Landlord agrees to provide Tenant up to twenty-five (25) monthly parking passes to the Parking
Lot for use by restaurant employees. In addition, subject to the terms set forth below, Landlord
agrees to provide Tenant up to forty (40) parking spaces in an area in close proximity to the
Premises (the "Reserved Parking Area"). Upon 72-hours' prior written notice by Tenant to
Landlord, the Reserved Parking Area may be utilized for special events held by Tenant at the
Premises or on high beach use days (such as, but not limited to, the Fourth of July holiday). The
parties will establish a mutually acceptable reserved parking plan and fees for use of the
Reserved Parking Area. Tenant's use of the Reserved Parking Area shall at all times be subject
to Landlord's prior written consent which consent may be withheld or granted in Landlord's
sole, but reasonable discretion.
(e) Flag Pole. Subject to (i) Landlord's prior review and approval of Tenant's
proposed installation plans and specifications; and (ii) any State approval requirements relating
to the "Coastal Construction Control Line", Tenant at its sole cost and expense may install a flag
pole in accordance with Applicable Laws provided that it shall display the flags of the United
States, State of Florida and City of Dania Beach at all times. To the extent the flag of the United
States is left flying overnight, it must be illuminated in accordance with federal regulations and
Florida Fish and Wildlife Commission requirements ("FWC").
(f) Fire Pit. Subject to (i) Landlord's prior review and approval of Tenant's proposed
location, installation plans and specifications; and (ii) the review and approval by the FWC,
Landlord shall consent to Tenant's use and installation of a fire pit at Tenant's sole cost and
expense.
(g) Underwater Pier Cameras. Provided Tenant has obtained any required consent
from all applicable federal and State agencies including any consent required from the U.S.Navy
and, Florida Atlantic University or both in connection with their existing ocean monitoring
equipment, Tenant may install underwater Pier cameras for video display in the Premises.
SECTION 8. OBLIGATIONS OF TENANT.
12
(a) Garbage. Tenant shall remove from the Premises or otherwise dispose of all
garbage, debris and other waste materials (whether solid or liquid) arising out of the use and
occupancy of the Premises or out of any operations conducted within or upon the Premises in
accordance the highest standards of sanitary practice and at all times in accordance with
Applicable Laws. When removing such waste, Tenant shall comply with all Applicable Laws
relating to sanitation and waste disposal. Any items shall be kept in suitable garbage and waste
receptacles, as approved in writing by Landlord. Tenant shall have the exclusive (non-public)
use of the existing dumpster area at which Tenant shall store its refuse, garbage and waste
materials. Tenant shall enclose the dumpster at Tenant's expense, which enclosure shall be
erected and maintained in compliance with the City Code of Ordinances.
(b) Odor. Tenant shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
nuisance; provided, however, that fumes resulting from the normal operations of vehicles or
normal business operations shall be excepted from this provision, unless same constitutes a legal
nuisance or as otherwise prohibited by Applicable Law.
(c) SM. Tenant shall have the right to install directional signage and monument
and other signage identifying Tenant's name of "Dania Beach Quarterdeck Seafood Bar And
Neighborhood Grill" within the Premises (including the elevator shaft wall), and Landlord will
cooperate with Tenant to provide additional directional signage to the Dania Beach Park area
from A-1-A, provided that such signage is consistent with Landlord's sign ordinances,
requirements of the State and approved by all applicable governmental authorities having
jurisdiction. Any exterior signage other than the foregoing shall require the approval of Landlord
and any and all applicable governmental authorities. Notwithstanding anything in this Lease to
the contrary, billboard signs are expressly prohibited, however, subject to FWC approval, neon
outlines of the exterior of the building constituting the Premises shall be acceptable to Landlord.
(d) Grease Trans. Tenant agrees to utilize and maintain (or install at its own expense
if required by Landlord) any and all existing grease traps.
(e) Drainage. In no event shall Tenant permit any drainage to occur from the rear
patio of the Premises on to the adjacent beach area.
SECTION 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
Tenant shall comply with all applicable federal, State, County, and City statutes, laws,
ordinances, resolutions and governmental rules, regulations and orders as may be in effect now
or at any time during the Term (collectively "Applicable Laws"), all as may be amended, which
are applicable to Tenant, the Premises, or the operations conducted at the Premises. A violation
of any such Applicable Laws, not cured within any applicable notice and cure period shall
constitute a material breach of this Lease, and in such event Landlord shall be entitled to exercise
any and all rights and remedies provided in this Lease and available at law and in equity.
13
it
SECTION 10. MAINTENANCE AND REPAIR.
(a) Tenant shall throughout the Term assume the entire responsibility and shall
relieve Landlord from all responsibility for all repair, maintenance, replacements and capital
improvements whatsoever with respect to the Premises, except for structural and roof repairs
which are the responsibility of Landlord as set forth in Section 10(b) below. Tenant shall
perform all maintenance, repairs, replacements and capital improvements in a good and
workmanlike manner in accordance with all Applicable Laws. All materials utilized in any
repairs or replacements shall be of a quality and grade comparable or superior to that in existence
in the Premises as of the Effective Date. Except as otherwise set forth in this Lease, Tenant shall
be required to keep the Premises in good, tenantable, useable condition throughout the Term
(subject to casualty, condemnation and the other provisions of this Lease with regard to
development and the redevelopment of the Premises), and without limiting the generality of the
foregoing, Tenant shall:
(1) Keep and maintain the Premises at all times in a clean and orderly
condition and appearance.
(2) Provide and maintain all lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature required by Applicable Laws
in good working order and condition. Notwithstanding the foregoing, to the extent the Premises
is served by any shared alarm or fire suppression system that serves other premises on the Pier
and Landlord maintains the same, Landlord shall be permitted to equitably allocate to Tenant its
pro-rata share of the costs to maintain and operate such shared systems based on Landlord's
good faith, reasonable determination of such costs which shall be payable by Tenant as
Additional Rent.
(3) Be responsible for the maintenance and repair of all utilities servicing the
Premises including but not limited to, service lines for the supply of water, gas service lines,
electrical power and telephone conduits and lines, sanitary sewers and storm sewers which are
now or which may be subsequently located upon any portion of the Premises which are
controlled by Tenant.
(4) Provide adequate security for the Premises and all portions of them for the
I purposes of protecting persons and property.
(5) Be responsible for the cleaning and refuse disposal for refuse generated by
the operation of the Tenant on the Premises as necessary to keep the appearance of the Pier in
good order and condition. Such cleaning and refuse disposal shall be performed on a daily basis.
(b) During the Term, subject to the provisions of Section 12 below, the maintenance,
repair or replacement of the existing elevator, roof (including repairing leaks not caused by
Tenant,its agents, contractors and employees) as well as any structural repairs or replacements to
the Premises, Pier or any or all of the foregoing, shall be undertaken by Landlord, unless such
repairs or replacement are required due to the wrongful acts or omissions of Tenant, its
employees, agents, contractors, invitees or guests. Tenant shall not cause or permit any
penetrations into the roof membrane or otherwise perform any alteration on or about the roof that
may void or limit Landlord's roofing warranty. To the extent any roofing penetration is
14
necessary, Tenant shall if required by Landlord, hire Landlord's designated roofing contractor to
perform or supervise such roof penetration work so as to prevent any voiding or impairment of
Landlord's roofing warranty.
(c) Provided and expressly conditioned on Tenant not being in default, Landlord
agrees to paint the exterior or the Premises prior to the Rent Commencement Date utilizing
Landlord's standard paint materials; however, Tenant may select color if it does so within ten
(10) days after Notice from Landlord. Tenant shall paint the exterior of the Premises for the
balance of the Term, including any Renewal Terms.
(d) No later than the Rent Commencement Date, Landlord shall be responsible to
have in working order an HVAC system for the Premises. Provided Tenant is not in default
hereunder, in addition to the Cash Allowance, should Tenant in its reasonable business judgment
determine during the Initial Term that additional air-conditioning tonnage in the interior of the
Premises is required, then subject to the terms of this paragraph, Landlord shall provide an
HVAC supplemental allowance (the "HVAC Allowance") of up to Twenty Five Thousand
Dollars ($25,000.00). If Tenant elects to add such additional HVAC within the Premises, Tenant
shall provide to Landlord for its review and approval, not to be unreasonably withheld, plans and
specifications from a qualified, licensed HVAC contractor detailing the supplemental air
conditioning to be installed within the Premises (the "Upgraded System"). Landlord shall pay
the lesser of(i) the actual cost of the Upgraded System (based upon true and complete invoices
from Tenant's HVAC contractor) upon the completion of the installation of the same or (ii) up to
the full amount of the HVAC Allowance with Tenant being responsible for any excess costs. All
HVAC work for the Upgraded System shall be performed using new equipment and components
in a good and workmanlike manner in accordance with all Applicable Laws.
SECTION 11. INSURANCE REQUIREMENTS FOR LANDLORD AND TENANT.
(a) Landlord's Casualty Insurance. Landlord shall, during the Term, insure and keep
insured to the extent of not less than 100% of the insurable replacement value, all buildings,
structures, fixtures and attached equipment (other than Tenant's equipment which shall be the
responsibility of Tenant to insure) on the Premises against such hazards and risks as may now or
in the future be included under the Standard Form of Fire and Extended Coverage insurance
policy of the State. The insurance coverages to be provided by Landlord shall include full
coverage for windstorm and flood. Landlord may meet the foregoing requirement through a
program of self-insurance or by adding the Premises to its master policy.
(b) Tenant's Insurance. During the Term, Tenant shall pay for and maintain in effect
the following types of insurance policies, placed only with carriers carrying an A.M. Best or
equivalent rating of A-VII or better:
Comprehensive General Liability Insurance to protect against bodily injury, death and
property damage in an amount of not less than One Million Dollars ($1,000,000.00) per
occurrence and Two Million Dollars ($2,000,000.00) annual aggregate. Coverage must be
afforded on a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the Florida Insurance Services
Office and must include: Premises and Operations, Independent Contractors and Broad Form
Contractual Coverage covering all liability arising out of the terms of this Lease.
15
Business Automobile Liability Insurance in an amount not less than One Million Dollars
($1,000,000.00) combined single limit. Coverage must be afforded on a form no more restrictive
than the latest edition of the Business Automobile Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and must include: Owned, Non-owned
and Hired vehicles.
Workers' Compensation and Employer's Liability Insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws with no less than One Hundred Thousand Dollars ($100,000.00) in employer
liability.
Rental Loss (Business Interruption) Insurance in an amount equal to twelve (12) months
of not less than eighty percent (80%) of the then applicable Base Rent, taxes, insurance and
utility charges.
Renter's or Contents Insurance in an amount not less than 100% of the insurable
replacement value of all furnishings, fixtures and equipment owned by Tenant and located at the
Premises including but not limited to the Improvements.
Liquor Liability Policy in an amount of not less than One Million Dollars
($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate.
Builder's Risk Insurance with respect to all Improvements and alterations undertaken by
Tenant during the Term.
Tenant acknowledges and agrees that all insurance polices provided by Tenant shall be
deemed primary coverage. Additionally, Tenant acknowledges and agrees that the monetary
coverages specified above are the minimum acceptable coverages applicable solely to the
Premises without regard to any other business operations or locations insured by Tenant. In
particular, the specified"aggregate" coverages shall apply solely to the Premises.
(c) Certificates. Tenant shall furnish to Landlord, certificates of insurance or
endorsements evidencing the insurance coverages specified by this Article prior to the
Commencement Date. The required certificates of insurance shall name the types of policies
provided, refer specifically to this Lease, and state that such insurance is as required by this
Lease. All policies of such insurance and renewals of them (except for Workers' Compensation
coverage) required to be provided by Tenant shall name Landlord (including its elected officials,
officers, employees and agents), as additional named insureds as their interests may appear, and
shall provide that the loss, if any, shall be adjusted with and payable to Tenant and Landlord (as
their interests may appear), except as otherwise provided in Section 12 of this Lease.
(d) Cancellation. Coverage is not to cease and is to remain in force (subject to
cancellation notice) throughout the Term. All policies must be endorsed to provide Landlord
with at least thirty (30) calendar days' notice of cancellation, restriction or both. If any of the
insurance coverages will expire prior to the termination of this Lease, copies of renewal policies
shall be furnished at least sixty(60) calendar days' prior to the date of their expiration.
16
(e) Deficiencies. When such policies or certificates have been delivered by Tenant to
Landlord as aforesaid and at anytime thereafter, Landlord may notify Tenant in writing that, in
the reasonable opinion of Landlord the insurance represented does not conform with the
requirements of this Section either because the amount or because the insurance company or for
any other reason does not comply, and Tenant shall have thirty (30) calendar days to cure such
defect to the extent required pursuant to this Lease.
(f) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by Landlord (but no more frequently than every five (5) Lease
Years) and may be adjusted if Landlord reasonably determines that such adjustments are
necessary to protect Landlord's interest, provided such coverages shall not exceed the amount of
coverage required at the time of such review by similar quality projects in Broward County,
Florida.
(g) Service of Process. The insurance shall be written by companies authorized to do
business in the State and having agents upon whom service of process may be made in the State.
(h) Continued Obligations. Compliance with the foregoing requirements shall not
relieve Tenant of its liability and obligations under any other provision of this Lease.
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris / Repair To Ensure Safety. If the Improvements located on
the Premises or any part of them shall be damaged by fire, the elements, or other casualty,
Tenant shall promptly remove, or cause to be promptly removed, all debris resulting from such
damage from the Premises. Tenant shall promptly take such actions and cause such repairs to be
made to the Premises as will ensure the safety of persons entering upon the Premises. To the
extent, if any, that the removal of debris under such circumstances is covered by Tenant's
insurance,the proceeds shall be paid to Tenant for such purpose.
(b) Minor Damage. If Improvements located on the Premises or any part of them
shall be damaged by fire, the elements, or other casualty but not rendered wholly untenantable or
unusable, Rent shall continue unabated. The Premises shall be repaired and restored promptly to
the condition they were in prior to such casualty by Landlord and by Tenant (the scope of each
such party's obligation to repair being described in Section 10 hereof), and to the extent that such
damage is covered by Landlord's and Tenant's insurance, the proceeds shall be made available
for that purpose.
(c) Damage to or Destruction of the Premises, Pier. If the Premises, Pier, both of
them or any part of them shall be destroyed or so damaged by fire, the elements, or other
casualty as to render either or both untenantable or unusable, nothing in this Lease shall be
deemed or construed to require or obligate Landlord to repair, rebuild, replace or restore either or
both or any portion of the Premises or Pier; provided, however, in the event of damage to the
Premises or Pier which renders the Premises untenantable or unusable, and Landlord elects not to
repair, rebuild,replace or restore the Premises or Pier pursuant to a written notice to Tenant,
which Landlord shall give no later than thirty (30) days after such casualty, then the Lease shall
be terminated effective as of the date of such casualty. Provided the casualty resulting in the
damage or destruction was not caused by the negligence or wrongful act or omission of Tenant,
17
all insurance proceeds payable to Tenant under its policies shall be retained by Tenant without
any obligation to pay any portion thereof to Landlord, except for the Cash Allowance of
$250,000.00 which shall be returned to Landlord without interest. Upon termination, Tenant
shall surrender the Premises to Landlord immediately and the parties will have no further
obligations to each other hereunder, except as otherwise provided to the contrary in Section 14 of
this Lease.
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) Total or Partial Taking. If the whole of the Premises, or such portion of them as
will make the Premises unusable for the Required Use, shall be taken by any public authority
under the power of eminent domain or sold to public authority under threat or in lieu of such
taking, the Term shall cease as of the day possession or title shall be taken by such public
authority, whichever is earlier ("Taking Date"), whereupon the Rent and all other charges shall
be paid up to the Taking Date with a proportionate refund by Landlord of any Rent and all other
charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises is
taken, but the Premises may be restored to a configuration in Tenant's reasonable business
judgment that will enable the continued use of the Premises for the Required Use, then the Term
shall cease only as to the part so taken as of the Taking Date, and Tenant shall pay Rent and
other charges up to the Taking Date, with appropriate credit by Landlord (toward the next
installment of Rent due from Tenant) of any Rent or charges paid for a period subsequent to the
Taking Date. Base Rent, but not the Percentage Sum, shall be reduced as of the Taking Date in
proportion to the amount of the Premises taken. If the Lease is not terminated then Landlord
shall be responsible to reconfigure the Premises into one contiguous space from the
condemnation proceeds which shall be accomplished with reasonable diligence after the Taking
Date.
(b) Award. All compensation awarded or paid upon a total or partial taking of the
Premises including the value of the leasehold estate created by this Lease shall belong to and be
the property of Landlord without any participation by Tenant; Tenant shall have no claim to any
such award based on Tenant's leasehold interest. However, nothing contained in this Lease shall
be construed to preclude Tenant, at its cost, from independently prosecuting any claim directly
against the condemning authority in such condemnation proceeding for damage to, or cost of
removal of, unattached movable trade fixtures, furniture, and other personal property belonging
to Tenant; provided, however, that no such claim shall diminish or otherwise adversely affect
Landlord's award.
SECTION 14. INDEMNITY.
Tenant shall indemnify and hold harmless Landlord (including its elected officials,
officers, employees and agents) from and against any and all claims, costs, losses and damages
(including but not limited to all fees and charges of architects, attorneys, and other professionals,
and all court or other dispute resolution costs), liabilities, expenditures, or causes of action of any
kind (including negligent, reckless, or willful or intentional acts or omissions of Tenant, any
Subtenant, any subcontractor, any supplier, any person or organization directly or indirectly
employed by any of them to perform or furnish any work or anyone for whose acts any of them
may be liable), arising from, relative to, or caused in connection with this Lease except, and only
18
to the extent, that such claim is caused by Landlord's negligence or misconduct (subject to
applicable sovereign immunity). This indemnity includes, but is not limited to, claims
attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible
property, including the Improvements, and including the loss of use resulting from them.
Payment of any amount due pursuant to this Section shall, after receipt of Notice by Tenant from
Landlord that such amount is due, be paid by Tenant if Landlord becomes legally obligated to
pay same, or Tenant agrees that it is responsible for such claim, or in the alternative, Landlord, at
Landlord's option, may make payment of an amount so due and Tenant shall promptly reimburse
Landlord for same. Where the basis for a claim for damages brought against Landlord by a third
party is that Landlord has breached a contract or other duty to the third party, and the action or
inaction which constitutes the breach was a result of the negligent or wrongful act or omission of
Tenant, then Tenant agrees, at Tenant's expense, after written notice from Landlord to defend
any action against Landlord that falls within the scope of this Section, or Landlord, at Landlord's
option, may elect not to tender such defense and may elect instead to secure its own attorney to
defend any such action. If the claimant prevails in a lawsuit on the basis that the breach was a
result of the negligent or wrongful act or omission of Tenant, then the reasonable costs and
expenses of Landlord incurred in defending such action shall be payable by Tenant. If either
Landlord or Tenant is required to incur attorney fees or costs to enforce this Section, the
prevailing party in any litigation shall recover all of its attorney fees and costs at both trial and
appellate levels.
Tenant agrees to also indemnify, defend, save and hold harmless Landlord (including its
elected officials, officers, employees and agents), from all damages, liabilities, losses, claims,
fines and fees and from any and all suits and actions of every type and description that may be
brought against Landlord, its officers, agents and employees on account of any claims, fees,
royalties, or costs for any infringement of any and all copyrights or patent rights claimed by any
person, firm, or corporation.
The provisions of this Section shall survive the expiration or earlier termination of this
Lease.
SECTION 15. RIGHTS OF ENTRY RESERVED.
(a) Access. Landlord, by its officers, employees, agents, representatives and
contractors shall have the right at all reasonable times and upon reasonable advance notice to
enter upon the Premises for the purpose of inspecting the same, for observing the performance by
Tenant of its obligations under this Lease and for the doing of any act or thing for which
Landlord may be obligated or have the right to do under this Lease or otherwise, subject to the
provisions of this Lease, provided that, in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
During the last Lease Year preceding the Expiration Date, Landlord may place and maintain on
the Premises (in locations reasonably acceptable to Landlord and Tenant) "To Let" signs, which
signs Tenant shall permit to remain without molestation.
(b) Maintenance. Without limiting the generality of the foregoing, Landlord, by its
officers, employees, agents, representatives, contractors and furnishers of utilities and other
services, shall have the right upon reasonable advance notice (except in case of emergency, in
which case no notice is necessary), at its own cost and expense, for its own benefit or for the
19
benefit of others than Tenant, to maintain existing utility systems and to enter upon the Premises
at all reasonable times to make such repairs, replacements or alterations as may, in the
reasonable opinion of Landlord, be deemed necessary or advisable and from time to time to
maintain such systems or parts of them and in connection with such maintenance.
(c) No Eviction. The exercise of any or all of the foregoing rights by Landlord or
others to the extent permitted by this Lease shall not be or be construed to be an eviction of
Tenant nor be made the grounds for any abatement of Rent nor any claim or demand for
damages, consequential or otherwise, unless Landlord breaches its covenants with respect to
such access as provided in this Lease.
(d) Police Powers. Nothing contained in this Lease shall be deemed to in any way
limit Landlord and City in the exercise of their police and regulatory powers or their powers of
eminent domain.
SECTION 16. ASSIGNMENT AND SUBLETTING.
(a) Assignment. Tenant shall not sell, convey, transfer or assign (all of the foregoing
being deemed as an "Assignment") all or any portion of its interest in this Lease, without the
prior written consent of Landlord (which shall not be unreasonably withheld or delayed,
provided that the factors set forth below are fulfilled to Landlord's satisfaction), provided that no
such Assignment shall be deemed valid or binding upon Landlord and Tenant shall not be
released from its obligations under this Lease. For purposes of this Section, an "Assignment"
will include: (i) any transfer of the Lease by merger, consolidation, liquidation or by operation of
law, or (ii) if Tenant is or becomes a corporation, any change or transfer (other than to Affiliates
of shareholders or partners of the individuals first named as Tenant in the Lease) in ownership or
power to vote a majority of the outstanding voting stock thereof from those controlling the power
to vote such stock on the date of the Lease, or (iii) if Tenant is or becomes a limited or a general
partnership, joint venture, or a limited liability company, any transfer of an interest in the
partnership, joint venture or limited liability company (other than to an existing partner or
member or any Affiliates of existing partners or members) resulting in a majority of the voting or
equity interests of Tenant being transferred.
The factors upon which Landlord may base its decision upon whether to grant consent
under this Section will include, but not be limited to: (A) whether Tenant is or has been in
default of this Lease, (B) whether the proposed assignee meets standards of creditworthiness and
financial resources and responsibility as originally expected of the Tenant, (C) whether the
proposed assignee has the ability to perform the obligations of Tenant hereunder, and (D)
whether the proposed assignee has prior related business experience for operating or owning
property for the Required Use comparable to that of Tenant.
(b) Subletting. Tenant shall not sublet portions or the whole of the Premises, or grant
licenses or concessions in any of them (all of the foregoing being deemed a "Sublease") without
the prior written consent of Landlord in each instance, which consent may be not be
unreasonably withheld by Landlord, it being expressly understood that the management and
operation of the Premises by Tenant is material to Landlord's lease of the Premises to Tenant.
The following terms and conditions shall apply in each instance where Landlord has consented to
a Sublease:
20
(1) Each Sublease shall contain a self-operative provision that it is subject and
subordinate to this Lease and any amendments, modifications and extensions of this Lease,
including, but not limited to, all use restrictions.
(2) No Sublease shall relieve Tenant from liability for any of its obligations
under this Lease, and in the event of any such Sublease, Tenant shall continue to remain
primarily liable for and continue to make payments for the payments required to be made
pursuant to this Lease and for the performance and observance of the other agreements on its part
as contained in this Lease.
(3) The form of such Sublease shall be subject to the review and approval of
Landlord and shall, at a minimum, contain all of the material provisions of this Lease with
respect to the obligations of Tenant.
(c) Reimbursement of Costs. Tenant agrees to reimburse Landlord for Landlord's
attorney fees and costs incurred in connection with the processing and documentation of any
request made pursuant to this Section 16. Tenant shall deliver to Landlord, within five (5) days
after execution by Tenant, an original counterpart of any executed Sublease or instrument of
Assignment, together with Tenant's and the subtenant's (or assignee's) affidavit that such
Sublease or Assignment instrument is the true and complete statement of the subletting or
Assignment and reflects all sums and other consideration passing between the parties. Tenant
shall pay, indemnify and hold Landlord harmless from and against, any and all cost or expense
(including reasonable attorney fees and disbursements) and liability in connection with any
compensation, commissions or charges claimed by any broker or agent with respect to any
Assignment or Sublease.
(d) In the event of an Assignment of this Lease or a Sublease of all or a portion of the
Premises,the Percentage Sum shall be increased to eight percent(8%) of the Gross Revenues per
annum commencing as of the date such Assignment or Sublease first becomes effective.
SECTION 17. DEFAULT; REMEDIES.
(a) Default. If any one or more of the following events shall occur, same shall be an
event of default under this Lease:
(1) Tenant shall voluntarily abandon the Premises or discontinue its
operations on the Premises for a period of thirty (30) consecutive calendar days, other than as a
result of casualty, condemnation, major renovation, or one or more acts of Force Majeure; or
(2) Any lien, claim or other encumbrance which is filed against Landlord's
fee simple title to the Premises (other than that created by or through Landlord) is not removed,
or transferred to bond pursuant to Florida law, within thirty (30) calendar days after Tenant or
Landlord, or both have received notice of such lien, claim or encumbrance; or
(3) Tenant shall fail to pay any item constituting Rent when due to Landlord
and Tenant shall continue in its failure to make any such payments for a period of ten (10)
calendar days after Notice is given to make such payments; provided however, Landlord shall
21
I
not be required to provide Notice of non-payment of Rent on more than one (1) occasion in any
twelve (12) month period; or
(4) Tenant shall fail to make any other payment required under this Lease
when due to Landlord and shall continue in its failure to make any such other payments required
under this Lease for a period of fifteen (15) calendar days after Notice is given to make such
payments; or
(5) Tenant shall fail to keep, perform and observe each and every non-
monetary promise, covenant and term set forth in this Lease on its part to be kept, including
without limitation all rules and regulations in effect from time to time in accordance with the
terms of this Lease, performed or observed within thirty (30) calendar days after Notice of
default (except where fulfillment of its obligation requires activity over a greater period of time
and Tenant shall have commenced to perform whatever may be required for fulfillment within
thirty (30) calendar days after Notice and continues such performance without material
interruption); provided, however, the foregoing shall not apply if Tenant's failure to perform is
due directly to the wrongful acts or omissions of Landlord; or
(6) Tenant makes an assignment for the benefit of creditors; or
(7) Tenant files a voluntary petition under Title 11 of the United States Code
(the "Bankruptcy Code") or if such petition is filed against Tenant and an order for relief is
entered and not dismissed within sixty (60) days or if Tenant files any petition or answer
seeking, consenting to or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the Bankruptcy Code or any other
present or future applicable federal, state or other statute or law; or
(8) If, within sixty (60) days after the appointment of any trustee, receiver,
custodian, assignee, sequestrator or liquidator of Tenant, or of all of any of the Premises or any
interest of Tenant in the Premises, such appointment is not vacated or stayed on appeal or
otherwise, or if, within thirty (30) days after the expiration of any such stay, such appointment if
not vacated.
(9) Tenant submits a Statement which is materially false and misleading (i.e.,
a misstatement of Gross Sales by more or less than three percent (3%) as determined by the
CPA).
(10) Habitual Default. Notwithstanding the foregoing, in the event that Tenant
has committed a monetary breach or default three (3) or more times in a twelve (12) month
period, and regardless of whether Tenant has cured each individual monetary breach or default,
Tenant may be determined by Landlord to be an "habitual violator." At the time that such
determination is made, Landlord shall issue to Tenant a written notice advising of such
determination and citing the circumstances therefor. Such notice shall also advise Tenant that
there shall be no further notice or grace periods to correct any subsequent monetary breaches or
defaults for the balance of such twelve (12) month period and that any subsequent breaches or
defaults for the balance of such twelve (12) month period, shall constitute a condition of
noncurable default and grounds for immediate termination of this Lease which termination shall
be effective upon delivery of the Notice to Tenant.
22
(b) Remedies. Upon the occurrence of any event set forth in Section 17(a), above, or
at any time thereafter during the continuance of such event, Landlord may exercise any of the
following rights and remedies:
(1) Landlord may, pursuant to written notice to Tenant, terminate this Lease
and, pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the
Premises for Landlord's own account and, for Tenant's breach of and default under this Lease,
recover immediately from Tenant any and all rents and other sums and damages due or in
existence at the time of such termination, including without limitation, (i) all Base Rent and
Additional Rent; (ii) all other sums, charges, payments, costs and expenses agreed, and required
or both to be paid by Tenant to Landlord under this Lease; (iii) all costs and expenses of
Landlord in connection with the recovery of possession of the Premises, including reasonable
attorney fees and court costs; (iv) all free rent credits and rental abatements, if any, granted to
Tenant as concessions in connection with this Lease; and (v) all costs and expenses of Landlord
in connection with any reletting or attempted reletting of the Premises or any part or parts of
them including without limitation, brokerage fees, attorney fees and the cost of any alterations or
repairs which may be reasonably required to so relet the Premises, or any part or parts of them;
or
(2) Landlord may, pursuant to any prior notice required by law or this Lease,
and without terminating this Lease, pursuant to appropriate legal proceedings, re-enter, retake
and resume possession of the Premises for the account of Tenant, make such alterations of and
repairs to the Premises as may be reasonably necessary in order to relet the same or any part or
parts of them and relet or attempt to relet the Premises or any part or parts of them for such Term
or terms (which may be for a term or terms extending beyond the Initial Term), at such rents and
upon such other terms and provisions as Landlord, in its sole, but reasonable, discretion, may
deem advisable. If Landlord relets or attempts to relet the Premises, Landlord shall be the sole
judge as to the terms and provisions of any new lease or sublease and of whether or not a
particular proposed new tenant or subtenant is acceptable to Landlord. Upon any reletting, all
rents, whether Base Rent or Additional Rent received by Landlord from such reletting shall be
applied: (a) first to the payment of all costs and expenses of recovering possession of the
Premises; (b) second, to the payment of any costs and expenses of such reletting, including
brokerage fees, attorney fees and the cost of any alterations, restorations and repairs reasonably
required for such reletting; (c) third, to the payment of any indebtedness, other than Rent, due
under this Lease from Tenant to Landlord; (d) fourth, to the repayment of Landlord of all free
rent credits and rental abatements, if any, granted to Tenant as concessions in connection with
this Lease; (e) fifth, to the payment of all Rents due and unpaid under this Lease; (f) sixth, the
residue, if any, shall be held by Landlord and applied to payment of future Rent when the same
may become due and payable under this Lease. If the rents received from such reletting during
any period shall be less than that required to be paid during that period by Tenant under this
Lease, Tenant shall pay any such deficiency. to Landlord within ten (10) days after demand
therefor and, upon Tenant's failure to do so, Landlord shall immediately be entitled to institute
legal proceedings for the recovery and collection of the same. Such deficiency maybe calculated
and paid at the time each or any payment of Rent shall otherwise become due under this Lease,
or, at the option of Landlord, at any times during or at the end of the Term. Landlord shall, in
addition, be immediately entitled to sue for and otherwise recover from Tenant any other
damages occasioned by or resulting from any abandonment of the Premises or other breach of or
23
default under this Lease other than a default in the payment of Rent. No such re-entry, retaking
or resumption of possession of the Premises by Landlord for the account of Tenant shall be
construed as an election on the part of Landlord to terminate this Lease unless a written notice of
such intention shall be given to Tenant. Notwithstanding any such re-entry and reletting or
attempted reletting of the Premises or any part or parts of them for the account of Tenant without
termination, Landlord may, at any time thereafter upon written notice to Tenant, elect to
terminate this Lease or pursue any other remedy available to Landlord for Tenant's previous
breach of or default under this Lease; and Landlord may, without re-entering, retaking or
resuming possession of the Premises, sue for all rents, including Base Rent and Additional Rent,
and all other sums, charges, payments, costs and expenses due from Tenant to Landlord under
this Lease, either: (i) as they become due under this Lease; or (ii) at Landlord's option, Landlord
may accelerate the maturity and due date of the whole or any part of Base Rent and Additional
Rent for the entire then-remaining unexpired balance of the Term, together with the amount of
all free rent credits and rental abatements, if any, granted to Tenant as concessions in connection
with this Lease, as well as all other sums, charges, payments, costs and expenses required to be
paid by Tenant to Landlord under this Lease, including without limitation, damages for breach or
default of Tenant's obligations under this Lease in existence at the time of such acceleration,
such that all sums due and payable under this Lease shall, following such acceleration, be treated
as being and, in fact, be due and payable in advance as of the date of such acceleration. For
purposes of determining the total amount due from Tenant to Landlord upon any such
acceleration, Base Rent (where not specified in this Lease) and Additional Rent shall each be
treated as being subject to increase in each remaining Lease Year of the entire then remaining
balance of the Lease Term at the rate of three percent (3%) per year. However, all accelerated
sums due from Tenant to Landlord pursuant to the foregoing provisions of this paragraph shall
be subject to adjustment to the then-present value of such accelerated sums at the time of their
actual payment by Tenant to Landlord based upon a five percent (5%) discount rate, which
discount rate is agreed upon by, and acceptable to, each party to this Lease as evidenced by each
party's execution of this Lease. Landlord may recover and collect all such unpaid Rent and other
sums so sued by Tenant by distress, levy, execution or otherwise. Regardless of which of the
alternative remedies is chosen by Landlord under the foregoing provisions of this paragraph,
Landlord shall not be required to relet the Premises nor exercise any other right granted to
Landlord pursuant to this Lease, nor shall Landlord be under any obligation to minimize or
mitigate Landlord's damages or Tenant's loss as a result of Tenant's breach of or default under
this Lease.
(3) Landlord shall have, receive, and enjoy as Landlord's sole and absolute
property, any and all sums collected by Landlord as rent or otherwise upon reletting the Premises
after Landlord shall resume possession of the Premises as provided by this Lease, including,
without limitation, any amounts by which the sum or sums so collected shall exceed the
continuing liability of Tenant under this Lease. If Landlord shall have accelerated Rent payments
and collected same from Tenant, and subsequently shall have relet the Premises, then Landlord,
after deducting all costs related to reletting, including those described or anticipated in this
Section 17 shall pay to Tenant the net amount remaining at the end of the Term, which shall have
actually been collected as net rent from third parties, to the extent Landlord shall have previously
received the applicable Rent from Tenant.
(c) Additional Remedies. In addition to the remedies specified above, Landlord shall
have the right of injunction and shall have and may exercise the right to invoke any other
24
remedies allowed at law or in equity as if the remedies of re-entry, unlawful detainer proceedings
and other remedies were not provided in this Lease. Accordingly, the mention in this Lease of
any particular remedy shall not preclude Landlord from having or exercising any other remedy
set forth in this Lease or at law or in equity. Nothing contained in this Lease shall be construed
as precluding the Landlord from having or exercising such lawful remedies as may be and
become necessary in order to preserve the right or the interest of the Landlord in the Premises
and in this Lease.
(d) No Waiver. If Landlord shall institute proceedings against Tenant and a
compromise or settlement of it shall be made, the same shall not constitute a waiver of the future
breach of the same or of any other covenant, condition or agreement set forth in this Lease, nor
of any of Landlord's rights under this Lease, unless expressly set forth in such settlement.
Neither the payment by Tenant of a lesser amount than the installments of Base Rent, Additional
Rent or of any sums due under this Lease nor any endorsement or statement on any check or
letter accompanying a check for payment of Rent other sums payable under this Lease be
deemed an accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or other sums or to pursue any
other remedy available to Landlord. No re-entry by Landlord, and no acceptance by Landlord of
keys from Tenant shall be considered an acceptance of a surrender of this Lease.
(e) Landlord May Cure Tenant's Defaults. If Tenant defaults in the making of any
payment or in the doing of any act required in this Lease to be made or done by Tenant, then
Landlord may, but shall not be required to, make such payment or do such act. If Landlord elects
to make such payment or do such act, all costs and expenses incurred by Landlord, plus interest
on them at the highest rate allowable under the laws of the State from the date paid by Landlord
to the date of payment of them by Tenant, shall be immediately paid by Tenant to Landlord,
provided, however, that nothing contained in this Lease shall be construed as permitting
Landlord to charge or receive interest in excess of the maximum legal rate then allowed by law.
The taking of such action by Landlord shall not be considered as a cure of such default by Tenant
or bar Landlord from pursuing any remedy to which it is otherwise entitled on account of such
default.
(f) Landlord's Lien. Landlord shall have a lien upon, and Tenant grants to Landlord
a security interest in, all personal property and equipment of Tenant located in the Premises, and
all accounts receivable rents, monies, or other consideration paid or to be paid to Tenant with
respect to any Sublease, Assignment, transfer or encumbrance of Tenant's interest in this Lease
or the Premises or any portion of them (no consent to the same by Landlord being implied), as
security for the payment of all Rent and the performance of all other obligations of Tenant
required by this Lease; provided however, that the lien shall not attach to the proceeds of any
sale of the Tenant's interest in connection with a permitted Assignment of this Lease. The
provision of this Section relating to such lien and security interest shall constitute a security
agreement under and subject to the laws of the State so that Landlord shall have and may enforce
a security interest on all property of Tenant now or hereafter placed in or on the Premises, in
addition to and cumulative of Landlord's liens and rights provided by law or by the other terms
and provisions of this Lease. Tenant agrees to execute as debtor such UCC-1 financing statement
or statements as Landlord may now or hereafter request. Landlord may at its election at any time
file a copy of this Lease or any part of it or reference to it as a financing statement.
25
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE.
(a) Cumulative Remedies. All rights and remedies of the parties under this Lease or
at law or in equity are cumulative, and the exercise of any right or remedy shall not be taken to
exclude or waive the right to the exercise of any other, subject to the express limitations set forth
in this Lease, if any.
(b) Survival. Upon termination or expiration of this Lease, Tenant shall remain liable
for all obligations and liabilities that have accrued prior to the date of termination or expiration.
SECTION 19. SURRENDER.
Tenant covenants and agrees to yield and deliver peaceably and promptly to Landlord,
possession of the Premises, on the Expiration Date or earlier termination of this Lease. Tenant
shall surrender the Premises in the condition required pursuant to this Lease, reasonable wear,
tear, casualty and condemnation excepted. All maintenance and repairs shall be completed prior
to surrender.
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE.
No agreement of surrender or to accept a surrender of this Lease shall be valid unless and
until the same shall have been reduced to writing and signed by the duly authorized
representatives of Landlord and of Tenant in a document of equal dignity and formality as this
Lease. Except as expressly provided in this Lease, neither the doing of nor any omission to do
any act or thing by any of the officers, agents or employees of Landlord shall be deemed an
acceptance of a surrender of letting under this Lease.
SECTION 21. REMOVAL OF PROPERTY.
(a) Removal. Tenant shall have the right at any time during the Term to remove its
unattached, movable trade fixtures and other personal property from the Premises excluding any
property owned by Landlord as set forth in this Lease provided the same is immediately replaced
with no less than comparable personalty of an equal or higher value. Tenant shall immediately
repair any damage to the structure or any portion of the Premises caused by its removal of any
personal property or unattached, movable trade fixtures. If Tenant shall fail to remove its
inventories, unattached, movable trade fixtures, and personal property by the termination or
expiration of this Lease, then Tenant shall be considered to be holding over and subject to
charges under Section 25(m), of this Lease, and after fourteen (14) calendar days following such
termination or expiration, at Landlord's option: (i) title to same shall vest in Landlord, at no cost
to Landlord; or (ii) Landlord may remove such property to a public warehouse for deposit; or
(iii) Landlord may retain the same in its own possession and sell the same at public auction, the
proceeds of which shall be applied first to the expenses of removal, storage and sale, second, to
any sums owed by Tenant to Landlord, with any balance remaining to be paid to Tenant; or
Landlord may dispose of such property in any manner permitted by law. If the expenses of such
removal, storage and sale shall exceed the proceeds of sale, Tenant shall pay such excess to
Landlord upon demand.
26
(b) Transfer of Interest. Upon the termination of this Lease the ownership of all
Improvements shall vest in Landlord (except for those specific items described herein for which
the ownership will remain in Tenant) and Tenant agrees to execute such documentation required
by Landlord to effectuate the foregoing.
(c) Survival. The provisions of this Section shall survive the expiration or
termination of this Lease.
SECTION 22. NOTICES.
Whenever either party desires to give notice to the other (a "Notice"), such Notice must
be in writing, sent either by certified United States Mail, postage prepaid, return receipt
requested, recognized overnight delivery courier service or by hand delivery with a request for a
written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at
the place last specified. The place for giving Notice shall remain the same as set forth in this
Lease until changed in writing upon not less than thirty (30) days' notice (provided that Landlord
shall be permitted at all times to deliver Notice to Tenant at the Premises which may not be
changed in accordance with the terms hereof) in the manner provided in this Section. The parties
designate the following addresses for Notice:
FOR LANDLORD:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Attn: Robert Baldwin, City Manager
With a copes:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Attn: Thomas J. Ansbro,Esquire
FOR TENANT:
Dania Beach Quarterdeck, LLC
1015 S.E. 16th Street
Fort Lauderdale, Florida 33316
With a copy to:
Paul Flanigan
605 Idlewild Drive
Fort Lauderdale, Florida 33301
All Notices, approvals and consents required under this Lease must be in writing to be
effective. Notices sent by United States mail in the manner set forth above shall be deemed
27
effective three (3) days after deposit, Notices sent by overnight delivery shall be deemed
effective as of the next business day as evidenced by the courier tracking confirmation and
Notices delivered in person shall be deemed effective on delivery.
SECTION 23. ENVIRONMENTAL COMPLIANCE.
Tenant shall at all times during the Term keep the Premises free of Hazardous Materials
(as defined below), and neither Tenant nor any of its employees, agents, invitees, licensees,
contractors or subtenants (if permitted) shall use, generate, manufacture, refine, treat, process,
produce, store, deposit, handle, transport, release, or dispose of Hazardous Materials in, on or
about the Premises or the Parcel, or the groundwater of them in violation of any federal, state or
municipal law, decision, statute, rule, ordinance or regulation currently in existence or
subsequently enacted or rendered. Tenant shall give Landlord prompt written notice of any claim
received by Tenant from any person, entity or governmental agency that a release or disposal of
Hazardous Materials has occurred on the Premises, or the parcel. As used in this Lease, the term
"Hazardous Materials" shall mean and be defined as any and all toxic or hazardous substances,
chemicals, materials or pollutants, of any kind or nature, including the disposal of grease or
ease products as a result of Tenant's restaurant operation which are regulated, governed,
�'
restricted or prohibited by any federal, state or local law, decision, statute, rule, or ordinance
currently in existence or hereafter enacted or rendered. Tenant shall not discharge into any
sanitary sewer system serving the Premises any toxic or hazardous sewage or waste other than
that which is normal domestic wastewater. Any toxic or hazardous sewage or waste which is
produced or generated by Tenant or in connection with the operation of Tenant's business,
including the disposal of grease generated as part of Tenant's restaurant operation, shall be
handled and disposed of as required by and in compliance with Applicable Laws or shall be pre-
treated to the level of domestic wastewater prior to discharge into any sanitary sewer system
serving the Premises.
SECTION 24. NON-DISCRIMINATION.
(a) Americans with Disabilities Act. Tenant shall comply with Title I of the
Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
marital status, political affiliation, familial status or physical or mental disability. In addition,
Tenant shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
(b) Equal Opportunity. Tenant shall take appropriate action to ensure that applicants
are employed and employees are treated without regard to race, age, religion, color, gender,
sexual orientation, national origin, marital status, political affiliation, familial status or physical
or mental disability during employment. Such actions shall include, but not be limited to, the
following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
28
layoff, termination, rates of pay, other forms of compensation, terms and conditions of
employment,training(including apprenticeship), and accessibility.
(c) Non-Discrimination. Tenant shall not engage in or commit any discriminatory
practice in violation of Applicable Laws, statutes, ordinances, rules or regulations.
SECTION 25. MISCELLANEOUS.
(a) Headings. The section and paragraph headings in this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision of this Lease.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Disputes shall be resolved in the 17th Judicial
Circuit Court of Broward County or in the federal courts in the Southern District of Florida,
whichever jurisdiction is appropriate.
(c) Severance. In the event this Lease or a portion of this Lease is found by a court of
competent jurisdiction to be invalid, the remaining provisions shall continue to be effective to the
fullest extent permitted by law.
(d) Relationship of Parties/Independent Contractor. It is the intent of the parties that
the relationship of Landlord and Tenant under this Lease is the relationship of landlord and
tenant. Nothing contained in this Lease shall create or be deemed or construed to create a
partnership,joint venture,joint enterprise or any other agency or other similar such relationship
between the parties to this Lease.
(e) Third Party Beneficiaries. Neither Tenant nor Landlord intend to directly or
substantially benefit a third party by this Lease. Therefore, the parties agree that there are no
third party beneficiaries to this Lease and that no third party shall be entitled to assert a claim
against either of them based upon this Lease.
(f) Force Majeure. Notwithstanding anything contained in this Lease to the contrary,
other than Tenant's obligation to timely pay its Rent (which shall not be subject to extension as a
result of Force Majeure), neither Landlord nor Tenant shall be considered to be in default of this
Lease if delays in or failure of performance shall be due to Force Majeure, the effect of which,
by the exercise of reasonable diligence, the non-performing party could not avoid and in such
event, the time for performance shall be extended by the period of such Force Majeure event(s).
(g) Negotiated Lease. Both parties have substantially contributed to the negotiations
which resulted in the preparation of this Lease and this Lease shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties than any other. The
parties to this Lease acknowledge that they have thoroughly read this Lease, including all
Exhibits and attachments to it, and have sought and received (or had the means, ability and
ample opportunity to do so) whatever competent advice and counsel, legal or otherwise, which
was necessary for them to form a full and complete understanding of all rights and obligations
contained in this Lease.
29
(h) Incorporation by Reference. The truth and accuracy of each "Recital" clause set
forth above is acknowledged by the parties.
(i) Estoppel Statement. The parties agree that from time to time, upon not less than
fifteen(15) days prior request by a party to this Lease, the other party may deliver a statement in
writing certifying: (a) that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the Lease as modified is in full force and effect and stating the
modifications); (b) the dates to which the Rent and other charges have been paid; (c) that neither
party is in default under any provisions of this Lease, or, if in default, the nature of such default,
described in detail; and (d) such other information pertaining to this Lease as either party may
reasonably request.
0) Amendments. No modification, amendment, or alteration in the terms or
conditions contained in this Lease shall be effective unless contained in a written document
prepared with the same or similar formality as this Lease and executed by Landlord and Tenant.
(k) Prior Agreements. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable to the
matters contained in this Lease and the parties agree that there are no commitments, agreements
or understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms of the Lease shall be
predicated upon any prior representations or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or conditions contained in this
Lease shall be effective unless contained in a written document in accordance with subparagraph
0), above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise
requires. Whenever reference is made to a Section of this Lease, such reference is to the Section
as a whole, including all of the subsections and subparagraphs of such Section, unless the
reference is made to a particular subsection or subparagraph of such Section.
(m) Holdover. It is agreed and understood that any holding over of Tenant after the
termination of this Lease shall not renew and extend same, but shall operate and be construed as
a license from month to month. At the option of Landlord, upon written notice to Tenant, Tenant
shall be required to pay to Landlord during any holdover period, monthly license fees which
shall be equal to one and one half(1'/2) the amount of the monthly installment of rental that was
due and payable for the month immediately preceding the termination date of this Lease. In
addition, Tenant shall be required to pay to Landlord any other charges required to be paid under
this Lease during any such holdover period. Tenant shall be liable to Landlord for all loss or
damage on account of any such holding over against Landlord's will after the termination of this
Lease, whether such loss or damage may be contemplated at the execution of this Lease or not. It
is expressly agreed that acceptance of the foregoing payments by Landlord in the event that
Tenant fails or refuses to surrender possession shall not operate or give Tenant any right to
remain in possession nor shall it constitute a waiver by Landlord of its right to immediate
possession of the Premises.
30
(n) Agent for Service of Process. It is expressly understood and agreed that if Tenant
is not a resident of the State of Florida, or is an association, corporation or partnership without a
registered agent for service of process in the State of Florida, then in any such event Tenant does
designate the Secretary of State, State of Florida, its agent for the purpose of service of process
in any court action between it and Landlord arising out of or based upon this Lease, and the
service shall be made as provided by the laws of the State for service upon a non-resident, who
has designated the Secretary of State as agent for service. Tenant shall designate an agent for
service process in Florida. It is further expressly agreed, covenanted, and stipulated that, if for
any reason, service of such process is not possible, and as an alternative method of service of
process, Tenant may be personally served with such process out of this State by certified mailing
to Tenant at the address set forth in this Lease. Any such service out of this State shall constitute
valid service upon Tenant as of the date of mailing. It is further expressly agreed that Tenant is
amenable to and does agree to the process so served, submits to the jurisdiction, and waives any
and all objections and protest to such service.
(o) Waiver of Claims. Landlord shall not be liable for any loss, damage or injury of
any kind or character to any person or property (i) arising from any use of the Premises or any
part of them; (ii) caused by any defect in any building, structure, or other Improvements on them
or in any equipment or other facility located in them; (iii) caused by or arising from any act or
omission of Tenant, or of any of its agents, employees, licensees or invitees; (iv) arising from
any accident on the Premises or any fire or other casualty on them; (v) occasioned by Tenant's
failure to maintain the Premises in a safe condition; or (vi) arising from any other cause; unless,
in any of such events, caused by the gross negligence or willful act of Landlord. Tenant agrees
that Landlord shall not be liable for injury to Tenant's business for any loss of income therefrom
or from loss or damage for merchandise or property of Tenant or its employees, invitees,
customers, commercial tenants or other persons in or about the Premises, nor shall Landlord be
liable for injuries to any persons on or about the Premises whether such damage is caused by or
as a result of theft, fire, electricity, water, rain or from breakage, leakage, obstruction or other
defect of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or
for any other condition arising upon the Premises, or from any new construction or repair,
alteration or improvement on the part of Tenant's improvements or the equipment, fixtures or
appurtenances to them, other than as a result of Landlord's default of its obligations under this
Lease. Landlord does not waive any rights of sovereign immunity that it has under Applicable
Law. Notwithstanding anything contained in this Lease to the contrary, in no event shall
Landlord be liable for any consequential or punitive damages in connection with this Lease.
(p) Drug-Free Workplace. Tenant covenants and agrees to implement a policy
consistent with Applicable Laws with respect to maintaining a drug-free workplace and
otherwise to diligently try to provide and maintain during the Term a drug-free workplace at the
Premises.
(q) Financial Interests. No elected official, officer, agent or employee of the City
shall have a financial interest directly or indirectly in this Lease or any compensation to be paid
under it, and further, no City employee who acts in the City as a "purchasing agent" as defined
by Section 112.312 (20), Florida Statutes, nor any elected or appointed officer of the City, nor
any spouse or child of such purchasing agent, employee or elected or appointed officer, may be a
partner, officer, director or proprietor of and, further, no such City purchasing agent, employee
or elected or appointed officer, or the spouse or child of any of them, alone or in combination,
31
may have a material interest in Tenant. Material interest means direct or indirect ownership of
more than five percent(5%) of the total assets or capital stock of Tenant.
(r) Successors and Assigns Bound. This Lease shall be binding upon and inure to the
benefit of the successors and assigns of the parties to this Lease where permitted by this Lease.
(s) Time of Essence. Time is expressed to be of the essence of this Lease.
(t) Written Approvals. All approvals and consents required to be obtained under this
Lease must be in writing to be effective.
(u) Authority of Individuals To Execute Lease. Tenant shall provide to Landlord
upon the execution of this Lease a written certification of Tenant granting to the individuals
executing this Lease full authority to execute the same on behalf of Tenant.
(v) Recordation of Memorandum of Lease. Landlord consents to Tenant recording a
Memorandum of this Lease in the Public Records of Broward County, Florida, which
Memorandum shall set forth, and shall only set forth: (i) the names of the parties; (ii) the
Effective Date and Term, and (iii) a notice of non-responsibility to advise all contractors and
subcontractors that Tenant shall not have the right to create a lien against Landlord's interest in
and to the Premises. Tenant shall not record this Lease in the Public Records of Broward
County, Florida. Tenant agrees that upon any termination of the Lease that it will execute a
document in form reasonably requested by Landlord terminating the memorandum of record.
(w) No Set Off. Tenant acknowledges that, as of the Effective Date, it has no claims
against Landlord with respect to any or the matters covered by this Lease and as of the Effective
Date it has no claim of set off or counterclaims against any of the amounts payable by Tenant to
Landlord under this Lease. Reciprocally, Landlord acknowledges that, as of the Effective Date,
it has no claims against Tenant with respect to any of the matters covered by this Lease and as of
the Effective Date it has no claim of set off or counterclaims against any of the amounts payable
by Tenant to Landlord under this Lease.
(x) Police/Re ug latory Powers. Landlord cannot, and specifically does not, waive or
relinquish any of its regulatory approval or enforcement rights and obligations as they may relate
to regulations of general applicability which may govern the Premises, any improvements on
them, or any operations at the Premises. Nothing in this Lease shall be deemed to create an
affirmative duty of Landlord to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in accordance
with its zoning and land use codes, administrative codes, ordinances, rules and regulations,
federal laws and regulations, State laws and regulations, and grant agreements. In addition,
nothing in this Lease shall be considered zoning by contract. The foregoing notwithstanding,
Landlord represents and warrants to Tenant that (i) the Required Use of the Premises is in
conformity with the existing land use plan and zoning code of the City and (ii) Landlord will not
modify the zoning or land use plan during the Term of this Lease in any manner which would
prohibit or impair the Required Use of the Premises.
(y) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and State guidelines have been found
32
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from the local public health unit.
(z) Broker. Each party represents and warrants to the other that it has not dealt with
any broker or finder in connection with the execution of this Lease. To the extent a broker or
finder's fee is claimed, the party who is alleged to have dealt with such claimant shall be
responsible for the payment of any and all costs related to the disposition of such claim.
(aa) Counterparts. This Lease may be executed in counterparts, each of which shall be
deemed to be an original.
(bb) Attorney Fees. In the event of any litigation which arises out of, pertains to, or
relates to this Lease or the breach of it, or the standard of performance required in it, the
prevailing party shall be entitled to recover reasonable attorney fees from the non-prevailing
party.
(cc) Rules and Regulations. Tenant agrees to comply with all rules and regulations
deemed reasonably necessary by Landlord which Landlord may adopt from time to time for the
protection, welfare and operation of the Pier, Premises and parking facilities and the protection
and welfare of its tenants, invitees, visitors and occupants, provided that such rules and
regulations do not materially negate, reduce or impair the rights granted to Tenant under this
Lease. The present rules and regulations, with which Tenant agrees to comply, entitled "Rules
and Regulations" are attached as Exhibit "E" and they are by this reference incorporated into
this Lease. Any future rules and regulations shall become a part of this Lease and Tenant hereby
agrees to comply with the same upon delivery of a copy of them to Tenant, providing the same
do not deprive Tenant of its rights established under this Lease.
(dd) Satellite Dish.
(1) Notwithstanding anything contained in this Lease to the contrary, in
addition to the other rights granted by this Lease, Tenant shall have the right, subject to
Applicable Laws, but not the obligation, during the Term to install, maintain and operate a
satellite dish antenna or similar rooftop antenna, in any case subject to Landlord's reasonable
consent as to the size and power of such antenna and the frequency at which it will receive
and/or broadcast (the "Antenna") on the Premises' roof in a location mutually acceptable to both
Landlord and Tenant(the "Antenna Site").
(2) Landlord shall have the right to use the remainder of the roof for any
purpose including permitting other tenants or occupants of the Pier to lease space on the roof
provided that (i) Tenant continues to have reasonable access to the Antenna Site and the
Antenna, and (ii) any other equipment installed on the roof pursuant to leases or other
agreements entered into after the date of this Lease will not block the ability of the Antenna to
receive satellite signals. Landlord, at its expense, may relocate the Antenna on the roof from
time to time
(3) Tenant shall install and maintain the Antenna and related cabling at its
expense. Tenant shall have access to the Antenna Site at all times, subject to any reasonable
restrictions of Landlord. The installation of the Antenna shall be completed in a good and
workmanlike manner and in accordance with all Applicable Laws and otherwise in accordance
33
I
with the terms of this Lease. Tenant shall install the Antenna using a non-penetrating roof mount.
Tenant shall comply with all floor load limitations. Tenant shall also maintain insurance on the
Antenna and the Antenna Site as is satisfactory to Landlord in its reasonable judgment. At the
termination of this Lease (whether upon the expiration of the Lease Term or otherwise) Tenant
shall, at Tenant's sole cost and expense, remove the Antenna and restore the Antenna Site to the
condition it was prior to installation of the Antenna (which obligation shall survive the
termination or expiration of this Lease).
(ee) Personal Guaranty. As a material inducement to Landlord's entry into this Lease,
each of Paul Flanigan and Richard Cullifer shall provide a joint and several guaranty of Tenant's
obligations of this Lease in the form attached hereto as Exhibit "H". The effectiveness of this
Lease is conditioned upon the delivery of the guaranties by the guarantors.
[Signature page follows]
34
IN WITNESS OF THE FOREGOING, the parties have made and executed this Lease
on the respective dates under each signature: City of Dania Beach as Landlord, acting through its
City Commission, signing by and through its Mayor, authorized to execute same by Commission
action on 2012; and
authorized to execute same.
CITY OF DANIA BEACH, a municipal
corporation, through its
City Commission
ATTEST:
By:
, Mayor
Louise Stilson, City Clerk Date: 52012
Approved as to form and legality by (CITY SEAL)
Office of the City Attorney
By:
Thomas J. Ansbro, City Attorney
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on , 2012, before me, an officer duly
authorized to take acknowledgements in the State and County aforesaid, personally appeared
, as Mayor of the CITY OF DANIA BEACH, a
Florida municipal corporation, on behalf of the corporation, who (check one) ( ) is personally
known to me or( )produced a drivers license as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
35
WITNESSES: TENANT:
DANIA BEACH QUARTERDECK, LLC,
a Florida limited liability company
Signature
Print Name:
By:
Title:
Signature
Print Name: Date: , 2012
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on , 2012, before me, an officer duly
authorized to take acknowledgements in the State and County aforesaid, personally appeared
as of DANIA BEACH QUARTERDECK,
LLC, a Florida limited liability company, who (check one) ( ) is personally known to me or ( )
who produced a as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
36
EXHIBIT "A"
LANDLORD'S PARCEL
A-1
EXHIBIT "B"
FISHING PIER
B-1
EXHIBIT "B-1"
LICENSED AREAS
B-1-1
EXHIBIT "C"
LEASED PREMISES
C-1
EXHIBIT "C-1"
KIOSK AREAS
c-t-i
EXHIBIT "D"
FOOD MENU
�M Illi, �---
Q I 1A
R 'ERD _
rrs
mob_,
Starters Sandwiches
Buffalo Shrimp9.99 AU taerdWWi*,,S served with macaord aW cheese,n
............._,............---....._.
nth 61c,.Cl,",o Wait €teach races,caner tars ar cute sire.
Chicken Wings or Boneless Wings...'-...8,99 Dolphin Reuben.............................. ..�...1 1.9
#1 t)1 Mild.M.,dhatm floc,ttnraey CmrN...,TPr#yaki a,1360 Tuna Philly SatsdWft'.h(YNMwf1n T,:na)........9.99
Seeued with CAkry cC.xrwr.a and 81-Ch— Win,Pelap—,Onharts nd Mote WasaM'5--
.7.99' Philly Sandwich (sxeakur dray..... ........6.49 :'
Smoked Fish Dip ...... wide Mud Sus wn and 9n,i va
a�s is:era fh11 .ca. ,tad c ..Y ' Buffalo Chicken Sandulch ......... ..........6,9W
Conch FrtLters,_.._:...___..........................6,99 Hot.11 d ,c,Mild
Breaded Chicken Tenders.---......--..6.99 Tuna Melt ............6.r9
Fried Mozzarella Sticks._._..-..,. Wnh Tcwnrao-a Swiss tks— -.
Grilled Cheese Sandwich,,.. 7.99
Artichoke Spinach Crab Dip_ ,.......__._9.99 with Tra xa tad Bacon m,C-.,y tear
Weh Twsata chips, $
Turkey Club.........W.......... ........ ..........8 94
Fried Calamarl ....... ....,_. .....,.....io.99 Shrimp Burrito..............
4f'",sw)y,nh ftrr*ran W Paus+wr+
�
MaP e.c+rxi-d Tuasad 3n a+.c ra ern.+m Mtw W1a,g sz«,r+. Chicken Caesar Wrap----- . . ....8.99
Ciabatta Sandwich _ --_.._.91,94
Soups V00,f+ech Fpap Chkk Pm iwh a Much—a ui
Oulfm,Mo.rarAW C:aPPW n—And Grab Ba+11
Soap of the Flay,Clam Cnowdes,Conch Chowder. Not Pastrami Sandwich...
i.obtrer livmtw,Chid&.French union...,......4.25 Italian Reef DIP ..... 1 rY�
$tame Crals ChowTlPr.._..... .._. ._..__.5.25 T.�—Iu,rr.TV-Jv fn a R. —8—f w{ch A,e 1
Handmade Burgers
AR burps—art seswed with Witt- .e and cheese,french f—,toter wn or—1k.
Patty Melt tvmh a,.rs r1n. 1...... . Free T4dsot ..
._----_.9.99 5n,aw cirri -.clod t
nrrsMWrm.sdaFfr.wM++,cnde.+luw.Y
Cheeseburger..._.....___............ ...,......6.49 hr.Mw.r,uec r..Atwpa,t,,urn
Burger..................._........_.....__.,..._........7.99 for-
Double Turkey g (Burger wkk P S Uw*ari•.8.99,. `r t `b—`—`.e<"w°'
Dms* cbrxm n 14d .O tO—d ,twJ#do,rma ralW,9•'Fd ryg 0dt7 saJ+r9f"
Bacon Cheeseburger 1wkR X.,—c.ke«wi.,....9.99 b.-Warr-I—1— ,afro ar,aarM.2 b---
.u m sin.,,.Fx"eN+ -gym.•.+�,M—W.t—lZe,h,rl,<.Wh.+
Seafood Ribs, Steaks & Chicken
Maine Lcobster_..._ __ _.__.......____._-..MP Att ant—vic—l1.Pews%awl fafl.m se d adth ei
hakelf pwafn,ttiac""1 tad cPsaexe-nr tZ totai;�
Every"fi &Thursday-Maine Lobster Dinner
wtth t)e,-Sid.1tea,n. .._....... _. 13,95 'IIaken and 5weez Bakers rke aelal>te AT-f ER 4pan.
full Rack of Baby Back Rths.............,,.;16.99
Half Rack of Baby Back Ribs Combo
Seafood Pasta....................... _.........16.99 Cbiii-of Feted s._a1r P st,i P
Moyseir,xta.IFl,P ro.tttr+o+,nstt h crab u+na a++sH her wsba `
G1i+tkan wiry,.._.. ......... ,..... .....14.99
Fried Scallop Dinner......................... ..-14.99 Half Rack of Baby Back Ribs_._... i l_v9
Fresh Fish Sandwich(wbcLSture Mahf add it!)-9.99
Three Soft Shell Fish Tacos....................9.99 Chicken Francaise..._...._.. ...._..... .....12.91
Se+vedwhh Seam and Sic- Pasta jambalaya.._---_.....................,..12_99
Coconut Shrimp ......t3.99 .41,ShH-p.Chl,t—,dnd A„&-ilia sa ,rr
Saut¢ed Snapper.... .. ... .. ,...i S.99 Prime Rfta. _ __ ._ _ .__..i 3.99
AYaA44.6-r 4 pn..
Fresh Fish NY Strip Steak&FriedShdmfsorScaflop,-15,90
We endervw to serve the rarest fish from around the Failtas -................ .. .......1 ,99
—rid.Ceru et species may not be avaRablr year--J. S:seak.E1 sd,n
" Fish may he Blxkened.GnRed,Frwd o Broaed.
Snapper,.. .... 14.99 Mahl Mahl... MP Salads
I..una Steak _ t 3.99 Titoia p . ._.
1 1 99 Sesame YeliaWfin Tuna Steak Salad......13.99
_ Pnn 54uip S sa Et+r1 d 7 na.Cftrs�df3ssN
Raw Bar .NAn y ealbe,U t,nn
Blue Paint Oysters (Sub)OCr to wyaii,.tO-i Pecan Crusted Chk:ken Breast Salad- 2,9 .
New York or Connecticut P—c.,rr ai 54aad cWk—a.aa:e.Di-C.ar,h.>e.-r tt
DOZett........,.......... ..-.18.99 1ji-d tcwna—,M.av+dirir 0-,S�a,P—pl—fwiws•pato1 -
Gulf Oysters Caesar Saladwich Fresh Fish or Chicken. i i
Louisiana,Apalachicola or Texas Greenback Wpsh R-m,,craacrm-1 F,axaewn ch-,
Dozen.....................................................12.99 Bacon Blue Cheese Wedge Salad_. .....S:
Asir About Our Oyster Of 17fe Day` Wlth Fresh 1--, .
P&E Shrimp Spinach Coat Cheese Salad---, 9.§.
i ......................................._.,.»........... /♦99}$ Spknxh¢ r;V,"Gc Che+s Tm se: MI.A
.� 112 ib. ....._..._.. .. ......�.....»............... 8 99{£ franh«fYy kaaa,Pxr G 1y Pr rnF,n pss Yhsaax..u. -
Oysters Rockefeller........................... .9.99 Grilled Shrimp Salad .... 1ti.99
Sashhn!Yeilorvfin Tuna..........»».». f o.99
Marralatae Uxa u-+,t 4-d T ar. t t.ai<tr ,Sh .x1
Part Yawed,$—C—,T Yaawhit Tma AhvaseNfli arnA t'*ieawd Apia-Smvad 0-5r�inxh SaLd Mi.
Steamers Balsamic Chicken Breast Salad..,., i i.99
._... i
3 Dozen............... ............. 15.99
...._
.d k ............ G+i<6 33hrea Ch&9rsn Sreeu.trk�dEwh Ciwu+n:i3i met Tarwarn.-s. 1
Terdea and itdtl CJarrn Sterateti raerik 1Yfre&user - £ ,.
D-1
EXHIBIT "E"
RULES AND REGULATIONS
1. BLOCKING OF ENTRIES, ETC. Tenant, its officers, agents, servants and
employees shall not block or obstruct any of the entries, passages, doors, elevators, elevator
doors, hallways or stairways of the Pier or place, empty or throw any rubbish, litter, trash or
material of any nature into such areas, or permit such areas to be used at any time except for
ingress or egress of Tenant, its officers, agents, servants, employees, patrons, licensees,
customers, visitors or invitees.
2. SIGNS. No sign, door plaque, advertisement or notice shall be displayed, painted
or affixed by Tenant, its officers, agents, servants, employees, patrons, licensees, customers,
visitors or invitees in or on any part of the outside or inside of the Premises, without the prior
written consent of Landlord and then only of such color, size, character, style and material and in
such places as shall be approved and designated by Landlord. Signs on doors and entrances to
the Premises shall be placed by a contractor approved by Landlord and paid for by Tenant.
3. LOST OR STOLEN PROPERTY. Landlord will not be responsible for lost or
stolen personal property, equipment, money or articles taken from the Premises, the Pier or
parking facilities regardless of how or when loss occurs.
4. RESTRICTIONS. Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors or invitees SHALL NOT:
A. Equipment and Inflammable Fluids. Install or operate any heating or air
conditioning apparatus or carry on any mechanical operation or bring into the Premises, Pier or
parking facilities any flammable fluids or explosives without written permission of Landlord,
beyond what is necessary to operate a restaurant, including natural gas and air compressor(s).
B. Housing. Use the Premises, Pier or parking facilities for housing, lodging
or sleeping purposes without the prior written consent of Landlord.
C. Animals. Bring in or upon the parking facilities, the Pier or the Premises,
or keep in the Premises any fowl, reptile, insect or animal except service animals or allow the
entry into the Premises any bicycle or other vehicle, except baby carriages or wheelchairs,
without the prior written consent of Landlord.
D. Noise. Subject to Applicable Laws, permit the operation of any amplified
musical or sound producing instrument or device which produces noise that exceeds 75 dB(A) at
a distance greater than 100 yards from the boundaries of the Premises, the Pier and the Licensed
Areas, or which transmits electrical waves that materially impair radio or television broadcasting
more than 100 yards from the aforesaid areas.
E. Solicitation. Solicit business in the parking facilities or on the Pier, nor
shall Tenant distribute any handbills or other advertising matter on automobiles parked in the
parking facilities.
E-1
F. Nuisance. Conduct its business and control its officers, agents,
employees, servants, patrons, customers, licensees, and visitors in such a manner as to create any
nuisance, or interfere with, or disturb any other tenant in its operation of the Premises or commit
waste or suffer or permit waste to be committed in or upon the Premises, Pier or parking
facilities.
G. Smoking. Smoking is limited to the outside of the Premises. Landlord
may designate smoking area(s).
5. LOCKS. No additional locks shall be placed on any door in the Premises without
the prior written consent of Landlord.
6. PLATE GLASS. All plate and other glass in the Premises which is broken
through cause attributable to Tenant, its officers, agents, visitors or invitees shall be replaced by
and at the expense of Tenant under the direction of Landlord.
7. NOTICE OF ACCIDENT. Tenant shall give Landlord prompt written notice of
all accidents that occur within or about the Premises.
8. PLUMBING FACILITIES. The plumbing facilities shall not be used for any
other purpose than that for which they are constructed, and no foreign substance of any kind
shall be deposited or thrown in them and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Tenant, who shall, or whose
officers, employees, agents, servants, patrons, customers, licensees, visitors, or invitees shall,
have caused it.
9. NO CANVASSING OR SOLICITING. Canvassing, soliciting or peddling in the
Premises, on the Pier or parking facilities is prohibited and Tenant shall cooperate to prevent the
same.
10. DISPOSAL OF CRATES, BOXES, ETC. In the event Tenant must dispose of
creates, boxes, etc. it will be the responsibility of Tenant to dispose of same in outside
dumpsters. All crates, boxes, etc. shall be flattened prior to dumpster placement. In no event
shall Tenant set such items in the public hallways or other areas of the Pier or parking facilities,
excepting Tenant's own Premises, for disposal.
11. INFESTATION. If the Premises become infested with vermin, Tenant, at its sole
cost and expense, shall cause the Premises to be exterminated from time to time, to the
satisfaction of Landlord.
12. NO ANTENNAS. Except as otherwise provided in the Lease, Tenant shall not
install any antenna or aerial wires, or radio or television equipment, or any other type of
equipment, inside or outside of the Premises, without Landlord's prior approval in writing and
upon such terms and conditions as may be specified by Landlord in each and every instance.
E-2
EXHIBIT "F-1"
TENANT'S WORK
F-1-1
EXHIBIT "F-2"
LANDLORD'S WORK
F-2-1
EXHIBIT "G"
PARKING LOT
G-1
EXHIBIT "H"
GUARANTY
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration for, and as an inducement to Landlord to enter into the
attached lease with Tenant dated , 2012 by and between the City of
Dania Beach, as Landlord and Dania Beach Quarterdeck, LLC, as Tenant (the "Lease"), the
undersigned hereby jointly and severally guarantee to Landlord (this "Guaranty"), without
condition or limitation except as hereinafter expressly provided, the prompt and punctual
payment of Base Rent and Additional Rent to be paid by Tenant and the full performance and
observance of all other terms, covenants and conditions of the Lease to be performed, observed
or complied with by Tenant, including the Rules and Regulations as therein provided
(collectively, the "Guaranteed Obligations"), without requiring any notice of non-payment, non-
performance or non-observance, or proof, or notice, all of which the undersigned hereby
expressly waive and expressly agree that the validity of this Guaranty and the obligations of the
guarantors hereunder shall in no way be terminated, affected or impaired by reason of the
assertion by Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the attached Lease. Landlord may grant extensions of time and
other indulgences and may modify, amend or waive any of the terms, covenants or conditions of
the Lease, and discharge or release any party or parties thereto, all without notice to the
undersigned and without in any way impairing, releasing or affecting the liability or obligation of
the undersigned with respect to the Guaranteed Obligations.
Each of the undersigned agrees that Landlord may proceed directly against either or both
of the undersigned without taking any action under the Lease and without exhausting Landlord's
remedies against Tenant; and no discharge of Tenant in bankruptcy or in any other insolvency
proceedings shall in any way or to any extent discharge or release the undersigned from any
liability or obligation hereunder.
The undersigned further covenants and agrees that this Guaranty shall remain and
continue in full force and effect as to any modification or amendment of the Lease, and that no
subletting and no assignment of the Lease, with or without Landlord's consent thereto, shall
release or discharge the undersigned from the Guaranteed Obligations under this Guaranty.
As a further inducement to Landlord to make the Lease and in consideration therefor, the
undersigned agree that in any action or proceeding brought by either Landlord or the undersigned
against the other on any matter whatsoever arising out of, under, or by virtue of any of the terms,
covenants or conditions of the Lease or of this Guaranty,the undersigned shall pay, in addition to
any damages which a court of competent jurisdiction may award, such amount or amounts as the
court may determine to be reasonable attorneys' fees incurred by Landlord or its successors or
assigns in the enforcement of this Guaranty.
All rights under this Guaranty shall inure to the benefit of any successors or assigns of
Landlord.
H-1
Notwithstanding anything to the contrary herein, provided Tenant is not in default under
the Lease and Landlord has not made any claims secured by this Guaranty against either or both
of the undersigned guarantors, this Guaranty shall expire and no longer be effective upon the
rd cc »
expiration of the third 3 Lease Year of the Term the "Guaranty Term"). It is further
p ( ) ( y )
understood and agreed that the Guaranteed Obligations secured by this Guaranty are limited to
an amount equal to Three Hundred Sixty Thousand Dollars ($360,000.00) (the "Guaranty
Amount"), which Guaranty Amount shall be reduced monthly on a straight line basis over the
Guaranty Term for each month that Tenant has timely paid all Rent due under the Lease (i.e. if
Tenant paid its Base Rent of Ten Thousand Dollars ($10,000.00) for the first lease year prior to
defaulting, the Guaranteed Amount would be reduced to Two Hundred Forty Thousand Dollars
($240,000.00)).
All capitalized terms not specifically defined herein shall have the same meaning
ascribed to such terms as set forth under the Lease.
IN WITNESS WHEREOF, the undersigned has signed this Guaranty as of the _ of
,2012.
Print Name:
Print Name: Paul Flanigan
Home Address
City/State/Zip Code
Social Security Number
STATE OF,FLORIDA )
ss.
MIAMI-DADE COUNTY )
The foregoing instrument was acknowledged before me this day of ,
2012 by Paul Flanigan.
Notary Public
(SEAL) Print, type or stamp name of Notary
Personally known
or Produced Identification
Type of Identification Produced
H-2
I
Print Name:
Print Name: Richard Cullifer
Home Address
City/State/Zip Code
Social Security Number
STATE OF FLORIDA )
ss.
MIAMI-DADE COUNTY )
The foregoing instrument was acknowledged before me this day of ,
2012 by Richard Cullifer.
Notary Public
(SEAL) Print, type or stamp name of Notary
Personally known
or Produced Identification
Type of Identification Produced
H-3