HomeMy WebLinkAboutR-2022-025 Lucky Fish II, LLC Lease Agreement (LOI 21-011)RESOLUTION NO.2022-025
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
ENTER INTO A LEASE AGREEMENT WITH LUCKY FISH Il, LLC,
RELATING TO THE CITY'S LETTER OF INTEREST NO. 21-011, COPY OF
WHICH LEASE AGREEMENT IS ATTACHED TO THIS RESOLUTION;
PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City of Dania Beach is the owner of approximately one (1) acre of
oceanfront property at 65 N Beach Road, Dania Beach, Florida, (the Property") which is located
within the Dania Beach Ocean Park, and which parcel is known as the Dania Beach Grill; and
WHEREAS, the Dania Beach Grill was closed in 2019 as the building was considered an
Unsafe Structure; and
WHEREAS, since that time, the City has discussed and explored the options to develop
a restaurant at the location of the former Dania Beach Grill; and
WHEREAS, on June 1, 2021, the City issued Letter of Interest No. 21-011, ("LOI")
seeking a qualified real estate developer/investor, a restaurant operator, or both for the
renovation and operation of the Property; and
WHEREAS, on October 26, 2021, after reviewing all proposals submitted in response to
the LOI, the City Commission awarded the project to Lucky Fish II, LLC ("Tenant") and
authorized staff to negotiate an agreement with Tenant to renovate or redevelop the Property in
accordance with the terms and conditions of the LOI; and
WHEREAS, the proposed lease agreement has been drafted and is attached as Exhibit
"A" and is incorporated into this Resolution by this reference; and
WHEREAS, the City and Tenant agree that the lease of the Property to Tenant will
provide a benefit to the public at large;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF DANIA BEACH, FLORIDA:
Section 1. That the above "Whereas" clauses are ratified and confirmed, and they are
made a part of and incorporated into this Resolution by this reference.
Section 2. That the proper City officials are authorized to execute the attached Lease
Agreement, which Agreement is attached and incorporated by reference as Exhibit "A".
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are repealed to the extent of such conflict.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 become effective upon its passage and adoption.
PASSED AND ADOPTED on February 8, 2022.
ATTEST:
V-
n
THOMAS SCHNEIDER, CMC A
CITY CLERK
APPROVED AS TO FORM AND CORRECTNESS:
E . BOUTSIS
C T ATTORNEY
2 RESOLUTION #2022-025
PROPERTY GROUND LEASE
THIS PROPERTY GROUND LEASE ("Lease") is dated as of February , 2022
and is between the CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation
("City") and LUCKY FISH II, LLC, a Florida limited liability company ("Tenant").
RECITALS
WHEREAS, the City is the owner of approximately one (1) acre of oceanfront property
located at 65 N Beach Road, Dania Beach FL 33004; and
WHEREAS, this property includes the Property of this Property Ground Lease with a
physical address of 65 North Beach Road, Dania Beach/Broward County, Florida (the
"Property"). The Property is more particularly described in Exhibit B to this Agreement; and
WHEREAS, on June 1, 2021, the City issued ITB No. 21-011, seeking a qualified real
estate developer/investor and/or restaurant operator for the renovation and operation of the
Property; and
WHEREAS, on October 26, 2021, after reviewing all proposals submitted in response to
the RFQ, the City Commission awarded the project Bid to Lucky Fish ("Tenant") and authorized
staff to negotiate an agreement with Tenant to renovate and/or redevelop the Property in
accordance with the terms and conditions of the RFQ; and
WHEREAS, the City has approved Tenant as an acceptable operator; and
WHEREAS, the City and Tenant are entering into this Property Ground Lease to enable
Tenant to commence the development of the Property described in Exhibit B, which is part of a
larger development described in Exhibit A; and
WHEREAS, the City and Tenant agree that the lease of the Property to Tenant will provide
a benefit to the public at large; and
WHEREAS, City hereby demises and leases to Tenant, and Tenant hereby takes from City,
the Property to have and to hold the Property and all Improvements thereon, all upon the terms and
conditions set forth in this Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Property Ground Lease, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Exhibits. Attached to this Lease and incorporated into this Lease by reference are the following
Exhibits:
Exhibit A — Legal Description of the City's Ocean Park Property
Exhibit B — Legal Description of Leasehold Property
Exhibit C — Property Site Plan
Exhibit D - Use of Property Improvements/Menu Description/Permitted Hours
Exhibit E - Renderings of the Property Improvements
Exhibit F - Development Timeline
Exhibit G — Rent
Exhibit H- Memorandum of Lease
Exhibit I — Delivery Date Memorandum
Exhibit J — Rent Commencement Date Letter
2. Definitions. For purposes of this Lease, the following terms are defined as follows:
2.1. Tenant: Lucky Fish II, LLC.
2.2. Additional Rent. Any sums to be paid by Tenant to City under the terms of this
Lease other than Minimum Rent or Percentage Rent.
2.3. Attorneys' Fees. Attorneys' fees, costs and expenses incurred by a party in
connection with any matter arising under this Lease.
2.4. Building Permit. A construction permit, as described in the City Code and Florida
Building Code.
2.5. Casual Dining. A full service or walk-up service restaurant with a fun,
comfortable, laid back and moderately priced menu.
2.6. Certificate of Occupancy. "CO", or certificates of Occupancy and the dates that any
improvements are deemed to be completely constructed, shall mean (1) with respect to buildings
to be constructed on the Property, the dates upon which a shell certificate of occupancy (or similar
permit) shall be issued by the appropriate Governmental Authority; or (2) with respect to other
improvements to be constructed on the Property, the date upon which the improvements may first
be legally put into service for the intended use thereof (regardless of whether such is the actual
first date of usage).
2.7. City. The City of Dania Beach, Florida.
2.8. City Code. The City of Dania Beach Code of Ordinances.
2.9. Completion Date. The date upon which a Temporary Certificate of Occupancy or
Certificate of Occupancy (or the equivalent) is issued for the Improvements constructed under
this Lease for public use.
2.10. CPA. A certified public accountant licensed to do business in the United States.
2.11. Default Rate. shall mean a per annum rate equal to the greater on a daily basis of
(i) twelve percent (12 %) per annum or (ii) five percent (5%) above the "Prime Rate" as announced
from time to time and published by the Wall Street Journal; provided, however, in no event shall
the Default Rate exceed the highest non -usurious rate permitted by law.
2.12. Delivery Date: The date City delivers the Property to Tenant free of
encumbrances, title defects, full legal description, survey of Property and site plan
2
2.13. Donation: Twenty percent (20%) of Tenant's gross opening night proceeds to the
City will be donated to the City for a project to improve the Dania Beach Ocean Front Park.
Payable within thirty (30) days of the opening night event.
2.14. Effective Date: The date both City and Tenant execute this Lease and the City has
approved same by appropriate governmental action.
2.15. Landlord: City of Dania Beach
2.16. Force Majeure: Any event which results in the prevention or delay of performance
by a party of its obligations under this Lease and which is beyond the reasonable control of such
party including, but is not limited to fire, earthquakes, hurricanes, tornadoes, storms, lightning,
epidemic, pandemic, war, riot, civil disturbance, sabotage, and governmental actions (provided
that City's actions cannot delay of the City' s compliance hereunder).
2.17. Governmental Approvals: All governmental and quasi -governmental approvals
from applicable city, county and other agencies and authorities required to develop the Property,
including, but not limited to, development of regional impact approvals, site plan approvals,
comprehensive land use plan approvals, plat approvals and recordation, public dedications,
environmental approvals, zoning approvals, building permits and all other governmental
approvals required in connection with the development of any Improvements at the Property (and
the expiration of all appeal periods with respect thereto), modification or vacation of easements
or both, and other matters pertaining to the Property.
2.18 Governmental Authority. Any federal, state, county, municipal or other
governmental department, entity, authority, commission board, bureau, court, agency, or any
instrumentality of any of them now existing or hereafter created, having jurisdiction over the
Property or any portion thereof.
2.19 Governmental Requirement. Any law, enactment, statute, code, ordinance, rule,
regulation, judgment, decree, writ, injunction, order, permit, certificate, license, authorization,
agreement, or other direction or requirement of any Governmental Authority now existing or
hereafter enacted, adopted, promulgated, entered, or issued.
2.20 Gross Revenue. Any and all revenue (whether cash, credit or barter) paid to or
collected by Tenant. Gross Revenue does not include any of the following: (a) parking revenues
generated by the Property; (b) insurance loss proceeds which are applied toward restoration of
the Improvements; (c) 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; (d)
sales taxes of any kind, including but not limited to luxury taxes, consumers' excise taxes, rent
taxes, ad valorem real estate taxes, business personal property taxes, tourist, room and restaurant
taxes, public assessments, special assessments, and taxes on utilities, gross receipts taxes and
other similar taxes now or hereafter imposed upon the sale of merchandise or services; (e)
employee meals, if free or discounted for such employees and their immediate family members;
(f) the proceeds of any sale of Tenant's business to a third party; (g) the selling price of all
merchandise returned by customers and accepted for full credit or the amount of discounts and
allowances made thereon; (h) sums and credits received in the settlement of claims for loss of or
damage to merchandise, to the extent previously reported as net sales; (i) the price allowed on all
merchandise traded in by customers for credit or the amount of credit for discounts and
allowances made in lieu of acceptance thereof, 0) cash refunds made to customers in the ordinary
course of business; (k) sales of non-food promotional items for which Tenant receives no profit;
(1) sales of fixtures or equipment after use thereof in the conduct of Tenant's business at the
Property; and (m) proceeds of property insurance received by Tenant upon a loss or damage to
Tenant's merchandise or equipment while located at the Property.
2.21 "Impositions" The following imposed by a Governmental Authority: (i) Real
property taxes; (ii) Tangible personal property taxes; (iii) Intangible personal property taxes; (iv)
Ad valorem taxes; (v) Sales, use or excise taxes; (vi) General and special assessments (vii) Levies;
(viii) License and permit fees; (ix) Any other governmental levies of general application fees,
rents, assessments or taxes and charges, general and special, ordinary and extraordinary, foreseen
and unforeseen, now or hereafter enacted of any kind whatsoever; (x) Service charges of general
application with respect to police and fire protection, street and highway maintenance, lighting,
sanitation and water supply; and (xi) Any fines, penalties and other similar governmental charges
applicable to the foregoing, together with any interest or costs with respect to the foregoing.
2.22 Improvement Cost. The cost of constructing the Property Improvements,
including all hard construction costs and soft costs such as testing, permitting, and design costs.
2.23 Improvements. The Improvements to be constructed by Tenant on the Property,
as more particularly described in Exhibit C, and Exhibit E. Improvements shall mean any and all
buildings, facilities, pavements, ordinary fixtures, permanently affixed equipment (excluding
Trade Fixtures of the Tenant), signs (excluding the branding face of a sign), landscaping, utilities
(both above ground and below ground), chickee huts, and all other structures or improvements
now or hereafter constructed on or offsite in connection with the Property and the restaurant
operated thereon and all additions, alterations, modifications, renovations, and replacements
thereto. All Improvements shall remain the property of Tenant, unless and until the expiration or
Termination Date, at which time, all such leasehold improvements shall become City's property
and shall be surrendered with and remain on the Property. For the avoidance of doubt, a Fixture
or permanently affixed equipment shall be defined as items a commercial real estate Tenant
permanently attaches to real property that cannot be removed without structural damage or
structural impairment. A Trade Fixture differs from an ordinary Fixture as defined herein as they
are Fixtures that may be removed from the real estate at the end of the tenancy of the business.
2.24 Lease. This Property Ground Lease.
2.25 Lease Commencement Date. Subject to any applicable event of Force Majeure,
the earlier of (i) the date Tenant First opens for business on the Property or (ii) the date that is one
hundred and eighty days (180) days from the issuance of a Building Permit for the Property. In
no event shall any calculation of the Lease Commencement Date commence prior to the Delivery
Date of the Property by City to Tenant. Tenant shall apply for a building permit no later than sixty
(60) days following Delivery date.
2.26 Lease Term. The Term of the Lease, which is twenty (20) years, beginning on the
Lease Commencement Date, with two (2) options of fifteen (15) years each at the expiration of
the initial twenty (20) year Term.
2.27 Lease Year. Each 12-month period during the Lease Term, starting on the Lease
Commencement Date of the Lease, through the end of the 12-month period.
2.28 Leasehold Interest. Tenant's interest in the Property and all Property
Improvements.
2.29 Leasehold Mortgage. A mortgage given by Tenant or by any permitted successors
or assignees of Tenant to a Lender that is secured by Tenant's (or Tenant's successors or
assignees') leasehold interest in the Property.
2.30 Lender. Any federal or state chartered commercial bank, national bank, savings
and loan association, savings bank, trust company, or private investor.
2.31 Minimum Rent. Two hundred and four thousand dollars ($ 204,000.00), per year,
or five percent (5%) of gross sales as defined in Section 2.33 of natural breakpoint, for the first
five (5) years of the leasehold (Lease Years 1-5). See Exhibit G attached hereto and incorporated
by reference into this Agreement for a Rent Schedule.
2.32 Rent Commencement Date. Subject to any applicable event of Force Majeure,
the earlier of (i) the date Tenant First opens for business on the Property or (ii) the date that is one
hundred and eighty (180) days from the issuance of a Building Permit for the Property.
2.33 Natural Breakpoint. The Natural Breakpoint is the point at which base rent is
equal to percentage rent (or overage) multiplied by sales. Formula is Base Rent/Percentage Rent
= Natural Breakpoint. The Natural Breakpoint is used to determine annual rent based on annual
sales. If Minimum Rent is greater than Percentage Rent multiplied by sales, the Minimum Rent
will be charged. If Minimum Rent is less than Percentage Rent multiplied by sales, the Percentage
Rent multiplied by sales will be charged. For clarity and example: (1) Minimum Rent is more
than Percentage Rent when Minimum Rent = $204,000 and sales are $4,000,000. The calculation
is $4,000,000 x .05 = $200,000. The annual Rent owed is equal to the Minimum Rent. (2)
Percentage Rent is more than the Minimum Rent when Minimum Rent = $204,000 and sales are
$6,000,000. The calculation is $6,000,000 x .05 = $300,000. The annual Rent is equal to the
Percentage rent of $300,000.
2.34 Property. The Property as more particularly described in Exhibit B.
2.35 Property Site Plan. A site plan including the Property showing the layout and
identification of all structures, facilities and landscaping. The Property Site Plan is attached as
Exhibit A.
2.36 Percentage Rent. Percentage Rent shall mean the percentages in excess of the
Natural Breakpoint, based upon the amount of the Gross Revenue derived from the Property by
Tenant or any Sublessee which is an Affiliate of Tenant (or any party who succeeds to the interest
of Tenant or any Sublessee Affiliate of Tenant) for the Lease Term, and any extensions.
Percentage Rent is further defined in Exhibit G, to which reference is made and incorporated
herein.
2.37 Plans. The construction plans and specifications for the Improvements.
2.38 Project. A reiteration of the former Dania Beach Grill with a Tiki Bar concept.
2.39 Property. The acre (+/-) Property of real property located in the City of
Dania Beach, Broward County, Florida, more particularly described in Exhibit A, which Property
includes this Property identified as Lucky Fish.
2.40 Quality of Services. Defined. Tenant shall conduct its operations in a 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 intent of this provision 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.
2.41 Rent. Minimum Rent, Percentage Rent, and any Additional Rent due under this
Lease.
2.42 Renderings. The sketches of the proposed Improvements upon the Property
attached as Exhibit E.
2.43 Reserved.
2.44 State. The State of Florida.
2.45 Sublease. A lease agreement between Tenant and a Subtenant that uses or occupies
any portion of the Property.
2.46 Subtenant. Any individual or entity that uses or occupies any portion of the
Property pursuant to a written or oral agreement, including, but not limited to, a sublease, sub -
sublease, license, or concession agreement. The term "Subtenant" includes all parties that may
use or occupy any portion of the Property, such as sub -subtenants, licensees, and concessionaires.
2.47 Surviving Obligations shall mean upon the termination, the obligations of Tenant
(i) to pay Rent which is due and unpaid through the effective date of such termination (prorated
through the date of such termination) to the extent due, (, (iii) the provisions of Section 39.9, 48
(Indemnity) for matters arising prior to the date of termination of this Lease, (iv) Section 39
(Environmental Compliance); and (v) any other obligations that expressly survive termination of
this Lease.
2.48 Tenant. Lucky Fish Il, LLC, a Florida limited liability company.
2.49 Transfer. Any sale, assignment or conveyance of the Property, this Lease, Tenant's
interest in the Property, or any interest in Tenant.
2.50 Work. The labor and materials required to complete the construction of the
Improvements on the Property, and any related buildings or structures not located on the Property,
in a good and workmanlike manner in accordance with the Plans and all applicable Governmental
Requirements.
3. Lease of Property. The City hereby demises and leases the Property to Tenant, and the
Tenant accepts possession of the Property from City, subject to the terms and conditions of this
Lease (including any subsequent amendments).
3.1 The City hereby lets to Tenant and Tenant hereby leases and takes from the City the
Property.
3.2 Uses. Tenant agrees to operate the Property only for the uses permitted pursuant to
this Lease of a restaurant, bar and ancillary music. Ancillary music is music that is in addition to
ambient or background music upon and withing the leased Property and Premises. For the
avoidance of doubt, ambient or background music is music and/or sounds that creates a tone and
atmosphere creating textural sounds to create both passive and active listening to encourage the
atmosphere of the premises, including but not limited to sounds relayed through speakers via
Ambiance, Muzak, internal sources, or televisions. Ambient background noise should not be
higher than 70 dB (A -weighted sound levels). The Ancillary music as herein permitted shall allow
for Tenant to increase the dB levels up to dB above the ambient background noise.
3.3 As Is. Except as may be otherwise provided in this Lease the: (i) Tenant accepts that
the Property in the existing "as is" condition and state of repair as of the Effective Date and Tenant
agrees that no representations, warranties, express or implied, have been made by or on behalf of
City in respect of the Property or the status of title thereto. Without limitation of the foregoing (i)
City makes no representations or warranties whatsoever as to: (a) the condition of the Property, or
(b) whether the Property, or any part thereof, is in compliance with applicable federal, state, and
local laws, ordinances, rules, or regulations; or (c) the permitted or available uses of the Property
under any applicable federal, state, or local laws, ordinances, rules, or regulations; and (ii) City
makes no representations or warranties concerning habitability or fitness for any particular
purpose. The Tenant hereby ASSUMES ALL RISK of non-compliance of the Property, or any
part thereof, with any federal, state, or local laws, ordinances, rules, or regulations. Upon receipt
of notice of any noncompliance with any such laws, ordinances, rules, or regulations for any
portion of the existing property that will not be demolished, if any, the Tenant hereby agrees to
make any and all repairs, alterations, and additions to the Property and to take all corrective
measures in a commercially reasonable time as may be necessary to bring the Property into
compliance with all laws, ordinances, rules and regulations. Furthermore, as of the Effective Date,
the Tenant releases the City of and from any and all claims and liabilities whatsoever on account
of the condition of the Property or any failure of any of the component parts to be in working order
or because of any necessity of Tenant to repair or take corrective actions with respect to any part
thereof, or the necessity for obtaining any development approvals from any governmental body,
including without limitation City agencies.
3.4 Quiet Enjoyment. Tenant, upon paying the Rent herein reserved and performing and
observing all the other terms, covenants and conditions of this Lease on the Tenant's part to be
performed and observed, shall peacefully and quietly have, hold and enjoy the Property during the
Term, subject to the rights of the City to enter upon and use the Property pursuant to the terms and
conditions of this Lease.
3.5 Prohibited Uses. Tenant shall be expressly prohibited from utilizing the Property for
the following: (i) 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 the City ordinances of the City of Dania Beach or any successor legislation thereto. (ii)
Any use that requires the storing of hazardous substances, hazardous materials or both at the
Property in violation of applicable law. (iii) Any use of the Property for residential purposes or
living quarters of any kind whatsoever. (iv) Any use which is not a Permitted Use as set forth in
Section 10 of this Lease. (v) Any use prohibited by law.
3.6 No Condominium Conversion. Tenant shall not be permitted to submit or convert any
portion of the Property, including, to a condominium regime or condominium or residential use.
4. Lease Term. The Lease Term will begin on the Lease Commencement Date and will be for a
period of Twenty (20) years, in addition to two (2) options of fifteen (15) years each.
5. Rent. Tenant shall pay to City, as Rent, the Minimum Rent, the Percentage Rent, and the
Additional Rent, if any, for each Lease Year.
5.1 Minimum Rent. Tenant agrees to pay Minimum Rent in accordance with this Lease.
5.2 Amount. The Minimum Rent for the Property will be $204,000.00, per Lease Year
for years (1) through (5). The Minimum Rent will remain constant for the first five (5) Lease Years.
5.3 Minimum Rent Payment Due Dates. All payments of Minimum Rent are due and
payable on the first day of each calendar month.
5.4 Minimum Rent Commencement Date. Minimum Rent shall commence as set
out in Section 2.32 hereinabove.
5.5 Elimination of Minimum Rent. Commencing on the sixth (6t') Lease Year, there
shall be no Minimum Rent. Minimum rent shall be five and a half percent (5.5%), for years six (6)
through ten (10). Thereafter, the minimum rent shall be six percent (6%) of Gross Rent, for years
eleven (11) through fifteen (15), and for each year of any extension periods thereafter. Rent shall
be calculated in the form of Percentage Rent as shown and described on Exhibit G attached hereto
this Lease and incorporated herein.
5.6 Percentage Rent. Tenant agrees to pay Percentage Rent in accordance with this
Lease.
5.7 Amount. The Percentage Rent will remain constant for the first five (5) Lease Years
at five percent (5.00%) of the Gross Revenue generated by the Property in excess of the annual
Minimum Rent using the Natural Breakpoint calculation. Tenant shall pay the Percentage Rent
due City on a monthly basis within fifteen (15) days after the end of each Lease month. For clarity
and illustration, the minimum rent shall be paid on the first day of each month and Percentage
Rent, if any is due, shall be paid fifteen (15) days following the end of the Lease month. The
Percentage Rent ("Rent") for each Lease month, including Options, shall be paid within fifteen
(15) days of the close of each Lease month. For clarity, and as example, the Rent for the month of
January shall be paid no later than February 15, the Rent for February shall be paid no later than
March 15. See Rent Exhibit G for the Percentage Rent rates.
5.8 Elimination of Minimum Rent. Beginning in the 6t' Lease Year and with each
exercised Option period, Rent shall be Percentage Rent, as defined and set out in Exhibit G, to be
paid on a monthly basis as set out in Section 5.5 above.
5.9 Percentage Rent Due Date. Percentage Rent as identified in Exhibit G will be due
as set out in Section 5.7 above.
5.10Additional Rent. If any sums to be paid by Tenant to City under the terms of this
Lease, exclusive of Minimum Rent or Percentage Rent, if any, will be Additional Rent as described
in this Lease.
5.11 The City hereby lets to Tenant and Tenant hereby leases and takes from the City the
Property.
5.12 Quiet Enjoyment. Tenant, upon paying the Rent herein reserved and performing and
observing all of the other terms, covenants and conditions of this Lease on the Tenant's part to be
performed and observed, shall peacefully and quietly have, hold and enjoy the Property during the
Term.
5.13 Payment of Rent Generally. Tenant agrees to pay the Minimum Rent, Percentage
Rent, and Additional Rent, if any, (collectively, "Rent") when due and payable. All Rent and other
payments required to be made to the City under the Lease must be paid to the City at the following
address:
City of Dania Beach
Attn: Frank DiPaolo, Finance Director
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Or at such other place as the City shall designate from time to time by Notice given pursuant to
the notice provisions of this Lease. Payments must be made by check mailed or delivered to City
or by wire transfer to a City account designated by the Finance Director.
5.14 Late Payments. Any late payment of Rent or any late payment of any other sums
due under the Lease will automatically accrue interest at five percent (5%) from the date the
payment was due until paid, unless otherwise set out under this Lease. The right of the City to
require payment of such interest and the obligation of the Tenant to pay same shall be in addition
to and not in lieu of the right of the City to enforce other provisions herein and to pursue other
remedies provided by law.
6. Reporting of Gross Revenue. Tenant must report Gross Revenue in a format which
identifies and shows the dollar amount of any item which is excluded from Gross Revenue.
6.1 Documentation. All revenue data reported or used to calculate amounts of any
payments to City under this Lease must be verifiable and supported by acceptable source
documents ("Source Documents") if requested by City. Source Documents may include but are
not limited to Tenant Florida Department of Revenue sales and use tax returns, Federal tax returns,
1099 forms from credit card companies, credit card reports, bank deposit slips, bank statement,
wire fund transfer documents, sales invoices, point of sale receipts, cash register reports, sales
terminal reports, and financial statements.
6.2 Statement of Gross Revenue. This Statement shall be provided with each payment
of Percentage Rent.
7. Records Retention and City's Right to Audit. All records of Tenant must be made
available locally, at the expense of the Tenant, for inspection and audit by a CPA retained by the
City, the City's Internal Auditor, or any other designee of the City.
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7.1 Availability of Records. Records must be made available for inspection at all
reasonable times with a minimum of seven (7) days notice by City to Tenant, for the time periods
set out in this Section 7 of this Lease.
7.2 Record Retention. Records of Tenant must be retained for a period of (a) three
(3) years; or (b) as required by applicable law including the retention period of the Florida Public
Records Act set forth in Chapter 119 of the Florida Statutes.
7.3 Records to be Retained. The records required to be retained under this Lease
include, but are not limited to, all business records, bookkeeping and accounting records, sales and
income tax records and returns, bank statements, tax deposits, supporting documents, sales reports,
and any other records which may be pertinent to this Lease or to the calculation of Gross Revenue
for the periods herein described.
7.4 Audit Results. If any inspection or audit performed by the City discloses an
underpayment by Tenant to City, then Tenant must pay to City, within fifteen (15) days after
receipt of the City's inspection or report, the amount due. If not paid within fifteen (15) days,
interest shall begin to accrue at an interest at the rate of five percent (5%) until the date of payment.
Tenant must also reimburse City for its reasonable costs incurred in conducting the audit in the
event the audit reveals a discrepancy of more than five percent (5%) in the amount of Gross
Revenue reported by Tenant.
S. Sales Tax. Tenant will be responsible for the collection and remission to the State of all sales
tax (also identified as an Imposition) required to be paid in connection with the use and operation
of the Property.
9. Tenant's Obligation to Pay Impositions. Tenant covenants and agrees to timely pay and
discharge before any fine, penalty, interest or cost may be added, all levies, assessments, fees,
charges and taxes (collectively, "Impositions") imposed or assessed against the Property, Rents,
and Subleases.
9.1 Payment of Impositions. Tenant shall pay, on or before their respective due dates,
to the appropriate collecting authority, all Impositions, which are now or may hereafter be levied,
assessed, confirmed, and imposed upon or charged to Owner or Tenant with respect to (i) the
Property, (ii) the City's interest in the Property, (iii) Tenant's leasehold estate granted hereby, (iv)
any document to which Tenant is a party creating or transferring an interest or estate in the Property
of, by, or to Tenant, (v) the use and occupancy of the Property, (vi) any personal property,
furniture, fixture or equipment or other facility used in connection with the operation of the
Property, or (vii) any Rent or other sums payable hereunder. To the extent permitted by law the
Tenant shall be permitted to pay any assessments in annual installments and to the extent such
assessments may be payable in installments then Tenant shall only be required to pay those
installments which shall become due and payable during the Term.
9.2 Contest of Impositions. Tenant will have the right at its own expense to Contest the
amount of validity, in whole or in part, of any Imposition by appropriate proceedings diligently
conducted in good faith, but only after payment of such Imposition, unless such payment would
operate as a bar to such contest or interfere materially with the prosecution thereof, in which event,
payment of such Imposition may be postponed if, and only as long as: (i) neither the Property nor
any part thereof, by reason of such postponement or deferment, in the reasonable judgment of City,
would be in danger of being forfeited or lost. Upon the termination of such proceedings, it will be
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the obligation of Tenant to pay the amount of such Imposition or part thereof as finally determined
in such proceedings, the payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees (including attorneys' fees and disbursements at the trial
level and on appeal), interest, penalties or other liabilities in connection therewith, unless Tenant
prevails in the Contest, in which event Tenant shall not be responsible for any.
10. City's Joinder In Contest. City will not be required to join in any proceedings referred to
in this unless the provisions of any law, rule or regulation at the time in effect requires that such
proceedings be brought by and/or in the name of City, in which event, City will join and cooperate
in such proceedings or permit the same to be brought in City's name, but City will not be liable for
the payment of any costs or expenses in connection with any such proceedings and Tenant will
reimburse City for any and all costs or expenses, including City's attorney's fees and disbursements
at the trial level and on appeal, which City may sustain or incur in connection therewith. City will
not be required to join in any such proceeding wherein City is the taxing authority unless City is
satisfied that the mere joining in by City to enable Tenant to bring such proceeding will not be
detrimental to City's position as the taxing authority in connection with same.
11. Proration. Taxes, assessments, and other expenses in connection with the Property shall be
prorated as of the last day of the Term with Tenant being responsible for its obligations pursuant
to this Lease for the entire Term.
12. Utilities. During the Term, Tenant shall pay when due all cable, water, wastewater,
electric, telephone, solid waste, recycling, and all other utility and other expenses of any, and all,
types whatsoever which are now or hereafter charged or assessed with respect to operations at the
Property. Tenant shall pay all fees or charges relative to the foregoing promptly prior to
delinquency.
12.1 Timely Payment of Utility Charges. If Tenant fails to pay any utility charges in
a timely basis, which basis shall not be less than thirty (30) days from due date, and the City
receives notice that such charges are past due, City will have the right, but not the obligation, to
pay the past due utility charges. Any funds advanced by City for utility charges will be considered
Additional Rent under this Lease payable by Tenant upon receipt of notice from City.
13. Permitted Uses of the Property. During the Lease Term, Tenant may use the Property
for the operation of a casual full -service Tiki concept restaurant and bar ("Permitted Use"). Any
use of the Property other than the Permitted Use is prohibited unless otherwise agreed upon in
writing by the City and Tenant, or that such Permitted Use is no longer an economic viable use for
the Property, at which time the parties shall in good faith negotiate a different use or termination
of the Lease.
13.1 Restrictions on Use. Tenant shall not use the Property or any portion of it, or permit
the use of all or any portion of the Property for any unlawful or illegal business, use or purpose;
any business, use or purpose which is immoral or disreputable; any hazardous use; any use which
could constitute a codified public or private nuisance; any use which violates in any way the
Certificate of Occupancy or other Governmental Approvals; or any use which violates a
Governmental Requirement. City agrees that Tenant shall have the exclusive right to operate a
Tiki themed casual restaurant or bar within the Project so long as Tenant is not in default of this
Lease.
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13.2 Quality of Services. Tenant shall conduct its operations in a manner that is
consistent with similar type restaurants that shall include dress codes to be adhered to by
employees, quality service to guests, adherence to all health codes and regulations and providing
a safe and clean environment for guests. Tenant shall make all good faith efforts to comply with
all OSHA guidelines that are required of the Permitted Use. 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 as
described herein and otherwise in accordance with applicable law.
14. Governmental Requirements. Tenant shall comply with all Governmental Requirements
applicable to the operations and Property, including, without limitation, those prohibiting
discrimination by reason of race, color, religion, sex, marital status, sexual orientation, gender
identity, national origin, or handicap in the development, construction, management, lease, use,
occupancy of the operation and Property or any portion thereof.
15. Request for Additional Use. Subject to the terms of this Provision 13, if Tenant desires
to use any portion of the Property for a use that is not a Permitted Use under this Lease, Tenant
must seek written consent from the City, which consent shall not be reasonably withheld or denied
unless the request does not benefit the public or the use is not authorized under the City's zoning
code
16. Title and Survey Issues. City shall provide to Tenant a copy of all Project and Property
surveys, Project and Property elevation surveys, Project and Property Coastal Control Line surveys
and Project and Property legal descriptions. Delivery of the Property shall not be deemed to have
occurred until Tenant has been provided this information or has by other means obtained this
information in order for Tenant to proceed with site and elevation design to apply for building
permit.
17. Property Development. Tenant expressly agrees that the Property will be developed in
accordance with the Development Timeline attached as Exhibit F, subject to Force Majeure or
other factors not in the control of the Tenant, while diligently pursuing and executing upon the
Development Timeline, and that time is of the essence in the development of the Property.
18. Construction of Improvements.
18.1 Deadlines. Subject to any events of Force Majeure or as otherwise set out in the
Lease, Tenant must strictly adhere to all design, permitting, and construction deadlines for the
Property set forth in the Development Timeline attached as Exhibit F.
18.2 Construction Plans. Requirements Prior to Commencement of Construction.
Tenant shall submit to City complete working drawings and specifications, clearly indicating all
items of Tenant's work as described in Exhibit E. Tenant's working drawings and specifications
shall (i) be prepared by a licensed architect in the state of Florida and (ii) be complete and (iii)
shall be in compliance with all governing codes and (iv) furnished in two (2) duplicate counterpart
sets ("Conceptual Approval"), which Conceptual Approval may be granted or withheld by City
in its sole and absolute discretion. The Conceptual Plans will demonstrate that the chickee but
restaurant provides a view of the Ocean to diners. The Construction Plans will ensure that the
elevations are sufficient to ensure a view of the Ocean to diners. Conceptual Approval shall not
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be unreasonably withheld or delayed by City. The City shall provide its written Conceptual
Approval or disapproval (specifying the basis for disapproval, comments, or both) to any such
Conceptual Plans within thirty (30) calendar days of receipt of request for same, it being
understood that City's review and approval of the Conceptual Plans are from the perspective of a
landowner, not a governmental entity, and need not be based upon, or limited to, governmental
requirements. City's determination as to whether to approve or disapprove the Conceptual Plans
shall be made by the City Commission after the City's staff has reviewed the Conceptual Plans
and made an advisory recommendation to the City Commission; provided, however, Tenant
acknowledges and agrees that Conceptual Approval by City of the Conceptual Plans by the City
Commission after review of same by the City's staff shall in no event be deemed approval by the
City of those Conceptual Plans in its governmental capacity. Once any Conceptual Plans receive
Conceptual Approval (following a meeting and public hearing of the Dania Beach City
Commission), such Conceptual Plans shall be deemed "Approved Conceptual Plans."
18.3 The approval by the City of any Conceptual Plans or other plans, specifications,
site plans, designs or other documents submitted to City pursuant to the terms and conditions of
this Lease from the perspective of a land owner, not a governmental entity, shall not (a) confer
any rights upon Tenant to have any such plans approved by the City in its governmental
capacity, (b) constitute a representation or warranty that such comply with all applicable laws,
ordinances, rules, regulations and procedures of all applicable Governmental Authorities or that
such will be approved by the City in its capacity as a Governmental Authority, it being expressly
understood that the responsibility therefor shall at all times remain with Tenant, and (c)
constitute the approval of the City in its capacity as a Governmental Authority, but only as the
Landlord. Tenant acknowledges and agrees that Tenant is subject to all applicable ordinances,
rules, regulations and procedures of the City and that Tenant shall have the responsibility, at its
sole cost and expense, to submit all required applications, materials and documentation to the
City and all other Governmental Authorities, and to obtain all Governmental Approvals
applicable to the development of the Property and construction of the Improvements shown on
the Approval Conceptual Plans.
18.4 Only minor changes (as the term "minor changes" as determined by the Building
Official as interpreted or permitted by City codes or ordinances. Permitted Changes may be
made to the Approved Conceptual Plans without the prior written approval of the City.
18.5 Deemed Approval. In the event the City shall fail to approve or disapprove (and
specify in detail the basis for such disapproval) any Conceptual Plans submitted to City as a
landowner which requires its approval within thirty (30) calendar days of being submitted to City,
then said Conceptual Plans shall be deemed "Approved Conceptual Plans."
18.6 Preparation of Plans. Tenant will be responsible for preparing the Plans. The
Plans must substantially conform to all applicable Governmental Requirements, the Property Site
Plan, and the Description of Improvements attached to this Lease, unless otherwise determined by
the permitting process. The Plans must include, without limitation, the following:
18.6.1 Schematic designs and architectural drawings.
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18.6.2 Foundation and structural drawings, including location of required grease
trap to be installed by Tenant.
18.6.3 Electrical and mechanical drawings including, without limitation, plans
for all lighting facilities affecting the exterior appearance of the
Improvements.
18.6.4 Landscaping plans
18.6.5 Final specifications.
18.6.6 ADA. (i) All Improvements shall be compliant of the Americans with
Disability Act of 1990, as same may be amended from time to time (the"
ADA") to the extent required by law and with Section 553.501 et seq. of
the Florida Statutes, as same may be amended from time to time. (ii)
Tenant further warrants that the Property shall be compliant with the
accessibility standards for government programs contained in the ADA
and all requirements of Section 553.501 et seq. and Section 255.21 of the
Florida Statutes.
18.7 Governmental Approvals. Tenant, at its sole cost and expense, shall obtain all
required permits and approvals from all Governmental Authorities for any Improvements
constructed or to be constructed by Tenant, including but not limited to departments, divisions or
offices of the State of Florida, Broward County, the City and the federal government. Tenant shall
also pay all impact and concurrency fees (if any) associated with its development of the Property.
18.8 Payment and Performance Bond. The Tenant agrees that before commencing any
work or construction with a cost in excess of one hundred thousand dollars ($100,000), the Tenant
shall maintain, at all times, a valid payment and performance bond, which shall be in (1) an amount
not less than the amount covering the full amount of the work then being performed, and (2)
Contractor Indemnity in which Tenant will use its best efforts to include in any contract for
construction of improvements with a cost in excess of one hundred thousand dollars ($100,000) a
provision that general contractor shall indemnify and hold City harmless for any and all loss,
damage, cost, or expense, including, but not limited to, attorneys' fees and court costs through all
trial and appellate levels with respect to personal injury, property damage or both caused by the
general contractor, its subcontractors, agents and employees in connection with performing such
work or any other of its obligations under the applicable contract.
18.9 Construction Quality. Tenant agrees to perform all work ("Work") required to
complete the construction of the Improvements on the Property in a good and workmanlike
manner.
18.10 Standards of Construction. Any and all construction of Improvements shall be
performed in such a manner as to provide that the Improvements shall: (i) Be structurally sound
and safe for its intended use, and free from any unusual hazards; (ii) Be designed for use for only
those purposes permitted under Section 13 hereof; (iii) Be fire resistant to the extent required by
the provisions of the local applicable building codes and shall not be used for the manufacture or
storage of flammable, explosive or hazardous materials in violation of applicable law; (iv)
Substantially comply with the Approved Conceptual Plans; (v) Comply with the terms and
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provisions of this Lease; and (vi) Comply with all applicable laws, ordinances, rules, regulations
and procedures of all applicable Governmental Authorities. The City may refuse to grant approval
if the proposed facilities as shown on such plans and specifications will fail to meet the criteria set
forth above.
18.11 Costs. It is understood and agreed that in the course of any construction undertaken
by Tenant during the term of this Lease, the Tenant shall be responsible for all costs associated
with any removal, replacement, relocation and protection of all utilities, whether such utilities are
located at the Property or on adjacent property, including but not limited to water, sewer,
telephone, or electric. Tenant shall install or cause to be installed all necessary connections
between the Improvements and any utilities, whether owned publicly or privately. Tenant will be
responsible for payment of all utility connection fees. City will allow Tenant credit for any existing
connections on the Property, and any other credits available.
18.12 Comply with Applicable Law. All Improvements constructed or installed by the
Tenant, its agents, or contractors, shall conform to all applicable state, federal, county, and local
statutes, ordinances, building codes, fire codes, and rules and regulations, as amended.
18.13 Consultation. If requested by the City, the Tenant and its architect, engineer and
contractor shall meet with the City in periodically scheduled meetings to assess the current status
of completion.
18.14 Tenant's Obligations During Construction. Prior to the Completion Date,
Tenant shall:
18.14.1 Provide all architectural and engineering services, scaffolding, hoists,
temporary structures, light, heat, power, toilets, temporary utility connections,
equipment, tools and materials and other requirements for the performance of the
Work;
18.14.2 Maintain the Property in a clean and orderly condition, at all times, taking into
consideration the public beachfront nature of the Project, and remove all paper, cartons
and other debris from the Property;
18.14.3 Preserve all properties adjacent to or leading to the Property, and restore and
repair any such properties damaged as a result of construction of the Improvements,
whether such properties are publicly or privately owned;
18.14.4 Implement and maintain at all times a comprehensive hurricane and flood
plan for the Property and the Work, and provide a copy of same to the City, if
requested;
18.14.5 Provide construction fencing.
18.15 As-Builts. Within one hundred twenty (120) days after the date a CO is issued
for Improvements constructed by Tenant during the term of this Lease, the Tenant shall at its
expense, provide the City with a complete set of "as built" plans and specifications, including
mylar reproducible "record" drawings, and, if available, one set of machine readable disks (or
comparable) containing electronic data in an AUTOCAD format that meets the City's graphic
standards of the "as -constructed" or "record" plans for such Improvements. The "as built" plans
submitted by Tenant must show the square footage of each Improvement depicted in such plans.
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Use diligent effort to complete the Work in a commercially reasonable time under the
circumstances and in accordance with this Lease. At all times make diligent effort to have proper
supervision of the general contractor or other employees or agents of the Tenant upon the Property
site.
18.16 Tenant Progress Reports. At the request of City, Tenant will deliver written
reports of the progress of construction to the City Manager or his or her designee.
18.17 City's Representative. The City may designate one or more employees or agents
to be the City's Representative for the Project so that he or she may, subject to site conditions and
during normal business hours, visit and the Property.
18.18 Certificates of Final Completion. After Tenant completes the Work and obtains
a Certificate of Occupancy for the Improvements, the City will deliver to Tenant, a recordable
Certificate of Final Completion certifying that, to the best of the City's knowledge, Tenant has
satisfied all its obligations to the City, in its capacity as Landlord under this Lease, for the
construction of the specified Improvements.
19. Parking. Tenant and Tenants employees, guests, vendors and invitees shall have full and
free access to the public parking within the Project. Tenant shall make a good faith effort to secure
offsite parking for its employees. City shall make a good faith effort to secure offsite parking for
Tenant's employees. Tenant shall have a first right of refusal to access up to seventy-five (75)
parking spots in any future City parking garage within the Project or elsewhere contiguous or near
to the Property or Project. Tenant shall be responsible for the reasonable costs associated with such
parking spaces. City shall assist Tenant in dedicating a minimum of two (2) parking spaces on the
Property for the use of private drop-off and pick-up transportation such as taxi, Uber or Lyft
services or for its employees.
20. Subleases Permitted by Approval. Subject to the other terms and conditions of this Lease,
Tenant has the right to enter into Subleases at any time during the Lease Term upon commercially
reasonable terms and conditions if such Sublease is approved by the city. Tenant shall submit to
City, in writing, such information as City may reasonably require, including, but not limited to (i) the
name of the Proposed Transaction Party, (ii) current financial statements, if any, available to Tenant
disclosing the financial condition of the Proposed Transaction Party, (iii) the nature of the business of
the Proposed Transaction Party, and its proposed use of the Premises (any assignment or subletting
being subject to restrictions on use contained in this Lease), and (iv) the proposed commencement
date of the Occupancy Transaction, together with a copy of the proposed documentation relating
thereto.
20.1 Structuring of Subleases. No Sublease may be structured in a manner to reduce
the Percentage Rent payable to the City.
20.2 Tenant to Comply with Subleases. Tenant covenants that it will perform and
observe all the terms, covenants, conditions, and agreements that Tenant is required to perform
and observe under each Sublease, unless Tenant has been released from performance under the
Lease Terms, which release shall not be unreasonably withheld. In addition, Tenant agrees to use
commercially reasonable efforts to require each Subtenant to perform all of the obligations
imposed by the applicable Sublease.
20.3 Sublease Requirements.
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20.3.1 Require the Subtenant to comply with all the terms, covenants, conditions
and restrictions of this Lease applicable to Tenant.
20.3.2 Require the Subtenant to remain in continuous operation throughout the
term of its Sublease.
20.3.2 Include a statement that the sublease of the Parcel to Subtenant will
provide a benefit to the public at large.
21. Leasehold Mortgages. Provided Tenant is not in default of this Lease, it shall have the
right, without the consent or approval of City, to encumber Tenant's leasehold interest under this
Lease to secure repayment of any loan made to Tenant by a Lender, provided that any such
mortgage shall be subject to the provisions of this Lease. For clarification, the Tenant is self -
funding the hard and soft costs of constructing the initial Improvements upon the Property, but in
the future may seek financing for maintenance or other improvements it may deem necessary for
the operation of the Permitted Use upon the Property.
If Tenant shall have executed and delivered a Leasehold Mortgage and the holder thereof
("Leasehold Mortgagee") shall have notified City of such Leasehold Mortgage by providing its
name and address:
(a) City shall, in the manner provided for herein for the giving of notices, give notice to
such Leasehold Mortgagee of each notice of default given to Tenant under this Lease.
(b) Tenant will represent, warrant, and covenant to the City that the fee simple title to the
Property shall at all times be free and clear of all liens, claims and encumbrances
created by or through Tenant; provided, however, that the Tenant shall be entitled to
encumber the leasehold estate or the Tenant's interest in the Improvements. If any lien
or notice of lien shall be filed against the fee simple title of the Property created by or
through Tenant (other than those created or consented to by City), the Tenant shall,
within thirty (30) calendar days after notice of the filing thereof, cause the same to be
discharged of record by payment, deposit, bond, or order of a court of competent
jurisdiction. Tenant shall not be deemed to be City's agent so as to confer upon any
contractor or subcontractor providing labor or services that are material to the Property
(whether in connection with Tenant's Improvements or otherwise) a construction lien,
mechanic's lien or both against City'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 to be recorded in the Public Records of Broward County
in accordance with Chapters 255 and 713, Florida Statutes. Such Leasehold Mortgagee
shall have the right, for a period of sixty (60) calendar days more than is given to
Tenant, to remedy or cause to be remedied any default which is the basis of a notice
and City shall accept performance by such Leasehold Mortgagee as performance by
Tenant.
(c) In case of default by Tenant under this Lease, other than a default in the payment of
money or a default susceptible of being cured by the payment of a sum of money, City
shall take no action to effect a termination of this Lease by service of a notice or
otherwise, without first giving to such Leasehold Mortgagee prior written notice and
such time as the Leasehold Mortgagee reasonably requires to cure such default, not to
exceed one (1) year, within which either: (i) to obtain possession of the Property and
the Improvements (including possession by a receiver) and to cure such default when
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such Leasehold Mortgagee has either obtained possession of the Property and the
Improvements or has the right and ability to cure same (acting reasonably); or (ii) to
institute and complete foreclosure proceedings or otherwise acquire Tenant's leasehold
estate under this Lease and cure upon obtaining possession.
(d) The provisions of this subdivision are conditioned on the following:
(i) The Leasehold Mortgagee shall not be an Affiliate of Tenant.
(ii) If the Leasehold Mortgagee is an Institutional Lender and within the thirty (30)
calendar day period referred to in subdivision 2, it shall:
(iii) notify City of its election to proceed with due diligence promptly to acquire
possession of the Property and the Improvements; or to foreclose the Leasehold Mortgage;
or otherwise cure or extinguish Tenant's interest in this Lease; and
(iv) deliver to City an instrument in writing duly executed and acknowledged
wherein the holder of the Leasehold Mortgage agrees that during the period that such
holder shall be in possession of the Property and the Improvements and/or during the
pendency of any such foreclosure or other proceedings (which shall be prosecuted
diligently) and until the interest of Tenant in this Lease shall terminate, as the case may
be, it will cause to be paid to City all Rent and other sums then due (including past due)
and from time to time becoming due under this Lease; and;
(v) if delivery of possession of the Property and the Improvements shall be made
to such Leasehold Mortgagee (or to its nominee), whether voluntarily or pursuant to any
foreclosure or other proceedings or otherwise, such holder shall, promptly following such
delivery of possession, perform or cause such nominee to perform, as the case may be, all
the covenants and agreements herein contained on Tenant's part to be performed to the
extent that Tenant shall have failed to perform the same to the date of delivery of
possession, as aforesaid.
(e) Upon such extinguishment of Tenant's interest in this Lease and such performance by
such holder or such nominee, or by any purchaser of this Lease pursuant to any foreclosure
proceeding, City's right to serve a notice of election to end the term of this Lease based upon any
default which is not within the power of such holder or its nominee or such purchaser to perform
shall be deemed to be and shall be waived as to such Leasehold Mortgagee (its successors or
assigns), but City reserves its rights against the original Tenant. Nothing herein contained shall
affect the right of City, upon the subsequent occurrence of any default by Tenant, to exercise any
right or remedy herein reserved to City, subject to the rights of the Leasehold Mortgagee under
this Section with respect to such default.
(f) City, without prior written consent of the Leasehold Mortgagee, shall not (I) consent to
or accept any voluntary cancellation, termination or surrender of this Lease, whereby City shall
have the right to accept any such cancellation, termination or surrender of this Lease, or (II) amend
this Section or otherwise materially amend or modify this Lease. Additionally, in the event that
the Lease is terminated by result of any action (including rejection of the Lease in any bankruptcy
proceeding) other than as provided for herein, and if Leasehold Mortgagee shall not have been
provided with the opportunity to cure a default and acquire the Tenant's leasehold interest in
accordance with subdivisions (a) or (B) above, then in that event City shall give Leasehold
Mortgagee notice of such event and Leasehold Mortgagee shall have thirty (30) calendar business
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days from its receipt of such notice in which to enter in to a new lease with the City on the same
terms and conditions of this Lease, for a term which is co -terminus with the Term of this Lease.
22. Events of Tenant Default/City's Remedies for Tenant's Default. If a Tenant Event of
Default occurs, the City is entitled to seek all legal and equitable remedies available under Florida
law. The following events shall be considered Events of Default are:
(a) Tenant shall voluntarily abandon the Property or discontinue its restaurant business
operations on the Property for a period of thirty (30) consecutive calendar days, other than
as a result of casualty, condemnation, Force Majeure, or other events out of the control of
the Tenant. This provision shall not apply to periods of time wherein the Tenant is
performing renovations, brand refreshment or other necessary maintenance (`work" to the
Property wherein it is not possible to operate as a restaurant or for the public safety during
such work as herein described for the period of sixty (60) days. However, if Tenant is not
able to complete said work within sixty (60) days but has in good faith pursued
performance, said time to complete the work shall be extended for periods of thirty (30)
days until Tenant has completed the work; or
(b) Any lien, claim or other encumbrance which is filed against the City's fee simple title to
the Property (other than that created by or through City) is not removed or otherwise cured
or not considered a non -cured Default by any provisions of this Lease, within thirty (30)
calendar days after the Tenant has received notice thereof, or
(c) The Tenant shall fail to pay the Rent when due to the City and Tenant shall continue in its
failure to make any such payments for a period of ten (10) calendar days after written
notice is given to make such payments; or
(d) The Tenant shall fail to make any other payment required hereunder when due to the City
and shall continue in its failure to make any such other payments required hereunder for
a period of ten (10) calendar days after written notice is given to make such payments; or
(e) The Tenant shall fail to keep, perform and observe each and every nonmonetary promise,
covenant and term set forth in this Lease on its part to be kept, performed or observed
within thirty (30) calendar days after receipt of written notice of default thereunder,
provided that if such default cannot reasonably be cured within thirty (30) calendar day
period and Tenant shall have commenced to cure such default within such thirty (30)
calendar day period and thereafter diligently, continuously and expeditiously proceeds to
cure same, such thirty (30) calendar day period shall be extended for so long as it shall
require Tenant in the exercise of due diligence to cure such default; or
(f) To the extent permitted by law, if Tenant makes an assignment for the benefit of creditors;
or
(g) To the extent permitted by law, if 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 ninety (90) calendar days or if
Tenant files any petition or answer seeking, consenting to or acquiescing in any
reorganization, arrangement, composition, re -adjustment, liquidation, dissolution or
similar relief under the Bankruptcy Code or any other present or future applicable federal,
state or other statute or law; or
(h) To the extent permitted by law, if within ninety (90) calendar days after the
commencement of any proceeding against Tenant seeking to have an order for relief
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entered against its as debtor or to adjudicate it a bankrupt or insolvent, or seeking any
reorganization, arrangement, composition, readjustment or adjustment, winding -up,
liquidation, dissolution or similar relief under the Bankruptcy Code or any other present
or future applicable federal, state or other statute or law of any jurisdiction, domestic or
foreign, such proceeding is not dismissed; or if, within ninety (90) calendar days after the
appointment, without the consent or acquiescence of Tenant, of any trustee, receiver,
custodian, assignee, sequestrator or liquidator of Tenant, or of all of any of the Property
or any interest of Tenant therein, such appointment is not vacated or stayed on appeal or
otherwise, or if, within thirty (30) calendar days after the expiration of any such stay, such
appointment if not vacated; or
(i) If Tenant intentionally or fraudulently misstates Gross Revenue for purposes of
calculation of the Percentage Rent.
23. Remedies.
23.1 Terminate this Lease by giving written notice to Tenant thereof, which termination
shall be effective upon the date specified in such notice as if such date were the date therein
definitely fixed for the expiration of the Tenancy. Anything contained herein to the contrary
notwithstanding, if such termination is stayed by order of any court having jurisdiction over any
proceeding described in any subsections of this Lease, or by federal or state statute, then following
the expiration of any such stay, or if the trustee appointed in any such proceeding, Tenant or
Tenant as debtor -in -possession fails to assume Tenant's obligations under this Lease within the
period prescribed therefor by law or within thirty (30) calendar days after entry of the order for
relief or as may be allowed by the court, City, to the extent permitted by law or by leave of the
court having jurisdiction over such proceeding, will have the right, at its election, to terminate
this Lease on five (5) calendar day notice to Tenant, Tenant as debtor -in -possession or said trustee
and upon the expiration of said five day period this Lease will expire and terminate, and Tenant,
Tenant as debtor -in -possession, said trustee or any of them will immediately quit and surrender
the Property as aforesaid. In the event of such termination, Tenant shall (1) have no further rights
under this Lease, (2) immediately quit and surrender the Property, (3) cease forthwith all
operations upon the Property, and (4) shall pay in full all Rent and other charges as set forth in
this Lease, then due and owing, through the date of such termination and Tenant shall be liable
for all reasonable and actual damages incurred by City in connection with Tenant's default or the
termination of this Lease upon such a default, including, without limitation, all direct, indirect,
consequential and all other damages whatsoever; provided, City shall not be entitled to punitive
damages. In no event, shall Tenant be entitled to receive any credit or payment with respect to the
value of the Property, title to which shall automatically vest in City upon such termination.
23.2 Terminate Tenant's right to occupy the Property and re-enter and take possession of
the Property (without terminating this Lease). In the event City elects to reenter or take possession
of the Property after Tenant's default, Tenant hereby waives notice of such re-entry or
repossession.
23.3 Enter upon the Property and perform any Tenant obligations under the terms of this
Lease with regard to the condition of the property upon surrender or expiration of the Lease, and
Tenant agrees to reimburse City upon inspection of any of the commercially reasonable expenses
which City may reasonably incur in effecting compliance with Tenant's obligations under this
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Lease, and, Tenant further agrees that City shall not be liable for any damages resulting to the
Tenant from such action unless said actions are deemed to be invalid or unlawful; and
23.4 Exercise all other remedies available to City at law or in equity, including, without
limitation, injunctive relief of all varieties.
23.5 City may, without prejudice to any other remedy which it may have for possession
or arrearages in rent, expel or remove Tenant and any other person who may be occupying said
Property or any part thereof upon satisfying all legal requirements to terminate the Lease upon an
event of Default in compliance with any provisions of the Lease that shall apply with respect to
the period from and after the giving of notice of such termination to Tenant.
23.6 The rights of termination described in this Section shall be in addition to any other
rights provided in this Lease and in addition to any rights and remedies that the City or Tenant
would have at law or in equity consequent upon any breach of this Lease (not cured within the
applicable cure period) and the exercise of any right of termination shall be without prejudice to
any other rights and remedies, subject to any limitations on such remedies otherwise set forth in
this Lease.
24. Habitual Default. Notwithstanding the foregoing, in the event the Tenant has defaulted in
the performance of or breached the same material obligation three (3) or more times in a twelve
(12) month period, and regardless of whether the Tenant has cured each individual condition of
breach or default, the Tenant may be determined by the City to be a "habitual violator. " For the
purposes hereof, a default by Tenant of any monetary obligation contained in this Lease shall be
deemed to be a default of Tenant of a material obligation. At the time that such determination is
made, the City shall issue to the 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 breaches or defaults of that particular material
obligation for the balance of such twelve (12) month period and that any subsequent breaches or
defaults of that particular material obligation for the balance of such twelve (12) month period,
taken with all previous breaches and defaults in such twelve (12) month period, shall be
considered cumulative and collectively, shall constitute a condition of non -curable default and
grounds for immediate termination of this Agreement. In the event of any such subsequent breach
or default of that particular material obligation for the balance of such twelve (12) month period
following the notice of the prior three (3) for which the Tenant has been deemed to be a habitual
violator, City may terminate this Agreement upon the giving of written notice of termination to
the Tenant, such termination to be effective upon delivery of the notice to the Tenant. Said
Termination shall provide that Tenant shall have thirty (30) calendar days to vacate and surrender
the Property. Notwithstanding whether Tenant is determined to be a "habitual violator", the
Leasehold Mortgagee will nonetheless retain all notice and cure rights it has (and would have),
as if Tenant had not been determined to be a "habitual violator".
24.1 No Waiver. No acceptance by the City of Rent, fees, charges or other payments in
whole or in part for any period or periods after a default of any of the terms, covenants and
conditions hereof to be performed, kept or observed by the Tenant shall be deemed a waiver of
any right on the part of the City to terminate this Lease, or to exercise any other available
remedies, unless such waiver is provided to Tenant in writing or written agreement..
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24.2 Failure by City or Tenant to enforce any provision of this Lease shall not be deemed
a waiver of such provision or modification of this Lease. A waiver of any breach of a provision
of this Lease shall not be deemed a waiver of any subsequent breach and shall not be construed
to be a modification of the terms of this Lease.
25. Termination of Lease/Surrender. If the City obtains the right to terminate this Lease,
Tenant shall quit and peaceably surrender to City the Property and the Improvements in a vacant,
broom swept and `as -is' condition.
25.1 The Tenant covenants and agrees to yield and deliver peaceably and promptly to
the City, possession of the Property, on the Termination Date or earlier termination of this Lease,
free and clear of all Subleases, liens and encumbrances. Tenant hereby waives any notice now or
hereafter required by law or statue with respect to vacating the Property on the Termination Date
or earlier termination of this Lease. Upon surrender, or upon the expiration or sooner termination
of the Term of this Lease, whichever occurs first, title to the Improvements will automatically vest
in City without any payment or allowance whatsoever by City, and without the necessity for the
execution and delivery by Tenant of any instrument transferring title. Notwithstanding the
foregoing, Tenant shall execute and deliver all documentation reasonably requested by City to
confirm the transfer of Tenant's interest in the Improvements and all permits and approvals,
relating to the ownership, use and operation of the Property to the City. The Tenant shall surrender
the Property in the condition required pursuant to this Lease. The Property shall be delivered in a
good and broom -swept condition prior to surrender. The Tenant shall deliver to the City all keys
to the Property upon surrender. On the Termination Date or earlier termination of this Lease,
Tenant shall deliver the following to City: all Occupancy Agreements then in effect, any service
and maintenance contracts and records, warranties and guarantees, if any, then affecting the
Property and any and all other documents of every kind and nature whatsoever relating to the
operation of the Property and the condition of the Improvements.
25.2 Termination of Tenant's Interest. Upon a termination of this Lease, all rights
and interest of Tenant in and to the Property and the Improvements will terminate.
25.3 Survival. A termination of the Lease will not release Tenant from its obligation
to indemnify City for any acts which occurred prior to the termination of the Lease, unless
otherwise agreed upon by City and Tenant or by judicial decree. Upon termination or expiration
of this Lease, the Tenant shall remain liable for all obligations and liabilities that have accrued
prior to the date of termination or expiration, unless relieved of such obligation or liability by
action of a court or rule of law.
25.4 City's Rights to Plans and Specifications. If this Lease is terminated after the
Lease Commencement Date but prior to the Completion Date of the Improvements upon the
Property, Tenant agrees that, to the extent assignable, the City is entitled to use the Plans,
specifications, designs, Governmental Approvals, permits and other work product produced by or
for Tenant or others for use in the development, construction, and operation of the Improvements.
City is entitled to use these documents without payment or further permission from either Tenant
or the professionals that created or prepared them.
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26. Default by the City
26.1 City's Failure to Perform. City will be in default under the Lease if the City fails
to perform any obligation or fulfill any covenant or agreement of the City set forth in the Lease,
and the failure continues for thirty (30) calendar business days following the City's receipt of
written notice of the non-performance.
26.2 Cure of City Default. The City will not be in default of this Lease if -
a) The City provides Tenant with a written response within the thirty (30) calendar day
period indicating the status of the City's resolution of the breach and providing for a
commercially reasonable schedule to correct same; or
b) With respect to any breach that is capable of being cured but that cannot reasonably
be cured within the thirty (30) calendar day period, if the City commences to cure the
breach within the thirty (30 calendar day period (or as soon thereafter as is reasonably
possible) and diligently continues to cure the breach until completion.
26.3 Habitual Defaulter by City. Notwithstanding the foregoing, in the event the City
has defaulted in the performance of or breached the same material obligation three (3) or more
times in a twelve (12) month period, and regardless of whether the City has cured each individual
condition of breach or default, the City may be determined by the Tenant to be a "habitual
violator." At the time that such determination is made, the Tenant shall issue to the City a written
notice advising of such determination and citing the circumstances therefor. Such notice shall also
advise City that there shall be no further notice or grace periods to correct any subsequent
breaches or defaults of that particular material obligation for the balance of such twelve (12)
month period and that any subsequent breaches or defaults of that particular material obligation
for the balance of such twelve (12) month period, taken with all previous breaches and defaults
in such twelve (12) month period, shall be considered cumulative and collectively, shall constitute
a condition of default and grounds for immediate termination of this Agreement. In the event of
any such subsequent breach or default of that particular material obligation for the balance of such
twelve (12) month period following the notice of the prior three (3) for which the City has been
deemed to be a habitual violator, Tenant may terminate this Agreement upon the giving of written
notice of termination to the City, such termination to be effective upon delivery of the notice to
the City. Said Termination shall provide that Tenant shall have thirty (30) calendar days to vacate
and surrender the Property. Nothing in this section shall require Tenant to terminate the Lease,
but that Tenant shall have the ability to self-help to cure the breach by the City and receive either
a credit against any rent currently or owing in the future or submit an invoice for payment to the
City which shall be paid within thirty calendar (30) days of receipt of same by the City.
26.4 Tenant's Remedies for City's Default. If a City Event of Default occurs, the
Tenant shall be entitled to seek all legal and equitable remedies available under Florida law.
27. Holdover: It is agreed and understood that any holdover of Tenant after the termination of
the Lease shall not renew and extend same but shall operate and be construed as a license from
month to month. At the option of the Landlord, upon written notice to Tenant, Tenant shall be
required to pay the Landlord during any holdover period, monthly license fees which shall be equal
of one and one (1 & 1/2) the amount of the monthly installment of rent that was due and payable
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for the month immediately preceding the termination date of the lease, or any extension. 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 such holding over against the Landlord's will after 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 payment by Landlord in the event the Tenant
fails or refuses to surrender possession shall not operate or give Tenant any right to remain in in
possession nor shall it constitute a waiver by Landlord of its rights to immediate possession of the
premises.
28. Force Majeure. Under any and all provisions of this Lease, neither the City nor Tenant, as
the case may be, will be considered in breach of or in default of any of their respective non -
monetary and monetary obligations under the Lease as a result of an unavoidable delay due to
strikes, lockouts, acts of God, inability to obtain labor or materials, riot, war, hurricane, tornado,
weather related events or conditions, pandemics, epidemics, shutdowns due to government
restrictions, utility company delays, or other similar causes beyond the commercially reasonable
control of a party (in each case, an event of "Force Majeure"). Upon the occurrence of a Force
Majeure, the applicable time -period will be extended for each day of the period of the Force
Majeure event.
29. Remedies Cumulative. Waiver. The rights and remedies of the parties to this Lease,
whether provided by law or by this Lease, are intended to be cumulative and concurrent. The
exercise by either party of any one or more of its remedies will not preclude the exercise by a party,
at the same or different times, of any other remedies for the same default or breach, or of any of
its remedies for any other default or breach by the other party. The waiver by a party of any default
or Event of Default under this Lease will not extend to or affect any other existing or subsequent
Event of Default, or impair any rights, powers, or remedies of a party in connection with any other
default or Event of Default. A party's delay or omission in exercising any right, power or remedy
will not be construed as a waiver of any default or Event of Default or constitute acquiescence to
the default.
30. City's Right to Cure Tenant Default. If Tenant defaults in the performance of any term,
covenant, or condition to be performed under the Lease, the City may, in its sole discretion, after
notice to the Tenant and after the expiration of the applicable cure periods (or without such notice
and cure in the event of an emergency), cure the default on behalf of the Tenant, at the expense of
Tenant.
31. Sums Paid by City to Cure Tenant Default. If the City, pursuant any term of this Lease
elects to pay on behalf of Tenant, any sum of money, or performs any act which requires the
payment of any sum of money or is compelled to incur any expense in the enforcement of its rights
under the Lease, such sums will be deemed Additional Rent and payable upon demand, unless
such payment by City was on the account of a disputed sum of money and the dispute was not yet
resolved.
32. Tenant's Duty to Keep Project Free of Liens.
32.1 Property Not Subject to Liens. In accordance with Section 713.10 of the Florida
Statutes, any and all liens or lien rights arising out of the construction of the Improvements extend
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only to Tenant's Leasehold Interest in the Property. The City's right, title and interest in the
Property are not subject to liens or claims of liens for improvements made by Tenant.
32.2 Nothing contained in the Lease shall be deemed or construed to constitute the
consent or request of the City, either express or implied, to any contractor, subcontractor, laborer,
or materialman for the performance of any labor or the furnishing of any materials for any specific
improvement of, alteration to, or repair of any portion of the Property.
32.3 Nothing contained in the Lease shall be deemed or construed to give Tenant, any
Lender, lessee, or sublessee any right, power or authority to contract for, or permit the rendering
of, any services or the furnishing of materials that would give rise to the filing of any lien,
mortgage or other encumbrance against City's interest in all or any part of the Property, or against
assets of the City, or City's interest in any Rent and other monetary obligations of Tenant
described in this Lease.
33. Tenant's Construction Agreements. Any construction agreements entered into
between Tenant and a general contractor or other contractor in privity with the Tenant must provide
that City will not be liable for any work performed or to be performed at the Property for Tenant,
Lender, Subtenant or for any materials furnished or to be furnished to the Property for Tenant, or
any Lender.
34. No Liens on City's Interest. No mechanic, laborer, vendor, materialman or other similar
statutory liens for such work or materials will attach to or affect City's interest in all or any part of
the Property, or any asset of the City, or the City's interest in any Rent or other monetary
obligations of Tenant arising under the Lease.
35. Contesting Liens. If Tenant desires to contest any lien, Tenant must notify the City of its
intention to do so within thirty (30) days after the filing of the lien. Tenant, at its sole cost and
expense, will protect the City by transferring the lien to bond in accordance with Section 713.24
of the Florida Statutes within thirty (30) days after the filing of the lien.
35.1 The lien will not constitute a Tenant Event of Default under the Lease if Tenant
timely provides the bond described above. If the lien is determined to be valid, Tenant must satisfy
and discharge the lien within thirty (30) days after its validity is determined.
35.2 In the event Tenant contests any lien, Tenant shall protect and indemnify the City
against all loss, expense and damage resulting from the lien contest, in accordance with the
indemnification provisions of this Lease.
36. City Liens. City will not take any action that could result in a lien against Tenant's
Leasehold Interest in the Property.
37. Indemnification.
37.1 Tenant to Indemnify City. Unless due to the negligence or misconduct of the
City, Tenant, on behalf of itself, subtenants, visitors, trespassers, licensees, invitees, guests or
persons performing work or using, visiting or occupying the Property, hereby agrees and covenants
to indemnify, defend and save harmless the City from and against any and all claims, actions,
damages, liabilities, losses, costs and expenses, including without limitation, Attorneys' Fees
(collectively, "Losses") to the fullest extent permitted by law, arising in connection with the
subject matter of this Lease, including, without limitation, indemnification for:
a) Tenant's default, breach, violation or non-performance of any provision of this Lease.
b) Tenant's use and operation of all or any portion of the Property during the Term.
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c) Tenant's negligent acts or omissions. Any challenge to the validity of this Lease by a
third party through legal proceedings or otherwise, other than a challenge arising by,
through or under the City's fee interest in the Property.
37.2 Indemnification from General Contractor. Tenant covenants and agrees that
any contracts for the Work entered into by Tenant and a general contractor or other contractor in
privity with Tenant will include the indemnities required by this Lease from the general contractor
or other contractor in privity with Tenant in favor of Tenant and the City.
37.3 Tenant Liability Not Limited By Insurance. The liability of Tenant under this
Lease will not be limited in any way to the amount of proceeds recovered under the policies of
insurance required to be maintained pursuant to the terms of this Lease.
38. City's Tort Liability. Unless due to negligence or misconduct by City, its employees,
agents and contractors, any tort liability to which the City is exposed under this Lease will be
limited to the extent permitted by applicable law and subject to the provisions and monetary
limitations of Section 768.28, Florida Statutes, as may be amended, which statutory limitations
will be applied as if the parties had not entered into this Lease. The City expressly does not waive
any of its rights and immunities under applicable law except as hereinabove set out. The City shall
indemnify and hold Tenant harmless for any costs and Losses in any action or claim to which it is
named as a party due to the negligence of the City or its agents and employees, including without
limitation, Attorneys' Fees.
39. Environmental Matters.
39.1 Defined Terms for Purposes of this Section.
39.2 Environmental Condition means any set of physical circumstances in, on, under,
or affecting the Property that may constitute a threat to or endangerment of health, safety,
property, or the environment, including but not limited to:
a) The presence of any hazardous Substance, except in such quantities and
concentrations as are routinely found in nature or in products used in ordinary
business or commercial activities;
b) Any underground storage tanks, as defined in Subtitle I of the Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. 6991 et. seq., or the regulations
thereunder, for the storage of hazardous wastes, oil, petroleum products, or their
byproducts;
c) Any PCB, asbestos or any other substances specifically regulated under the
Toxic Substances Control Act, 15 U.S.C. 2601 or regulations issued thereunder;
and
d) Any open dump or system of refuse disposal for public use without a permit, as
prohibited by 42 U.S.C. 6945 and/or Florida law equivalent, or the regulations
issued thereunder.
39.3 Environmental Laws means the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et. seq., the Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et. seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et. seq.; the Clean
Water Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et. seq.; the Oil Pollution
Act, 33 U.S.C. 2701 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et. seq.;
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the Refuse Act of 1989, 33 U.S.C. 407; the Occupational Safety and Health Act, 29 U.S.C. 651 et.
seq., as such laws have been amended or supplemented from time to time, the regulations
promulgated under these laws; and any analogous Governmental Requirements.
39.4 Environmental Requirements means all present and future Governmental
Requirements, including without limitation, the Environmental Laws, authorizations, judgments,
decrees, concessions, grants, orders, agreements or other restrictions or requirements relating to
any Environmental Conditions or any Hazardous Substances on the Property.
39.5 Hazardous Substance means any substances or materials identified to be toxic or
hazardous according to any of the Environmental Laws, including without limitation, any asbestos,
PCB, radioactive substances, methane, volatile hydrocarbons, acids, pesticides, paints, petroleum
based products, lead, cyanide, DDT, printing inks, industrial solvents or any other material or
substance that has in the past or could presently or at any time in the future cause or constitute a
health, safety or other environmental hazard to any person or property. The term Hazardous
Substances includes hazardous wastes, hazardous substances, extremely hazardous substances,
hazardous materials, toxic substances, toxic chemicals, oil, petroleum products and their by-
products, and pollutants or contaminants as those terms are defined in the Environmental Laws.
39.6 Environmental Permit means any Governmental Approval required under any
Environmental Law in connection with the ownership, use or operation of the Property for the
storage, treatment, generation, transportation, processing, handling, production or disposal of
Hazardous Substances, or the sale, transfer or conveyance of the Property, and all supporting
documentation thereof.
39.7 Environmental Claim means any accusation, allegation, notice of violation, claim,
demand, abatement or other order or direction (conditional or otherwise) by any Governmental
Authority or any person for personal injury (including without limitation, sickness, disease, or
death), tangible or intangible property damage, damage to the environment, nuisance, pollution,
contamination or other adverse effects on the environment, or for fines, penalties, or restrictions,
resulting from or based upon:
a) The existence or release, or continuation of any existence of a release (including
without limitation, sudden or non -sudden, accidental or non -accidental leaks or spills) of,
or exposure to, any substance, chemical, material, pollutant, contaminant, or audible noise
or other release or emission in, into or onto the environment (including without limitation,
the air, ground, water or any surface) at, in, by, from or related to the Property; or
b) The environmental aspects of the transportation, storage, treatment or disposal of
materials in connection with the activities on the Leased Property; or
c) The violation, or alleged violation, of any Governmental Requirements relating to
Environmental Requirements on the Leased Property; but excluding any of violations
arising solely from the intentional actions of the City and its agents.
39.8 Corrective Action Work means any and all activities of removal, response,
investigation, testing, analysis, remediation taken to:
a) Prevent, abate or correct an existing or threatened Environmental Condition at, about,
affecting, or affected by the Property; or
b) Comply with all applicable Environmental Requirements.
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39.9 Environmental Indemnification. Tenant covenants and agrees, at its sole cost
and expense, to defend (with counsel selected by Tenant, after consulting with the City), indemnify
and hold harmless the City, its successors, and assigns from and against any and all Environmental
Claims, whether meritorious or not, brought against the City by any Governmental Authority
resulting from acts of the Tenant:
This indemnity includes, without limitation, indemnification against: all costs of removal,
response, investigation, or remediation of any kind; all costs of disposal of such Hazardous
Substances as necessary to comply with Environmental Laws; all costs associated with any
Corrective Action Work; all costs associated with claims for damages to persons, property, or
natural resources; any loss from diminution in the value of the Property; and the City's Attorneys'
Fees, consultants' fees, court costs and expenses incurred in connection with any Environmental
Claims brought against the City.
(a) Tenant's indemnification of City is only for Environmental Claims which arise out of
or are caused by actions or events occurring after the Effective Date of the Property
Lease.
(b) This indemnification is to be interpreted as broadly as possible and is in addition to all
other rights of the City under this Lease.
(c) Payments by Tenant under the Environmental Indemnification will not reduce
Tenant's obligations and liabilities under any other provision of this Lease.
(d) Neither the Tenant nor the general contractor, nor any other contractor in privity with
Tenant, has a duty to indemnify the City in connection with any Environmental Claims
that are due to the negligent conduct of the City or its agents.
40. No Warranty by City. City makes no representations or warranties whatsoever as to the
existence of any pollutants, or hydrocarbons contamination, hazardous materials, or other
contaminants or regulated materials (collectively, "Materials") on or in the Property or the
Improvements whether or not in violation of any federal, state, county or municipal law,
administrative code provision, ordinance, rule or regulation, as amended, or in violation of any
order or directive of any federal, state or local court or entity with jurisdiction of such matter. It
shall be the sole responsibility of Tenant to make sufficient inspection of the Property to satisfy
itself as to the presence or absence of any Materials.
41. Compliance. Tenant agrees to comply with all existing and future federal, state, county, and
municipal environmental laws, administrative code provisions, ordinances, rules and regulations,
and the requirements of any development order covering the Property issued pursuant to Chapter
380, Florida Statutes, all as may be amended, including without limitation those addressing the
following: Proper use, disposal and treatment of storm water runoff that is not the responsibility
of the City or failure of the City's infrastructure, including the construction and installation of
adequate pre-treatment devices or mechanisms on the Property, if applicable; and proposer use of
gas or oil storage containers, and grease traps.
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42. Compliance. Tenant agrees to comply with all existing and future federal, state, county, and
municipal environmental laws, administrative code provisions, ordinances, rules and regulations,
and the requirements of any development order covering the Property issued pursuant to Chapter
380, Florida Statutes, all as may be amended.
43. Clean Up. The release of any Materials on the Property, or as a result of any operations at the
Property that is in an amount that is in violation of any federal, state, county, municipal law,
administrative code provision, ordinance, rule or regulation, as amended, or in violation of an
order or directive of any Governmental Authority, shall be, at the Tenant's expense, and upon
demand of City or any local, state, or federal regulatory agency or other Governmental Authority,
immediately contained or removed to meet the requirements of applicable environmental laws,
rules and regulations. If Tenant does not take reasonable action promptly [need to accommodate
for the lack of timely response and action by any agency to which we need to work with] to have
such Materials contained, removed and abated to the extent required by law, the City may upon
reasonable notice to Tenant (which notice shall be written unless an emergency condition exists)
undertake the removal of the Materials; however, any such action by the City or any of its agencies
shall not relieve the Tenant of its obligations under this or any other provision of this Lease or as
imposed by law. No action taken by either the Tenant or the City to contain or remove Materials,
or to abate a release, whether such action is taken voluntarily or not, shall be construed as an
admission of liability as to the source of or the person who caused the pollution or its release.
44. Notice of Release. Tenant shall provide the City with notice of releases of Materials
occurring at the Property or on account of the operations at the Property. Tenant shall maintain a
log of all such notices to the City and shall also maintain all records required by federal, state and
local laws, rules and regulations and also such records as are reasonably necessary to adequately
assess environmental compliance in accordance with applicable laws, rules and regulations.
As required by law, Tenant shall provide the federal, state and local regulatory agencies with
notice of spills, releases, leaks or discharges (collectively, "release") of Materials on the Property
which exceeds an amount required to be reported to any local, state or federal regulatory agency
under applicable environmental laws, rules and regulations, which notice shall be in accordance
with applicable environmental laws, rules and regulations. Tenant shall further provide the City
and the Broward County Department of Natural Resource Protection (or successor agency) with
written notice of not less than one (1) business day following commencement of same, of the
curative measures, remediation efforts and/or monitoring activities to be conducted on the
Property. Tenant shall have an updated contingency plan in effect relating to such releases which
provide minimum standards and procedures for storage of regulated Materials and other
Materials, prevention and containment of spills and releases, and transfer and disposal of
regulated Materials and other Materials. The contingency plan shall describe design features,
response actions, and procedures to be followed in case of releases or other accidents involving
hazardous Materials, bio-hazardous Materials or petroleum products or other Materials.
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45. Documents and Inspection. The City, upon reasonable written notice to Tenant, shall have
the right to inspect all documents relating to the environmental condition of the Property which
are in Tenant's possession or control, including without limitation, the release of Materials at
the Property, or any curative, remediation, or monitoring efforts, and any documents required
to be maintained under applicable environmental laws, rules and regulations or any development
order issued to the City pertaining to the Property, pursuant to Chapter 380, Florida Statutes,
including, but not to, manifests evidencing proper transportation and disposal of Materials,
environmental site assessments, and sampling and test results. Tenant agrees to allow reasonable
inspection of the Property by appropriate federal, state, county and municipal agency personnel
in accordance with applicable environmental laws, rules and regulations and as required by any
development order issued to the City pertaining to the Property, pursuant to Chapter 380, Florida
Statutes.
46. Cure. If Tenant is in default of its obligation to remove the Materials in violation of
applicable law and such breach is not cured within the applicable cure period, and the City
arranges for the removal of any Materials on the Property that were caused by the Tenant or the
officers, employees, contractors, subcontractors, invitees, or agents of Tenant, the costs of such
removal incurred by the City shall be paid by Tenant to the City within ten (10) calendar days
of City's written demand, with interest at the Default Rate.
47. Liability. The City shall cooperate with the Tenant with respect to Tenant's obligations
pursuant to these provisions, including making public records available to Tenant in accordance
with Florida law; provided, however, nothing herein shall be deemed to relieve Tenant of its
obligations hereunder or to create any affirmative duty of City 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 City codes, ordinances, rules and regulations, federal laws and
regulations, state and local laws and regulations, development orders and grant agreements. The
City and its employees, contractors, and agents, upon reasonable written notice to Tenant, and
the federal, state, local and other agencies, and their employees, contractors, and agents, at times
in accordance with applicable laws, rules and regulations, shall have the right to enter the
Property for the purposes of the foregoing activities and conducting such environmental
assessments (testing or sampling), inspections and audits as it deems appropriate.
48. Indemnity by Tenant.
48.1 Tenant shall, subject to the terms of this Lease, and unless due to the negligent acts
or omission of the City and its respective administrators, officers, officials, directors, agents, and
employees, at all times hereafter indemnify, hold harmless and defend City and its respective
administrators, officers, officials, directors, agents, and employees against any and all claims,
losses, liabilities, and expenditures of any kind, including reasonable attorneys' fees and costs at
both the trial and appellate levels, court costs, and expenses, caused by negligent act or omission
of Tenant, its employees, occupants, contractors, subcontractors, consultants, agents, servants, or
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officers, or accruing, resulting from, or related to Tenant's use of the Property, occupancy of the
Property or both or breach of Tenant's obligations under this Lease including, without limitation,
any and all claims, demands, or causes of action of any nature whatsoever resulting from injuries
or damages sustained by any person or property.
48.2 Subject to any provision stated in Section 29.1 herein, Tenant further agrees to pay
all fees, costs, and expenses in defending against any claims made against City with counsel
reasonably acceptable to City in connection with this Lease, recognizing that such counsel must
be competent and not have a conflict of interest in connection with the matter as reasonably
determined by City. In connection with any defense by Tenant, City shall have the right to consent
to any settlement of same; provided, that such consent shall not be unreasonably withheld. Tenant
and City shall give prompt and timely notice of any claim made or suit instituted which, in any
way, directly or indirectly, contingently, or otherwise, affects or might affect either party.
49. Indemnity by City.
49.1 City shall, subject to the terms of this Lease, and unless due to the negligent acts or
omission of the Tenant and its respective administrators, officers, officials, directors, agents, and
employees, at all times hereafter indemnify, hold harmless and defend Tenant and its respective
administrators, officers, officials, directors, agents, and employees against any and all claims,
losses, liabilities, and expenditures of any kind, including reasonable attorneys' fees and costs at
both the trial and appellate levels, court costs, and expenses, caused by negligent act or omission
of City, its employees, occupants, contractors, subcontractors, consultants, agents, servants, or
officers, or accruing, resulting from, or related to Tenant's use of the Property, occupancy of the
Property or both or breach of City's obligations under this Lease including, without limitation,
any and all claims, demands, or causes of action of any nature whatsoever resulting from injuries
or damages sustained by any person or property.
49.2 Subject to any provision stated in Section 29.1 herein or elsewhere in this Lease,
City further agrees to pay all fees, costs, and expenses in defending against any claims made
against Tenant with counsel reasonably acceptable to Tenant in connection with this Lease,
recognizing that such counsel must be competent and not have a conflict of interest in connection
with the matter as reasonably determined by Tenant. In connection with any defense by City,
Tenant shall have the right to consent to any settlement of same; provided, that such consent shall
not be unreasonably withheld. Tenant and City shall give prompt and timely notice of any claim
made or suit instituted which, in any way, directly or indirectly, contingently, or otherwise, affects
or might affect either party.
49.3 The provisions of this Sections 48 and 49 of this Lease shall survive the expiration
or earlier termination of this Lease.
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50. Insurance. Prior to any activity by the Tenant on the Property, and during the Lease Term,
Tenant will be responsible for procuring and maintaining the insurance required by this Lease, at
Tenant's sole cost and expense. In addition, Tenant will ensure that its general contractor
maintains the applicable insurance coverages set forth in this Lease, unless waived or modified by
the City. The City of Dania Beach shall be an Additional Insured on all policies.
50.1 General Insurance Provisions.
50.1.1 All companies authorized to do business in the State of Florida shall issue all
insurance policies required. City reserves the right but not the obligation to reject any
insurer providing coverage due to poor or deteriorating financial condition.
50.1.2 All insurers must maintain an AM Best rating of A or better.
50.1.3 The terms and conditions of all policies may not be less restrictive than those
contained in the most recent edition of the policy forms issued by the
Insurance Services Office (ISO) or the National Council on Compensation
Insurance (NCCI). If ISO or NCCI issues new policy forms during the policy
term of the required insurance, Tenant will not be required to comply with
the new policy forms until the expiration date of the insurance policy affected
by the change.
50.1.4 Tenant's insurance policies will be primary over any and all insurance
available to the City, whether purchased or not, and must be non-
contributory.
50.1.5 The Tenant, its general contractor, and its Subtenants will be solely
responsible for payment of all deductibles and retentions contained in their
respective insurance policies. The City will be included as an "Additional
Insured" on the Commercial General Liability policy and any Liquor
Liability and Umbrella Liability policies, if applicable. The City will also be
named as "Loss Payee" on all of Tenant's Property Insurance policies.
50.1.6 Tenant will ensure that each insurance policy obtained by it waives all right
of recovery by way of subrogation against the City in connection with any
damage covered by any policy.
50.1.7 Safety: Loss control shall always be exercised by the Contractor for the
protection of all persons, employees, and property. Any hazardous
conditions must be promptly identified, reported, and action taken to mitigate
as soon as possible.
50.1.8 Claims: Notice of claims/accidents/incidents associated with this agreement
shall be reported to the Contractor's insurance company and to the City's Risk
Management department as soon as practical.
50.1.9 Premiums, Deductibles, Co -Insurance: The Contractor has the sole
responsibility for all insurance premiums and shall be fully and solely
responsible for any costs or expenses as a result of a coverage deductible, co-
insurance penalty, or self -insured retention; including any loss not covered
because of the operation of such deductible, co-insurance penalty, self -
insured retention, or coverage exclusion or limitation.
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50.1.10 Subcontractors' Compliance: It is the responsibility of the contractor to
ensure that all subcontractors comply with all insurance requirements.
50.1.11 With respect to the insurance to be obtained, the Tenant shall provide to City
not less than ten (10) calendar days prior to commencement of the
Improvements at the Property, certificates of such applicable insurance
evidencing the insurance coverage as specified above. The required
certificates of insurance shall not only name the types of coverage provided,
but also shall refer specifically to this Lease with the type of insurance which
is being furnished and shall state that such insurance is as required by such
sections of this Lease. If the initial insurance expires prior to the completion
of the improvements, renewal certificates of insurance shall be furnished
thirty (30) 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 City, and must be endorsed to provide the same.
50.1.12 Notice of Cancellation, Non -Renewal, Material changes to Insurance
Coverage: Required insurance shall always be maintained during which the
vendor is on the Property. Prior to renewal, non -renewal, cancellation, or
change or modification of any insurance policy, at least thirty (30) calendar
days advance written notice shall be given to the City of Dania Beach. If the
insurance policies do not contain a notice of cancellation provision, it is the
responsibility of the vendor to provide such written notice.
50.1.13 Verification of Coverage: Proof of the required insurance coverages must be
furnished by Vendor to the City of Dania Beach Human Resources
Department by Certificate of Insurance within 10 calendar days of effective
date of the Lease for any coverages necessary as of such Effective Date. All
Certificates of Insurance (and any required documents) must be received and
approved by Human Resources before any work commences to permit
Vendor time to remedy any deficiencies.
50.1.14 The City of Dania Beach is to be specifically included on all certificates of
insurance (with exception to Workers Compensation and Professional
Liability) as a named additional insured. All certificates must be received
prior to commencement of service/work. In the event the insurance coverage
expires prior to the completion of this contract, a renewal certificate shall be
issued thirty (30) days prior to said expiration date.
50.1.15 Certificate Holder/Additional Insured: The Certificate of insurance shall
be made to the City of Dania Beach. Please reference a description of the
work to be performed and the contract/agreement number.
City of Dania Beach, HR/Risk Department
100 West Dania Beach Boulevard
Dania Beach, FL 33004
Certificate Submittal:
Email Certificates to: Lgonzalez@daniabeachfl.gov
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Or
Fax Certificates to HR/Risk Department: 954-924-6800
51. Evidence of Insurance During Lease Terms. Prior to taking possession of the Property,
and throughout the term of the Lease, Tenant must provide satisfactory evidence of the required
insurance to the City. Satisfactory evidence of insurance is either (a) a certificate of insurance, or
(b) a certified copy of the actual insurance policy. The City, at is sole option, may request a
certified copy of any or all insurance policies required by this Lease. Tenant acknowledges that
Tenant is the party responsible to the City for providing all insurance required by this Lease.
52. Required Coverages. The following insurance coverage must be maintained throughout
the term of the Lease.
52.1 Commercial General Liability Insurance. Tenant must maintain, or require its
Subtenants to maintain, Commercial General Liability Insurance. Coverage must include, as a
minimum: bodily injury and property damage liability. The minimum limits acceptable are
$2,000,000 per occurrence and $4,000,000 in the aggregate and shall include: Property/operations,
independent contractors, products, completed operations, broad form property damage, personal
and advertising injury, and contractual liability, specifically confirming and insuring the
indemnification and hold harmless clauses of this Agreement. The use of an excess/umbrella
liability policy to achieve the limits required by this paragraph will be acceptable if the terms and
conditions of the excess/umbrella policy are no less restrictive than the underlying Commercial
General Liability policy.
52.2 All Risk Property Insurance. Tenant must maintain, or require its Subtenant to
maintain, Property Coverage (Special Form), to cover the "All Other Perils" portion of the policy
at the Replacement Cost Valuation as determined by a certified property appraiser acceptable to
both the Tenant and the City. The perils of Windstorm and Flood shall carry sub limits to be
determined annually. City. To the extent available, coverage will extend to furniture, fixtures,
equipment and other personal property associated with the Property.
52.3 Business Interruption Insurance. During the term of this Lease, Tenant must
maintain Business Interruption coverage with limits equal to twelve (12) months of Tenant's
projected profits with the Property.
52.4 Workers' Compensation. Tenant must maintain, or require its Subtenant to maintain,
Workers' Compensation Insurance with limits sufficient to respond to Florida Statute §440. In
addition, the Tenant must obtain Employers' Liability Insurance with limits of not less than: (a)
$500,000 Bodily Injury by Accident, (b) $500,000 Bodily Injury by Disease, and (c) $500,000
Bodily Injury by Disease, each employee.
52.5 Liquor Liability Policy. If Liquor will be sold on the Property, Tenant must
obtain, or must require its Subtenant to obtain, a Liquor Liability Policy in an amount of not less
than $1,000,000 per occurrence and $2,000,000 in the aggregate annually. The Liquor Liability
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Policy must name the City as an additional insured. Tenant will be responsible for providing
evidence of the Liquor Liability Policy to the City.
52.6 Automobile: Tenant shall provide minimum limits of liability of $2,000,000.00 per
occurrence, combined single limit for bodily injury and property damage. The use of an
excess/umbrella liability policy to achieve the limits required by this paragraph will be acceptable
if the terms and conditions of the excess/umbrella policy are no less restrictive than the underlying
automobile policy. This shall include coverage for:
(a) Owned, Hired, and Non -Owned Automobiles (Symbol 1 coverage preferred); City of
Dania Beach as an Additional Insured.
(b) Furnishings and Fixtures: Tenant shall insure the Replacement Value of the building
including permanently installed equipment. Tenant's Improvements and Betterments, equipment
and Contents/Furnishings are the responsibility of the tenant to insure.
(c) Business Interruption. Tenant shall carry Business Interruption/Rental Loss for an
annual period to cover base rent, taxes, insurance and utility charges.
(d) Deficiencies. When such policies or certificates have been delivered by Tenant or City
as aforesaid and at any time thereafter, City may notify Tenant in writing that, in the reasonable
opinion of City the insurance represented thereby 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 the Tenant shall have thirty (30) calendar days to cure such defect to the extent
required pursuant to this Lease.
52.7 Review of Coverage. The aforesaid minimum limits of insurance shall be reviewed from
time to time by City (but no more frequently than every five (5) Lease Years) and may be
adjusted if City reasonably determines that such adjustments are necessary to protect City's
interest, provided such coverages shall not exceed the amount of coverage required at the
time of said review by similar quality projects in Broward County, Florida.
52.8 Coverage Required During Construction.
52.8.1 Builders Risk Insurance. During all construction activities conducted on the
Property, including modifications to existing buildings or structures on the Property that
impact the structural integrity of the buildings or structures, Tenant must carry Builders
Risk insurance, including the perils of wind and flood, with minimum limits equal to the
"Completed Value" of the Improvements being erected or the total value of the
modifications being made, including soft costs, with a deductible of no more than
$25,000.00, each claim, to the extent available. If such levels of coverage are not available,
Tenant must carry the full amount of such insurance currently available. Named
Windstorm Deductibles, if any, must be disclosed to the City. Coverage form shall include,
but not be limited to:
a) All Risk Coverage including Flood and Windstorm with no coinsurance clause
b) Storage and transport of materials, equipment, supplies of any kind whatsoever to
be used on or incidental to the project
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c) Equipment Breakdown to include cold testing of all mechanized, pressurized, or
electrical equipment
d) Coverage for materials or equipment stored at the project site, while in transit, or
while stored at a temporary location.
e) Replacement Cost basis
f) Policy shall insure the interests of the owner, contractor, and subcontractors in the
property against all risk of physical loss and damage and name the City as a LOSS
PAYEE.
g) Waiver of Occupancy Clause Endorsement, enabling occupation of the facility
under construction/renovation during the activity.
h) This insurance shall remain in effect until the work is completed and the property
has been accepted by the City.
52.8.2 Professional Liability. Tenant must ensure that Architects and Engineers Errors
and Omissions Liability insurance specific to the construction activities, and with respect
to acts, errors or omissions in connection with professional services such as architectural,
engineering, etc.) is obtained prior to the commencement of any construction activities on
the Property, including without limitation, the Work. If coverage is provided on a "Claims
Made" basis, the policy must provide for the reporting of claims for a period of two years
following the completion of all construction activities. The minimum limits acceptable
are $2,000,000 per occurrence and $4,000,000 in the aggregate annually.
52.8.3 Automobile. Minimum limits of liability of $2,000,000 each accident, combined
single limit for bodily injury and property damage with Symbol 1 coverage for owned,
hired and non -owned vehicles.
52.8.4 Umbrella. Umbrella/Excess coverage can be utilized to provide the required limits
for any required coverage if not more restrictive than the underlying insurance policy
coverages.
52.8.5 Contractors Pollution & Remediation Liability Insurance. Insurance shall
include bodily injury, property damage, defense and clean-up as a result of pollution
conditions arising from contractor's operations. This insurance shall be maintained for at
least one (1) year after completion of the construction and acceptance of any project
covered by this Lease with limits of not less than $1,000,000. If claims made coverage is
provided, the retroactive date must apply prior to contract inception.
52.8.6 Workers' Compensation: The Tenant, and its contractors shal provide and
maintain workers' compensation insurance for all employees in the full amount required
by the statute and in full compliance with the applicable laws of the state of Florida. Tenant
shall further ensure that all of its subcontractors maintain appropriate levels of workers'
compensation insurance. Workers' Compensation insurance is required for all persons
fulfilling this contract, whether employed, contracted, temporary or subcontracted.
52.8.7 Additional Insured. City of Dania Beach.
52.8.8 Premiums and Renewals. Tenant will be responsible that all premiums for the
insurance required by this Lease are paid they become due. Tenant must renew or replace
each policy prior to the policy expiration date, and promptly deliver to the City all original
Certificates of Insurance and copies of all renewal or replacement policies.
52.8.9 Adequacy of Insurance Coverage. The City has the unilateral right to periodically
review the adequacy of the insurance coverage required by this Lease. The City may
request a change in the insurance coverage if the requested change is commercially
reasonable, and the coverage requested is customary and commonly available for
properties similar in type, size, use and location to the Property and Improvements. Tenant
has the right to contest the request for a change in insurance if it deems that the request is
not commercially reasonable at the time of request.
52.8.10 Inadequacy of Insurance Proceeds. In the event that insurance proceeds are
not adequate to rebuild and restore damaged Improvements to their previous condition
before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is
the Tenant's failure to adequately insure the Improvements as required by this Lease,
Tenant must rebuild and restore the Improvements as required by this Lease and will be
responsible for payment of any costs of the rebuilding and restoration not covered by the
insurance proceeds.
52.8.11 Tenant Failure to Procure Insurance. If Tenant refuses, neglects or fails to
secure and maintain in full force and effect any or all of the insurance required by this
Lease, the City, at its option, may procure or renew such insurance. In that event, all sums
paid by the City for insurance will be treated as Additional Rent and will be payable by
Tenant to the City together with interest at the Default Rate from the date the sums were
paid by the City to the date of reimbursement by Tenant. Tenant must pay to City the
amounts paid by the City for insurance, together with accrued interest, within ten days after
written demand from City.
53. Loss or Damage. Any loss or damage to the Improvements by fire or other casualty at
any time will not operate to terminate this Lease or to relieve or discharge Tenant from the
performance and fulfillment of any of Tenant's obligations pursuant to this Lease, including
without limitation, the payment of Rent and the payment of any money to be treated as Additional
Rent, if any, as the same may become due and payable. The City's acceptance or approval of any
insurance agreement will not relieve or release or be construed to relieve or release Tenant from
any liability, duty or obligation set forth in this Lease.
54. Proof of Loss. If all or any part of the Improvements (including without limitation, any
personal property furnished or installed in the Improvements) is damaged or destroyed, Tenant
must promptly make proof of loss in accordance with the terms of the insurance policies and must
proceed promptly to collect all valid claims which may have arisen against insurers or others based
upon the damage or destruction. Tenant is required to give City written notice within forty-eight
(48) hours of any material damage or destruction. For purposes of this Section, "material damage
or destruction" means either (a) any casualty or other loss with a repair cost in excess of $500,000
or, (b) any casualty or other loss which will have a material adverse effect on the day-to-day
operations of the Property, regardless of the repair cost.
55. Payment of Insurance Proceeds. All sums payable for loss and damage arising out of
the casualties covered by the property insurance policies shall be payable:
55.1 Directly to Tenant, if the total recovery is equal to or less than $3,000,000 (as adjusted
for inflation over the Term), except that if a Tenant Event of Default has occurred and is continuing
37
under the Lease, the insurance proceeds, subject to the requirements of the Lender, will be paid
over to the City, which will apply the proceeds first to curing the Event of Default, and then to the
rebuilding, replacing and repairing of the Improvements. Any remaining proceeds shall be paid
over to Tenant subject to its obligations to the Lender.
55.2 To the Insurance Trustee, if the total recovery is in excess of $3,000,000 (as
adjusted for inflation over the Term), with the proceeds to be held by the Insurance Trustee for
disbursement to Tenant pending establishment of reconstruction, repair or replacement costs. If
there is a Leasehold Mortgage on the Property at the time insurance proceeds become payable, the
Lender having the highest lien priority will serve as the Insurance Trustee. If there is no Leasehold
Mortgage at that time, or if the Lender refuses to serve as Insurance Trustee, the Insurance Trustee
will be a commercial bank or trust company designated by Tenant and approved by the City, whose
approval will not be unreasonably withheld or delayed.
56. Insurance Proceeds for Reconstruction.
56.1 All insurance proceeds must be applied for the reconstruction, repair or replacement
of Improvements and the personal property of Tenant contained in the Improvements (the
"Reconstruction Work"). The Improvements and any personal property must be restored to a
condition comparable to the condition prior to the loss or damage.
56.2 The Insurance Trustee will disburse to the Tenant the amount of insurance proceeds
that are required for the Reconstruction Work. Tenant will submit invoices or proof of payment
to the Insurance Trustee for payment or reimbursement according to an agreed schedule of values
approved in advance by the City and Tenant.
56.3 If the City and Tenant do not agree on the schedule or values, they will arbitrate the
matter using the then -existing construction -related rules of the American Arbitration Association
in Broward County, Florida.
56.4 After the completion of the Reconstruction Work, any remaining insurance
proceeds will be paid to Tenant.
57. Commencement and Completion of Reconstruction. Tenant covenants and agrees to
commence the Reconstruction Work as soon as practicable, but in any event within three months
after the insurance proceeds for the destroyed or damaged Improvements have been received by
Tenant or the Insurance Trustee, and to fully complete the Reconstruction Work as expeditiously
as possible under the circumstances. With respect to any Reconstruction Work, Tenant must
comply with all the provisions of this Lease regarding renovation or alteration of the
Improvements.
58. Inadequacy of Insurance Proceeds. Tenant's liability under the Lease to timely
commence and complete restoration of any damaged or destroyed Improvements is absolute,
regardless of whether any insurance proceeds received are adequate to pay for the restoration.
59. Quiet Enjoyment; No Waste.
59.1 City's Covenant of Quite Enjoyment. City represents and warrants that Tenant,
upon paying the Rent, Additional Rent and other monetary obligations of this Lease and observing
and keeping the covenants and agreements of this Lease to be kept and performed by Tenant, will
lawfully and quietly hold, occupy and enjoy the Property during the Term without hindrance or
molestation by the City or by any person or persons claiming under the City. The City agrees to
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defend any suits or actions which may be brought by persons claiming by, through or under the
City, at City's own cost and expense, through the City Attorney's office or other counsel selected
by the City in its sole discretion.
Except for negligent or more culpable acts or omissions by the City, in no event will the
City be liable for, and Tenant expressly waives, any claim for damages of any kind whatsoever,
including without limitation, damages for loss of income, revenue, profit or value. Tenant has the
right to retain its own counsel in connection with such proceedings, at Tenant's sole cost and
expense. If the City is acting in its governmental capacity, any liability under this Section will only
be to the extent permitted by applicable law and subject to the provisions and monetary limitations
of Section 768.28, Florida Statutes, as may be amended, which statutory limitations will be applied
as if the parties had not entered into this Lease. City specifically reserves all statutory and common
law rights and immunities and nothing herein is intended to limit or waive same including, but not
limited to, the procedural and substantive provisions of Section 768.28, Florida Statutes and Section
95.11, Florida Statutes.
59.2 Waste. Tenant will not permit, commit or suffer waste or impairment of any
portion of the Project. Tenant shall maintain the property in good condition and shall take into
account and perform all preventative maintenance and general repairs necessary due to the
environmental conditions of being located on the oceanside in a climate such as south Florida.
60. Ownership of Improvements. Prior to the expiration or termination of this Lease, title
to the Improvements will remain in Tenant, and will not vest in the City by reason of its ownership
of fee simple title to the Property.
60.1 Ownership Upon Early Termination. If this Lease terminates prior to the
expiration of the Lease Term, based on a mutual agreement between the parties or a final order
from a court with jurisdiction, and if, at that time, any Lender exercises its option to obtain a new
lease for the remainder of the Lease Term in accordance with this Lease, title to the Improvements
will automatically pass to, vest in and belong to the Lender or any permitted designee or nominee
of the Lender, until the expiration or termination of the term of the new lease.
60.2 The City and Tenant covenant that, to confirm the automatic vesting of title as
provided in this Section, each will execute and deliver to the other such further assurances and
instruments of assignment and conveyance may be reasonably required by the other party for that
purpose.
60.3 Surrender of Leased Property. Upon the expiration of the Lease Term or the
earlier termination of this Lease by mutual agreement of the parties or a final order from a court
with jurisdiction, title to the Improvements, excepting all personal property and trade equipment
furnished or installed on the Property and owned or leased by Tenant, will automatically vest in
the City or its successor in ownership, free and clear of all debts, mortgages, encumbrances, and
liens. It shall be lawful for the City or its successor in ownership to re-enter and repossess the
Improvements without process of law.
60.4 The City and Tenant covenant that, to confirm the automatic vesting of title as
provided in this Section, each will execute and deliver such further assurances and instruments of
assignment and conveyance as may be reasonably required by the other for that purpose.
61. Maintenance, Operation and Management.
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61.1 Improvements. Tenant must at all times keep the Property in good and safe condition
and repair, reasonable wear and tear excepted. The Tenant will comply with all Governmental
Requirements applicable to the occupancy, maintenance and operation of the Property and shall
not commit Waste. .
61.2 Garbage. Tenant shall remove from the Property or otherwise dispose of all garbage,
debris and other waste materials (whether solid or liquid) arising out of the occupancy of the
Property or out of any operations conducted thereon in accordance with applicable law. Any of
such as may be temporarily stored in the open, shall be kept in suitable garbage and waste
receptacles. When effecting removal of all such waste, Tenant shall comply with all laws,
ordinances, rules, regulations and procedures of all applicable governmental authorities. Tenant
shall recycle glass, paper, and plastics and properly dispose of same. In no event shall tenant set
such items in the public areas or parking facilities, excepting tenant's own premises for disposal.
The City recognizes that during construction reasonable deviations from this Paragraph will be
required consistent with similar construction practices in Broward County, Florida.
61.3 Extermination: If the premises become infested with vermin or roaches, Tenant at
its sole cost and expense shall cause the premises to be exterminated from time to time, to the
satisfaction of the landlord.
61.4 Animals: Tenant shall not bring in or upon the parking facilities or the leasehold
premises, or keep in the premises any fowl, reptile or insects. Service animals and animals
permitted by city code or health department may be brought upon the property at the discretion of
the Tenant (ie-dogs in designated outdoor seating areas) or allow entry into the building any
bicycle (Tenant may have bike racks installed on the Premises for the use of its guests) or other
vehicle, except baby carriages or wheelchairs, without the prior written consent of the Landlord.
61.5 Waste. Tenant shall commit no legal nuisance, waste or injury on the Property and
shall not do or permit to be done anything which may result in the creation or commission or
maintenance of such material nuisance, waste or legal injury on the Property.
61.6 Odor. Tenant shall not create nor permit to be caused or created upon the Property
any obnoxious odors or smokes or noxious gases or vapors which would constitute a real nuisance
not incidental to a restaurant use; provided, however, that fumes resulting from the normal
maintenance operations of a Permitted Use during and under normal business operations shall be
excepted from this provision, unless same constitutes a legal nuisance or otherwise is prohibited
by applicable law.
61.7 Continuous Operation. Tenant acknowledges it is important to City that the Property
remains in full operation at all times. Tenant agrees to use best efforts to keep the Property in
continuous operation throughout the Lease Term, unless and except as otherwise set out in this
Lease.
61.8 Standards Generally. The City and Tenant agree that the manner in which the
Property is developed, operated and maintained is important to the City by reason of its interest in
having a destination dining facility for use by City residents and visitors to the City. Tenant
therefore agrees to develop, operate and maintain the Property and all other property and
equipment located on the Property consistent with commercial reasonableness.
62. Compliance with Governmental Requirements. Tenant shall comply with all applicable
federal, state, county, and municipal laws, ordinances, resolutions and governmental rules,
regulations and orders including the Americans with Disability Act as may be in effect now or at
any time during the Term of this Lease, all as may be amended, which are applicable to Tenant,
40
the Property, or the operations conducted at the Property. The obligation of the Tenant to comply
with governmental requirements is provided herein for the purpose of assuring proper safeguards
for the protection of persons and property on the Property. Such provision is not to be construed
as a submission by the City to the application to itself of such requirements or any of them.
63. Entry. The Tenant agrees to the extent required by applicable law, to permit reasonable entry,
inspection, and testing, upon reasonable advance notice during business hours (unless an
emergency exists), by inspectors of any federal, state, county and municipal agency having
jurisdiction under any law, rule, regulation, or order, applicable to the Property or the operations
at the Property. This right of entry, inspection and testing shall impose no duty on the City to take
any such action and shall impart no liability on the City should it not take any such action. The
City shall use reasonable efforts to minimize disruption to the operations being conducted upon
the Property. such party shall use reasonable efforts to minimize disruption to the operations being
conducted upon the Property.
64. Styrofoam/Plastic. Tenant shall comply with Sections 17-134 and 17-135 of the City's Code,
which prohibits the use of Styrofoam, polystyrene and polypropylene food and beverage service
articles, and precludes plastic straws.
65. Marine Turtle Lighting. Tenant shall comply with Section 5-18 of the City's Code relating
to Lighting requirements for marine turtle protection.
66. Maintenance And Repair.
66.1 Tenant shall throughout the Term assume the entire responsibility and shall relieve
the City from all responsibility for all repair, maintenance, replacements and capital
improvements whatsoever on the Property. Tenant, at its sole cost and expense, throughout the
Term, will take good care of the Property, and will put, keep and maintain the Property and the
contents therein or thereon in good and safe order and condition„ ordinary wear and tear excepted,
and make all repairs and maintenance therein and thereon, interior and exterior, structural and
nonstructural, ordinary and extraordinary, foreseen and unforeseen, necessary to keep the same
in good and safe order and condition, howsoever the necessity or desirability therefor may occur,
and whether or not necessitated by obsolescence or defects, latent or otherwise; provided,
however, that the foregoing exception for ordinary wear and tear shall in no event excuse Tenant's
obligation to make all " repairs" and maintain the Property as a restaurant or other Permitted Use
throughout the Term. Tenant will not commit or suffer, and will use all reasonable precautions to
prevent waste, damage or injury to the Property. When used in this Section , the term
"repairs" includes all necessary replacements, renewals, alterations and additions. All repairs
made by Tenant will be made in compliance with all applicable laws, regulations and rules of the
City, Broward County, Florida and all other Governmental Authorities.
66.2 Tenant, at its sole cost and expense, also will keep clean and free from dirt,
accumulations of standing water, rubbish, obstructions and encumbrances, the sidewalks,
grounds, parking facilities, yacht basin, areas, chutes, alleys, and curbs comprising, in front of or
adjacent to, the Property.
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66.3 Unless caused by the acts of the City, City will have no duty or obligation to make
any alteration, change, improvement, replacement, restoration or repair to or on, or to demolish,
any Improvement. Tenant assumes the full and sole responsibility for the condition, operation,
repair, alteration, improvement, replacement, maintenance and management of the Property.
67. Damage To Or Destruction Of Property.
67.1 Removal of Debris. If the Improvements or any part thereof shall be damaged by fire,
the elements, or other casualty, Tenant shall promptly and as is commercially reasonable, remove,
or cause to be promptly removed, all debris resulting from such damage from the Property, and
Tenant shall promptly take such actions and cause such repairs to be made to the Property as will
place the Property in a neat and orderly condition and as are necessary for the safety of persons
entering upon the Property. To the extent, if any, that the removal of debris under such
circumstances is covered by Tenant' s insurance, the proceeds thereof shall be paid to Tenant for
such purpose.
67.2 Damage or Destruction to the Property. If all or any part of any of the
Improvements are destroyed or damaged in whole or in part by fire or other casualty (including
any casualty for which insurance was not obtained or obtainable) of any kind of nature, ordinary
or extraordinary, foreseen or unforeseen, Tenant will give to City prompt notice thereof, and
Tenant, whether or not each and every mortgagee holding a mortgage encumbering Tenant's
leasehold interest in the Property permits insurance proceeds to be used for such repairs,
alterations, restorations, replacements and rebuilding (collectively, "Restoration"), as promptly as
is reasonable under the circumstances will repair, alter, restore, replace and rebuild (collectively
"Restore") a similar restaurant in accordance with the Approved Conceptual Plans, at least to the
extent of the value and as nearly as possible to the character of the Improvements existing
immediately prior to such occurrence. City, in no event, will be called upon to Restore any
Improvements now or hereafter existing or any portion thereof or to pay any of the costs or
expenses thereof.
67.3 No Rent Abatement. This Lease will not terminate or be forfeited or be affected in
any manner, and there will be no reduction or abatement of the Rent payable hereunder, by reason
of damage to or total, substantial or partial destruction of any of the Improvements or any part
thereof and Tenant, notwithstanding any present or future law or statute, waives any and all rights
to quit or surrender the Property or any part thereof. Unless by an act of Force Majeure, Tenant
expressly agrees that its obligations hereunder, including the payment of Rent, will continue as
though the Improvements had not been damaged or destroyed and without abatement, suspension,
diminution, or reduction of any kind.
68. Transfers and Assignments. Tenant may not transfer or assign its rights under this Lease
except as set forth in in this Lease.
68.1 Transfers. For purposes of this Lease, a "Transfer" is a sale, assignment, or
conveyance of any of the following:
a) The Leasehold Interest, or any part thereof,
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b) Any interest in the Improvements, or any part thereof;
c) Any interest in the Property, or any part thereof.
68.2 - Subleases. Subject any other provisions of this Lease, Tenant shall not Sublease
portions or the whole of the Property and the Improvements, without the prior written consent of
City, which consent in any and all circumstances may be withheld in the sole and absolute
discretion of City. No Sublease or Occupancy Agreement shall relieve Tenant from liability for
any of its obligations hereunder, 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 for the performance and observance of the other agreements on its part
herein contained.
68.3 - Purpose of Restrictions on Transfer. City is entering into this Lease with Tenant
solely to develop, operate, and manage the Improvements, and not for speculation. Tenant
recognizes that, because of the importance of the Project and the Property to the general welfare
of the City and its residents, the Tenant's qualifications and identity are of particular concern to
the community and to the City. Tenant acknowledges that it is because of the qualifications and
identity of Tenant that City is entering into this Lease, and that the City is willing to rely on the
Tenant's covenants to fulfill its obligations under this Lease.
68.4 — Ownership of Tenant. Upon request by City from time to time throughout the
Term of this Lease, Tenant will furnish the City with a complete statement, subscribed and sworn
to by the President, any officer of Managing Member of Tenant, setting forth the percentage
ownership interest of the Tenant. If the Tenant is an entity other than a corporation or limited
liability company, then the references, will be changed to the appropriate ownership interests for
the entity in question.
68.5 - General Restriction on Transfers. No Transfer may be made, suffered or created
by Tenant, or its permitted successors, assigns or transferees unless it complies with the provisions
of this Lease. If at the time of a requested Transfer, Tenant is an entity other than a limited liability
company or corporation, then the references to membership will be changed to the appropriate
ownership interests for the entity in question, and the interest being transferred will be changed to
the appropriate ownership interest. Any Transfer that violates this Lease will be null and void and
of no force or effect. Notwithstanding anything to the contrary set forth above, City's consent shall not
be required for (and City shall not be entitled to any consideration in connection with) an assignment to (i)
a parent, subsidiary, affiliated operating entity, or affiliate (or similarly related entities), (ii) in connection
with merger, acquisition, reorganization or consolidation or (iii) in connection with sale of Tenant's (or its
parent's or affiliates") corporate stock or assets, provided in the case of (i), (ii), or (iii), the Premises
continue to be used only as a restaurant or other Permitted Use as defined in this Lease.
68.6 - Assignment. Provided Tenant is not otherwise in default under this Lease at the time
of such Assignment, Tenant may sell, convey, transfer or assign (all of the foregoing being deemed
as an "Assignment") all of its interest in the Property and the Improvements, with the prior written
consent of City (which shall not be unreasonably withheld or delayed), provided that no such
Assignment shall be deemed valid or binding upon City, and the assigning Tenant shall not be
released from its obligations hereunder, until City has consented to such Assignment, there shall
have been delivered to City a true copy of the instrument in a form and substance reasonably
acceptable to City in all respects effecting such Assignment, together with the address of each
assignee therein named, and an original counterpart of an agreement in which each such assignee
assumes and agrees to perform all the terms, covenants and conditions of this Lease on Tenant's
43
part to be performed. After the aforesaid instrument has been delivered to City and City has
consented to such Assignment, then upon such assignee assuming the obligations of this Lease for
all obligations arising from and after the date of such assumption, the assigning party shall be
released of all further obligations under this Lease for the period from and after the date of such
assumption. For purposes of this Section, an "Assignment" will include: (i) any transfer of the
Lease by merger, consolidation or liquidation, or by operation of law, or (ii) if Tenant is a
corporation, any change (other than to Affiliates of existing shareholders or partners of Tenant) 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 a limited or
a general partnership or joint venture, or a limited liability company, any transfer of an interest in
the partnership or joint venture (other than to an existing partner or any Affiliates of existing
partners) of greater than a majority of such partnership or joint venture interest from the interest
of such partnership or joint venture on the date of the Lease.
68.7 The factors upon which City may base its decision on whether to grant consent under
this Section will include, but not be limited to: (i) whether the proposed assignee meets standards
of credit worthiness and financial resources and responsibility as originally expected of the prior
Tenant, (ii) whether the proposed assignee has the ability to perform the obligations as originally
anticipated, (iii) whether the proposed assignee has prior related business experience for operating
or owning property (or both) with uses similar to those contemplated for the Property, and (iv)
whether the Property will be used only for the purposes permitted by this Lease. This Section shall
apply to each subsequent Assignment of Tenant's interest.
68.8 No partial Assignments of this Lease shall be permitted.
69. Notices. All notices, demands, requests and other communications required under this
Lease must be given in writing and may be delivered (a) by hand, or (b) by certified mail, return
receipt requested, or (c) by a nationally recognized overnight delivery service such as Federal
Express. Notice shall be deemed to have been given upon receipt or refusal of delivery. All notices,
demands, requests and other communications required under this Lease may be sent by facsimile
or electronic mail provided that the facsimile or electronic communication is followed up by notice
given pursuant to one of the three methods in the preceding sentence. Any party may designate a
change of address by written notice to the other party, received by such other party at least ten
days before the change of address is to become effective.
Notice to Tenant. Notice to the Tenant under this Lease must be sent to:
Lucky Fish II, LLC.
6510 Chapel Hill Rd
Raleigh NC 27607
Attention: L. Moshakos & Legal Dept.
Telephone: 919.851.0858
Facsimile: 919.851.0857
Email: louglmrest.com and cmoutos@lmrest.com
44
Notice to City. Notice to City under this Lease must be sent to:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Attention: City Manager, Ana M. Garcia
Telephone: 954-924-6800 Ext. 6810
Email: aaarcia ,danaibeachfl. og_v
With a copy to:
City Attorney, Eve A. Boutsis
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Telephone: 954-924-6800 ext. 3631
Email: Eboutsis@danaibeachfl.gov
70. Miscellaneous
70.1 Time is of the Essence. Time is of the essence in the performance of all obligations
of each party under this Lease.
70.2No Partnership or Joint Venture. It is mutually understood and agreed that nothing
contained in this Lease is intended or is to be construed in any manner or under any circumstances
whatsoever as creating or establishing the relationship of co-partners or creating or establishing the
relationship of a joint venture between the City and Tenant, or as constituting Tenant as the agent
or representative of the City for any purpose or in any manner whatsoever.
70.3 Recording; Documentary Stamps. A memorandum of this Lease, in the form
attached as Exhibit H, will be recorded by the City in the Public Records of Broward County,
Florida. The cost of recording, and the cost of any required documentary stamps, will be paid in
full by the City. The parties will cooperate in structuring the transactions contemplated by this
Lease to reduce such costs, provided the structure does not have any adverse consequence for the
City.
71. Governing Law. This Lease will be governed by the laws of the State of Florida. This Lease
is subject to and must comply with the Charter and City Code of the City of Dania Beach, as they
exist on the date of execution of the Lease. Any conflicts between this Lease and the Charter and
City Code will be resolved in favor of the City's Charter. Venue for any disputes arising out of
this Lease and for any actions involving the enforcement or interpretation of this Lease will be in
the State courts of the 17th Judicial Circuit of Broward County, Florida.
72. Severability. This Lease is intended to be performed in accordance with and only to the extent
permitted by applicable law. If any provisions of this Lease or the application thereof to any Person
or circumstance shall, for any reason and to any extent, be invalid or unenforceable, but the extent
of the invalidity or unenforceability does not destroy the basis of the bargain between the parties
45
as contained herein, the remainder of this Lease and the application of such provision to other
Persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest
extent permitted by law.
73. Independent Contractor/Relationship of Parties. The relationship of City and Tenant
hereunder is the relationship of City and tenant. The parties expressly acknowledge that it is not
their intent to create any rights or obligations in any third Person or entity under this Lease. Nothing
contained herein shall be deemed or construed as creating the relationship of principal and agent,
partners, joint venturers, or any other similar such relationship between the parties hereto.
74. Third Party Beneficiaries. Neither Tenant nor City 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. Nothing herein shall operate to diminish any of the rights of a Leasehold
Mortgagee provided for in this Lease.
75. Negotiated Lease. Both parties have substantially contributed to the drafting and
negotiation 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 hereto acknowledge
that they have thoroughly read this Lease, including all exhibits and attachments hereto, and have
sought and received whatever competent advice and counsel was necessary for them to form a
full and complete understanding of all rights and obligations herein.
76. Incorporation by Reference. The truth and accuracy of each "Recital" clause set forth above
is acknowledged by the parties. The attached Exhibits to this Lease are incorporated into and
made a part of this Lease and all exhibits subsequently attached to this Lease pursuant to the terms
hereof shall be deemed incorporated into and made a part of this Lease.
77. Conflicts of Interest: City Representatives not Individually Liable. No elected official,
representative, or employee of the City has any personal interest, direct or indirect, in this Lease.
No elected official, representative or employee will participate in any decision relating to this
Lease which affects his or her personal interest or the interest of any corporation, partnership or
association in which he or she has an interest, directly or indirectly. No elected official,
representative or employee of the City will be personally liable to Tenant or any successor in
interest for any amount which may become due to Tenant, for any obligations of City under the
Lease, or in the event of any default or breach by the City.
78. Estoppel Certificates.
Within 30 days after written request by either City or Tenant, the other party will execute,
acknowledge and deliver to the requesting party or to any actual or prospective Lender, a certificate
stating that:
a) This Lease is in full force and effect and has not been modified, supplemented or
amended in any way, or, if there have been modifications, the Lease is in full force and
effect as modified, identifying the modification agreement. If the Lease is not in force and
12
effect, the certificate will so state;
b) This Lease as modified, represents the entire agreement between the parties as to the
subject matter, or, if it does not, the certificate will so state;
c) The dates on which the Lease Term commenced and will terminate;
d) To the knowledge of the certifying parry, all conditions under the Lease to be
performed up to that date by the City or Tenant, as the case may be, have been performed
or satisfied and, as of the date of the certificate, there are no existing defaults, defenses or
offsets which the City or Tenant, as the case may be, has against the enforcement of the
Lease by the other party. If such conditions have not been satisfied or if there are any
defaults, defenses or offsets, the certificate will so state; and
e) The Rent due and payable for the year in which the certificate is delivered has been
paid in full, or, if it has not been paid, the certificate will so state; and
f) The parry to whom the certificate is issued may rely on the matters set forth in the
certificate. In delivering the certificate, neither Tenant nor the City, nor any individual
signing the certificate on a party's behalf, will be liable for the accuracy of the statements
made in the certificate, but rather will be estopped from denying the veracity or accuracy
of the statements. Any certificate required to be made by the City or Tenant pursuant to
this paragraph will be deemed to be made by the City or Tenant, as the case may be, and
not by the person signing the certificate.
79. Section. Section headings are for convenience only and do not affect the interpretation of
this Lease.
80. Counterparts. This Lease may be signed in counterparts, each one of which is considered
an original, but all of which constitute one and the same instrument. This Lease is effective only
after execution and delivery by the parties.
81. Successors and Assigns. This Lease binds and inures to the benefit of the City and the
Tenant, and their respective permitted successors and assigns, except to the extent expressly
limited by this Lease.
82. Assignment. Provided Tenant is not otherwise in default under this Lease at the time of
such Assignment, Tenant may sell, convey, transfer or assign (all of the foregoing being deemed
as an "Assignment") all of its interest in the Property and the Improvements, with the prior written
consent of City (which shall not be unreasonably withheld or delayed), provided that no such
Assignment shall be deemed valid or binding upon City, and the assigning Tenant shall not be
released from its obligations hereunder, until City has consented to such Assignment, there shall
have been delivered to City a true copy of the instrument in a form and substance reasonably
acceptable to City in all respects effecting such Assignment, together with the address of each
assignee therein named, and an original counterpart of an agreement in which each such assignee
assumes and agrees to perform all the terms, covenants and conditions of this Lease on Tenant's
part to be performed. After the aforesaid instrument has been delivered to City and City has
47
consented to such Assignment, then upon such assignee assuming the obligations of this Lease for
all obligations arising from and after the date of such assumption, the assigning parry shall be
released of all further obligations under this Lease for the period from and after the date of such
assumption. For purposes of this Section, an "Assignment" will include: (i) any transfer of the
Lease by merger, consolidation or liquidation, or by operation of law, or (ii) if Tenant is a
corporation, any change (other than to Affiliates of existing shareholders or partners of Tenant) 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 a limited or
a general partnership or joint venture, or a limited liability company, any transfer of an interest in
the partnership or joint venture (other than to an existing partner or any Affiliates of existing
partners) of greater than a majority of such partnership or joint venture interest from the interest
of such partnership or joint venture on the date of the Lease. The factors upon which City may
base its decision on whether to grant consent under this Section will include, but not be limited to:
(i) whether the proposed assignee meets standards of creditworthiness and financial resources and
responsibility as originally expected of the prior Tenant, (ii) whether the proposed assignee has
the ability to perform the obligations as originally anticipated, (iii) whether the proposed assignee
has prior related business experience for operating or owning property (or both) with uses similar
to those contemplated for the Property, and (iv) whether the Property will be used only for the
purposes permitted by this Lease. This Section shall apply to each subsequent Assignment of
Tenant's interest. No partial Assignments of this Lease shall be permitted.
83. Subletting. Except as hereinafter provided with respect to Occupancy Agreements, Tenant
shall not Sublease portions or the whole of the Property and the Improvements, without the prior
written consent of City, which consent in any and all circumstances may be withheld in the sole
and absolute discretion of City. Tenant shall be permitted to enter into Occupancy Agreements
which shall contain a self -operative provision that such Occupancy Agreement is subject and
subordinate to this Lease, the rights of City under this Lease, and any modifications and extensions
of this Lease. No Sublease or Occupancy Agreement shall relieve Tenant from liability for any of
its obligations hereunder, 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 herein
contained.
84. Police Powers. Nothing herein contained shall be deemed to in any way limit the City in the
exercise of its police and regulatory powers or its powers of eminent domain.
85. Condemnation.
85.1 Complete Condemnation.
If the entire Property is taken or condemned for any public or quasi -public use or purpose,
by right of eminent domain or by purchase in lieu of eminent domain (in each case, a "Taking"),
or if the Taking is for a portion of the Project such that the portion remaining is not sufficient and
suitable, on a commercially reasonable basis (subject, however, to the rights of the Lender or
Indenture Trustee hereunder), for the operation of the Property, then this Lease will cease and
terminate as of the date on which the condemning authority takes possession.
48
If this Lease is so terminated, the entire award for the Property or the portion taken will be
apportioned among the City and the Tenant as of the day immediately prior to the vesting of title
in the condemner, as follows:
(a) First, but only if the City is not the authority condemning the Property, the City
will receive the then fair market value of the portion of the Property so taken
or condemned considered as vacant, unimproved, and unencumbered, together
with the value of the Improvements, discounted from the end of the Term
(b) Second, Tenant will be entitled to the then fair market value of its interest
under this Lease and in the Improvements, less the discounted value of the
Improvements allocated to the City, together with any and all business
damages suffered by Tenant (subject, however, to the rights of any Lender)
but in no event shall such amount exceed the compensation award from the
condemning authority. Thereafter, the City shall be entitled to the balance of
the condemnation award (i.e.- the interest in the fee and the reversionary
interest in the Improvements); and
(c) The City and Tenant shall each receive one-half of any remaining balance of
the award, except that the Tenant will receive the entire remaining balance of
the award if the City is the authority condemning the Property.
85.2 Partial Condemnation.
If there is a Taking of a portion of the Property, and the remaining portion can be adapted
and used to operate the Property in the same manner it was previously operated, on a commercially
reasonable basis (subject, however, to the rights of the Lender), the Rent shall be proportionately
prorated for that portion of the Property that was taken if such taking affects the sales of Tenant's
operations, continue in full force and effect, and the award shall be apportioned as follows:
(a) First, to the Tenant to the extent required, pursuant to the terms of this Lease, for the
restoration of the Property;
(b) Second, but only if the City is not the authority condemning the Property, to the City
the portion of the award allocated to the fair market value of the Property which is
taken, considered as vacant and unimproved;
(c) Third, to the Tenant, the amount by which the value of Tenant's interest in the
Improvements and the Property were diminished by the taking or condemnation
(subject, however, to the rights of the Lender);
(d) The City and Tenant will each receive one-half of any remaining balance of the
award, except that the Tenant will receive the entire remaining balance of the award
if the City is the authority condemning the Property.
85.3 Restoration After Condemnation. If this Lease does not terminate due to a
Taking, then:
a) Tenant will be required to restore the remaining portion of the Property with due
diligence in accordance with the provisions pertaining to provisions in this Lease
pertaining to alterations and renovations.
b) The entire proceeds of the award will be deposited and treated in the same manner
as insurance proceeds are to be treated under this Lease until the restoration has
49
been completed and Tenant and the City have received their respective shares of
any remaining balance of the award.
c) If the award is insufficient to pay for the restoration, Tenant will be responsible for
the remaining cost and expense; and
d) The Minimum Rent due under the Lease will be adjusted proportionately based
upon the proportion that the amount received by the City with respect to the portion
of the Property taken bears to the total fair market value of the overall Property at
that time.
85.4 Temporary Taking. If there is a Taking of the temporary use (but not title) of all
or any part of the Property, this Lease will remain in full force and effect, but only to the extent it
is commercially reasonable. Rent shall be proportionately adjusted for the percentage of the
Taking. Subject to the rights of the Lender, Tenant will receive the entire award for any temporary
Taking to the extent it applies to the period prior to the end of the Term, and the City will receive
the balance of the award.
85.5 Determinations. If the City and the Tenant cannot reach agreement regarding
any issue arising out of a Taking, the parties will seek a judicial determination by the court with
jurisdiction over the Taking.
85.6 Payment of Fees and Costs. All fees and costs incurred in connection with any
condemnation proceeding will be paid in accordance with the law governing condemnation
proceedings, as determined by the court, if appropriate.
86. Counterparts. This Lease may be executed in counterparts, each of which shall be deemed
to be an original. City specifically reserves all statutory and common law rights and immunities and
nothing herein is intended to limit or waive same including, but not limited to, the procedural and
substantive provisions of Section 768.28, Florida Statutes and Section 95.11, Florida Statutes.
87. Joint and Several Liability. Notwithstanding anything to the contrary contained herein, if
Tenant is a general partnership or joint venture, any general partner or venturer of Tenant shall
be jointly and severally liable and obligated with Tenant for the full performance of all of the
terms, covenants, obligations and conditions of this Agreement.
88. Entire Agreement. This Lease (including the Exhibits) constitutes the sole agreement of
the parties with respect to its subject matter. It supersedes any prior written or oral agreements or
communications between the parties.
89. Amendments. No amendment to this Lease is binding on either party unless in writing
and signed by both parties. The City is not obligated to spend any money or undertake any
obligation in connection with an amendment proposed by Tenant. If Tenant requests an
amendment to the Lease or any other action by City, Tenant must reimburse City for all third -party
costs incurred by City (including but not limited to costs of third -party consultants and attorneys).
Before the City takes action regarding any request, Tenant must deposit with the City the estimated
amount of third -parry costs, as reasonably determined by the City.
90. Waiver of Claims. City 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 Property or any part thereof;
RIO]
(ii) caused by any defect in any building, structure, or other Improvements thereon or in any
equipment or other facility located therein; (iii) caused by or arising from any act or omission of
Tenant, or of any of its agents, employees, commercial tenants, licensees or invitees; (iv) arising
from any accident on the Property or any fire or other casualty thereon; (v) occasioned by Tenant's
failure to maintain the Property in a safe condition; or (vi) arising from any other cause; unless,
in any of such events, caused by the neglect or willful act or omission of City. The Tenant agrees
that City 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 Property, nor shall City be liable for injuries
to any persons on or about the Property 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 Property, or from any new construction or repair, alteration or
improvement on the part of Tenant's improvements or the equipment, fixtures or appurtenance
thereof, other than as a result of City's default of its obligations under this Lease. The City 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 City be liable for any
consequential, punitive damages or both in connection with this Lease.
91. Public Entity Crimes Act_ Tenant represents that the execution of this Lease will not
violate the Public Entity Crimes Act (Section 287.133, Florida Statutes). In addition to the
foregoing, Tenant further represents that there has been no determination that it committed an act
defined by Section 287.133, Florida Statutes, as a "public entity crime" and that it has not been
formally charged with committing an act defined as a " public entity crime" regardless of the
amount of money involved or whether Tenant has been placed on the convicted vendor list.
92. Successors and Assigns Bound. This Lease shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto where permitted by this Lease.
93. Time of Essence. Time is expressed to be of the essence of this Lease.
90. No Personal Liability of Commission Members, Administrative Officials or
Representatives of City. Tenant acknowledges that this Lease is entered into by a municipal
corporation as City and Tenant agrees no individual Commission member, administrative official
or representative of City (acting in his or her official capacity) shall have any personal liability
under this Lease or any document executed in connection with the transactions. contemplated by
this Lease.
91. No Personal Liability of Officers or Directors of Tenant. City acknowledges that this
Lease is entered into by a limited liability company as Tenant and City agrees that no individual
member, manager, officer, director or representative of Tenant (acting in his or her capacity as a
member, manager, officer, director or representative of Tenant) shall have any personal liability
under this Lease or any document executed in connection with the transactions contemplated by
this Lease.
51
92. Authority of Tenant. Tenant hereby represents and warrants to City that the individuals
executing this Lease on behalf of Tenant have full authority to execute this Lease in a
representative capacity on behalf of Tenant.
93. Approvals by the City. All requests for action or approvals by the City will be sent to the
City Attorney for decision as to who within the City, including the City Commission, must act or
approve the matter on behalf of the City.
94. Prevailing Party's Attorneys' Fees. If either party institutes legal proceedings in
connection with the Lease, the prevailing party will be entitled to recover its costs of suit,
including without limitation, its Attorneys' Fees.
95. Waiver of Trial by Jury. City and Tenant irrevocably and unconditionally waive any and
all rights to trial by jury in any action, suit or counterclaim arising in connection with, out of or
otherwise relating to this Lease Agreement (including, but not limited to, the enforcement of any
indemnity provisions), and any other document or instrument now or hereafter executed and
delivered in connection therewith.
96. Holidays. The parties agree that whenever a notice or performance due under the Lease
falls on a Saturday, Sunday or on a legal holiday recognized by the City, the notice or performance
will be postponed to the next following business day.
97. No Brokers. City and Tenant warrant and represent to each other that neither party has
engaged a real estate broker or other person entitled to payment of a commission in connection
with this Lease. Tenant is responsible for, and will hold the City harmless with respect to, the
payment of any commission claimed by or owed to any real estate broker or other person retained
by Tenant who is entitled to a commission as a result of the execution and delivery of this Lease.
The City is responsible for, and will hold Tenant harmless with respect to, the payment of any
commission claimed by or owed to any real estate broker or other person retained by the City who
is entitled to a commission as a result of the execution and delivery of this Lease.
98. No Liability for Approvals and Inspections. No approval given by the City in its capacity
as Landlord under this Lease, and no inspection of the Work or the Property by the City as
Landlord under this Lease will impose liability for its failure to discover any defects or
nonconformance with any Governmental Requirement.
99. Radon. Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building may present health risks to persons who are exposed to it. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from the county public health unit for Broward
County.
100. Signs. Tenant shall have the right to install directional signage and monument and other
signage identifying Tenant's name of the Restaurant within the Premises 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
52
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 the Lease to the contrary, billboard signs
are expressly prohibited.
101. Tenant Entity. On the date of this Lease, Tenant is a limited liability company. If at any
time during the Lease Term, Tenant is a corporation or an entity other than a Florida limited
liability company, then any references herein to member, membership interest, manager and the
like which are applicable to a Florida limited liability company will be changed to the equivalent
designation of such term which is appropriate to the nature of the new Tenant entity.
102. Standard of Conduct. The implied covenant of good faith and fair dealing under Florida
law is expressly adopted in this Lease.
103. Tenant's Obligations: Tenant should be aware the City is a "public body" as defined in
Florida Statutes, Section 119.011(2) and that it is subject to Florida Statutes, Section 119.0701(2)
(a), and the related provisions of the Florida Public Records Law. If awarded this project, the
following will apply:
104. Documents to Be City Property: Unless otherwise provided by law, any and all records,
including but not limited to reports, surveys, and other data and documents provided or created in
connection with the contract are and shall remain the property of the City and Tenant.
104.1 Maintenance of Records: Tenant agrees to keep and maintain public records in Tenant's
possession or control in connection with Tenant's performance under the contract. Tenant additionally
agrees to comply specifically with the provisions of Section 119.0701, Florida Statutes. Tenant shall
ensure that public records that are exempt or confidential and exempt from public records disclosure
requirements are not disclosed, except as authorized by law, for the duration of the contract, and
following completion of the contract until the records are transferred to the City.
104.2. Response to Public Records Requests: Upon request from the City custodian of public
records, Tenant shall provide the City with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost provided by
Chapter 119, Florida Statutes, or as otherwise provided by law.
104.3 -Delivery of Records: Upon completion of the contract or in the event of termination by
either parry, any and all public records relating to the contract in the possession of the Tenant shall be
delivered by the Tenant to the City Manager, at no cost to the City, within seven (7) days. All such
records stored electronically by Tenant shall be delivered to the City in a format that is compatible
with the City's information technology systems. Once the public records have been delivered upon
completion or termination of the contract, the Tenant shall destroy any and all duplicate public records
that are exempt or confidential andexempt from public records disclosure requirement
104.4 Any compensation due to Tenant shall be withheld until all records are received as provided
in this agreement.
53
104.5 Failure to Comply: Tenant's failure or refusal to comply with the provisions of this section
shall result in the immediate termination of the contract by the City.
Florida Public Records Law: Pursuant to Section 119.0701(2) (a), Florida Statutes:
IF THE TENANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO THE TENANT'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THE CONTRACT, THE TENANT MUST CONTACT THE
CITY CUSTODIAN OF PUBLIC RECORDS.
Custodian of Records:
Mailing Address:
Dania Beach, Florida 33004
Telephone number:
Email:
Thomas Schneider, City Clerk
100 W. Dania Beach Boulevard
954-924-6800, Ext. 3623
tschneider(a)daniabeachfl.gov
[SIGNATURE PAGES TO FOLLOW]
54
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the
day and year first above written.
ATTEST:
THOMAS SCHNEIDER, CMC
CITY CLERK
CITY:
CITY OF DANIA BEACH, FLORIDA
a Florida Municipal Corporation
TAMARA JAMES
MAYOR
ANA M. GARCIA, ICMA-CM
CITY MANAGER
Dated:
APPROVED FOR FORM AND CORRECTNESS:
EVE A. BOUTSIS
CITY ATTORNEY
55
2022
WITNESSES:
SIGNATURE
PRINT Name
SIGNATURE
PRINT Name
STATE OF FLORIDA
COUNTY OF
TENANT:
Lucky Fish II, LLC
a Florida limited liability company
SIGNATURE
Ilias L. Moshakos
PRINT Name
President
Title
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, on , 2022, by jlias L Moshakos, as President of
Lucky Fish II, LLC, a Florida Limited Liability Company on behalf of the company. He is personally
known to me or has produced as identification.
NOTARY PUBLIC
My Commission Expires: State of Florida
56
Exhibit A
Legal Description of the City's Ocean Park Property
Address: 45-320 N BEACH ROAD, DANIA BEACH FL 33004
Folio No. 5042 36 00 0030
Legal Description: 36-50-42 TRACT OF LAND IDENTIFIED AS PARCEL 1 IN DB
779/373 LESS PART INC'D INFOL DESC'D PROP;COMM AT NE COR BLK 203 OF
HOLLYWOOD CENTRAL BEACH,S53.45,E 182.66, TO POB,E 84.89,NLY
861.86,WLY 84.86,CONT WLY 165,SLY 758.69, ELY 165.05,SLY 105.50 TO POB
Address: 65 N BEACH ROAD, DANIA BEACH FL 33004
Folio No. 5042 36 00 0050
Legal Description: 36-50-42 BEG AT A PT 285 NELY OF A PT ON C/L OF DANIA
BEACH RD R/W WHICH IS666.95 E OF INTERSECTION WITH C/L OF N OCEAN
DR,RUN NELY 101.1, W 114.17,S 100,E 99.08 TO POB
Address: 9 1 -101 N. BEACH ROAD, DANIA BEACH FL 33004
Folio No. 5142 01 02 8250
Legal Description: HOLLYWOOD CENTRAL BEACH 4-20 B BLK 203 TOG WITH
THAT PT OF OCEAN DR &THAT PT CAMBRIDGE ST VAC'D BY CITY IN RES OR
17221/ 631,LESS PT K/A OCEANDR REVISED AKA: PART OF FAU PARCEL A TOG
WITH THAT PT OF S1/2 OF SEC 36DESC AS COMM NE COR BLK 203,SLY ALG
E/L 53.45 TO POB,ELY 267.15 M/L,SLY149.24,WLY 248.19,NLY 150 TO POB
AKAYART OF FAU PAR A
Address: 110-151 N. BEACH ROAD, DANIA BEACH FL 33004
Folio No. 5042 36 00 0031
Legal Description: 36-50-42 THAT PT OF NMEW RIVER SOUND DESC AS,COMM
AT NE COR OF BLK 203OF HOLLYWOOD CENTRAL BEACH,SLY 53.45 TO N
FACE OF BULKHEAD,ELY ALGSAME 182.66 TO POB,CONT ELY 84.89,NLY
861.86,WLY 84.86,SLY 864.00 TO POB AKA:ARAGON PARCEL B (NE PART OF
BRD OF REGENT'S OF FL STATE UNIVERSITY SYSTEM LEASE WHEN
ARAGON'S LEASE EXPIRES)
1
Address: 150 N. BEACH ROAD, DANIA BEACH FL 33004
Folio No. 5042 36 00 0032
Legal Description: 36-50-42 THAT PT OF NEW RIVER SOUND DESC AS,COMM AT
NE COR OF BLK 203 OFHOLLYWOOD CENTRAL BEACH,SLY ALG E/L 53.45,ELY
182.66,NLY ALG W FACE OFBULKHEAD FOR 105.50 TO POB,CONT NLY ALG
BULKHEAD 758.50 THENCE WLY165,SLY 758.69,ELY 165.05 TO POB AKA:
ARAGON PARCEL C
Address: DANIA BEACH ACCESS ROAD, DANIA BEACH FL 33004
Folio No. 5042 36 00 0040
Legal Description: 36-50-42 TRACT OF LAND DESC IN DB 398 PG 56,LESS PT
DESC'D AS,COMM AT NECOR OF BLK 203 HOLLYWOOD CENTRAL BEACH,SLY
53.45 TO POB, ELY 182.66,NLY864,ELY 84.86,SLY 1011.03,WLY 248.19,NLY 150
TO POB
Address: DANIA BEACH ACCESS ROAD, DANIA BEACH FL 33004
Folio No. 5042 36 00 0040
Legal Description: 36-50-42 TRACT OF LAND DESC IN DB 398 PG 56,LESS PT
DESC'D AS,COMM AT NECOR OF BLK 203 HOLLYWOOD CENTRAL BEACH,SLY
53.45 TO POB, ELY 182.66,NLY864,ELY 84.86,SLY 1011.03,WLY 248.19,NLY 150
TO POB
Address: N. OCEAN DRIVE, DANIA BEACH FL 33004
Folio No. 5142 0102 2920
Legal Description: HOLLYWOOD CENTRAL BEACH 4-20 B LOTS 1 THRU 4,LESS
E 40 THEREOF FORRD,100 BLK 172
2
Exhibit B
Legal Description of Property
Folio Number: 5042 36 00 0050 and a portion of 504236000040
36-50-42 BEG AT A PT 285 NELY OF A PT ON C/L OF DANIA BEACH RD R/W
WHICH IS 666.95 E OF INTERSECTION WITH C/L OF N OCEAN DR,RUN NELY 101.1, W
114.17,5 100,E 99.08 TO POB
Exhibit C
Property Site Plan
(attached)
PLOCATION PLAN
SP-t srwE.I rto-a . J
SP-1
ju
SITE PLAN
AA260D0610
Exhibit D
Use of Property Improvements
Casual Full Service Restaurant and Bar with a Tiki inspired theme.
The Tenant shall have the right to have the use of ambient music during all hours of operation.
The Tenant shall have the right to have live music up and until 10:00 p.m., unless a later time is
approved by the City. Tenant shall retain an acoustic consultant to assist with the placement of
speakers, placement of stage and musicians, or entertainment, to ensure that the residential properties
adjacent to the City's beach are not negatively affected by the Tenants right to provide live music,
DJs, or amplified sound. Acoustics shall be designed to minimize sound to the south of Tenant's
leasehold. (Perhaps a maximum of 60 dbls, over ambient?)
Tenant shall have the right to have special events at least six (6) times a year. Tenant shall apply for
special event permits and adhere to the City Code, Article 375, entitled "Temporary Uses and Special
Event Permits." Tenant shall at all times comply with any amplified music ordinances in effect for
the City of Dania Beach, whether in existence now or in the future.
Menu
Tenant's menu shall be in keeping with its Tiki inspired casual full service and bar concept offering
a variety of menu options typical of breakfast, lunch and dinner with attention to value driven price
points, healthy options and diverse menu offering.
The service hours menu mix will be highly driven by market demand and research in each category
of service. Menu pricing will be competitive with the surrounding market with an emphasis on
casual dining prices and taking into consideration market conditions for cost of goods.
Hours of Operation
The City shall allow the Tenant to be open for business between the hours of 8:00 a.m. until
midnight each day of the week. The exact hours will be determined by market demand.
Exhibit E
Renderings of Property Improvements
(see next pages)
ELEVATION -SECTION
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ELEVATION-SECTION
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REVISIONS
A4.11
REVISIONS
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A4.20
SITE SECTION C - C
FRONT ELEVATION
REAR ELEVATION
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SIDE ELEVATION
ato awe'vr-t•c
REVISIONS
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A4.10
AA26000690
Exhibit F
Development Timeline
(To be inserted)
Exhibit G
Rent Schedule
Beginning on the Rent Commencement Date as set out in the Lease, the annual Rent shall be as
follows and under the terms and definitions set out in the Lease, based upon total gross annual
sales as such is defined in the Lease:
Minimum Rent Percentage Rent
Years 1-5 $204,000.00 5.0%
Years 6-10 5.5%
Years 11-15 6.0%
1' Option Term Years 21-35 6.0%
2nd Option Term Years 36-50 6.0%
8
Exhibit H
Memorandum of Lease
This instrument prepared by/ record and return to:
Folio Number
MEMORANDUM OF PROPERTY GROUND LEASE
THIS MEMORANDUM OF PROPERTY GROUND LEASE ("Lease") is dated as of
and is between the City Of Dania Beach, a Florida municipal corporation
("City"), whose address is 100 West Dania Beach Boulevard, Dania Beach, Florida 33004, Attn:
City Manager and Lucky Fish II, Inc. ("Tenant"), a Florida corporation, whose address is 6510
Chapel Hill Rd., Raleigh, North Carolina 27607.
The City is the owner of approximately of acres of real property located in the City
of Dania Beach, Broward County, Florida and more particularly described in Exhibit A attached
to and made a part of this Memorandum (the "Property").
City has
entered into a Property Ground Lease ("Lease") with Tenant dated
_ and is leasing the Property to Tenant for a term of 20 years, commencing on
and terminating on , on the terms and
conditions set forth in the Lease.
City and Tenant desire to execute and record this Memorandum of Property Ground Lease
to provide notice to third parties of the Lease and certain provisions contained in the Lease.
Section of the Lease contains the following provisions:
61.4. Tenant's Construction Agreements. Any construction agreements
entered into between Tenant and a general contractor or other contractor
in privity with the Tenant must provide that City will not be liable for any
work performed or to be performed at the Property for Tenant, any Lender,
Subtenant, lessee, or sublessee, or for any materials furnished or to be
furnished to the Property for Tenant, any Lender, Subtenant, lessee, or
sublessee.
61.5. No Liens on City's Interest. No mechanic's, laborer's, vendor's,
materialman's or other similar statutory lien for such work or materials will
attach to or affect City's interest in all or any part of the Property, or any
assets of the City, or the City's interest in any Rent or other monetary
obligations of Tenant arising under the Lease.
This instrument is being executed and recorded for the purpose of giving notice of the
Lease and certain provisions contained in the Lease but is not intended to change the terms of the
Lease which will govern in the case of a conflict.
0
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and year first above written.
ATTEST:
THOMAS SCHNEIDER, CMC
CITY CLERK
CITY:
CITY OF DANIA BEACH, FLORIDA
a Florida Municipal Corporation
TAMARA JAMES
MAYOR
ANA M. GARCIA, ICMA-CM
CITY MANAGER
Dated: , 2022
APPROVED FOR FORM AND CORRECTNESS:
EVE A. BOUTSIS
CITY ATTORNEY
WITNESSES:
SIGNATURE
PRINT Name
SIGNATURE
PRINT Name
STATE OF FLORIDA
COUNTY OF
TENANT:
Lucky Fish II, LLC
a Florida limited liability company
SIGNATURE
Ilias L. Moshakos
PRINT Name
President
Title
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, on , 2022, by Ilias L Moshakos, as President of
Lucky Fish II, LLC, a Florida Limited Liability Company on behalf of the company. He is personally
known to me or has produced as identification.
NOTARY PUBLIC
My Commission Expires: State of Florida
Exhibit I
DELIVERY DATE MEMORANDUM
Reference is made to that certain Property Ground Lease ("Lease") dated ,
2022, between Lucky Fish II, Inc. ("Tenant"), and City of Dania Beach ("C"), whereby City
leased to Tenant and Tenant leased from City certain Property located at
, Florida ("Property')
City and Tenant hereby acknowledge that City delivered the Property to Tenant in
accordance with the terms of the Lease, on , 2022.
IN WITNESS WHEREOF, this Delivery Date Memorandum is executed this day of
, 2022.
TENANT:
Lucky Fish II, LLC.
By:
Print Name:
Its:
LANDLORD: City of Dania Beach
By:_
Name:
Its:
Exhibit J
RENT COMMENCEMENT DATE LETTER
Property Ground Lease Dated:
City: City of Dania Beach
Tenant: Lucky Fish II, LLC.
Property: , Florida
City and Tenant hereby agree that the Rent Commencement Date for the Ground Lease is
202_, and the last day of the Original Term shall be
EXECUTED as of the dates set forth below.
TENANT:
Lucky Fish II, LLC.
By:
Name: Ilias L. Moshakos
Title: President
STATE OF FLORIDA
COUNTY OF
204.
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, on , 2022, by _Ilias L Moshakos, as President of
Lucky Fish II, LLC, a Florida Limited Liability Company on behalf of the company. He is
personally known to me or has produced as identification.
Witness my hand and official seal, this the day of , 2022.
My Commission Expires:
NOTARY PUBLIC
Print or type name:
EXECUTED as of the dates set forth below.
CITY:
City of Dania Beach
By:
Name: Ana M. Garcia
Title: Ci Manager
STATE OF FLORIDA
COUNTY OF BROWARD
I, , a Notary Public of aforesaid County and State,
do hereby certify that Ana M. Garcia, appeared before me by means of ❑ physical presence or ❑
online notarization, and acknowledged that she is City Manager of the City of Dania Beach and
that she as City Manager, being authorized to do so, executed the foregoing on behalf of the City
of Dania Beach, Florida.
Witness my hand and official seal, this the day of , 2022.
[NOTARIAL SEAL]
NOTARY PUBLIC
Print or type name:
My Commission Expires: