HomeMy WebLinkAboutO-2000-046 ORDINANCE NO. 2000-046
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, APPROVING EXECUTION OF AN AGREEMENT OF
LEASE AMONG THE CITY OF DANIA BEACH AND WHISKEY CREEK
FOOD &TACKLE, INC. PERTAINING TO A PARCEL OF LAND LOCATED
AT DANIA BEACH FISHING PIER AND MORE PARTICULARLY
DESCRIBED IN THE ATTACHED EXHIBITS TO LEASE AGREEMENT;
AUTHORIZING AND DIRECTING THE EXECUTION OF THE AGREEMENT
OF LEASE BY THE APPROPRIATE CITY OFFICIALS; PROVIDING FOR
CONFLICTS; PROVIDING A SEVERANCE CLAUSE; FURTHER,
PROVIDING FOR AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH,
FLORIDA, THAT:
Section 1. That certain Agreement of Lease among the City of Dania Beach and
Whiskey Creek Food & Tackle, Inc. and pertaining to a parcel of land located at Dania
Beach Fishing Pier and more particularly described in the attached exhibits to lease
agreement, an unexecuted copy of which is attached and made a part of this ordinance as
® Exhibit "A", is approved.
Section 2. The Mayor and the other proper city official are authorized and directed to
execute the Agreement of Lease between the City of Dania Beach and Whiskey Creek
Food & Tackle, Inc.
Section 3. If any section, clause, sentence or phrase of this ordinance is for any reason
held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
affect the validity of the remaining portions of this ordinance.
Section 4. All ordinances or parts of ordinances in conflict with the provisions of this
ordinance are repealed.
Section 5. This ordinance shall take effect immediately at the time of its passage.
PASSED AND ADOPTED on first reading on this 12th day of September, 2000.
PASSED AND ADOPTED on second reading on this 14m day of November, 2000.
-1- ORDINANCE NO. 2000-046
K. M ELYEA
MAYOR - COMMISSIONER
ATTEST: ROLL CALL:
MAYOR McELYEA - NO
P—z l VICE-MAYOR BERTINO-YES
SHERY CHAPMA� COMMISSIONER CALI —YES
ACTING CITY CLERK COMMISSIONER ETLING- YES
COMMISSIONER MIKES- YES
APPROVED AS TO FORM AND CORRECTNESS:
BY: `
THOMAS J. ANSBRO
CITY ATTORNEY
. -2- ORDINANCE NO. 2000-046
I
DRAFT ##5
December 18, 2000
AGREEMENT OF LEASE
BETWEEN
CITY OF DANIA BEACH
AND
WHISKEY CREEK FOOD & TACKLE, INC.
. TABLE OF CONTENTS
SECTION 1. DEFINITIONS............................................................... I
SECTION 2. LETTING.....................................................................6
SECTION 3. TERM .........................................................................7
SECTION 4. RENT..........................................................................8
SECTION 5. RIGHTS AND USES OF THE TENANT............................ 10
SECTION 6. CONSTRUCTION BY TENANT...................................... 12
SECTION 7. CONSTRUCTION CONTRACTS, BONDS,
INDEMNIFICATION, AND INSURANCE
REQUIREMENTS FOR CONTRACTORS .......................... 17
SECTION 8. OPERATIONAL REQUIREMENTS
OF THE TENANT; PARKING ........................................ 18
• SECTION 9. OBLIGATIONS OF THE TENANT................................... 19
SECTION 10. COMPLIANCE WITH GOVERNMENTAL PROCEDURES.... 20
SECTION 11. MAINTENANCE AND REPAIR...................................... 21
SECTION 12. INSURANCE REQUIREMENTS FOR TENANT.................. 23
SECTION 13. DAMAGE TO OR DESTRUCTION OF PREMISES.............. 24
SECTION 14. CONDEMNATION/TRANSFER OF PROPERTY
FOR OTHER PUBLIC PURPOSES ................................... 25
SECTION 15. INDEMNITY ............................................................... 27
SECTION 16. RIGHTS OF ENTRY RESERVED .................................... 28
SECTION 17. ASSIGNMENT; SUBLETTING AND MORTGAGING .......... 29
SECTION 18. DEFAULT; TERMINATION........................................... 30
SECTION 19. REMEDIES TO BE NON-EXCLUSIVE ............................. 32
SECTION 20. SURRENDER.............................................................. 33
SECTION 21. ACCEPTANCE OF SURRENDER OF LEASE..................... 33
SECTION 22. REMOVAL OF PROPERTY ........................................... 33
SECTION 23. NOTICES................................................................... 34
SECTION 24. NON-LIABILITY OF INDIVIDUALS................................ 35
SECTION 25. UTILITIES ................................................................. 35
SECTION 26. ABATEMENT ............................................................. 35
SECTION 27. ENVIRONMENTAL COMPLIANCE;
ENVIRONMENTAL CONTAINMENT AND REMOVAL ...... 35
• SECTION 28. NON-DISCRIMINATION............................................... 38
SECTION 29. MISCELLANEOUS ...................................................... 39
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE ("Lease") dated as of December , 2000 made
by and between the CITY OF DANIA BEACH, a Florida municipal corporation, having an
address at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 ('Landlord"), and
WHISKEY CREED FOOD & TACKLE, INC., a Florida corporation, having an address at
202 S.W. 2"1 Street, Suite B, Fort Lauderdale, Florida 33301 ("Tenant").
RECITALS
1. Landlord owns certain real property located in Broward County, Florida as
more particularly described on Exhibit A attached hereto and by this reference made a part
hereof (the "Parcel") upon which Landlord constructed that certain fishing pier as more
particularly depicted on Exhibit B attached hereto and by this reference made as part hereof
(the "Pier").
2. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord,
a portion of the Pier as more particularly described on Exhibit C attached hereto and by this
reference made a part hereof (the "Premises") for the purposes stated herein, subject to the
terms and conditions of this Lease.
. NOW, THEREFORE, in consideration of the Premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
The following terms set forth below, when used in this Lease, shall be defined as
follows:
(a) "Additional Rent" shall mean all monetary obligations of Tenant to Landlord
(other than Base Rent) payable pursuant to this Lease.
(b) "Affiliate" shall mean a person who (i) is directly or indirectly controlled by, or
under common control with, the Tenant; or (ii) owns directly or indirectly fifty-one percent
(51%) or more of equity securities of the Tenant; or (iii) is a general partner, officer, director,
non-financial institution trustee or fiduciary of the Tenant or of any person described in (i) or
(ii), preceding; or (iv) is a son, daughter, spouse, parent, sibling or in-law of the specified
person.
(c) "Approved Plans" shall mean plans and specifications for improvements to the
Premises (as amended from time to time) that have received the prior written approval of the
• Landlord to the extent such approval is required pursuant to Section 6 hereof.
(d) "Base Rent" shall be the following, to wit:
Lease Year Gross Rent Abatement Total Base Rent
1 $ 98,000.00 $ 50,000.00 $ 48,000.00
2 100,940.00 50,000.00 50,940.00
3 103,968.20 50,000.00 53,968.20
4 107,087.25 50,000.00 57,087.25
5 110,299.86 50,000.00 60,299.86
6 113,608.86 50,000.00 63,608.86
7 117,017.13 50,000.00 67,017.13
8 120,527.64 50,000.00 70,527.64
9 124,143.47 0.00 124,143.47
10 127,867.77 0.00 127,867.77
11 131,703.81 0.00 131,703.81
12 135,654.92 0.00 135,654.92
13 139,724.57 0.00 139,724.57
14 143,916.30 0.00 143,916.30
15 148,233.79 0.00 148,233.79
16 152,680.81 0.00 152,680.81
17 157,261.23 0.00 157,261.23
18 161,979.07 0.00 161,979.07
19 166,838.44 0.00 166,838.44
20 171,843.59 0.00 171,843.59
(e) "City" shall mean the City of Dania Beach in its capacity as a municipal
government, and not as Landlord under this Agreement.
(f) "Completion Date" shall mean the date that is eight (8) months from the
issuance of a building permit for the Improvements or any portion thereof.
(g) "Conceptual Plan" shall collectively mean those three sheets submitted by
Tenant to Landlord, consisting of the Dania Pier Concept, South and West Elevations, and
First and Second Level Plans prepared by Krupnick Studio, Inc. dated April 28, 2000.
(h) "County" shall mean Broward County, a political subdivision of the State.
(i) "Effective Date" shall mean December 12000.
0) "Force Majeure" shall mean 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, war, riot, civil disturbance, sabotage, and
governmental actions (provided that Landlord's actions cannot delay Landlord's compliance
. hereunder).
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(k) "Governmental Approvals" shall mean all governmental and quasi-governmental
approvals and permits from applicable federal, State, County, and City and all other agencies and
authorities including, but not limited to, the Florida Department of Environmental Protection for
all approvals and permits such as site plan approvals, environmental approvals, zoning
approvals, building permits, beaches and coastal systems permits, and all other governmental
approvals required to develop, construct, operate and maintain the Improvements on the
Premises.
(1) "Gross Revenue" means all revenues (whether cash, credit or barter), excluding
sales taxes, paid to Tenant and any Sublessee(s) derived from the ownership and operation of the
Premises by Tenant and any Sublessee(s) (and any party that succeeds to the interest of Tenant
and any Sublessee[s]), including, without limitation, all revenues derived in connection with
Special Events including, but not limited to, admission fees and sponsorship revenues. Gross
Revenue shall expressly exclude all (i) insurance loss proceeds which are applied toward
restoration of the Improvements or otherwise not retained by Tenant or any Sublessee(s) (except
for any proceeds of rent interruption insurance); (ii) any award or payment made by a
governmental authority in connection with the exercise of any right of eminent domain,
condemnation, or similar right or power; (iii) the Pier Admission Fee as defined in Section 9(e);
and (iv) any parking revenues collected by Tenant in an amount equal to the Monthly Parking
Fees (as defined in Section 8[f]) paid by Tenant to Landlord.
(m) "Improvements" shall collectively mean the following: (i) a minimum seven
. thousand (7,000) square foot restaurant with a first floor consisting of approximately four
thousand four hundred (4,400) square foot food/kitchen/dining/bar area and a second floor
consisting of approximately two thousand six hundred (2,600) square foot mezzanine bar of
which approximately two thousand (2,000) square feet will be an incorporated sundeck, (ii) a
full service bait and tackle retail facility adjacent to the restaurant, (iii) a public restroom
facility adjacent to the bait and tackle retail facility for Pier users, (iv) up to five (5) free-
standing, removable, marina style kiosks, each consisting of approximately one hundred fifty
(150) square feet, (v) any and all pavements, fixtures, permanently affixed equipment, signs,
landscaping, facilities, utilities (both above ground and below ground) constructed in
connection with the foregoing, and (vi) all other structures or improvements now or hereafter
constructed on or offsite in connection with the Premises and all additions, alterations,
modifications, renovations, and replacements thereto. It is the intent of the parties that the
restaurant areas and their configurations consist of the square footages and uses set forth in this
Section 1(m); provided, however, the parties acknowledge and agree that such square footages
and uses are approximate and that the various areas of the restaurant may be reconfigured to
meet market demand. By way of example, the sundeck may be reconfigured as an additional
dining area.
(n) "Indemnitees" shall mean Landlord; its engineer, the engineer's consultants, and
their respective shareholders, administrators, officers, officials, directors, agents, employees,
agents, and other consultants as well as their respective successors and assigns.
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(o) "Lease" or "Agreement" shall mean this Agreement of Lease, including any
supplements, modifications or amendments thereof.
(p) "Lease Year" shall mean the twelve (12) month period beginning on the
Completion Date and each anniversary thereof.
(q) "Memorandum" shall mean a memorandum of this Lease in a form acceptable to
Landlord and Tenant to be recorded in the Public Records of Broward County, Florida.
(r) "Parcel" shall mean the real property owned by the City known as Dania Beach
Park consisting of a 26.5 acre beachfront park which includes the Pier upon which the Pier and
Premises are located and expressly includes the Whiskey Creek Dock. The Parcel is more
particularly described on Exhibit A attached hereto and by this reference made a part hereof.
(s) "Percentage Sum" shall mean four percent (4%) of the amount of the Gross
Revenue derived from the Premises by Tenant and any Sublessee(s) (or any party who succeeds
to the interest of Tenant or any Sublessee[s]) in respect to any Lease Year.
(t) "Permitted Change" shall mean (i) a change which is required to be made to
comply with applicable governmental requirements; (ii) a change which involves only
substituting materials of comparable or better quality; (iii) any change with respect to the
interior portions of the Improvements; (iv) a change required by the failure of the Plans to
satisfy field conditions where the change will not have a material adverse effect on the quality,
appearance or function of such Improvements; and (v) a change which is made to correct
inconsistencies in various plans and specifications.
(u) "Permitted Uses" shall mean the permitted uses which may be made of the
Premises pursuant to Section 5 of this Lease.
(v) "Person" shall mean any individual, trust, estate, partnership, joint venture,
company, corporation, association, or any other legal entity or business enterprise. The
reference in this Lease to any one of the foregoing types of persons, shall be deemed a
reference to all other types of persons.
(w) "Premises" shall mean the that portion of the Pier containing approximately six
thousand two hundred fifty (6,250) square feet as more particularly described on Exhibit C
attached hereto and by this reference made a part hereof generally consisting of the restaurant
area and bait shop as shown on Exhibit B, together with all Improvements now or hereafter
constructed thereon, the equipment permanently affixed therein, such as electrical, plumbing,
sprinkler, fire protection and fire alarm, heating, steam, sewage, drainage, refrigerating,
communications, gas and other systems and their pipes, wires, mains, lines, tubes, conduits,
equipment and fixtures together with all appurtenances, rights, privileges, permits and
easements benefiting, belonging or pertaining thereto; provided, however, the Premises
specifically exclude any electrical, plumbing or other utilities owned by Landlord which
18 service the Pier. The Premises shall also include up to five (5) free-standing, removable
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marina style kiosks as shown on Exhibit D attached hereto and by this reference made a part
• hereof (collectively, the "Kiosks"); provided, however, the parties acknowledge and agree that
Tenant may move, alter and rearrange the locations of the Kiosks within the gravel walkway
between the Pier and the Whiskey Creek Dock. During the Term of this Lease, the Landlord
agrees to consider proposals by the Tenant for Tenant-funded improvements to the Whiskey
Creek Dock and adjacent parking areas, with the construction and maintenance of such
improvements to be addressed in an amendment to this Lease.
(x) "Rent" shall mean the Base Rent (as such may be increased by the Percentage
Sum) and any Additional Rent.
(y) "RFP" shall mean that certain Request for Proposal for Design-Build or Design-
Build and Operate Services for a Restaurant for an Existing Fishing Pier dated March 31, 2000
issued by Landlord.
(z) "Start Date" shall mean the earlier of the date which is (i) ten (10) days from the
issuance of all permits and approvals required by applicable governmental agencies to
commence construction of the Improvements or any portion thereof (collectively, "Permits"),
which Permits Tenant shall be required, in good faith, to apply for and diligently pursue or (ii)
four (4) months from the Effective Date of this Agreement; provided, however, if Tenant has, in
good faith, applied for and is diligently pursuing the Permits, and has not obtained the Permits by
four (4) months from the Effective Date, Landlord agrees to reasonably consider an extension to
the State Date.
(aa) "State" shall mean the State of Florida.
(bb) "Sublessee" shall mean any Person that uses or occupies the Premises or any
portion thereof pursuant to an agreement including, but not limited to, a Sublease as defined in
Section 17(b), license or concession, whether oral or written, between Tenant and said Person.
(cc) "Surviving Obligations" shall mean upon the termination of this Lease the
obligations of Tenant, including: (i) the obligation 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, (ii) payment or resolution with respect to any claim for any brokerage commission
made by any broker or finder claiming by or through the Tenant, (iii) compliance with the
provisions of Section 15 (Indemnity) for matters arising prior to the date of termination of this
Lease, (iv) Section 27 (Environmental Compliance), and (v) and any other obligation identified
as surviving obligation in this Lease.
(dd) "Tenant" shall mean Whiskey Creek Food & Tackle, Inc., a Florida
corporation, having an address at 202 S.W. 2" Street, Suite B, Fort Lauderdale, Florida, and
its successors and assigns as permitted by this Lease.
is (ee) "Termination Date" shall mean the date as set forth in Section 3 of this Lease.
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(ff) "Term of this Lease" or words of similar import shall mean the term set forth in
• Section 3 hereof.
SECTION 2. LETTING.
(a) Let. The Landlord hereby lets to Tenant and Tenant hereby hires and takes
from the Landlord the Premises.
(b) License for Ingress/Egress. As additional consideration for the lease of the
Premises by Landlord to Tenant, Landlord also grants Tenant a non-exclusive license (for use in
conjunction with the general public) for ingress and egress across and over the Parcel (expressly
including the Whiskey Creek Dock) and the Pier including, specifically, the ramp up to the Pier
as shown on Exhibit B. Said license shall continue only while this Lease is in effect and shall
terminate upon the termination of this Lease. The exercise of the license shall be in accordance
with the terms and conditions of this Lease, it being expressly understood that the license is an
appurtenant right to this Lease and not an independent right of Tenant. There shall be no
additional consideration for the foregoing license.
(c) Uses. Tenant agrees to operate the Premises only for the uses permitted pursuant
to this Lease provided, however, the Tenant shall, subject to the terms of this Lease, make the
Premises available to the public, without discrimination and refrain from imposing or levying
excessive, discriminatory or otherwise unreasonable charges or fees for any service it may
provide in connection with the Premises.
(d) As Is. Except as may be otherwise provided in this Lease the Premises and all
components thereof, are hereby demised in "AS IS CONDITION" and "WITH ALL
FAULTS;" provided, however Landlord represents that the Premises may be used for the
purposes permitted by this Lease.
Following the Effective Date, the Tenant shall ASSUME ALL RISKS with respect to
the condition of the Premises and of non-compliance of the Premises, or any part thereof, with
any federal, State, County, or City laws, ordinances, rules, or regulations, except as otherwise
set forth in this Lease. From and after the Effective Date upon receipt of notice of any non-
compliance with any such laws, ordinances, rules, or regulations, the Tenant hereby agrees to
make any and all repairs, alterations, and additions to the Premises and to take all corrective
measures as may be necessary to bring the Premises into compliance with all laws, ordinances,
rules and regulations subject to the provisions of this Lease regarding casualty and
condemnation of the Premises. Notwithstanding the foregoing, the Tenant shall have the right
to challenge any such laws, ordinances, rules and regulations and may defer compliance
therewith provided that in doing so the Tenant shall not subject the Landlord to any liability in
connection therewith and the Premises shall not be subject to any liens in connection therewith.
• The Tenant shall not be entitled to any adjustment of any rentals hereunder on account of the
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condition of the Premises or because of any necessity of Tenant to repair or take corrective
actions with respect to any part thereof or because of the inability of obtaining or any delay in
obtaining any required development approvals from any governmental body having
jurisdiction, including but not limited to Landlord. Furthermore, the Tenant hereby releases the
Landlord of and from any and all claims and liabilities whatsoever on account of the condition
of the Premises 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 the Landlord.
(e) 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 Premises
during the Term, subject to the rights of the Landlord to enter upon and use the Premises
pursuant to the terms and conditions of this Lease.
SECTION 3. TERM.
(a) Term. The term ("Term") of this Lease shall commence on the Effective Date
and shall terminate on the last day of the twentieth (20`') Lease Year of this Lease following
the Completion Date ("Termination Date"), unless sooner terminated as provided herein.
(b) Right of First Refusal. Provided that Tenant is not in default under this Lease,
Tenant shall have the right of first refusal, as hereinafter described. If Landlord is, at any time
prior to the Termination Date, negotiating the basic business terms of the lease of the Premises
for term subsequent to the Term with a prospective lessee, Landlord shall promptly notify Tenant
in writing of such negotiations, and such notice shall state the name of the prospective lessee and
the essential (but not necessarily final) business terms upon which Landlord is prepared to lease
the Premises to said prospective lessee. Tenant shall then have a period of ten (10) business days
from the date of delivery of Landlord's notice to notify Landlord in writing of Tenant's election
to lease the Premises in conformance with business terms set forth in Landlord's notice. Upon
the exercise by Tenant of its right of first refusal by providing said notice to Landlord within said
ten (10) business day period, Landlord and Tenant shall, within thirty (30) days after Tenant
delivers to Landlord written notice of its election to exercise its right of first refusal, enter into a
new written lease agreement for the lease of the Premises in conformance with the business
terms set forth in Landlord's notice and otherwise substantially in the same form and substance
as this Lease with such modifications by Landlord which are reasonable and appropriate in the
context of the transaction. If Landlord does not receive written notice from Tenant of its election
to exercise its right of first refusal to lease the Premises within ten (10) business days of receipt
of Landlord's notice, or if Tenant does not enter into the new lease agreement within the thirty
(30) day period following delivery of Tenant's notice to Landlord exercising its right of first
refusal, Tenant shall be deemed to have waived its rights under this Section 3(b) as to its right of
first refusal with respect to the current negotiations and the current prospective lessee without
any further action or notice required on the part of Landlord; provided, however, Tenant's right
of first refusal shall continue and apply to any and all subsequent attempts by Landlord to lease
the Premises to other prospective lessees prior to the Termination Date.
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(c) Tenant acknowledges and agrees that this Lease is subject to the provisions of
Part XII, Article 4 of the City Charter (which Article is entitled "Leases") with respect to
leases of public property for a term in excess of twenty years, as such provisions may be
amended from time to time.
SECTION 4. RENT.
(a) Base Rent. Commencing on the Completion Date, Tenant shall pay to Landlord
the Base Rent, which Base Rent shall be paid in equal monthly installments on the first day of
each month in advance commencing on the Completion Date; provided, however, it is the intent
of the parties that Tenant shall pay to Landlord, as rent hereunder, the greater of the Base Rent or
the Percentage Sum. In order to effectuate the intent of the parties, if in any Lease Year, the
Percentage Sum is greater than the Base Rent for that Lease Year, Tenant shall pay to Landlord,
the difference between the Base Rent and the Percentage Sum as follows. If the Completion
Date does not fall on the first day of the month, in order for the monthly installments of Base
Rent to be paid on the first day of each month, the Base Rent shall be prorated for the number of
days remaining in the month in which the Completion Date occurs. Monthly installments of
Base Rent shall then be paid on the first day of each month during the Term with the last
month's Base Rent prorated in order to account for the initial proration relative to the
Completion Date.
Tenant will furnish to Landlord unaudited financial statements prepared in accordance
with generally accepted accounting principles from Tenant and any Sublessee(s) (collectively,
the "Statement") of the Percentage Sum within forty-five (45) days after the close of each Lease
Year. The Statement will be certified by Tenant as a true and correct determination of the
Percentage Sum based on the Gross Revenue for the applicable Lease Year and shall be
accompanied by Tenant's payment of the difference between the Base Rent and Percentage Sum,
if any. Within six (6) months of Landlord's receipt of the Statements of the Percentage Sum, the
Landlord shall have the right at any time during business hours, and upon forty-eight (48) hours'
prior notice to Tenant and Sublessee(s), to inspect and audit, or cause to be inspected and audited
by a certified public accounting firm (the "CPA Firm") selected by Landlord, the business
records, bookkeeping and accounting records, sales and income tax records and returns and other
records of Tenant with respect to the Premises including the books and records of Tenant and
any Sublessee(s). Landlord and Tenant shall fully cooperate with each other and the CPA Firm.
If any inspection or audit discloses an understatement of the Percentage Sum and the Percentage
Sum is in excess of the Base Rent, then Tenant shall pay to the Landlord, within fifteen (15) days
after receipt of the inspection or audit report, the amount due with respect to such
understatement, plus interest (at the rate required by this Lease) from the date originally due until
the date of payment. Further, if such inspection or audit is made necessary by Tenant's or any
Sublessee's failure to furnish the Statement, reports or supporting records as herein required, or
to furnish such Statement, reports, records or information on a timely basis, or if an under
reporting of the Percentage Sum for the period of any audit is determined by any such audit or
inspection to be greater than five percent (5%), then Tenant shall reimburse the Landlord for the
cost of such audit or inspection, including, without limitation, the actual reasonable costs and
expenses of the CPA Firm, attorneys and compensation incurred by the Landlord in paying its
employees in connection with such audit. The foregoing remedies shall be in addition to the
Landlord's other remedies and rights under this Lease and applicable law.
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(b) Expenses. It is understood and agreed by and between the parties hereto that from
the Effective Date all costs, expenses, taxes (such as ad valorem taxes on the Improvements),
special assessment and impositions of each and every kind and nature whatsoever incurred or
imposed hereunder or against the Premises including, without limitation, the Improvements to
be constructed thereon as well as all of the specific obligations or expenses herein defined,
shall be made by Tenant in accordance with the terms and provisions hereof and, in no case,
later than when such payment is due and payable to the payee; provided, however, that the
foregoing shall not include any special assessments or impositions incurred or imposed by the
City solely against the Premises.
(c) Licenses. Fees and Taxes. Tenant shall pay, on or before their respective due
dates, to the appropriate collecting authority, all federal, State, County, and City taxes,
licenses, permits, assessments, and fees, which are now or may hereafter be levied upon the
Premises or the estate hereby granted, or upon Tenant, or upon any of Tenant's property used
in connection therewith, or upon any rentals or other sums payable hereunder, including, but
not limited to any applicable ad valorem, sales or excise taxes, and shall maintain in current
status all federal, State, County and City licenses and permits, now or hereafter required for
the operation of the business conducted by Tenant including, but not limited to, occupational
licenses. 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.
(d) Proration. Taxes, assessments and other expenses in connection with the
Premises shall be prorated as of the Effective Date and the last day of the Term with Tenant
being responsible for its obligations pursuant to this Lease for the period between the Effective
Date and the Termination Date.
(e) Utilities. From and after the Effective Date Tenant shall pay when due all
water, wastewater, electric, telephone, solid waste, recycling, and all other utility and other
expenses of any and all types whatsoever which are now or hereafter charged or assessed with
respect to operations at the Premises. Tenant shall pay all fees or charges relative to the
foregoing promptly prior to delinquency.
(f) Additional Rent. If the Landlord is required or elects to pay any sum or sums
or incur any obligations or expense by reason of the failure, neglect or refusal of Tenant to
perform or fulfill any one or more of the conditions, covenants or agreements contained in this
Lease which breach is not cured by Tenant within the applicable cure period, Tenant agrees to
pay the reasonable sums so paid or the reasonable expense so incurred, including all interest,
costs, damages and penalties, and reasonable attorneys' fees and costs, and each and every part
of the same shall be and become Additional Rent payable within thirty (30) calendar days after
written demand therefor.
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(g) Late Payments - Interest. Landlord shall be entitled to collect interest at the
highest non-usurious rate permitted by law per annum from the date any sum is due to
Landlord until the date paid on any amounts that are not paid within ten (10) days of their due
date under this Lease. The right of Landlord to require payment of such interest and the
obligation of the Tenant to pay same shall be in addition to and not in lieu of the right of the
Landlord to enforce other provisions herein and to pursue other remedies provided by law.
(h) Place of Payments. All payments of Rent required to be made by the Tenant to
Landlord under this Lease shall be made payable to "City of Dania Beach" and shall be paid to
the Landlord at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 or to such
other office or address as may be substituted therefor. All Rent (together with all applicable
sales tax thereon) shall be payable without demand, offset or deduction, other than as set forth
in this Lease.
SECTION 5. RIGHTS AND USES OF THE TENANT.
(a) Permitted Uses. Tenant shall be permitted to utilize the Premises for the
following uses ("Permitted Uses"), to wit:
(1) Restaurant and bar uses including the sale of alcoholic beverages for
consumption within certain portions of the Premises as set forth in Section 5(b)below.
® (2) Retail sales of bait, tackle, related fishing equipment, sundries, foodstuffs,
beverages (including the retail sale of beer and wine only within certain portions of the Premises
as set forth in Section 5(b) below), and beach related goods such as kayaks, beach chairs and
volleyball equipment including rentals of the same;
(3) Special Events in accordance with Section 5(d) below; and
(4) Such other compatible uses as permitted under applicable law for which
the Landlord has given its prior written consent.
(b) Alcoholic Beverages. The sale of alcoholic beverages by Tenant and any
Sublessee(s) shall only be permitted as set forth in this Section 5(b). Within the restaurant/bar
area of the Premises alcoholic beverages may be sold for consumption within the restaurant/bar
area only and shall be permitted only in accordance with and subject to applicable laws. Within
the bait and tackle retail facility, beer and wine only may be sold on a retail basis and only in
accordance with and subject to applicable laws. No alcoholic beverages shall be sold or
distributed (either on a consumption or retail basis) from the Kiosks. The provisions of this
subsection shall not apply to Special Events except as set forth in Section 5(d) below.
(c) Prohibited Uses. Tenant shall be expressly prohibited from utilizing the
Premises for the following:
10
(1) Adult arcade, adult bookstore/adult video store, adult booth, adult
dancing establishment, adult entertainment establishment, adult motel, or adult theater, as such
terms are defined in City Ordinances from time to time.
(2) The sale or distribution of alcoholic beverages except as expressly
provided in Section 5(b) above.
(3) Any use that requires the storing of hazardous substances, materials or
both at the Premises in violation of applicable law.
(4) Any use of the Premises for residential purposes or living quarters of any
kind whatsoever.
(5) Any use which is not a Permitted Use as set forth in Section 5(a) above.
(6) Any use prohibited by law.
(d) Special Events. During the Term of this Lease, Tenant shall have the right,
without charge by the Landlord, to use the Premises (and other portions of the Parcel or Pier
or both as may be designated by Landlord in a Special Event Permit) for up to twelve (12)
special events (each a "Special Event") per Lease Year. A Special Event shall generally mean
an event held by Tenant whereby activities other than those activities consisting of Tenant's
day to day business occur for a limited period of time and where additional participants are
expected in excess of Tenant's usual customer volume. Special Events may be sponsored by
Persons other than Tenant provided that Tenant operates and manages the Special Event.
Tenant shall have the right, but not the obligation, to charge an admission fee for a Special
Event. If Tenant does not conduct twelve (12) Special Events in any Lease Year, the unused
Special Events shall not carry forward to the subsequent Lease Year. As a condition precedent
to conducting each Special Event, Tenant shall apply, at least forty-five (45) days in advance,
for and obtain a permit (each a "Special Event Permit") from the City in accordance with the
requirements of the City's Code as it may be amended from time and such rules, regulations
and procedures that may be promulgated by the City Manager from time to time. Tenant shall
conduct each Special Event in accordance with the terms and conditions of the Special Event
Permit and this Lease (unless such provisions are expressly inapplicable) and otherwise in
accordance with applicable laws. In the event of a conflict between the terms and conditions of
the Special Event Permit and this Lease, the terms and conditions of the Special Event Permit
shall control the conduct of such Special Event. Tenant acknowledges and agrees that in
issuing the Special Event Permit, the City may place reasonable restrictions upon the type,
size, duration and other aspects of the Special Event including the sale and distribution of
alcoholic beverages. By way of example, Landlord may require the provision of security
personnel and additional comprehensive general liability insurance for the Special Event. The
Special Event Permit may authorize the sale of alcoholic beverages from the Kiosks, other
portions of the Pier and Parcel during the Special Event. If the Special Event Permit does not
address the sale and distribution of alcoholic beverages, the terms and conditions of Section
5(b) shall apply. Notwithstanding anything herein to the contrary, Tenant shall not be
11
• permitted to conduct any Special Event that would have a materially adverse effect upon the
Premises, Pier and Parcel as determined by Landlord in its reasonable discretion. In issuing
each Special Event Permit, Tenant acknowledges and agrees that Tenant, at Tenant's sole cost
and expense, may be required to engage, on a per Special Event Basis, one or more members
of the Dania Beach Police Department in "off-duty detail" capacities for security, crowd
control and traffic control for Special Events where a higher than normal volume of
participants are expected, as determined by the Dania Beach Police in its sole discretion. In
connection with each Special Event, Tenant shall be strictly liable to and indemnify Landlord
for all property damage occurring to the Premises, Parcel and Pier as well as personal injury
and death to any participant, except for and only to the extent any such property damage,
personal injury and death is caused by the Landlord, all subject to Landlord's sovereign
immunity rights. Following any Special Event, Tenant shall promptly clean and restore the
Premises, Parcel and Pier to the condition existing prior to the Special Event.
SECTION 6. CONSTRUCTION BY TENANT.
(a) Construction. It is intended that the Premises will be developed substantially in
accordance with as shall be shown on the Conceptual Plan and in accordance with the schedule
for development referenced in Section 6(b) below. In connection with the development of the
Premises, the parties agree that:
(1) Landlord will assign to Tenant Landlord's right to utilize water and
. sewer capacity to service all the Improvements which may be located on the Premises and to
permit Tenant to connect the water and sewer infrastructure for the Premises to the existing
water and sewer infrastructure pertaining to the Premises with all costs for said connections to
be borne by the Tenant.
(2) Any substantial modifications to the Conceptual Plan shall require the
prior written consent of the Landlord, which consent may be withheld by Landlord in its sole
and absolute discretion, it being expressly understood by Tenant that the approval of the
Conceptual Plan and any modifications thereto are material to Landlord's lease of the Premises
to Tenant.
(3) Upon Tenant's written request, Landlord, in its sole and absolute
discretion, may join in such easements, easement vacations or modifications, and such other
documents as may be necessary for Tenant to develop the Premises in a manner permitted
hereunder; provided, however, that such joinder by Landlord shall be at no cost to Landlord
(other than its costs of review) and the location and form of such easements shall be acceptable
to Landlord in all respects. Landlord's joinder in such documents may be conditional upon
Tenant's agreement to perform the Landlord's obligations thereunder, which agreement on the
part of Tenant shall survive the expiration or earlier termination of this Lease until such time
as the obligations required by such documents are satisfied or released. If any such documents
in which Landlord's joinder is requested contain material financial obligations binding (or
which may become binding) upon Landlord, Tenant shall provide further assurances in a form
and substance acceptable to Landlord in all respects in order to secure such material financial
12
obligations. If this Lease is terminated prior to the commencement of construction of the
Improvements, then upon Landlord's request, Tenant shall withdraw all of its pending
applications and terminate all agreements which are terminable, withdrawable or both by
Tenant, with respect to the Governmental Approvals. The provisions of this sub-section shall
be a Surviving Obligation which shall survive termination of this Lease.
(4) Restrooms for the patrons of the restaurant shall be incorporated into the
design of the restaurant. The size, number of stalls, accessibility for the disabled and other
details of layout and construction shall be in accordance with all applicable codes and
ordinances.
(5) The Pier may be closed on a temporary basis for short intervals as may
be necessary to accommodate construction of the Improvements. If practicable, Tenant may
provide alternate access to the Pier during the periods of closure. Tenant shall provide
Landlord with notice as to the closing of the Pier and duration thereof in connection with this
paragraph.
(b) Schedule for Development of Premises. The Tenant hereby agrees that the
planning, design, and engineering of the Improvements shall be completed by the Start Date. On
or prior to the Start Date, Tenant shall commence construction of the Improvements. Tenant
shall complete the Improvements on or before the Completion Date. Completion of the
improvements shall be evidenced by a certificate of occupancy issued by the applicable
• governmental authority. Time is of the essence with respect to all dates set forth in the schedule
for development and such dates shall not be altered, modified, or extended without the prior
written consent of the Landlord, which consent may be withheld by Landlord in its sole and
absolute discretion, it being expressly understood by Tenant that the timely development of the
Premises is material to Landlord's lease of the Premises to Tenant. Tenant acknowledges and
agrees that if the Tenant fails to complete the Improvements or any portion thereof by the
Completion Date, the Landlord will sustain extensive damages and serious loss as a result of such
failure. The exact amount of such damages will be extremely difficult to ascertain and, therefore,
the Landlord and Tenant agree that if the Tenant fails to complete the Improvements or any portion
thereof by the Completion Date (as such may be extended pursuant to this Lease) and as otherwise
required by this Lease, the Landlord shall be entitled to retain or recover from the Tenant, as
liquidated damages and not as a penalty, One Hundred Fifty and 00/100 Dollars ($150.00)per diem
commencing upon the first day following the Completion Date and continuing until the actual date
of completion of the Improvements. Landlord may deduct liquidated damages as set forth above
from any unpaid amounts then or thereafter due Tenant under this Lease. Any liquidated damages
not so deducted from any unpaid amounts due the Tenant shall be payable to the Landlord upon
demand, together with interest from the date of demand at the highest rate permitted by law.
(c) Approved Plans. During the development of the Improvements by the Tenant,
prior to commencement of any construction the Tenant shall submit to the Landlord for review
and approval, plans and specifications including a site plan consistent with the Conceptual Plan
for the planning, design, engineering, and construction of the Improvements (e.g., schematic,
design development, and construction) for Landlord's written approval which shall not be
® unreasonably withheld or delayed. The Landlord shall provide its written approval or
13
disapproval (specifying the basis for disapproval, comments or both) to any such plans and
specifications within thirty (30) calendar days of receipt of request for same, it being understood
that Landlord's review and approval of the plans and specifications including the site plan are
from the perspective of a land owner, not a governmental entity, and need not be based upon, or
limited to, governmental requirements. Once any plans and specifications receive the written
approval of the Landlord, such plans and specifications shall be deemed "Approved Plans." The
approval by the Landlord of any plans, specifications, site plans, designs or other documents
submitted to Landlord pursuant to the terms and conditions of this Lease shall not constitute (a) a
representation or warranty that such comply with all applicable laws, ordinances, rules,
regulations and procedures of all applicable governmental authorities, it being expressly
understood that the responsibility therefore shall at all times remain with Tenant, and (b) the
approval of Landlord in its capacity as a governmental authority, it being expressly understood
that Tenant is subject to all applicable ordinances, rules, regulations and procedures of the
Landlord and that Tenant shall have the responsibility, at its sole cost and expense, to obtain all
Governmental Approvals applicable to the development of the Premises.
The Approved Plans for the Improvements shall be certified by an architect or engineer
licensed to practice in the State of Florida and shall consist of: (1) working drawings, (2)
technical specifications, (3) schedule for accomplishing improvements, and (4) such other
information as may be required by the Landlord. No changes or alterations (other than
Permitted Changes) shall be made to any Approved Plans, without the prior written approval
of the Landlord, which approval shall not be unreasonably withheld or delayed. Tenant shall
be permitted to make Permitted Changes without Landlord's approval.
(d) Standards of Construction. Any and all construction of the Improvements shall
be performed in such a manner as to provide that the Improvements shall:
(1) Be structurally sound and safe for human occupancy, and free from any
unusual hazards;
(2) Be designed for use for only those purposes permitted under Section 5,
hereof;
(3) The Improvements to be constructed upon the Premises shall be fire
resistant to the extent required by the provisions of the applicable building codes and shall not
be used for the manufacture or storage of flammable, explosive or hazardous materials in
violation of applicable law;
(4) Comply with the Approved Plans;
(5) Comply with the terms and provisions of this Lease and the RFP; and
(6) Comply with all applicable laws, ordinances, rules, regulations and
procedures of all applicable governmental authorities.
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The Landlord may refuse to grant approval if, in its opinion, the proposed
facilities as shown on such plans and specifications will fail to meet the criteria set forth above.
(e) Costs. Except as set forth below, Tenant shall be responsible for all costs and
expenses for the planning, design, engineering and construction of the Improvements. Tenant
acknowledges and agrees that the materials and specifications for the construction of the
Improvements must be reasonably acceptable to the City; it being intended that such materials
and specifications be consistent with the information provided by the Tenant in its response to
the RFP. These costs and expenses shall include, but not be limited to, professional design
fees, royalties, license fees, taxes as well as all costs of packaging, transporting and delivery of
any equipment and materials to the Premises, clean-up, security, labor, materials,
compensation for architectural, engineering and landscape design services, and all other
planning, design, construction, and construction management fees and costs for the
Improvements. It is also 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 Premises or on adjacent property, including but not
limited to water, sewer, telephone, or electric. Tenants' minimum expenditure in connection
with the planning, design, engineering and construction of the Improvements is intended to be
One Million Six Hundred Thirty Thousand Eight Hundred Twelve and 151100 Dollars
($1,638,012.15) but in no event shall Tenant's minimum expenditure be less than One Million
Two Hundred and 00/100 Dollars ($1,200,000.00). Notwithstanding anything herein to the
contrary, Landlord shall contribute Four Hundred Thousand and 00/100 ($400,000.00)
("Landlord's Contribution") towards the cost of completion of the Improvements as follows.
Once Tenant has expended Eight Hundred Thousand and 00/100 Dollars ($800,000.00)
towards the cost of the Improvements, as documented to Landlord's reasonable satisfaction,
Landlord shall pay to Tenant Landlord's Contribution, or portions thereof until fully paid, on a
reimbursement basis. Tenant shall submit invoices for reimbursement on a monthly basis for
completed portions of the Improvements. Tenant's requisition shall show a complete
breakdown of all costs for which reimbursement is sought, the actual work completed and
amount due, together with supporting evidence as may be required by the Landlord including,
but not limited to, partial waivers of lien and contractor's affidavits, all in form and substance
acceptable to Landlord. Provided that Tenant submits all required documentation, Landlord
shall tender all payments to Tenant within thirty (30) calendar days of Tenant's requisition for
payment.
(f) Compliance with Applicable Laws. All Improvements constructed or installed
by the Tenant, its agents, or contractors, shall conform to all applicable federal, State, County,
and City statutes, laws, ordinances, building codes, fire codes, and rules and regulations, as
same may be amended from time to time, including, but not limited to Equal Opportunity
Employment laws, the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et se .,
and the South Florida Building Code.
•
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(g) Consultation. If requested by the Landlord, the Tenant and its
architect/engineer and contractor shall meet with the Landlord in periodically scheduled
meetings to assess the current status of completion.
(h) Ownership of Improvements. Unless otherwise set forth herein, upon
completion all Improvements and all fixtures, structures, facilities, pavements and other
leasehold improvements and any additions and alterations (including those that are nailed,
bolted, stapled, or otherwise affixed to the Premises, but excluding trade fixtures, furnishings
and equipment) made to the Premises by Tenant, or at Tenant's direction, shall become and
remain the Landlord's property free and clear of any liens and encumbrances whatsoever. Any
addition, fixture or other improvement that is nailed, bolted, stapled, or otherwise affixed to
the Premises is a leasehold improvement.
(i) Encumbrances. Tenant hereby represents, warrants and covenants to the
Landlord that the fee simple title to the Premises shall be at all times free and clear of all liens,
claims and encumbrances created by or through Tenant (other than those created or consented
to by Landlord). If any lien or notice of lien shall be filed against the fee simple title of the
Premises created by or through Tenant, 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
Landlord's agent so as to confer upon any contractor or subcontractor providing labor or
services that are material to the Premises (whether in connection with Tenant's Improvements
• or otherwise) a construction lien, mechanic's lien or both against Landlord's estate under the
provisions of Chapters 255 and 713, Florida Statutes, as amended from time to time. The
foregoing shall be contained in a notice or memorandum to be recorded in the Public Records
of Broward County in accordance with Chapters 255 and 713, Florida Statutes.
0) As Builts; Warranties. Within one hundred twenty (120) days after the date a
Certificate of Occupancy (a "CO") is issued for Improvements constructed by Tenant, the
Tenant shall, at its expense, provide the Landlord with a complete set of "as built" plans and
specifications, including mylar reproducible "record" drawings, and, if available, one set of
machine readable disks containing electronic data in an AUTOCAD format that meets the
Landlord'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. Along with the "as built" plans, Tenant shall be responsible for
providing all operation and maintenance manuals. In addition, a minimum warranty of ten
(10) years for the roof, one (1) year for all equipment, and two (2) years for carpet and tile, if
any, shall be obtained by Tenant. All warranties are to be assigned to the Landlord.
(k) Required Governmental and Approvals. Tenant, at its sole cost and expense,
shall obtain all required governmental approvals from all governmental agencies having
jurisdiction over the Premises for any Improvements constructed or to be constructed by
Tenant, including but not limited to departments, divisions or offices of the State, County,
City, and the federal government. Tenant shall also pay all impact and concurrency fees
associated with its development of the Premises. Notwithstanding the foregoing, Landlord
16
hereby waives all fees related to permits to be issued by the City for the Improvements, except
for any amounts of such fees as the City is required to remit to other governmental agencies.
(1) Governmental Approval Joinder. Landlord agrees to reasonably cooperate with
Tenant in seeking the Governmental Approvals for the Improvements including the execution
of applications (to the extent required by such applicable governmental or quasi-governmental
authorities) and other documentation in connection with the Governmental Approvals;
provided, Landlord shall not be required to expend any sums in connection with such
assistance (other than its review costs). Landlord's joinder in such applications and other
documentation may be conditioned upon Tenant's agreement to perform Landlord's obligations
thereunder, which agreement on the part of Tenant shall survive the expiration or earlier
termination of this Lease until such time as the obligations required by such documents are
satisfied or released. If any such documents in which Landlord's joinder is requested contain
material financial obligations binding (or which may become binding) upon Landlord, Tenant
shall provide further assurances in a form and substance reasonably acceptable to Landlord in
order to secure such material financial obligations. If this Lease is terminated prior to the
commencement of construction of the Improvements, then upon Landlord's request, Tenant
shall withdraw all of its pending applications and terminate all agreements which are
terminable, withdrawable or both by Tenant, with respect to the Governmental Approvals. The
provisions of this sub-section shall be a Surviving Obligation which shall survive termination
of this Lease.
® SECTION 7. CONSTRUCTION CONTRACTS, BONDS, INDEMNIFICATION, AND
INSURANCE REQUIREMENTS FOR CONTRACTORS.
(a) Payment and Performance Bond. The Tenant agrees that before commencing
any work or construction of the Improvements, 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, (2) a form and substance
acceptable to the Landlord, and (3) compliance with the requirements of Chapter 255, Florida
Statutes. Tenant shall comply with the requirements of Chapter 255, Florida Statutes with
respect to bonds of contractors constructing public buildings.
(b) Contractor Indemnity. The Tenant, in its general construction contract, shall
require the general contractor to indemnify and hold the Indemnitees 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, any other of its obligations or both under the applicable contract.
(c) Comprehensive General Liability Insurance. The Tenant, in its general
construction contract, shall require the general contractor performing any improvements to
provide, pay for and maintain in force, during the time such work is being performed,
® comprehensive general liability insurance with limits of $1,000,000 with a $2,000,000
17
umbrella on a per occurrence combined single limit for bodily injury liability and property
damage liability.
(d) Insurance Requirements for Construction Contracts.
(1) Tenant agrees to include the following insurance language in any
agreement it enters into with any contractor(s) performing work for Tenant and Tenant further
agrees to provide to Landlord, prior to commencement of the improvements with respect to
such contract, certificates of insurance evidencing the contractor's compliance with the
requirements of this Section:
(i) Without limiting any of the other obligations or liabilities of
contractor, contractor or Tenant shall provide, pay for, and maintain in force until all of its
work to be performed has been completed, the insurance coverages set forth herein.
A. Workers' Compensation insurance to apply for all
employees in compliance with the "Workers' Compensation Law" of the State of Florida and
all applicable federal laws.
B. Comprehensive General Liability as provided in
Section 8(c) above.
C. Business Automobile Liability with minimum limits of
• Five Hundred Thousand Dollars ($500,000.00) per occurrence, combined single limit for
Bodily Injury Liability and Property Damage Liability with respect to the general contractor,
and One Hundred Thousand Dollars ($100,000.00) per occurrence combined single limit for
Bodily Injury Liability and Property Damage Liability for all other contractors.
D. The Indemnitees shall be expressly included as additional
insureds as their interests may appear.
E. Builder's Risk Insurance for the construction of above
ground buildings and structures. The coverage shall be "All Risk" form for one hundred
percent (100%) percent of the completed value, including Landlord as a named insured, with a
deductible of not more than Twenty Five Thousand Dollars ($25,000) for each claim.
(ii) If the initial insurance expires prior to the completion of the
work, renewal certificates of insurance shall be furnished to the Landlord thirty (30) calendar
days prior to the previous certification's expiration.
(iii) The policy(ies) must be endorsed to provide Landlord with thirty
(30) calendar days' prior written notice of modification, cancellation or restriction.
(e) With respect to the insurance to be obtained, the Tenant shall provide to
Landlord not less than ten (10) calendar days prior to commencement of the construction of the
• Improvements at the Premises, certificates of such applicable insurance evidencing the
18
• 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 Landlord, and must be endorsed to
provide the same.
(f) Requirements During the Term. The foregoing requirements set forth in this
Section 7 shall be applicable for all construction during the Term of this Lease.
SECTION 8. OPERATIONAL REQUIREMENTS OF THE TENANT; PARKING.
(a) Name. The Improvements shall be known as the "Whiskey Creek Food &
Tackle Restaurant" and Tenant shall conduct its business at the Premises under such name and
file all necessary documentation required to do so including, but not limited to, fictitious name
registration with the Secretary of State.
(b) Services. Tenant shall provide restaurant, bait shop and related services with
the intent of creating a destination location with a wide-ranging appeal to families and retired
seasonal dwellers residing in the City in particular and Broward County in general as well as to
• tourists to the area. The initial mix and configuration of services to be provided by Tenant
shall be consistent with the information set forth in the Tenant's Response to the RFP dated
March 31, 2000. During the Term of the Lease, and subject to all other applicable provisions
of this Lease, such services may be modified, altered, varied, supplemented, replaced,
substituted, or terminated only with the prior written consent of the Landlord, which consent
shall not be unreasonably withheld or delayed; it being the intent of the parties that the services
meet the needs and desires of the of the residents of the City as mutually determined by the
parties.
(c) Operating Schedule. Tenant shall generally provide its services on a seven (7)
day a week basis, except for any holidays as determined by Tenant, during such hours as
follows: 7:00 a.m. (EST) TO 10:00 p.m. (EST) and as otherwise permitted by applicable law.
During the Term of the Lease, such days and hours of operation may be modified, altered,
varied, supplemented, increased or decreased only with the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or delayed; it being the intent of
the parties that the days and hours of operation meet the needs and desires of the of the
residents of the Landlord and the economic practicality of Tenant, as mutually determined by
the parties.
(d) Mutual Cooperation. The parties further agree to mutually cooperate with each
other, if necessary, during the Term of this Lease relative to the provision of service needs
• including operating schedule modifications in order to effectuate the intent of the parties as
expressed herein.
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(e) Quality of Services. Tenant shall conduct its operations in a first class,
business-like manner and in accordance with the terms and conditions of this Lease. Tenant
shall control the conduct, demeanor, performance and appearance of its officers, members,
employees, agents, volunteers, independent contractors, representatives, guests, and invitees
consistent with the operation of a first class business and otherwise in accordance with
applicable law. 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.
(f) Parking. A municipal parking lot owned by Landlord, consisting in excess of
six hundred (600) parking spaces is located immediately west of the Pier (the "Parking Lot").
Attached to this Lease as Exhibit E is a sketch of description of the Parking Lot identifying the
"Employee Parking Area" and "Customer Parking Area" for use by Tenant and its employees
and customers as follows. The Employee Parking Area shall be provided to Tenant free of
charge for the exclusive use of Tenant's employees only; provided, however, Landlord
acknowledges and agrees that Tenant may use the Employee Parking Area for overflow
customer parking as necessary during peak hours once the Customer Parking Area has reached
capacity. The Customer Parking Area shall be provided to Tenant at an initial charge of
$ per month (the "Monthly Parking Fee"). The Monthly Parking Fee including any
applicable taxes thereon shall be paid by Tenant to Landlord simultaneously with each monthly
installment of Base Rent. The Monthly Parking Fee shall be subject to adjustment by the City
Commission every fifth (5th) Lease Year from the Effective Date of this Lease; provided,
however, the City Commission may not increase the Monthly Parking Fee by more that
percent (_%) each fifth (5th) Lease Year. Tenant shall have the right, but not the
obligation to charge its customers a fee for the use of the Customer Parking Area. In the event
Tenant elects to charge such a fee, the monthly total of any such fees received by Tenant in
excess of the Monthly Parking Fee paid by Tenant to Landlord shall be included within Gross
Revenues. Tenant's rights under this Section 8(f) with respect to parking are appurtenant to
this Lease and shall cease and terminate upon the expiration or earlier termination of this
Lease. The parties acknowledge and agree that the aggregate number of parking spaces in the
Employee Parking Area and Customer Parking Area shall, at all times during the Term, be in
the amount as required by the Code of the City of Dania Beach up to a maximum of one
hundred and twenty-five (125) parking spaces. Any increase to the aggregate number of
parking spaces in the Employee Parking Area and Customer Parking Area over one hundred
twenty-five (125) spaces shall be in Landlord's sole discretion. The Monthly Parking Fee shall
be adjusted on a prorata basis in connection with any increase or decrease to the Customer
Parking Area.
SECTION 9. OBL.IGATIONS OF THE TENANT.
(a) Garbage. Tenant shall remove from the Premises or otherwise dispose of all
garbage, debris and other waste materials (whether solid or liquid) arising out of the occupancy
of the Premises or out of any operations conducted thereon in accordance with applicable law.
is Any of such as may be temporarily stored in the open, shall be kept in suitable garbage and
20
waste receptacles. When effecting removal of all such waste, Tenant shall comply with all
islaws, ordinances, rules, regulations and procedures of all applicable governmental authorities.
(b) Waste. Tenant shall commit no legal nuisance, waste or injury on the Premises
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 upon or to the Premises.
(c) Odor. Tenant shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
real nuisance; provided, however, that fumes resulting from the normal operations of vehicles
or normal business operations shall be excepted from this provision, unless same constitutes a
legal nuisance or as otherwise prohibited by applicable law.
(d) Signs. The Tenant shall have the right to install directional signage and
monument and other signage identifying Tenant's name or the project within the Premises,
provided that such signage is consistent with Landlord's sign ordinances and approved by all
applicable governmental authorities having jurisdiction. Any exterior signage other than as
aforesaid shall require the approval of the Landlord. Notwithstanding anything herein to the
contrary, billboard signs are expressly prohibited.
(e) Pier. The parties acknowledge and agree that an admission fee is currently
charged by Landlord for entry onto the portion of the Pier east of the bait and tackle retail
® facility. The admission fee to the Pier as it may be increased or decreased by Landlord from
time to time shall be referred to in this Lease as the "Pier Admission Fee." During the Term
of this Lease and for so long as Landlord charges the Pier Admission Fee, Tenant shall have
full legal and administrative responsibility for the collection of the Pier Admission Fee. Other
than the Pier Admission Fee, Tenant may not impose or collect any other fee or surcharge in
connection with entry onto the portion of the Pier east of the bait and tackle retail facility.
Without limiting the foregoing, as part of the Improvements, Tenant shall (a) construct
necessary facilities for the restriction of access to the portion of the Pier east of the bait and
tackle retail facility and (b) provide necessary staffing for the collection of the Pier Admission
Fee. In connection with the foregoing, Tenant agrees to comply with rules and regulations
promulgated by the Landlord from time to time with respect to the Pier Admission Fee
including hours of operation. In consideration of Tenant's obligations and responsibilities
under this Section 9(e), Tenant shall be entitled to retain fifty percent (50%) of all Pier
Admission Fees collected by Tenant. On or before the twentieth (20th) day of each month,
Tenant shall pay to Landlord its portion of the Pier Admission Fee for the prior month, along
with a certified statement prepared in accordance with generally acceptable accounting
principles of all Pier Admission Fees collected during the prior month. In connection with
such certified statement, Landlord shall have the inspection and audit rights and remedies set
forth in Section 4(a) hereof.
•
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SECTION 10. COMPLIANCE WITH GOVERNMENTAL PROCEDURES.
(a) Comply with Governmental Requirements. Tenant shall comply with all
applicable federal, State, County, and City laws, ordinances, resolutions and governmental
rules, regulations and orders 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, the Premises, or the operations
conducted at the Premises. A violation of any of such laws, ordinances, resolutions, rules,
regulations or orders, as amended, not cured within the applicable cure period shall constitute
a material breach of this Lease, and in such event Landlord shall be entitled to exercise any
and all rights and remedies hereunder and at law and in equity.
(b) 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 or City agency or office
having jurisdiction under any law, rule, regulation, or order, applicable to the Premises or the
operations at the Premises. This right of entry, inspection and testing shall impose no duty on the
Landlord to take any such action and shall impose no liability on the Landlord should it not take
any such action.
SECTION 11. MAINTENANCE AND REPAIR.
(a) Tenant shall throughout the Term assume the entire responsibility and shall
relieve the Landlord from all responsibility for all repair, maintenance, replacements and
capital improvements whatsoever on the Premises (which shall include, without limitation, all
buildings, improvements, and landscaping thereon) whether such repair, maintenance,
replacements or capital improvements be ordinary or extraordinary, structural or otherwise.
Maintenance, repairs, replacements and capital improvements shall be in quality and class
comparable to similar properties, to preserve the Premises in good order and condition.
During the Term, Tenant shall be required to keep all buildings and other improvements in
good, tenantable, useable condition throughout the Term of this Lease (subject to casualty,
condemnation and the other provisions of this Lease with regard to development and the
redevelopment of the Premises), and without limiting the generality thereof, Tenant shall:
(1) Keep the Premises at all times in a clean and orderly condition and
appearance.
(2) Provide and maintain all lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature required by any law, rule,
order, ordinance, resolution or regulation of any applicable governmental authority.
(3) Be responsible for the maintenance and repair of all utilities servicing the
Premises including but not limited to, service lines for the supply of water, gas service lines,
electrical power and telephone conduits and lines, sanitary sewers and storm sewers which are
now or which may be subsequently located upon the Premises which are controlled by Tenant.
22
(4) Provide adequate security for the Premises and all portions thereof for
the purposes of protecting persons and property.
(5) Be responsible for the cleaning and refuse disposal associated with the
Pier as necessary to keep the appearance of the Pier in good order and condition. Such
cleaning and refuse disposal shall be performed on a daily basis.
(b) During the Term of this Lease, the painting of the Improvements or any portion
thereof in a color other than the color originally approved by Landlord in the Approved Plans
shall require the prior written consent of the Landlord, which consent may be withheld by
Landlord in its sole and absolute discretion.
(c) During the Term of this Lease, the repair or replacement of the roof or any portion
thereof in a material, color or both other than the material and color originally approved by
Landlord in the Approved Plans shall require the prior written consent of the Landlord, which
consent may be withheld by Landlord in its sole and absolute discretion.
(d) During the Term of this Lease, Landlord shall assume the entire responsibility
and shall relieve the Tenant from all responsibility for all repair, maintenance, replacements
and capital improvements whatsoever on the Pier (excepting the Premises) and the Parcel
(which shall include, without limitation, all buildings, improvements, and landscaping thereon)
whether such repair, maintenance, replacements or capital improvements be ordinary or
extraordinary, structural or otherwise; provided, however, Tenant shall be responsible for any
(i) repair, maintenance, replacements and capital improvements on the Pier and the Parcel
which are due to the acts or omissions of Tenant, its employees, agents, contractors, business
invitees and guests, or which otherwise arise or become necessary due to the exercise by
Tenant of its right under this Lease, which repairs, maintenance, replacements and capital
improvements shall be made by Tenant in the manner and to the standards as set forth in
Section 11(a) above and (ii) cleaning and refuse disposal as set forth in Section 11(a)(5)
above..
(e) If Landlord fails or neglects to fulfill its repair and maintenance obligations
under Section 11(d) above and such failure continues for thirty (30) days following written
notice from Tenant to Landlord specifying the nature of such failure or neglect and Landlord
does not contest or dispute the failure or neglect set forth in Tenant's notice, Tenant shall have
the right, but not the obligation to perform such repairs and maintenance obligations on behalf
of Landlord. If Tenant performs such repairs and maintenance obligations pursuant to the
terms and conditions of this Section 11(e), Landlord agrees to pay or provide Tenant with a
credit against amount due Landlord under this Lease, as determined by Landlord, for the actual
costs of labor and materials incurred by Tenant in connection with the performance of the
repairs and maintenance. The foregoing rights of Tenant shall not apply to Landlord's
obligations in Section 11(d) with respect to replacements and capital improvements.
•
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SECTION 12. INSURANCE REQUIREMENTS FOR TENANT.
(a) Casualty Insurance. Tenant shall, during the Term of this Lease, insure and keep
insured to the extent of not less than 100% of the insurable replacement value thereof, all
buildings, structures, fixtures and attached equipment on the Premises against such hazards and
risks as may now or in the future be included under the Standard Form of Fire and Extended
Coverage insurance policy of the State of Florida with a deductible not to exceed Twenty Five
Thousand Dollars ($25,000) and also against the following hazards and risks:
Damage caused by such perils and hazards as may now or in the future be
included under any Boiler and Machinery policy filed with and approved by the
Insurance Commissioner of the State of Florida, or if there be no such policy so filed,
then reasonable coverage against perils and hazards occasioned by the existence and
operation of such boilers, provided that the Tenant shall be required to maintain such
insurance only with respect to such buildings and structures in which boilers are
installed.
(b) Comprehensive General Liability Insurance to protect against bodily injury
liability and property damage in an aggregate amount of not less than One Million Dollars
($1,000,000) with a Three Million Dollars ($3,000,000) umbrella per occurrence, combined
single limit. Coverage must be afforded on a form no more restrictive than the latest edition of
the Comprehensive General Liability Policy, without restrictive endorsements, as filed by the
Insurance Services Office and must include: Premises and Operations, Independent Contractors
and Broad Form Contractual Coverage covering all liability arising out of the terms of this
Lease.
(c) Business Automobile Liability Insurance in an amount not less than One Million
Dollars ($1,000,000) per occurrence combined single limit, for bodily injury and property
damage liability. Coverage must be afforded on a form no more restrictive than the latest
edition of the Business Automobile Liability policy, without restrictive endorsements, as filed
by the Insurance Services Office, and must include: Owned, Non-owned and Hired vehicles.
(d) Workers' Compensation and Employer's Liability Insurance to apply for all
employees in compliance with the "Workers' Compensation Law" of the State of Florida and
all applicable federal laws. In addition, the policy(ies) must include: Employers' Liability with
a limit of One Hundred Thousand Dollars ($100,000) each accident.
(e) Rental Loss (Business Interruption) Insurance in an amount equal to twelve (12)
months of not less than eighty percent (80%) of the then applicable Base Rent, taxes, insurance
and utility charges.
(f) Certificates. Tenant shall furnish to the Landlord, certificates of insurance or
endorsements evidencing the insurance coverages specified by this Article prior to the
Effective Date of this Lease provided the coverage set forth in Section 14(a) shall not be
required until obtaining the CO for the Improvements to be insured. The required certificates
® of insurance shall name the types of policies provided, refer specifically to this Lease, and state
24
that such insurance is as required by this Lease. All policies of such insurance and renewals
thereof shall name the Indemnitees as additional insureds as their interests may appear, and
shall provide that the loss, if any, shall be adjusted with and payable to the Tenant and
Landlord (as their interests may appear), except as otherwise provided in Section 13 hereof.
(g) Cancellation. Coverage is not to cease and is to remain in force (subject to
cancellation notice) throughout the term of this Lease and until all performance required
hereunder is completed. All policies must be endorsed to provide Landlord with at least thirty
(30) calendar days' notice of cancellation, restriction or both. If any of the insurance coverages
will expire prior to the termination of this Lease, copies of renewal policies shall be furnished
at least sixty (60) calendar days' prior to the date of their expiration.
(h) Deficiencies. When such policies or certificates have been delivered by Tenant
or Landlord as aforesaid and at anytime thereafter, Landlord may notify Tenant in writing that,
in the reasonable opinion of Landlord 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.
(i) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by Landlord (but no more frequently than every five (5) Lease
Years) and may be adjusted if Landlord reasonably determines that such adjustments are
necessary to protect Landlord's interest, provided such coverages shall not exceed the amount
of coverage required at the time of said review by similar quality projects in Broward County,
Florida.
0) Service of Process. The insurance shall be written by companies authorized to
do business in the State of Florida and having agents upon whom service of process may be
made in the State of Florida.
(k) Continued Obligations. Compliance with the foregoing requirements shall not
relieve the Tenant of its liability and obligations under any other provision of this Lease.
SECTION 13. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris. If the Improvements located on the Premises or any part
thereof shall be damaged by fire, the elements, or other casualty, Tenant shall promptly
remove, or cause to be promptly removed, all debris resulting from such damage from the
Premises, and Tenant shall promptly take such actions and cause such repairs to be made to the
Premises as will place the Premises in a neat and orderly condition and as are necessary for the
safety of persons entering upon the Premises. To the extent, if any, that the removal of debris
under such circumstances is covered by Tenant's insurance, the proceeds thereof shall be paid
to Tenant for such purpose.
(b) Minor Damage. If Improvements located on the Premises or any part thereof
shall be damaged by fire, the elements, or other casualty but not rendered untenantable or
25
unusable, then there shall be no abatement of Rent and the Premises shall be repaired and
restored with due diligence to the condition they were in prior to such casualty generally in
accordance with the Approved Plans, by and at the expense of Tenant and, if such damage is
covered by Tenant's, insurance, the proceeds thereof shall be made available to Tenant for that
purpose.
(c) Major Damage to or Destruction of the Premises. If Improvements located on
the Premises or any part thereof shall be destroyed or so damaged by fire, the elements, or
other casualty as to render the Premises untenantable or unusable, then Tenant shall with due
diligence make the necessary repairs or replacements for the restoration thereof to the
condition existing prior to such casualty generally in accordance with the Approved Plans and
it shall do so with reasonable dispatch and, if such destruction or damage was covered by
insurance, the proceeds thereof shall be adjusted with and paid to Tenant for that purpose.
Rent shall equitably abate from the date of such casualty until such portion of the Premises
have been restored to a usable condition. Such abatement shall be made pursuant to the
provisions of Section 26 hereof.
To the extent Landlord is entitled to approve the plans with respect to the initial
construction thereof, such restoration work shall be made pursuant to plans and specifications
that have received the prior approval of the Landlord and all such work shall comply with the
terms and provisions of this Agreement, including without limitation, Section 6 hereof.
• In the event during the last three (3) Lease Years of the Term of this Lease, any
Improvements are damaged or destroyed by fire or casualty as to render the Premises
untenantable or unusable, then the Tenant shall have the option to be exercised within thirty
(30) days of such event to: (a) commence to repair or restore the Improvements as above
provided, or (b) terminate the Lease by notice to Landlord, which termination shall be deemed
to be effective as of the date of such casualty. If Tenant terminates this Lease pursuant to this
Section, Tenant shall surrender the Premises to Landlord immediately and assign to Landlord
(or if same has already been received by Tenant, pay to Landlord) all of its right, title and
interest in all of the proceeds of the Tenant's insurance upon the Premises.
(d) Damage to or Destruction of the Pier. If the Pier or any part thereof shall be
destroyed or so damaged by fire, the elements, or other casualty as to render the Pier or any
portion thereof untenantable or unusable, nothing herein shall be deemed or construed to
require or obligate the Landlord to repair, rebuild, replace or restore the Pier or any portion
thereof; provided, however, if the damage to the Pier also renders the Premises untenantable
or unusable, and Landlord elects not to repair, rebuild, replace or restore the Pier, the Tenant
may terminate this Lease by notice to Landlord, which termination shall be deemed to be
effective as of the date of such notice. If Tenant terminates this Lease pursuant to this Section,
Tenant shall surrender the Premises to Landlord immediately and assign to Landlord (or if
same has already been received by Tenant, pay to Landlord) all of its right, title and interest in
all of the proceeds of the Tenant's insurance upon the Premises, if any.
26
SECTION 14. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) General. There may come a time when the Landlord or another governmental
or quasi-governmental authority desires to utilize or acquire all or part of the Premises for a
public purpose, either permanently or temporarily. In that event, Landlord reserves the right
to determine that such public purpose is appropriate, to determine the area of such Premises
which is appropriate (including the estate in such Premises), and to transfer the use or title to
such authority, subject to the Tenant's right to contest any such taking and the appropriateness
of any such taking. To that end, the following provisions are designed to give the Landlord
this discretion, but at the same time, reserve to the Tenant the ability to obtain fair
compensation for the impact of the transfer upon the Tenant's interests, and reserve the
Tenant's right to contest any such taking and the appropriateness of any such taking.
(b) Rights and Obligations Related to Transfer of Property for Other Public
Purposes. Landlord shall not be obligated to raise any defense to any proposed acquisition or
use of the Premises by any governmental or quasi-governmental authority. Landlord's only
obligation with respect to such acquisition shall be to reserve the Tenant's rights to obtain
compensation. In the event that the Tenant and the governmental or quasi-governmental
authority cannot come to agreement as to compensation, an eminent domain suit shall be filed
with respect to the Tenant's interest by the governmental or quasi-governmental authority so as
to provide a forum for the resolution of the compensation issues in accordance with the ensuing
® terms.
(c) Total - Permanent. If at any time during the Term of this Lease, the entire
Premises or, as determined among the parties, such a substantial portion thereof, as would
render the balance of the Premises not suitable for the intended public and private uses
enumerated in this Lease shall be taken by transfer or exercise of eminent domain power by
any competent authority, the Lease shall terminate upon the date that possession is surrendered
to the condemning authority, at which time Rent and other charges shall be apportioned, except
that this provision shall not release the parties from any liability or claims arising prior to the
date of such termination nor other obligation in this Lease that expressly survives termination
of this Lease. The Tenant shall first receive the Tenant's interest in the value of its leasehold
interest or any other valid claims allowable by law, but in no event shall such amount exceed
the compensation award from the condemning authority. Thereafter, the Landlord shall be
entitled to the balance of the condemnation award (i.e., the interest in the fee and the
reversionary interest in the Improvements).
(d) Partial - Permanent. In the event of a partial permanent taking by transfer or
exercise of eminent domain power that does not result in a termination of this Lease, then
Tenant shall receive an equitable reduction in Base Rent based upon the impact of such taking.
The Base Rent shall be reduced by an equitable amount based upon the impact of such taking.
Tenant and Landlord shall be entitled to such compensation from the condemning authority as
may be allowed under applicable law or any other valid claims, provided that the first proceeds
27
received by Tenant (after payment of its lenders) shall be applied to any Base Rent forgone by
Landlord under this Subsection 14(d).
(e) Total - Temporary. If the whole of the Premises, or such portion thereof as
would render the balance of the Premises not suitable for the intended public and private uses
enumerated in this Lease, shall be taken by transfer or exercise of eminent domain for a period
of one (1) year or more, then, at the option of Tenant, upon written notice to Landlord, this
Lease shall terminate upon the date possession is surrendered to the condemning authority.
Landlord shall be entitled to such compensation from the condemning authority as may be
allowable in accordance with applicable law. After first paying such amounts as may be due
for any other valid claims, Tenant shall be entitled to such compensation from the condemning
authority as may be allowable in accordance with applicable law. If Tenant does not elect to
terminate this Lease, or if the whole or a substantial portion of the Premises is taken for less
than one (1) year, the Rent shall be tolled during the period of such taking, providing the
Tenant is receiving no revenue from the Premises during this period. Landlord and Tenant
shall be entitled to such compensation from the condemning authority as may be allowed under
applicable law, provided that the first proceeds received by Tenant (after payment of such
lenders) shall be applied to any tolled Rent to the extent not paid.
(f) Partial - Temporary. If a portion of the Premises that is less than such portion
thereof as would render the balance of the Premises not suitable for the intended public and
private uses enumerated in this Lease as aforesaid is taken by transfer or exercise of eminent
domain for a period of one (1) year or more, then Tenant, at its election, shall be entitled to an
equitable abatement of Base Rent based upon the impact of such taking, during said period. At
such time as the right to possession is restored to Tenant, the Tenant shall thereafter pay one
hundred percent (100%) of the scheduled Rent. Landlord and Tenant shall be entitled to such
compensation from the condemning authority as may be allowed under applicable law.
(g) Condemnation Dispute Resolution. Should Landlord and Tenant be unable to
agree as to the division of any singular award or amount of any reduction of Rent or other
charges, such dispute shall be submitted for resolution to the court exercising jurisdiction of
the condemnation proceeds, each party bearing its respective attorneys' fees and costs for such
determination. For purposes of this Section 16, property conveyed in lieu of any taking or
condemnation shall be deemed taken by the governmental entity pursuant to a condemnation.
SECTION 15. INDEMNITY.
Tenant shall indemnify and hold harmless the Indemnitees from and against any and all
claims, costs, losses and damages (including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals, and all court or other dispute
resolution costs), liabilities, expenditures, or causes of action of any kind (including negligent,
reckless, or willful or intentional acts or omissions of the Tenant, any subcontractor, any
supplier, any person or organization directly or indirectly employed by any of them to perform
or furnish any work or anyone for whose acts any of them may be liable), arising from,
relative to, or caused in connection with this Lease except, and only to the extent, such is
28
caused by the Landlord's negligence. This indemnity includes, but is not limited to, claims
attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible
property, including the improvements, and including the loss of use resulting therefrom.
Payment of any amount due pursuant to this Section 15 shall, after receipt of written notice by
Tenant from the Landlord that such amount is due, be paid by Tenant if the Landlord becomes
legally obligated to pay same, or the Tenant agrees that it is responsible for said claim, or in
the alternative, the Landlord, at the Landlord's option, may make payment of an amount so
due and Tenant shall promptly reimburse the Landlord for same. Where the basis for a claim
for damages brought against the Landlord by a third party is that the Landlord has breached a
contract or other duty to the third party, and the action or inaction which constitutes the breach
was a result of the negligent acts or omissions of Tenant under this Lease, then Tenant agrees,
at Tenant's expense, after written notice from the Landlord to defend any action against the
Landlord that falls within the scope of this Section 15, or the Landlord, at the Landlord's
option, may elect not to tender such defense and may elect instead to secure its own attorney to
defend any such action. If the claimant prevails in a lawsuit which alleged that the breach was
a result of the negligent act or omissions of the Tenant under this Lease, then the reasonable
costs and expenses of the Landlord incurred in defending such action shall be payable by
Tenant. If the Landlord requests the Tenant to defend such action on behalf of the Landlord
and the Landlord is not found liable for any damages which are expressly or impliedly claimed
to be the result of the Tenant's acts or omissions, then, the Landlord shall reimburse the
Tenant all the reasonable fees and costs expended in the defense. If either the Landlord or
Tenant is required to incur attorneys' fees or costs to enforce this Section 15, the prevailing
• party in any litigation shall recover all of their attorneys' fees and costs at both trial and
appellate levels.
Tenant agrees to indemnify, defend, save and hold harmless the Indemnitees, from all
damages, liabilities, losses, claims, fines and fees and from any and all suits and actions of
every name and description that may be brought against Landlord, its officers, agents and
employees on account of any claims, fees, royalties, or costs for any invention or patent or for
the infringement of any and all copyrights or patent rights claimed by any person, firm, or
corporation.
The provisions of this Section shall survive the expiration or earlier termination of this
Lease.
SECTION 16. RIGHTS OF ENTRY RESERVED.
(a) Access. The Landlord, by its officers, employees, agents, representatives and
contractors shall have the right at all reasonable times and upon reasonable advance notice to
enter upon the Premises for the purpose of inspecting the same, for observing the performance
by the Tenant of its obligations under this Lease and for the doing of any act or thing for which
the Landlord may be obligated or have the right to do under this Lease or otherwise, subject to
the provisions of this Lease, provided in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
During the last Lease Year period preceding the termination of this Lease, the Landlord may
29
• place and maintain on the Premises (in locations reasonably acceptable to Landlord and
Tenant) "To Let" signs, which signs the Tenant shall permit to remain without molestation.
(b) Maintenance. Without limiting the generality of the foregoing, the Landlord, by
its officers, employees, agents, representatives, contractors and furnishers of utilities and other
services, shall have the right upon reasonable advance notice (except in case of emergency, in
which case no notice is necessary), at its own cost and expense, for its own benefit or for the
benefit of others than the Tenant, to maintain existing utility systems and to enter upon the
Premises at all reasonable times to make such repairs, replacements or alterations thereto as
may, in the reasonable opinion of the Landlord, be deemed necessary or advisable and from
time to time to maintain such systems or parts thereof and in connection with such
maintenance.
(c) Minimum Disruption. Landlord agrees and shall take such action as reasonably
necessary to minimize any disruption caused in connection with Landlord activities upon the
Premises and in the exercise of such rights of access, repair, alteration or construction, the
Landlord shall not unreasonably interfere with the actual use and occupancy of the Premises by
the Tenant.
(d) No Eviction. The exercise of any or all of the foregoing rights by the Landlord
or others to the extent permitted by this Lease shall not be or be construed to be an eviction of
the Tenant nor be made the grounds for any abatement of Rent nor any claim or demand for
• damages, consequential or otherwise, unless Landlord breaches its covenants with respect to
such access as provided in this Lease.
(e) Police Powers. Nothing herein contained shall be deemed to in any way limit
the Landlord in the exercise of its police and regulatory powers or its powers of eminent
domain.
SECTION 17. ASSIGNMENT AND SUBLETTING.
(a) Assignment. Tenant shall not sell, convey, transfer or assign (all of the foregoing
being deemed as an "Assignment") all or any portion of its interest in this Lease, the Premises
and the Improvements, without the prior written consent of Landlord (which shall not be
unreasonably withheld or delayed, provided that the factors set forth below are fulfilled to
Landlord's satisfaction), provided that no such Assignment shall be deemed valid or binding
upon Landlord, and the assigning Tenant shall not be released from its obligations hereunder,
until Landlord has consented to such Assignment, there shall have been delivered to Landlord a
true copy of the instrument in a form and substance reasonably acceptable to Landlord 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 Landlord'and Landlord has consented to
such Assignment, then upon such assignee assuming the obligations of this Lease for all
is obligations arising from and after the date of such assumption, the assigning party shall be
30
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, except as set forth below, 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. With respect to (ii) above the parties acknowledge and agree that Tim Petrillo, Peter
Boulukos, Alan Hooper, and William Ivan (collectively, the "Principal Group") currently own at
least fifty-one percent (51%) of the outstanding voting stock of Tenant. Notwithstanding the
provisions of(ii) above, the members of the Principal Group may transfer or sell stock to each
other, or transfer stock in order to admit a new member to the Principal Group; provided,
however, if a new member to the Principal Group obtains through any one transaction or number
of transactions (either from a member or members of the Principal Group or from stockholders
outside of the Principal Group) a majority of the outstanding voting stock of Tenant, such shall
be deemed an Assignment hereunder.
The factors upon which Landlord may base its decision on whether to grant consent
under this Section will include, but not be limited to: (i) whether the Tenant is in default of
this Lease, (ii) whether the proposed assignee meets standards of creditworthiness and financial
• resources and responsibility as originally expected of the prior Tenant, (iii) whether the
proposed assignee has the ability to perform the obligations as originally anticipated, (iv)
whether the proposed assignee has prior related business experience for operating or owning
property with uses similar to those contemplated for the Premises, (v) whether such assignment
is being made prior to substantial completion of the Improvements, and (vi) whether the
Premises will be used only for the purposes permitted by this Lease. This Section shall apply
to each subsequent Assignment of Tenant's interest.
(b) Subletting. Tenant shall not sublet portions or the whole of the Premises and
the Improvements, or grant licenses or concessions thereat (all of the foregoing being deemed a
"Sublease") without the prior written consent of the Landlord in each instance, which consent
may be withheld by the Landlord in its sole and absolute discretion, it being expressly
understood that the management and operation of the Premises by Tenant is material to
Landlord's lease of the Premises to Tenant. The following terms and conditions shall apply in
each instance where Landlord has consented to a sublease:
(1) Each Sublease shall contain a self-operative provision that it is subject
and subordinate to this Lease and any amendments, modifications and extensions thereof,
including, but not limited to, all use restrictions.
(2) No Sublease 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
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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.
(3) The form of such Sublease shall be subject to the review and approval of
the Landlord and shall, at a minimum, contain all of the material provisions of this Lease with
respect to the obligations of Tenant.
SECTION 18. DEFAULT; TERMINATION.
(a) Default. If any one or more of the following events shall occur, same shall be
an event of default under this Lease:
(1) Tenant shall voluntarily abandon the Premises or discontinue its
operations on the Premises for a period of thirty (30) consecutive calendar days, other than as
a result of casualty, condemnation, major renovation, or one or more acts of force majeure; or
(2) Any lien, claim or other encumbrance which is filed against the
Landlord's fee simple title to the Premises (other than that created by or through Landlord) is
not removed, or if the Landlord is not adequately secured by bond or otherwise with respect to
any lien against the fee simple title of the Premises (other than that created by or through
Landlord), within thirty (30) calendar days after the Tenant has received notice thereof, or
(3) The Tenant shall fail to pay the Rent when due to the Landlord 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
(4) The Tenant shall fail to make any other payment required hereunder
when due to the Landlord and shall continue in its failure to make any such other payments
required hereunder for a period of fifteen (15) calendar days after written notice is given to
make such payments; or
(5) The Tenant shall fail to keep, perform and observe each and every non-
monetary promise, covenant and term set forth in this Lease on its part to be kept, performed
or observed within thirty (30) calendar days after receipt of written notice of default thereunder
(except where fulfillment of its obligation requires activity over a greater period of time and
the Tenant shall have commenced to perform whatever may be required for fulfillment within
thirty (30) calendar days after receipt of notice and continues such performance without
material interruption); provided, however, the foregoing shall not apply if Tenant's failure to
perform is due directly to the acts or omissions of Landlord; or
(6) To the extent permitted by law, if Tenant makes an assignment for the
benefit of creditors; or
•
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(7) 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 sixty (60) days or if Tenant
files any petition or answer seeking, consenting to or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under the
Bankruptcy Code or any other present or future applicable federal, state or other statute or
law; or
(8) To the extent permitted by law, if within sixty (60) days after the
commencement of any proceeding against Tenant seeking to have an order for relief 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 sixty (60) 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 Premises or any interest of Tenant therein, such
appointment is not vacated or stayed on appeal or otherwise, or if, within thirty (30) days after
the expiration of any such stay, such appointment if not vacated.
(b) Remedy. Upon the occurrence of any event set forth in Section 18(a), above, or
at any time thereafter during the continuance thereof, the Landlord may at its option
® immediately terminate the rights of Tenant hereunder by giving written notice thereof, which
termination shall be effective upon the date specified in such notice or Landlord may exercise
any and all other remedies available to Landlord hereunder or at law or in equity. In the event
of any such termination, Tenant shall have no further rights under this Lease and shall cease
forthwith all operations upon the Premises and shall pay in full all Rent and other charges as
set forth in this Lease, then due and owing, through the date of termination, and Tenant shall
be liable for all compensatory damages incurred by Landlord in connection with Tenant's
default or the termination of this Lease upon such a default, including without limitation, all
direct, indirect, and all other damages whatsoever, provided Landlord shall not be entitled to
punitive or consequential damages.
(c) Habitual Default. Notwithstanding the foregoing, in the event that the Tenant
has defaulted in the performance of or breached the same obligation three 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 Landlord to be an
"habitual violator." At the time that such determination is made, the Landlord 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 obligation for the balance of such
twelve month period and that any subsequent breaches or defaults of that particular obligation
for the balance of such twelve month period, taken with all previous breaches and defaults,
shall be considered cumulative and collectively, shall constitute a condition of noncurable
is default and grounds for immediate termination of this Agreement. In the event of any such
33
subsequent breach or default of that particular obligation for the balance of such twelve month
period, for which the Tenant has been deemed to be a habitual violator, Landlord 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.
(d) No Waiver. No acceptance by the Landlord 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 Landlord to terminate this Lease, or to exercise
any other available remedies. Failure by Landlord 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.
SECTION 19. REMEDIES TO BE NON-EXCLUSIVE.
(a) Cumulative Remedies. All rights and remedies of the parties hereunder or at
law or in equity are cumulative, and the exercise of any right or remedy shall not be taken to
exclude or waive the right to the exercise of any other, subject to the express limitations set
forth in this Lease, if any. No waiver by either party of any failure to perform any of the
terms, covenants, and conditions hereunder shall operate as a waiver of any other prior or
subsequent failure to perform any of the terms, covenants, or conditions herein contained.
(b) Survival. 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.
SECTION 20. SURRENDER.
The Tenant covenants and agrees to yield and deliver peaceably and promptly to the
Landlord, possession of the Premises, on the Termination Date or earlier termination of this
Lease. The Tenant shall surrender the Premises in the condition required pursuant to this
Lease, reasonable wear, tear, casualty and condemnation accepted. All maintenance and
repairs shall be completed prior to surrender.
SECTION 21. ACCEPTANCE OF SURRENDER OF LEASE.
No agreement of surrender or to accept a surrender of this Lease shall be valid unless
and until the same shall have been reduced to writing and signed by the duly authorized
representatives of the Landlord and of the Tenant in a document of equal dignity and formality
herewith. Except as expressly provided in this Lease, neither the doing of nor any omission to
do any act or thing by any of the officers, agents or employees of the Landlord shall be
deemed an acceptance of a surrender of letting under this Lease.
SECTION 22. REMOVAL OF PROPERTY.
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(a) Removal. The Tenant shall have the right at any time during the Term to
remove its trade fixtures and other personal property from the Premises. Tenant shall
immediately repair any damage to the structure or exterior of the Premises caused by its
removal of any personal property or trade fixtures. If the Tenant shall fail to remove its
inventories, trade fixtures, and personal property by the termination or expiration of this
Lease, then, Tenant shall be considered to be holding over and subject to charges under
Section 29(m), hereof, and after fourteen (14) calendar days following said termination or
expiration, at the Landlord's option: (i) title to same shall vest in the Landlord, at no cost to
the Landlord; or (ii) Landlord may remove such property to a public warehouse for deposit; or
(iii) Landlord may retain the same in its own possession and sell the same at public auction, the
proceeds of which shall be applied first to the expenses of removal, storage and sale, second,
to any sums owed by the Tenant to the Landlord, with any balance remaining to be paid to the
Tenant; or Landlord may dispose of such property in any manner permitted by law. If the
expenses of such removal, storage and sale shall exceed the proceeds of sale, the Tenant shall
pay such excess to the Landlord upon demand.
(b) Transfer of Interest. Upon the termination of this Lease the ownership of all
Improvements shall vest in the Landlord and Tenant agrees to execute such documentation
required by Landlord to effectuate the foregoing.
(c) Survival. The provisions of this Section shall survive the expiration or
termination of this Lease.
SECTION 23. NOTICES.
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt requested, or by
hand delivery with a request for a written receipt of acknowledgment of delivery, addressed to
the party for whom it is intended at the place last specified. The place for giving notice shall
remain the same as set forth herein until changed in writing in the manner provided in this
section. For the present, the parties designate the following:
FOR LANDLORD:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Attn: City Manager
with a copy to:
35
Weiss Serota Helfman Pastoriza & Guedes, P.A.
3107 Stirling Road
Suite 301
Hollywood, Florida 33312
Attn: Thomas J. Ansbro, Esq.
FOR TENANT:
Whiskey Creek Food & Tackle, Inc.
202 S.W. 2" Street
Suite B
Fort Lauderdale, Florida 33301
Attn:
with a copy to:
David G. Murray, Esq.
321 S.E. 15th Avenue
Fort Lauderdale, Florida 33301
All notices, approvals and consents required hereunder must be in writing to be
effective.
SECTION 24. NON-LIABILITY OF INDIVIDUALS.
No limited partner,' director, officer, administrator, official, agent or employee of the
Landlord or Tenant shall be charged personally or held contractually liable under any term or
provisions of this Lease or of any supplement, modification or amendment to this Lease or
because of any breach thereof, or because of its or their execution or attempted execution.
SECTION 25. UTILITIES.
From and after the Effective Date, the Tenant shall pay for all 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 Premises. Tenant shall pay all fees or charges relative to the foregoing promptly prior to
delinquency. The metering devices and utility lines installed by the Tenant for such utilities
shall be installed at the cost of the Tenant and shall (to the extent owned by Tenant) become
the property of the Landlord at the end of the Term. Extension of utility mains or services to
meet the needs of the Tenant on the Premises shall be at the expense of the Tenant.
36
No failure, delay or interruption in supplying any services for any reason whatsoever
(whether or not a separate charge is made therefor) shall be or be construed to be an eviction
of the Tenant or grounds for any diminution or abatement of rental or shall be grounds for any
claim by the Tenant under this Lease for damages, consequential or otherwise unless caused by
Landlord's wrongful act or gross neglect.
SECTION 26. ABATEMENT.
If, at any time, the Tenant shall become entitled to an abatement of Rent by the
provisions of this Lease or otherwise, the abatement of Rent shall be made on an equitable
basis taking into consideration the amount and character of the space, the use of which is
denied the Tenant as compared with the entire Premises, and the period of time for which such
use is denied to Tenant. The parties acknowledge and agree that this Section shall not apply to
the abatement of Base Rent set forth in Section l(d) to which Tenant is entitled to pursuant to
the terms of that Section.
SECTION 27. ENVIRONMENTAL COMPLIANCE; ENVIRONMENTAL
CONTAINMENT AND REMOVAL.
(a) No Warranty by Landlord. Landlord makes no representations or warranties
whatsoever as to the existence of any pollutants, or hydrocarbon contamination, hazardous
materials, or other contaminants or regulated materials (collectively, "Materials") on or in the
Premises or the Improvements whether or not in violation of any federal, State, County or City
law, administrative code provision, ordinance, rule or regulation, as amended, or in violation
of any order or directive of any federal, State, County, or City court or entity with jurisdiction
of such matter. It shall be the sole responsibility of Tenant to make sufficient inspection of the
Premises to satisfy itself as to the presence or absence of any Materials.
(b) Compliance. From and after the Effective Date, Tenant agrees to comply with
all existing and future federal, State, County, and City environmental laws, administrative code
provisions, ordinances, rules and regulations, and the requirements of any development order
covering the Premises issued pursuant to Chapter 380, Florida Statutes, all as may be
amended, including without limitation those addressing the following:
(1) Proper use, storage, treatment and disposal of Materials, including
contracting with a licensed hazardous waste transporter and treatment and disposal facility to
assure proper transport and disposal of hazardous waste and other regulated Materials;
(2) Adequate inspection, licensing, insurance, and registration of future
® storage tanks, storage systems, and ancillary facilities to meet all federal, State, and municipal
37
standards, as amended, including the installation and operation of adequate monitoring devices
and leak detection systems; and
(3) Adequate facilities on the Premises for management and, as necessary,
pretreatment of industrial waste, industrial wastewater, and regulated Materials and the proper
disposal thereof.
(4) Compliance with reporting requirements of Title III of the Superfund
Amendment, as applicable and as such laws may be amended from time to time.
(c) Clean Up. The release of any Materials on the Premises, or as a result of
Tenant's operations at the Premises (other than any Materials created by or through Landlord),
that is in an amount that is in violation of any federal, State, County, City law, administrative
code provision, ordinance, rule or regulation, as amended, or in violation of an order or
directive of any federal, State, County, or City court or governmental authority, by Tenant or
any of its or the officers, employees, contractors, subcontractors, invitees, or agents of Tenant
committed subsequent to the Effective Date of this Lease, shall be, at the Tenant's expense,
and upon demand of Landlord or any City, County, State, or federal regulatory agency,
immediately contained or removed to meet the requirements of applicable environmental laws,
rules and regulations. If Tenant does not take action promptly to have such Materials
contained, removed and abated to the extent required by law, the Landlord 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 Landlord 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
Landlord 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.
(d) Notice of Release. Tenant shall provide the Landlord with notice of releases of
Materials occurring at the Premises or on account of Tenant's operations at the Premises. Tenant
shall maintain a log of all such notices to the Landlord 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, County, and City regulatory agencies with notice of spills, releases, leaks or discharges
(collectively, "release") of Materials on the Premises which exceeds an amount required to be
reported to any City, County, 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 Landlord and the
Broward County Department of Planning and Environmental 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 monitoring activities to be effected on the
Premises. 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
38
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.
(e) The Landlord, upon reasonable written notice to Tenant, shall have the right to
inspect all documents relating to the environmental condition of the Premises which are in
Tenant's possession, including without limitation, the release of Materials at the Premises, 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 Landlord pertaining to the Premises, pursuant to Chapter 380, Florida Statutes, including,
but not limited 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 Premises by appropriate federal, State, County and City agency
personnel in accordance with applicable environmental laws, rules and regulations and as
required by any development order issued to the Landlord pertaining to the Premises, pursuant
to Chapter 380, Florida Statutes.
(f) 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 Landlord arranges for the removal of any Materials on the Premises 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 Landlord shall be paid by Tenant to the
Landlord within ten (10) calendar days of Landlord's written demand, with interest at the
highest non-usurious rate permitted by Florida law per annum thereafter accruing.
(g) Liability. Tenant shall not be liable for the release of any Materials caused by
anyone other than Tenant or the officers, employees, contractors, subcontractors, or agents of
Tenant. Nothing herein shall relieve Tenant of its general duty to cooperate with the Landlord
in ascertaining the source and containing, removing and abating any Materials at the Premises.
The Landlord 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 Landlord to abrogate its sovereign
right to exercise its police powers and governmental powers by approving or disapproving or
taking any other action in accordance with Landlord codes, ordinances, rules and regulations,
federal laws and regulations, State, County and City laws and regulations, development orders
and grant agreements. The Landlord and its employees, contractors, and agents, upon
reasonable written notice to Tenant, and the federal, State, County and City 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 Premises for the purposes of the
foregoing activities and conducting such environmental assessments (testing or sampling),
inspections and audits as it deems appropriate.
39
(h) Landlord Clean Up. In the event Landlord shall arrange for the removal of
Materials on the Premises that are not the responsibility of the Tenant to correct, and if any
such clean-up activities by Landlord shall prevent Tenant from using the Premises for the
purposes intended, the Rent shall be equitably abated, from the date that the use of the
Premises for its intended purposes is precluded and until the Premises again become available
for the Tenant's use. Landlord shall use reasonable efforts to not disrupt Tenant's business;
however, in no event shall Tenant be entitled to any amount on account of lost profits, lost
rentals, or other damages as a result of Landlord's clean-up activities.
(i) Survival. The provisions of this Section shall survive the expiration or other
termination of this Lease.
SECTION 28. NON-DISCRIMINATION.
(a) Americans with Disabilities Act. Tenant shall comply with Title I of the
Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
marital status, political affiliation, familial status or physical or mental disability. In addition,
Tenant shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination,
rates of pay, other forms of compensation, terms and conditions of employment, training
(including apprenticeship), and accessibility.
(b) Tenant shall take affirmative action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, familial status or physical or mental
disability during employment. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff,
termination, rates of pay, other forms of compensation, terms and conditions of employment,
training (including apprenticeship), and accessibility.
(c) Tenant shall not engage in or commit any discriminatory practice in violation of
applicable laws, statutes, ordinances, rules or regulations.
SECTION 29. MISCELLANEOUS.
(a) Headings. The section and paragraph headings in this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision hereof.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Disputes shall be resolved in the 17th
40
® Judicial Circuit Court of Broward County or in the federal courts in the Southern District of
Florida, whichever jurisdiction is appropriate.
(c) Severance. In the event this Lease or a portion of this Lease is found by a court
of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective
to the fullest extent permitted by law.
(d) Relationship of Parties/Independent Contractor. It is the intent of the parties
that the relationship of Landlord and Tenant hereunder is the relationship of landlord and
tenant. Services provided by Tenant shall be subject to the supervision of Tenant and such
services shall not be provided by Tenant, or its agents, as officers, employees, or agents of the
Landlord. 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 create
or be deemed or construed to create a partnership, joint venture, joint enterprise or any other
agency or other similar such relationship between the parties hereto.
(e) Third Party Beneficiaries. Neither Tenant nor Landlord intend to directly or
substantially benefit a third party by this Lease. Therefore, the parties agree that there are no
third party beneficiaries to this Lease and that no third party shall be entitled to assert a claim
against either of them based upon this Lease.
(f) Force Majeure. Notwithstanding anything contained in this Lease to the
® contrary, neither Landlord nor Tenant shall be considered to be in default of this Lease if
delays in or failure of performance shall be due to Force Majeure, the effect of which, by the
exercise of reasonable diligence, the non-performing party could not avoid wherein the time
for performance shall be extended by the period of such Force Majeure event(s).
(g) Negotiated Lease. Both parties have substantially contributed to the 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.
(h) Incorporation by Reference. The truth and accuracy of each "Recitals" 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.
(i) Estoppel Statement. The parties agree that from time to time, upon not less than
fifteen (15) days prior request by a party hereto, the other party will deliver a statement in
writing certifying: (a) that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that the Lease as modified is in full force and effect and stating the
® modifications); (b) the dates to which the Rent and other charges have been paid; (c) that
41
neither party is in default under any provisions of this Lease, or, if in default, the nature
thereof in detail; and (d) such other information pertaining to this Lease as either party may
reasonably request.
0) Amendments. No modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document prepared
with the same or similar formality.as this Lease and executed by the Landlord and Tenant.
(k) Prior Agreements. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable to the
matters contained herein and the parties agree that there are no commitments, agreements or
understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representations or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or conditions contained
herein shall be effective unless contained in a written document in accordance with
subparagraph 0), above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise
requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Lease
as a whole and not to any particular sentence, paragraph, or section where they appear, unless
® the context otherwise requires. Whenever reference is made to a Section of this Lease, such
reference is to the Section as a whole, including all of the subsections and subparagraphs of
such Section, unless the reference is made to a particular subsection or subparagraph of such
Section.
(m) Holdover. It is agreed and understood that any holding over of Tenant after the
termination of this Lease shall not renew and extend same, but shall operate and be construed
as a license from month to month. At the option of Landlord, upon written notice to Tenant,
Tenant shall be required to pay to the Landlord during any holdover period, monthly license
fees which shall be equal to double the amount of the monthly installment of rental that was
due and payable for the month immediately preceding the termination date of this Lease. In
addition, Tenant shall be required to pay to Landlord any other charges required to be paid
hereunder during any such holdover period. Tenant shall be liable to the Landlord for all loss
or damage on account of any such holding over against the Landlord's will after the
termination of this Lease, whether such loss or damage may be contemplated at the execution
of this Lease or not. It is expressly agreed that acceptance of the foregoing payments by the
Landlord in the event that Tenant fails or refuses to surrender possession shall not operate or
give Tenant any right to remain in possession nor shall it constitute a waiver by the Landlord
of its right to immediate possession of the premises.
(n) Agent for Service of Process. It is expressly understood and agreed that if the
Tenant is not a resident of the State of Florida, or is an association, corporation or partnership
without a registered agent for service of process in the State of Florida, then in any such event
42
the Tenant does designate the Secretary of State, State of Florida, its agent for the purpose of
service of process in any court action between it and the Landlord arising out of or based upon
this Lease, and the service shall be made as provided by the laws of the State for service upon
a non-resident, who has designated the Secretary of State as agent for service. The Tenant
shall designate an agent for service process in Florida. It is further expressly agreed,
covenanted, and stipulated that, if for any reason, service of such process is not possible, and
as an alternative method of service of process, Tenant may be personally served with such
process out of this State by certified mailing to the Tenant at the address set forth herein. Any
such service out of this State shall constitute valid service upon the Tenant as of the date of
mailing. It is further expressly agreed that the Tenant is amenable to and hereby agrees to the
process so served, submits to the jurisdiction, and waives any and all objections and protest
thereto.
(o) Waiver of Claims. Landlord shall not be liable for any loss, damage or injury
of any kind or character to any person or property (i) arising from any use of the Premises or
any part thereof; (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, licensees or invitees; (iv)
arising from any accident on the Premises or any fire or other casualty thereon; (v) occasioned
by Tenant's failure to maintain the Premises in a safe condition; or (vi) arising from any other
cause; unless, in any of such events, caused by the gross negligence or willful act of Landlord.
The Tenant agrees that Landlord shall not be liable for injury to Tenant's business for any loss
® of income therefrom or from loss or damage for merchandise or property of Tenant or its
employees, invitees, customers, commercial tenants or other persons in or about the Premises,
nor shall Landlord be liable for injuries to any persons on or about the Premises whether such
damage is caused by or as a result of theft, fire, electricity, water, rain or from breakage,
leakage, obstruction or other defect of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or for any other condition arising upon the Premises, or from
any new construction or repair, alteration or improvement on the part of Tenant's
improvements or the equipment, fixtures or appurtenance thereof, other than as a result of
Landlord's default of its obligations under this Lease. The Landlord does not waive any rights
of sovereign immunity that it has under applicable law. Notwithstanding anything contained in
this Lease to the contrary, in no event shall Landlord be liable for any consequential or
punitive damages in connection with this Lease.
(p) 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), which
essentially provides that a person or affiliate who is a contractor, consultant or other provider
and who has been placed on the convicted vendor list following a conviction for a Public Entity
Crime may not submit a bid on a contract to provide any goods or services to Landlord, may
not submit a bid on a contract with Landlord for the construction or repair of a public building
or public work, may not submit bids on leases of real property to Landlord, may not be
awarded or perform work as a contractor, supplier, subcontractor, or consultant under a
contract with Landlord, and may not transact any business with Landlord in excess of the
threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for
43
a period of 36 months from the date of being placed on the convicted vendor list. Violation of
this section shall result in termination of this Lease and recovery of any monies paid by
Landlord, and may result in debarment from Landlord's competitive procurement activities. In
addition to the foregoing, Tenant further represents that there has been no determination, based
on an audit, 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.
(q) Drug-Free Workplace Certification. Tenant hereby covenants and agrees to
implement a policy consistent with applicable laws with respect to maintaining a drug-free
workplace and otherwise to diligently try to provide and maintain during the Term of this
Lease a drug-free workplace at the Premises.
(r) Financial Interests. No elected official, officer, agent or employee of the City
shall have a financial interest directly or indirectly in this Lease or any compensation to be paid
under it, and further, no City employee who acts in the City as a "purchasing agent" as defined
by Section 112.312 (20), Florida Statutes, nor any elected or appointed officer of the City, nor
any spouse or child of such purchasing agent, employee or elected or appointed officer, may
be a partner, officer, director or proprietor of and, further, no such City purchasing agent,
employee or elected or appointed officer, or the spouse or child of any of them, alone or in
combination, may have a material interest in the Tenant. Material interest means direct or
indirect ownership of more than five percent (5%) of the total assets or capital stock of the
Tenant.
(s) 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.
(t) Time of Essence. Time is expressed to be of the essence of this Lease.
(u) Written Approvals. All approvals and consents required to be obtained
hereunder must be in writing to be effective. Unless otherwise specifically provided to the
contrary, any consent or approval required by a party to this Agreement shall not be
unreasonably withheld, conditioned or delayed.
(v) Authority of Individuals. The individuals executing this Lease on behalf of
Tenant personally warrant that they have full authority to execute this Lease in a representative
capacity on behalf of Tenant for whom they are acting herein.
(w) Recordation of Memorandum of Lease. Landlord hereby consents to Tenant
recording a Memorandum of this Lease in the Public Records of Broward County, Florida,
which Memorandum shall set forth, and shall only set forth: (i) the names of the parties; (ii)
the Effective Date and Term of the Lease, and (iii) a notice of non-responsibility to advise all
contractors and subcontractors that the Tenant shall not have the right to create a lien against
Landlord's interest in and to the Premises. Tenant shall not record this Lease in the Public
44
Records of Broward County, Florida. The Tenant agrees that upon any termination of the
Lease that it will execute a document in form reasonably requested by Landlord terminating the
memorandum of record.
(x) No Set Off. The Tenant acknowledges that, as of the Effective Date hereof, it
has no claims against Landlord with respect to any or the matters covered by this Lease and as
of the Effective Date it has no claim of set off or counterclaims against any of the amounts
payable by Tenant to Landlord under this Lease. The Tenant is not entitled to setoff against
the amounts payable by Tenant to Landlord payable pursuant to this Lease.
(y) Police/Regulatory Powers. Landlord cannot, and hereby specifically does not,
waive or relinquish any of its regulatory approval or enforcement rights and obligations as it
may relate to regulations of general applicability which may govern the Premises, any
improvements thereon, or any operations at the Premises. Nothing in this Lease shall be
deemed to create an affirmative duty of Landlord to abrogate its sovereign right to exercise its
police powers and governmental powers by approving or disapproving or taking any other
action in accordance with its zoning and land use codes, administrative codes, ordinances,
rules and regulations, federal laws and regulations, State laws and regulations, and grant
agreements. In addition, nothing herein shall be considered zoning by contract.
(z) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and State guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your local public health unit.
(aa) Broker. Each party represents to the other that it has not dealt with any broker
or finder in connection with the execution of this Lease.
(bb) Counterparts. This Lease may be executed in counterparts, each of which shall
be deemed to be an original.
(cc) 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.
(dd) Attorneys' Fees. In the event of any litigation which arises out of, pertains to,
or relates to this Lease or the breach of it, or the standard of performance required in it, the
prevailing party shall be entitled to recover reasonable attorneys' fees from the non-prevailing
party, subject to the limits of this Section. Where the prevailing party is awarded
compensatory damages from the non-prevailing party, the amount of fees shall not exceed the
amount of compensatory damages (it being the intent that no fees shall be recoverable by a
prevailing party in the absence of an award of compensatory damages other than nominal
damages).
45
® IN WITNESS WHEREOF, the parties hereto have made and executed this Lease on
the respective dates under each signature: City of Dania Beach through its City Commission,
signing by and through its Mayor, authorized to execute same by Commission action on the
day of , 2000; and authorized to
execute same.
CITY OF DANIA BEACH, through its
City Commission
ATTEST:
By:
Mayor
day of December, 2000
Sheryl Chapman
Acting City Clerk
Approved as to form and legality by (CITY SEAL)
Office of the City Attorney
By:
Thomas J. Ansbro, City Attorney
day of December, 2000
WITNESSES:
WHISKEY CREEK FOOD & TACKLE,
INC., a Florida corporation
Print Name:
By:
Print Name: , President
(CORPORATE SEAL)
46
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on this day of December, 2000, before me, an officer
duly authorized to take acknowledgements in the State and County aforesaid, personally appeared
, as President of WHISKEY CREEK FOOD &
TACKLE, INC., a Florida corporation, on behalf of the corporation, who (check one) [ ] is
personally known to me or [ ] produced a drivers license as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
® STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on this day of December, 2000, before me, an officer
duly authorized to take acknowledgements in the State and County aforesaid, personally appeared
, as Mayor of the CITY OF DANIA BEACH, a
Florida municipal corporation, on behalf of the corporation, who (check one) [ ] is personally
known to me or [ ] produced a drivers license as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
566005\documents\Lease- Dania Beach revised 12-18-00-draft#5
47
SEP-18-2000 MON 01 :51 PM WEISS SEROTA HELFMAN FAX NO. 954 764 7770 P. 01
® WECSS SEIZOTA HELFMAN
PASTORIZA & G'UEDES, P.A.
1132 Southeast 2n(l Avenue
Fort Lauderdale, Ft., 33316
Telephone (954) 763-4242
Telecopier (954) 764-7770
CONFIDENTIAL
TO: Randy Wilkinson 921-2604
Parks & Recreation
FROM: Totn Ansbro
Re: Whiskey Creek (Pier Restaurant)
Per your request, attached are copies of the Lease exhibits.
The information contained in this transmission is attorney privileged and confidential. It is intended only for the use of the
individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that
any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this
communication in error, please notify its immediately by telephone collect and rentrn the original message to us at the
above address via the U. S. Postal Service. We will reimburse you for postage. Thank you.
FILE NO.: 566005
DATE: September 18, 2000
NUMBER OF PAGES INCLUDING COVER SHEET: 8
PLEASE NOTIFY US IMMEDIATELY IF NOT RECEIVED PROPERLY
L
SEP-18-2000 MON 01 :51 PM WEISS SEROTA HELFMAN FAX NO, 954 764 7770 P. 02
WEISS SEROTA HELFMAN
PASTORIZA&GUEOES,P.A.
2665 South Bayshore Drive
Suite 420
Miami,Florida 33133
Telephone (305�8S4-p800
xaalecopier(305)&%2323
CONFIDENTIAL
TO: Mke StuW City Merge' Fax No. (954)921-2604
David.Mutrrsy,Fsq• Fax No, (954)467-2306
Mr. Tim Petrillo Fax No, (954)618-0398
Mr.Alan C.Hooper Fax No, (954)761-7926
® "Zhomas J. Aosbro,Esq- Fax No. (954)764-7770
FROM: Stevan W.Zelkowitz
COMMENTS:
Attached are proposed E%6its A through D for your review,
fly infarruatJr�n a4ntaiued in tttia tTansmiseion i�attorney pnivilcgcd xnd conQdmr�tiaL It is itrtended only for tbo Use of the
individual ow mtity namad nbova if the reader of dig=,UX8a is not tho iatmWod rmcipient,you are hereby noti5ed that
any dias minxtion, distribution or °OPY of Chia nommuntiaab" iA strictly prohibited, If you huvo mcsivrd this
Communicatim in auur, plwo notify us immediatoly by tclepl»Collect and zat►uu ft arigival menage to ua at tba
wbavo addrerer via tbp U,S,poaul 5em,e. W o will reimburse you for postage.ThA.nk you.
ITX NO.: 566005
DATE:August 30, 2000
N UMBER OF PAGES INCLUDING COVER SB El;T:
JI
100(i� XVKd13H V VZOMS SSIU M7 t2i 00C YVd 9T-VT ([U 00/0C/P ,. '"
SEP-18-2000 MON 01 :51 PM WEISS SEROTA HELFMAN FAX NO, 954 764 7770 P. 03
� E�tC;z1sIT A
PARCEL
l_.EGAL DESCRIPTION
A portion of HOLLYWOOD CENTRAL BEACH as recorded in Plat Book 4,
Page 20D of the Public Records of Broward County, Florida, more
particularly described as follows:
Commence at the Northeast comer of Block 203 of the aforementioned Plat
of HOLLYWOOD CENTRAL BEACH and proceed S02°02'24"E, along the
Easterly line of said Block 203 for 53.45 feet; thence the following courses
and distances: S86012'58"E, 267,15 feet; N05°14'16"E, 861.86 feet;
840055'37"E, 138.63 feet to the POINT OF BEGINNING of the following
described parcel; thence N05°14'16"E, 485.00 feet; thence S86'00'03"E,
2.17.92 feet to the intersection with the Erosion Control Line as described in
miscellaneous Plat Book 3, Page 49, of the Public Records of Broward
County, Florida; thence S06°41'47"W, along said Erosion Control Line,
485.42 feet;thence,departing from said Erosion Control Line,N86'00'03"W,
205.56 feet to the POINT OF BEGINNING, containing 2.357 acres, more or
less,
G,%wPFI LYS%TJA\0AMA1Pier-Mdiibit SAPP
0723)9311
Zoaf� IdHALi'C��I � VZO?I3S S6I�M CZCz �98 SOE �V',� 8TST a�zk1 00/aC/BO
SEP-18-2000 MON 01 :51 PM WEISS SEROTA HELFMAN FAX NO, 954 764 7770 P. 04
EXHIBIT A (CONVD)
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SEP-18-2000 MON 01 :51 PM WEISS SEROTA HELFMAN FAX NO. 954 764 7770 P. 05
i EXHIBIT B
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Poofrj 11v�i3T3A �3 vzous SSI3ht CZCZ 629 90C XY3 6T;ST QH6h 00/ot/90
SEP-18-2000 MON 01 :51 PM WEISS SEROTA HELFMAN FAX NO. 954 764 7770 P. 06
(-' EXHIBIT C
1;'REMTS�S
DANIA--BEACH OCEAN PIER RESTAURANT
Commence of the northaost corner of Block 203 Of Hollywood Central
Leach occording to Plot Book 4, pQge 20D of the Public Records of
Broward County; thence S02d02'24"E for 53,45'; thence 566d 12'58"C for
267, 15'; thence N05d14'16" for 851 ,86'; thence. S40d55'57"E for 138,63';
thence 586d00'Q3"E for 205,74' to the intersection of the erosion control
line os recorded on October 11, 1975 in MiscellOneous Plot hook 3. Payc
49 of the Public Records of eroword County; thence N06d41 '47"E olong
said erosion control fine for 404,57' to a point; departing from said point
thence' N81d56'06"W for 35,25' to o POINT OF BEGINNING of the following
described parcel; ,
Thence N0803'5i"E for 24.00'; thence N81d56'06"W for 143,50'; thence
508d03'54"W for 40,00'; thence S81d56'06"E for 143,50'; thence
N08d03'54`E for 16.00' to the POINT OF BEGINNING, cnntoining 5740
square feet (0, 132acres) rr,Ore or iesa.
i
JJ
1
i
S,0o1� !�V➢t.TT �i v Vl()H3S SUM £Z£Z 1199 Q0£ QV3 0Z-18T QSM 00/OC/90
SEP-18-2000 MON 01 :52 PM WEISS SEROTA HELFMAN FAX N0, 954 764 7770 P. 07
EXHIBIT C (CONT'D)
DANIA—BEACH OCEAN PIER RESTAURANT
SANDY UEACI,
FUTURE RESYAURANY
Jtl 0 . }0 60 , hh•�a•Wb ,
0K 14Cu r 00 FEET 6�1„ �� "�wia? .,
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pfrR BEYOND
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