HomeMy WebLinkAboutO-2003-019 Pier Lease (Jutz-Stork) Restaurant i
ORDINANCE NO. 2003-019
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, APPROVING EXECUTION OF A LEASE
AGREEMENT BETWEEN THE CITY AND MR. SVEN H. JUTZ
PERTAINING TO PROPERTY OWNED BY THE CITY AND COMMONLY
KNOWN AS THE DANIA BEACH PIER RESTAURANT AND BAIT SHOP
PROPERTY; AUTHORIZING AND DIRECTING THE EXECUTION OF
THE LEASE BY THE APPROPRIATE CITY OFFICIALS; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY; FURTHER,
PROVIDING FOR AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH,
FLORIDA:
Section 1. That that certain Lease Agreement between the City of Dania Beach, as
Landlord, and Mr. Sven H. Jutz, as the Tenant, pertaining to a property owned by the
City and commonly known as the Dania Beach Pier Restaurant and Bait Shop, an
unexecuted copy of which Lease is attached and made a part of this ordinance as
Exhibit "A", is approved.
Section 2. That the proper City Officials are authorized and directed to execute the
Lease Agreement between the City of Dania Beach, as Landlord, and Mr. Sven H. Jutz,
as Tenant.
Section 3. That the City Manager and City Attorney are authorized to make minor
revisions to such Lease Agreement as are deemed necessary and proper for the best
interests of the City. Such Lease Agreement shall not be deemed accepted by the City
unless and until the City has completed its execution of the Agreement.
Section 4. 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 5. All ordinances or parts of ordinances in conflict with the provisions of this
ordinance are repealed.
1 ORDINANCE NO.: 2003-019
Section 6. This ordinance shall take effect immediately at the time of its passage.
PASSED AND ADOPTED on first reading Y on May 13th, 2003.
PASSED AND ADOPTED on second reading on May 28th, 2003.
AF VV �
OBBTON
MAYOR — COMMISSIONER
ATTEST: ROLL CALL:
COMMISSIONER CHUNN - YES
D COMMISSIONER FLURY - YES
04OLLMEf J60 SON COMMISSIONER MIKES - NO
CITY CLERK VICE-MAYOR MCELYEA - NO
MAYOR ANTON - YES
APPROVED AS TO F RM AND CORRECTNESS:
BY:
THOM S J. ANSBRO
CITY,/ATTORNEY
2 ORDINANCE NO.: 2003-019
LEASE AGREEMENT
BETWEEN
CITY OF DANIA BEACH
AND
SVEN H. JUTZ
TABLE OF CONTENTS
SECTION 1. DEFINITIONS....................................................................................I
SECTION 2. LETTING............................................................................................3
SECTION3. TERM .................................................................................................4
SECTION4. RENT..................................................................................................4
SECTION 5. RIGHTS AND USES OF THE TENANT..........................................6
SECTION 6. CONSTRUCTION OF IMPROVEMENTS
BYTENANT .....................................................................................7
SECTION 7. OPERATIONAL REQUIREMENTS
OF THE TENANT; PARKING..........................................................9
SECTION 8 OBLIGATIONS OF THE TENANT................................................10
SECTION 9. COMPLIANCE WITH GOVERNMENTAL PROCEDURES........I I
SECTION 10. MAINTENANCE AND REPAIR ....................................................12
SECTION 11. INSURANCE REQUIREMENTS FOR TENANT..........................13
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES.....................15
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY
FOR OTHER PUBLIC PURPOSES ................................................15
SECTION 14. INDEMNITY....................................................................................16
SECTION 15. RIGHTS OF ENTRY RESERVED..................................................17
SECTION 16. ASSIGNMENT AND SUBLETTING .............................................18
SECTION 17. DEFAULT; TERMINATION ..........................................................19
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE.........................................21
SECTION 19. SURRENDER...................................................................................21
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE..............................22
SECTION 21. REMOVAL OF PROPERTY...........................................................22
SECTION22. NOTICES..........................................................................................22
SECTION 23. ENVIRONMENTAL COMPLIANCE.............................................23
SECTION 24. NON-DISCRIMINATION...............................................................23
SECTION 25. MISCELLANEOUS .........................................................................24
LEASE AGREEMENT
THIS IS A LEASE AGREEMENT ("Lease") dated , 2003 (the
"Effective Date") 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 SVEN H. JUTZ, having an address at P.O. Box 4512, , Fort Lauderdale,
Florida 3333E ("Tenant").
RECITALS
t. Landlord owns certain real property located in Broward County, Florida as more
particularly described in Exhibit A, a copy of which is attached to this Lease and incorporated by
this reference (the "Parcel") upon which Landlord constructed a certain fishing pier as more
particularly depicted in Exhibit B, a copy of which is also attached to this Lease and incorporated
by this reference (the "Pier").
2. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, a
portion of the Pier as more particularly described on Exhibit C, a copy of which is attached to
this Lease and by this reference made a part of it (the "Premises") for the purposes stated in this
Lease, subject to the terms and conditions of this Lease.
NOW, THEREFORE, in consideration of the Premises and the mutual covenants
® contained in this Lease, and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
The terms set forth below, when used in this Lease, shall be defined as follows:
(a) "Base Rent" shall be-the sum of ninety-six thousand dollars ($96,000.00) per year,
payable by Tenant to Landlord.
(b) "City" shall mean the City of Dania Beach in its capacity as a municipal
government, and not as Landlord under this Agreement.
(c) "County" shall mean Broward County, a political subdivision of the State.
(d) "Effective Date" shall mean , 2003.
(e) "Force Majeure" shall mean any event which results in the prevention or delay of
performance by either Landlord or Tenant of its obligations under this Lease and which is
beyond the reasonable control of such party including, but not limited to fire, earthquake,
hurricane, tornado, unusual storm, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
(f) "Gross Revenue" means all revenues (whether cash, credit or barter), paid to
Tenant (and any Subtenant(s) of tenant) derived from the operation of the Premises by Tenant
and any Subtenant(s) (and any party that succeeds to the interest of Tenant and any
Subtenant[s]). Gross Revenue shall expressly exclude all (i) insurance loss proceeds which are
applied toward restoration of the Improvements or otherwise not retained by Tenant or any
Subtenant(s); (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; (ill) the
Pier Admission Fee as defined in Section 9(e); (iv) sales taxes; and (v) employee meals, if free
or discounted for such employees and their immediate family members.
(g) "Improvements" means any fixtures, permanently affixed equipment, signs, up to
six (6) free-standing, removable, marina style kiosks (each consisting of approximately one
hundred fifty (150) square feet) and all other structures, improvements, and Alterations (as
defined in section 6[h]) constructed by the Tenant, its Subtenant(s), licenses, agents, and
contractors in connection with the Premises. The parties acknowledge and agree that the
Improvements to be installed by the Tenant prior to the Start Date include all furnishings,
fixtures and equipment necessary to operate the Premises as a restaurant pursuant to this Lease
including, but not limited to, stoves, sinks, coolers, refrigerators, freezers, dishwashers,
telecommunications and cash register systems.
(h) "Lease" or "Agreement" shall mean this Lease Agreement, including any
supplements, modifications or amendments to it.
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(1) "Lease Year" shall mean the twelve (12) month period beginning on the Start
Date and each anniversary thereafter.
(j) "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 in Exhibit A.
(k) "Percentage Sum" shall mean eight percent (8%) of the amount of the Gross
Revenue derived from the Premises by Tenant and any Subtenant(s) (or any party who succeeds
to the interest of Tenant or any Subtenant[s]) in respect to any Lease Year.
(1) "Person" shall mean any individual, trust, estate, partnership, joint venture,
company, corporation, association, or any other legal entity or business enterprise.
(m) "Premises" shall mean that portion of the Pier containing approximately six
thousand two hundred fifty (6,250) square feet as'more particularly described in Exhibit C
generally consisting of the restaurant area and bait shop as shown on Exhibit B, together with all
improvements to be constructed thereon by the Landlord pursuant to this Lease generally
consisting of the restaurant, as well as the improvements now existing or hereafter constructed
on that portion, the equipment permanently affixed in and to such portion, 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,
4 conduits, equipment and fixtures together with all appurtenances, rights, privileges, permits and
easements benefiting, belonging or pertaining to them; provided, however, the Premises
specifically exclude any electrical, plumbing or other utilities owned by Landlord which service
the Pier. The Premises shall also include up to six (6) free-standing, removable marina style
kiosks.
(n) "Rent" shall mean the Base Rent (as such may be increased by the Percentage
Sum).
(o) "Start Date" shall mean the date which is three (3) months from the date Landlord
delivers possession of the Premises to Tenant, as evidenced in a written notice from the Landlord
to the Tenant to that effect. The written notice shall be delivered when the Premises are
completed to the point where Tenant can commence installation of its Improvements as
determined by the Landlord.
(p) "State" shall mean the State of Florida.
(q) "Subtenant" shall mean any Person that uses or occupies the Premises or any
portion of them pursuant to an agreement including, but not limited to, a Sublease as defined in
Section 17(b), license or concession, whether oral or written, between Tenant and such Person.
(r) "Tenant" shall mean Sven H. Jutz, having an address at P.O. Box 4512, Ft.
Lauderdale, Florida, 33338 and successors and assigns as permitted by this Lease.
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(s) "Term of this Lease" or similar words means the term set forth in Section 3 of this
Lease.
SECTION 2. LETTING.
(a) Let. The Landlord lets to Tenant and Tenant leases the Premises from Landlord.
(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 to and from the Premises (expressly
including the Whiskey Creek Docks) and the Pier including, specifically, the ramp up to the Pier
as shown on Exhibit B. Such license shall continue only while this Lease is in effect and shall
terminate upon the termination of this Lease.
(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.
(d) As Is. Except as may be otherwise provided in this Lease, the Premises and all
components of them, are leased in "AS IS CONDITION" provided, however Landlord
guarantees that the Premises may be used for the purposes permitted by this Lease.
(e) Quiet Enjoyment. Tenant, upon paying the Rent specified 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 ("Initial Term") of this Lease shall begin on the Start Date and
shall terminate on the last day of the tenth (101") Lease Year of this Lease, unless sooner
terminated as provided in this Lease.
(b) Renewal Options. If Tenant is not in default under this Lease, Tenant shall have
the option to extend the Initial Term of this Lease for two (2) separate, consecutive, additional
renewal term(s) of five (5) years each (each, a "Renewal Term"). Tenant shall exercise its option
to renew by giving Landlord written notice not less than six (6) months nor more than twelve
(12) months prior to the expiration of the Initial Term or the Renewal Term then in effect, as the
case may be. If Tenant fails to exercise its options in the time periods or in the manner provided,
in this Lease, such options shall be deemed to have lapsed and terminated, and shall be of no
further force or effect without any action or notice required on the part of Landlord. All of the
- terms and conditions of this Lease, except payment of rent, discussed below, shall remain in full
force and effect during any Renewal Term(s). If Tenant exercises its options as set forth above;
the Lease end date shall be the last day of the Renewal Term then in effect, unless sooner`'
® tenninated as provided in this Lease. The Initial Term of this Lease, as extended by any Renewat(
Term(s), if applicable, shall be referred to as the "Term".
r-
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SECTION 4. RENT.
(a) Base Rent. Commencing on the Start 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.
(b) Base Rent for Renewal Terms. The Base Rent for any Renewal Term shall be the
same Base Rent which is payable during the Initial Term.
(c) Percentage Sum. (i) It is the intent of the parties that Tenant shall pay to
Landlord, as rent, the greater of the Base Rent or the Percentage Sum, which sum shall be
calculated on a yearly basis. 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 Start
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 Start 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 Start Date.
(ii) Tenant will furnish to Landlord unaudited financial statements of sales prepared in
accordance with generally accepted accounting principles from Tenant and any Subtenant(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 three (3) months of Landlord's receipt of the Statement the Landlord shall have
the right at any time during business hours, and upon forty-eight (48) hours' prior notice to
Tenant and Subtenant(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
Subtenant(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.
(d) Licenses, Fees and Taxes. Tenant shall pay, on or before their respective due
dates, to the appropriate collecting authorities, all federal, State, County, and City taxes, licenses,
permits, assessments, and fees, which are now or may subsequently be levied upon the Premises
or the leasehold estate granted by this document, or upon Tenant, or upon any of Tenant's
property used in connection with the Lease, or upon any rentals or other sums payable under this
Lease, including, but not limited to any applicable ad valorem, sales or excise taxes, and shall
® maintain in current status all federal, State, County and City licenses and permits, now or
subsequently required for the operation of the business conducted by Tenant including, but not
limited to, occupational licenses.
5
(e) Proration. Taxes, assessments and other expenses in connection with the
Premises shall be prorated as of the Start Date and the last day of the Term with Tenant being
responsible for its obligations pursuant to this Lease for the period between the Start Date and
the Termination Date.
(f) Utilities. From and after the date that Landlord provides written notice to the
Tenant that the Tenant can commence installation of Tenant's improvements, 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.
(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 in this Lease 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 for such address. All Rent (together with sales tax, if
applicable) 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 use the Premises for the following
uses ("Permitted Uses"):
(1) Restaurant and bar uses open to the general public 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
Subtenant(s) shall only be permitted as set forth in this Section 5(b). Within the restaurant/bar
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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 using the Premises for
the following:
(1) Adult arcade, adult bookstore/adult video store, adult booth, adult dancing
establishment, adult entertainment establishment, adult motel, or adult theater, as such terms are
defined in City Ordinances from time to time.
(2) The sale or distribution of alcoholic beverages except as expressly
provided in Section 5(b) above.
(3) Any use that requires the storing of hazardous substances, materials or
both at the Premises in violation of applicable law.
(4) Any use of the Premises for residential purposes.
(5) Any use which is not a Permitted Use as set forth in Section 5(a) above.
® (6) Any use prohibited by 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 very 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. 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 for, at least forty-five (45) days in advance 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 or absolute prohibition of any sale or distribution by any
person, including Tenant, of alcoholic beverages in Landlord's sole discretion, excluding sales
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made by Tenant from within the Premises for on-Premises consumption. 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 temporarily authorize or
may absolutely prohibit, in Landlord's sole discretion, the sale of alcoholic beverages from the
Kiosks, as well as other portions of the Pier and Parcel during the Special Event. If the Special
Event Permit does not specifically address the sale or distribution of alcoholic beverages, then
sale, distribution or both are prohibited except for sales made by Tenant and confined to the
Premises for on-Premises consumption. Notwithstanding anything in this Lease to the contrary,
Tenant shall not be 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 of 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 OF IMPROVEMENTS BY TENANT.
(a) Schedule for Development of Premises. The Tenant agrees that the
Improvements shall be completed by the Start Date. Completion of the Improvements shall be
evidenced by a certificate of occupancy issued by the City. Tenant shall be responsible for all
costs and expenses for the planning, design, engineering, installation, and construction of the
Improvements. The parties acknowledge and agree that the Landlord's obligation is to complete
the Premises to shell construction with building systems consisting of plumbing, electric, HVAC,
access and emergency facilities (including emergency exits and fire suppression systems), sewer,
water, fuel, and gas, as applicable. All other further improvements necessary to place the
Premises in a condition for operation as a restaurant shall be the obligation of Tenant.
(b) 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 seq., and the Florida
Building Code.
(c) Ownership of Improvements. Unless otherwise set forth in this Lease, upon
completion all Improvements including, but not limited to, all restaurant equipment such as
stoves, sinks, coolers, refrigerators, freezers, dishwashers, and any additions and Alterations (as
defined in Section 6(h) (including those that are nailed, bolted, stapled, or otherwise affixed to
• the Premises, but excluding unattached, movable trade fixtures, furnishings and equipment
owned by Tenant, but excluding restaurant equipment as set forth above) made to the Premises
by Tenant, or at Tenant's direction, shall become and remain the Landlord's property free and
8
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.
(d) Encumbrances. Tenant represents, warrants and covenants to the Landlord that
the fee simple title to the Premises shall be at all times kept free and clear of all liens, claims and
encumbrances created by or through Tenant (other than those created or consented to by
Landlord). If any lien or notice of lien shall be filed against the Premises created by or through
Tenant, the Tenant shall, within thirty (30) calendar days after notice of any such filing, 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 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.
(e) Required Governmental Approvals. Tenant, at its sole cost and expense, shall
obtain all required governmental approvals from all governmental agencies having jurisdiction
over the Premises for any Improvements constructed or to be constructed by Tenant, including
but not limited to departments, divisions or offices of the State, County, City, and the federal
government. Notwithstanding the foregoing, Landlord 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.
(f) Contractor Indemnity. The Tenant shall require any contractor performing any
work in connection with the Improvements to indemnify and hold the Landlord (including its
elected officials, officers, employees and agents) 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 such
contractor, its subcontractors, agents and employees in connection with performing such work..
(g) Contractor Insurance. The Tenant shall require any contractor performing work
on the Premises to provide, pay for and maintain in force, during the time such work is being
performed, the following insurance policies: (i) comprehensive general liability with minimum
limits of One Million Dollars ($1,000,000.00) per occurrence and One Million Dollars
($1,000,000.00) annual aggregate; (ii) a minimum of One Million Dollars (1,000,000.00)
combined single limit automotive liability; (iii) Workers' Compensation and employer's liability
insurance in the amounts specified in Section 11, below. With respect to the insurance to be
obtained, 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 insurance coverage as specified above and expressly
including the Landlord (including its elected officials, officers, employees and agents) as an
additional named insured as its interests may appear. If the initial insurance expires prior to the
completion of the improvements, renewal certificates of insurance shall be furnished thirty (30)
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. Carriers shall meet the insurance ratings specified in Section I l(b)
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below.
(h) Alterations During the Term. Following the installation of the Improvements
installed prior to the Start Date, Tenant shall not cut, drill into, disfigure, deface or injure any
part of the Premises or perform or undertake any alteration, addition, improvement or
construction (each an "Alteration") to or in the Premises, other than minor or cosmetic alterations
which are interior and nonstructural in nature, without Landlord's prior written consent, which
consent shall neither be unreasonably withheld nor delayed except, however, that Landlord may
withhold or delay consent at Landlord's sole discretion, for any Alteration which (i) will alter or
affect any portion of the plumbing, heating, ventilating, air conditioning, mechanical, electrical
and other building systems, installations and facilities of the Premises or structure, facade, wall,
roof, or foundation of the Premises, the Pier or both; (ii) will detract from the use or character of
the Premises; (iii) will require amendment of any certificate of occupancy for the Premises; (iv)
or will require the consent of any insurer under any of Landlord's or Tenant's policies of
insurance covering the Premises. Any alterations by Tenant shall be performed at the sole cost
of Tenant.
(i) Requirements During the Term. The foregoing requirements set forth in this
Section 6 shall be applicable for the construction and installation of all Improvements and
Alterations during the Term of this Lease.
SECTION 7. OPERATIONAL REQUIREMENTS OF THE TENANT; PARKING.
(a) Name. The Premises, when operational, shall be identified by a name registered
with applicable governmental authorities 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) Operating, Schedule. Tenant shall provide its services not less than six (6) days a
week except for any holidays as determined by Tenant, during such hours as follows: 7:00a.m.
(EST) TO 10:00 p.m. (EST) and as otherwise permitted by applicable law. Tenant shall,be given
the opportunity to apply for and obtain an "extended hours" license, allowing for the sale of
alcoholic beverages to 4:00 a.m., subject to compliance with the applicable City ordinance.
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 since it is the intent of the parties
that the days and hours of operation meet the needs and desires of the residents of the City and
the economic practicality of Tenant, as mutually determined by the parties.
(c) Quality of Services. Tenant shall conduct its operations in a first class, 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.
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(d) 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").
Exhibit D, a copy of which is attached to this Lease and incorporated by reference, 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
no additional cost. 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 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 (100) parking spaces.
Any increase to the aggregate number of parking spaces in the Employee Parking Area and
Customer Parking Area over one hundred (100) spaces shall be in Landlord's sole discretion.
Landlord and Tenant will develop a system to ensure that the parking spaces are restricted for
Tenant's use.
SECTION 8. OBLIGATIONS 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 use and
occupancy of the Premises or out of any operations conducted on them in accordance with
applicable law. Any items shall be kept in suitable garbage and waste receptacles, as approved in
writing by Landlord. When removing such waste, Tenant shall comply with all laws, ordinances,
rules, regulations and procedures of all applicable governmental authorities.
(b) Odor. Tenant shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
nuisance; provided, however, that fumes resulting from the normal operations of vehicles or
normal business operations shall be excepted from this provision, unless same constitutes a legal
nuisance or as otherwise prohibited by applicable law.
(c) 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, and
Landlord will cooperate with Tenant to provide additional directional signage to the Dania Beach
Park area from A-1-A, provided that such signage is consistent with Landlord's sign ordinances,
requirements of the state of Florida and approved by all applicable governmental authorities
having jurisdiction. Any exterior signage other than the foregoing shall require the approval of
the Landlord. Notwithstanding anything in this Lease to the contrary, billboard signs are
expressly prohibited.
(d) 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
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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. As
part of the Improvements, Tenant shall construct necessary facilities for the restriction of access
to the portion of the Pier east of the bait and tackle retail facility and 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 8(d), 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 accepted 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 as set forth
in of this Lease.
SECTION 9. 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 provided in this Lease and available 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 10. 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 with respect to the Premises, except for structural and roof repairs
which are the responsibility of the Landlord as set forth in Section 10(b) below. 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 the buildings and other improvements in good, tenantable,
useable condition throughout the Term of this Lease (subject to casualty, condemnation and the
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other provisions of this Lease with regard to development and the redevelopment of the
Premises), and without limiting the generality of the foregoing, Tenant shall:
(1) Keep and maintain the Premises at all times in a clean and orderly
condition and appearance.
(2) Provide and maintain all lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature required by any law, rule,
order, ordinance, resolution or regulation of any applicable governmental authority in good
working order.
(3) Be responsible for the maintenance and repair of all utilities servicing the
Premises including but not limited to, service lines for the supply of water, gas service lines,
electrical power and telephone conduits and lines, sanitary sewers and storm sewers which are
now or which may be subsequently located upon any portion of the Premises which are
controlled by Tenant.
(4) Provide adequate security for the Premises and all portions of them for the
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 repair or replacement of the roof or any portion
of it.as well as any structural repairs or replacements to the Premises, Pier or both shall be
undertaken by the Landlord, unless 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 rights under this Lease.
(c) 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 on it) 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 Premises, 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
rights 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 10(a) above
and (ii) cleaning and refuse disposal as set forth in Section 10(a)(5) above.
SECTION 11. INSURANCE REQUIREMENTS FOR LANDLORD AND TENANT.
(a) Landlord's Casualty Insurance. Landlord shall, during the Term of this Lease,
insure and keep insured to the extent of not less than 100% of the insurable replacement value,
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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 The City may meet the foregoing requirement
through a program of self-insurance or by adding the Premises to its master policy.
(b) Tenant's Insurance. During the Term of this Lease, Tenant shall pay for and
maintain in effect the following types of insurance policies, placed only with carriers carrying an
A.M. Best or equivalent rating of A-VII or better:
Comprehensive General Liability Insurance to protect against bodily injury, death and
property damage in an amount of not less than One Million Dollars ($1,000,000.00) per
occurrence and One Million Dollars ($1,000,000.00) annual aggregate. Coverage must be
afforded on a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the 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.
Business Automobile Liability Insurance in an amount not less than One Million Dollars
($1,000,000.00) combined single limit. Coverage must be afforded on a form no more restrictive
than the latest edition of the Business Automobile Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and must include: Owned, Non-owned
and Hired vehicles.
• Workers' Compensation and Employer's Liability Insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws (part A, statutory limits and One Million Dollars ($1,000,000.00 for Part B,
Employers' Liability).
Rental Loss (Business Interruption) Insurance in an amount equal to twelve (12) months
of not less than eighty percent (80%) of the then applicable Base Rent, taxes, insurance and
utility charges.
Renter's or Contents Insurance in an amount not less than 100% of the insurable
replacement value of all furnishings, fixtures and equipment owned by Tenant and located at the
Premises including but not limited to the Improvements.
Liquor Liability Policy in an amount of not less than Two Million Dollars
($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) annual aggregate.
Builder's Risk Insurance with respect to all Improvements and Alterations undertaken by
Tenant during the Term of this Lease.
The Tenant acknowledges and agrees that all insurance polices provided by Tenant shall
be deemed primary coverage. Additionally, Tenant acknowledges and agrees that the monetary
coverages specified above are the minimum acceptable coverages applicable solely to the
• Premises without regard to any other business operations or locations insured by Tenant. In
particular, the specified "aggregate" coverages shall apply solely to the Premises.
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(b) Certificates. The parties shall furnish to each other, certificates of insurance or
• endorsements evidencing the insurance coverages specified by this Article prior to the-Start Date
of this Lease provided the coverage set forth in Section 11(a) shall not be required until the
certificate of occupancy is issued for the Premises as improved. The required certificates of
insurance shall name the types of policies provided, refer specifically to this Lease, and state that
such insurance is as required by this Lease. All policies of such insurance and renewals of them
(except for Workers' Compensation coverage) required to be provided by Tenant shall name the
Landlord (including its elected officials, officers, employees and agents), as additional named
insureds as their interests may appear, and shall provide that the loss, if any, shall be adjusted
with and payable to the Tenant and Landlord (as their interests may appear), except as otherwise
provided in Section 12 of this Lease.
(c) Cancellation. Coverage is not to cease and is to remain in force (subject to
cancellation notice) throughout the term of this Lease and until the Term ends. 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.
(d) Deficiencies. When such policies or certificates have been delivered by Tenant to
Landlord as aforesaid and at anytime thereafter, Landlord may notify Tenant in writing that, in
the reasonable opinion of Landlord the insurance represented does not conform with the
requirements of this Section either because the amount or because the insurance company or for
® any other reason does not comply, and the Tenant shall have thirty (30) calendar days to cure
such defect to the extent required pursuant to this Lease.
(e) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by Landlord (but no more frequently than every five (5) Lease
Years) and may be adjusted if Landlord reasonably determines that such adjustments are
necessary to protect Landlord's interest, provided such coverages shall not exceed the amount of
coverage required at the time of such review by similar quality projects in Broward County,
Florida.
(f) 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.
(g) 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 12. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris. If the Improvements located on the Premises or any part of
them shall be damaged by fire, the elements, or other casualty, Tenant shall promptly remove, or
cause to be promptly removed, all debris resulting from such damage from the Premises, 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
15
circumstances is covered by Tenant's insurance, the proceeds shall be paid to Tenant for such
purpose.
(b) Minor Damage. If Improvements located on the Premises or any part of them
shall be damaged by fire, the elements, or other casualty but not rendered untenantable or
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, by and at the
expense of Tenant and, if such damage is covered by Tenant's insurance, the proceeds shall be
made available to Tenant for that purpose.
(c) Damage to or Destruction of the Premises, Pier. If the Premises, Pier, both of
them or any part of them shall be destroyed or so damaged by fire, the elements, or other
casualty asr to render either or both untenantable or unusable, nothing in this Lease shall be
deemed or construed to require or obligate the Landlord to repair, rebuild, replace or restore
either or both or any portion of it; 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.
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) Total or Partial Taking. If the whole of the Premises, or such portion thereof as
will make the Premises unusable for the purposes leased hereunder, shall be taken by any public
authority under the power of eminent domain or sold to public authority under threat or in lieu of
such taking, the Term shall cease as of the day possession or title shall be taken by such public
authority, whichever is earlier ("Taking Date"), whereupon the Rent and all other charges shall
be paid up to the Taking Date with a proportionate refund by Landlord of any Rent and,all other
charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises,
or less than such portion thereof as will make the Premises unusable for the purposes leased
hereunder is taken, the Term shall cease only as to the part so taken as of the Taking Date, and
Tenant shall pay Rent and other charges up to the Taking Date, with appropriate credit by
Landlord (toward the next installment of Rent due from Tenant) of any Rent or charges paid for
a period subsequent to the Taking Date. Base Rent, but not the Percentage Sum, shall be reduced
in proportion to the amount of the Premises taken.
(b) Award. All compensation awarded or paid upon a total or partial taking of the
Premises including the value of the leasehold estate created hereby shall belong to and be the
property of Landlord without any participation by Tenant; Tenant shall have no claim to any
such award based on Tenant's leasehold interest. However, nothing contained herein shall be
construed to preclude Tenant, at its cost, from independently prosecuting any claim directly
against the condemning authority in such condemnation proceeding for damage to, or cost of
removal of, unattached movable trade fixtures, furniture, and other personal property belonging
to.Tenant; provided, however, that no such claim shall diminish or otherwise adversely affect
Landlord's award.
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SECTION 14. INDEMNITY.
Tenant shall indemnify and hold harmless the Landlord (including its elected officials,
officers, employees and agents) from and against any and all claims, costs, losses and damages
(including but not limited to all fees and charges of architects, attorneys, and other professionals,
and all court or other dispute resolution costs), liabilities, expenditures, or causes of action of any
kind (including negligent, reckless, or willful or intentional acts or omissions of the Tenant, any
Subtenant, any subcontractor, any supplier, any person or organization directly or indirectly
employed by any of them to perform or furnish any work or anyone for whose acts any of them
may be liable), arising from, relative to, or caused in connection with this Lease except, and only
to the extent, that such is 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 from them. Payment of any amount due pursuant to this Section 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
such 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, 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, the prevailing party in any litigation shall recover all of their
attorneys' fees and costs at both trial and appellate levels.
Tenant agrees to also indemnify, defend, save and hold harmless the Landlord (including
its elected officials, officers, employees and agents), from all damages, liabilities, losses, claims,
fines and fees and from any and all suits and actions of every 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 15. RIGHTS OF ENTRY RESERVED.
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(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 that, in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
During the last Lease Year period preceding the termination of this Lease, the Landlord may
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 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 of them 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 contained in this Lease 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 16. ASSIGNMENT AND SUBLETTING.
(a) Assignment. Tenant shall not sell, convey, transfer or assign (all of the foregoing being
deemed as an "Assignment") all or any portion of its interest in this Lease, the Premises, or both,
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 under the Lease, until Landlord has
consented in writing to such Assignment. For purposes of this Section, an "Assignment" will
• include: (1) any transfer of the Lease by merger, consolidation or liquidation, or by operation of
law, or (ii) when Tenant creates a corporation, except as set forth below, any change (other than
to affiliates of shareholders or partners of the individuals first named as Tenant in the Lease) in
18
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 ever 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. Notwithstanding the
foregoing, this Section shall not prevent Tenant, Sven H. Jutz, from assigning his interest in this
Lease to a business entity (for example, a corporation or limited liability company) provided he
owns and controls, in the aggregate, more than fifty percent (50%) of the voting interests in such
business entity.
The factors upon which Landlord may base its decision upon 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, (Ili) whether the proposed
assignee has the ability to perform the obligations as originally anticipated and (iv) whether the
proposed assignee has prior related business experience for operating or owning property with
uses similar to those contemplated for the Premises.
(b) Subletting. Tenant shall not sublet portions or the whole of the Premises and the
Improvements, or grant licenses or concessions for them (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 of this Lease,
including, but not limited to, all use restrictions.
(2) No Sublease shall relieve Tenant from liability for any of its obligations
under this Lease, and in the event of any such Sublease, Tenant shall continue to remain
primarily liable for and continue to make payments for the payments required to be made
pursuant to this Lease and for the performance and observance of the other agreements on its part
as contained in this Lease.
(3) The form of such Sublease shall be subject to the review and approval of
the Landlord and shall, at a minimum, contain all of the material provisions of this Lease with
respect to the obligations of Tenant.
SECTION 17. 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:
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(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 interests of Landlord are 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 of such
lien, claim or encumbrance; 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 under this Lease
when due to the Landlord and shall continue in its failure to make any such other payments
required under this Lease for a period of fifteen (15) calendar days after 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 (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
(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 it 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
20
all of any of the Premises or any interest of Tenant in the Premises, such appointment is not
• vacated or stayed on appeal or otherwise, or if, within thirty (30) days after the expiration of any
such stay, such appointment if not vacated.
(b) Remedy. Upon the occurrence of any event set forth in Section 17(a), above, or at
any time thereafter during the continuance of such event, the Landlord may at its option
immediately terminate the rights of Tenant under this Lease by giving written notice, which
termination shall be effective upon the date specified in such notice or Landlord may exercise
any and all other remedies available to Landlord under this Lease 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 a "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
cumulatively and collectively, shall constitute a condition of noncurable default and grounds for
immediate termination of this Agreement. In the event of any such 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 of this Lease 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 18. REMEDIES TO BE NON-EXCLUSIVE.
• (a) Cumulative Remedies. All rights and remedies of the parties under this Lease or
at law or in equity are cumulative, and the exercise of any right or remedy shall not be taken to
exclude or waive the right to the exercise of any other, subject to the express limitations set forth
21
in this Lease, if any. No waiver by either party of any failure to perform any of the terms,
covenants, and conditions under this Lease shall operate as a waiver of any other prior or
subsequent failure to perform any of the terms, covenants, or conditions contained in this Lease.
(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 19. 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 20. ACCEPTANCE OF SURRENDER OF LEASE.
No agreement of surrender or to accept a surrender of this Lease shall be valid unless and
until the same shall have been reduced to writing and signed by the duly authorized
representatives of the Landlord and of the Tenant in a document of equal dignity and formality as
this Lease. Except as expressly provided in this Lease, neither the doing of nor any omission to
do any act or thing by any of the officers, agents or employees of the Landlord shall be deemed
® an acceptance of a surrender of letting under this Lease.
SECTION 21. REMOVAL OF PROPERTY.
(a) Removal. The Tenant shall have the right at any time during the Term to remove
its unattached, movable trade fixtures and other personal property from the Premises excluding
any property owned by Landlord as set forth in this Lease. Tenant shall immediately repair any
damage to the structure or any portion of the Premises caused by its removal of any,personal
property or unattached, movable trade fixtures. If the Tenant shall fail to remove its inventories,
unattached, movable trade fixtures, and personal property by the termination or expiration of this
Lease, then Tenant shall be considered to be holding over and subject to charges under Section
25(m), of this Lease, and after fourteen (14) calendar days following such termination or
expiration, at 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.
22
(c) Survival. The provisions of this Section shall survive the expiration or
• termination of this Lease.
SECTION 22. NOTICES.
Whenever either party desires to give notice to the other, 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 in this Lease 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: Ivan Pato, City Manager
With a copy to:
Weiss Serota Helfman Pastoriza & Guedes, P.A.
3107 Stirling Road
• Suite 301
Hollywood, Florida 33312
Attn: Thomas J. Ansbro, Esq.
FOR TENANT:
Sven H. Jutz
P.O. Box 4512
Ft. Lauderdale, FL 33338
All notices, approvals and consents required under this Lease must be in writing to be
effective.
SECTION 23. ENVIRONMENTAL COMPLIANCE
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.
SECTION 24. NON-DISCRIMINATION.
(a) Americans with Disabilities Act. Tenant shall comply with Title I of the
• Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
23
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 appropriate action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, familial status or physical or mental disability
during employment. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, 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 25. MISCELLANEOUS.
(a) Headings. The section and paragraph headings in this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision of this Lease.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Disputes shall be resolved in the 17th Judicial
Circuit Court of Broward County or in the federal courts in the Southern District of Florida,
whichever jurisdiction is appropriate.
(c) Severance. In the event this Lease or a portion of this Lease is found by a court of
competent jurisdiction to be invalid, the remaining provisions shall continue to be effective to the
fullest extent permitted by law.
(d) Relationship of Parties/Independent Contractor. It is the intent of the parties that
the relationship of Landlord and Tenant under this Lease is the relationship of landlord and
tenant. 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 in this Lease shall
create or be deemed or construed to create a partnership, joint venture, joint enterprise or any
other agency or other similar such relationship between the parties to this Lease.
(e) Third Party Beneficiaries. Neither Tenant nor Landlord intend to directly or
substantially benefit a third party by this Lease. Therefore, the parties agree that there are no
third party beneficiaries to this Lease and that no third party shall be entitled to assert a claim
• against either of them based upon this Lease.
24
(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 and in such event, the time for
performance shall be extended by the period of such Force Majeure event(s).
(g) Negotiated Lease. Both parties have substantially contributed to the negotiations
which resulted in the preparation of this Lease and this Lease shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties than any other. The
parties to this Lease acknowledge that they have thoroughly read this Lease, including all
Exhibits and attachments to it, and have sought and received (or had the means, ability and
ample opportunity to do so) whatever competent advice and counsel, legal or otherwise, which
was necessary for them to form a full and complete understanding of all rights and obligations
contained in this Lease.
(h) Incorporation by Reference. The truth and accuracy of each "Recital" clause set
forth above is acknowledged by the parties.
(i) Estoppel Statement. The parties agree that from time to time, upon not less than
fifteen (15) days prior request by a party to this Lease, the other party may deliver a statement in
writing certifying: (a) that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the Lease as modified is in full force and effect and stating the
modifications); (b) the dates to which the Rent and other charges have been paid; (c) that neither
• party is in default under any provisions of this Lease, or, if in default, the nature of such default,
described in detail; and (d) such other information pertaining to this Lease as either party may
reasonably request.
(j) Amendments. No modification, amendment, or alteration in the terms or
conditions contained in this Lease shall be effective unless contained in a written document
prepared with the same or similar formality as this Lease and executed by 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 in this Lease and the parties agree that there are no commitments, agreements
or understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms of the Lease shall be
predicated upon any prior representations or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or conditions contained in this
Lease shall be effective unless contained in a written document in accordance with subparagraph
(j) above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise
requires. Whenever reference is made to a Section of this Lease, such reference is to the Section
• as a whole, including all of the subsections and subparagraphs of such Section, unless the
reference is made to a particular subsection or subparagraph of such Section.
25
(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 under this Lease 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
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 in this Lease. 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 does agree to the process so served,
submits to the jurisdiction, and waives any and all objections and protest to such service.
(o) Waiver of Claims. Landlord shall not be liable for any loss, damage or,injury of
any kind or character to any person or property (i) arising from any use of the Premises or any
part of them; (ii) caused by any defect in any building, structure, or other Improvements on them
or in any equipment or other facility located in them; (iii) caused by or arising from any act or
omission of Tenant, or of any of its agents, employees, licensees or invitees; (iv) arising from
any accident on the Premises or any fire or other casualty on them; (v) occasioned by Tenant's
failure to maintain the Premises in a safe condition; or(vi) arising from any other cause; unless,
in any of such events, caused by the gross negligence or willful act of Landlord. 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 appurtenances to them, 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
26
that it has under applicable law. Notwithstanding anything contained in this Lease to the
• contrary, in no event shall Landlord be liable for any consequential or punitive damages in
connection with this Lease.
(p) Drug-Free Workplace Certification. Tenant covenants and agrees to implement a
policy consistent with applicable laws with respect to maintaining a drug-free workplace and
otherwise to diligently try to provide and maintain during the Term of this Lease a drug-free
workplace at the Premises.
(q) Financial Interests. No elected official, officer, agent or employee of the City
shall have a financial interest directly or indirectly in this Lease or any compensation to be paid
under it, and further, no City employee who acts in the City as a "purchasing agent" as defined
by Section 112.312 (20), Florida Statutes, nor any elected or appointed officer of the City, nor
any spouse or child of such purchasing agent, employee or elected or appointed officer, may be a
partner, officer, director or proprietor of and, further, no such City purchasing agent, employee
or elected or appointed officer, or the spouse or child of any of them, alone or in combination,
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.
(r) Successors and Assigns Bound. This Lease shall be binding upon and inure to the
benefit of the successors and assigns of the parties to this Lease where permitted by this Lease.
(s) Time of Essence. Time is expressed to be of the essence of this Lease.
• (t) Written Approvals.ovals. All approvals and consents required to be obtained under this
Lease 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.
(u) Authority of Individuals. The individuals executing this Lease on behalf of
Tenant personally warrant that they have full authority to execute this Lease.
(v) Recordation of Memorandum of Lease. Landlord consents to Tenant recording a
Memorandum of this Lease in the Public Records of Broward County, Florida, which
Memorandum shall set forth, and shall only set forth: (i) the names of the parties; (ii) the
Effective Date and Term 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
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.
(w) No Set Off. The Tenant acknowledges that, as of the Effective Date of this Lease,
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 agrees that it is not entitled to
setoff against any amounts payable by Tenant to Landlord which are payable pursuant to this
Lease.
27
• (x) Police/Regulatory Powers. Landlord cannot, and specifically does not, waive or
relinquish any of its regulatory approval or enforcement rights and obligations as they may relate
to regulations of general applicability which may govern the Premises, any improvements on
them, or any operations at the Premises. Nothing in this Lease shall be deemed to create an
affirmative duty of Landlord to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in accordance
with its zoning and land use codes, administrative codes, ordinances, rules and regulations,
federal laws and regulations, State laws and regulations, and grant agreements. In addition,
nothing in this Lease shall be considered zoning by contract.
(y) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and State guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from the local public health unit.
(z) Broker. Each party represents and warrants to the other that it has not dealt with .
any broker or finder in connection with the execution of this Lease.
(aa) Counterparts. This Lease may be executed in counterparts, each of which shall be
deemed to be an original.
• (bb) Joint and Several Liability. Notwithstanding anything to the contrary contained in
this Lease, if Tenant is two or more individuals or a general partnership or joint venture, any
individual, 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.
(cc) 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).
•
28
IN WITNESS OF THE FOREGOING, the parties have made and executed this Lease
on the respective dates under each signature: City of Dania Beach as Landlord, acting through its
City Commission, signing by and through its Mayor, authori?ed to execute_same by Commission
action on \. �- , 2003; and �j �> [\� /G�( �\( i/
authorized to execute same.
CITY OF DANIA BEACH, through its
City Commission
ATTEST:
By:
Bob Anton , Mayor
harlene Johnson, it'y Clerk f , 2003
Approved as to form and legality.by (CITY SEAL)
Office of the City At mey
By:
Thomas J: Ah'sbro, City Attorney
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on J0. `! 2003, before me, an officer duly
authorized to take acknowledgements in the State and County aforesaid, personally appeared
N 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.
LINDA G.FRY
Commission#DWI1#146 NOTARY PUBLIC-
Expires 8/16rM _
Bonded tNraiph Print Name: - +... ', , ;e L
(800-432-4254) Florida Notary Assn.,tm +
•..................................NNNN.N..N.N
My Commission Expires:
29
WITNESSES:
A7, TENANT:
Signature SVEN H. JUTZ
Print Name:
Signature
Print Name: =
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on ao 2003, before me, an officer duly
authorized to take acknowledgements in tW State and County aforesaid, personally appeared
SVEN H. JUTZ who (check one) [ ] is personally known to me or [ vrwho=produced a
>C�- rL�eaaae- as identification.
�-" -G-
d�K
NOT Y PUB nn
Print Name: /�/Gt L��'G{/7Gr°5
My Commission Expires:
�yEr 0 G4oria J Brander
MY Commission DD187260
'for,,do Expires May 10,2007
30
4
CITY OF DANIA BEACH
MEMORANDUM
TO: Mayor and City Commissioners
CC: Ivan Pato, City Manager
Patty Varney, Finance Director
Charlene Johnson, City Clerk
Sven Jutz
Ute Stork
FROM: Tom Ansbro, City Attorney
DATE: May 21, 2003
RE: Proposed Pier Restaurant Lease; Final Revisions
The prospective Tenant has conducted a final review of the proposed Lease. Only one
matter as a result of that final review will need Commission direction. Please recall, as
reported to you in my May 20, 2003 memorandum sent to you, that the Tenant has reiterated
that its offer to lease includes two five (5) year options to extend the term after the initial ten
(10) year term, exercisable by the Tenant alone and that the minimum Base Rent of$96,000.00
would remain in effect for any extended term. The other matters, discussed below, have either
been addressed and included in the Lease (copy attached) to be presented to the City
Commission for approval at the May 27, 2003 City Commission meeting, or responses are
being provided to the Tenant by copy of this memorandum, as described below.
The present issue for Commission decision has to do with the responsibility for
payment of property taxes (ad valorem taxes) (Section 4, subparagraph (d) of the Lease). The
Lease provides that they are to be paid by the Tenant, but the Tenant has stated that its offer to
lease did not and does not include an offer to pay such taxes. The City is prohibited from
paying such taxes by law, since the City as a municipal corporation is exempt from such
payments. The Broward County Property Appraiser will treat, however, the restaurant as a
private operation, and therefore subject to property tax, because the operation of a restaurant,
even if located on City-owned land, is not a "governmental" function. It is possible that the
® City can waive its "share" of the property taxes, but the bulk of such taxes are payable to the
County, School Board, South Florida Water Management District and other governmental
entities. The City could possibly credit or "rebate" the actual taxes paid by the Tenant,
Mayor and City Commissioners
May 21, 2003
Page 2
® although this would affect the revenues otherwise payable to the City (Base rent of $96,000.00
g pY Y
per year or eight percent (8%) of the gross revenues, whichever is greater and one-half of the
Pier Admission Fees to be collected at the new bait shop entrance, to be staffed by the Tenant).
Commission direction is therefore necessary.
As to the remainder of the final comments made by the prospective Tenant, the
following minor revisions have been made:
1) The name of the individual "Tenant" will simply identify Mr. Jutz, and not his wife,
Ute Stork.
2) The phrase "of sale" has been added to Section 4, "Rent", paragraph (c)
"Percentage Sum", subparagraph (ii), to clarify that Tenant will annually furnish the City
unaudited "financial statements of sales", when the annual review of gross revenues is
calculated to determine if the "percentage rent" is payable rather than the Base Rent.
3. Section 7, paragraph (b): The Tenant requested that the "closing hour" be identified
as "4.a.m. if permitted". The City's "extended hours" ordinance does allow for such closing
hour, and the Lease has been revised to address the right of the Tenant to seek such approval
from the City Commission if the Tenant complies with the -procedures outlined in that
® ordinance (as all other applicants have to do, who seek to sell alcoholic beverages after 3:00
a.m., which is the regular "closing hour").
4. Section 7, paragraph (c): A provision has been added to provide that the City will
develop a system that will guarantee that Tenant parking is restricted for use by patrons and
employees of the restaurant.
5. Section 7, paragraph (d): A provision has been added to provide that the City will
cooperate with the Tenant to try to provide directional signage to the restaurant from A-1-A,
subject to state of Florida requirements (since these would involve a request to the Florida
Department of Transportation to post signage on a state road).
6. The Tenant questioned the wording of a sentence in Section 25, paragraph (d). The
sentence needs to be read as follows to understand it: "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 Landlord" [emphasis added]. This is simply
intended to make it clear that the Tenant's restaurant operations are those of an independent
contractor and not to be interpreted by other persons in any other way than as a "tenant" of the
City (and not as an "employee or agent" of the City).
7. The numbering of the paragraphs has been re-checked and they are correct.
2
Mayor and City Commissioners
May 21, 2003
Page 2
566.028
TJA:slw
Attachment
3
LEASE AGREEMENT
BETWEEN
CITY OF DANIA BEACH
AND
SVEN H. JUTZ "AND-UTc STORK
TABLE OF CONTENTS
SECTION 1. DEFINITIONS....................................................................................I
SECTION2. LETTING............................................................................................3
SECTION3. TERM .................................................................................................4
SECTION4. RENT..................................................................................................4
SECTION 5. RIGHTS AND USES OF THE TENANT..........................................6
SECTION 6. CONSTRUCTION OF IMPROVEMENTS
BYTENANT ...................................................................................97
SECTION 7. OPERATIONAL REQUIREMENTS
OF THE TENANT; PARKING......................................................4-09
SECTION 8 OBLIGATIONS OF THE TENANT............................................4410
SECTION 9. COMPLIANCE WITH GOVERNMENTAL PROCEDURES....4-211
SECTION 10. MAINTENANCE AND REPAIR................................................�12
SECTION 11. INSURANCE REQUIREMENTS FOR TENANT......................4-413
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES.................4-6i15
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY
FOR OTHER PUBLIC PURPOSES .............................................1-715
SECTION 14. INDEMNITY................................................................................4-716
SECTION 15. RIGHTS OF ENTRY RESERVED..............................................4-917
SECTION 16. ASSIGNMENT AND SUBLETTING .........................................4-918
SECTION 17. DEFAULT; TERMINATION .......................................................N19
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE.....................................2-221
SECTION 19. SURRENDER...............................................................................?221
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE..........................2322
SECTION 21. REMOVAL OF PROPERTY.......................................................2-322
SECTION 22. NOTICES......................................................................................�22
SECTION 23. ENVIRONMENTAL COMPLIANCE.........................................-423
SECTION 24. NON-DISCRIMINATION............................................................423
SECTION 25. MISCELLANEOUS .....................................................................2-524
•
LEASE AGREEMENT
THIS IS A LEASE AGREEMENT ("Lease") dated , 2003 (the
"Effective Date") 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 SVEN H. JUT'' na JT1E c 'nnu, ;^ „*'�, „a ^i�=,, having an address
at P.O. Box 4512, , Fort Lauderdale, Florida 33338 ("Tenant").
RECITALS
1. Landlord owns certain real property located in Broward County, Florida as more
particularly described in Exhibit A, a copy of which is attached to this Lease and incorporated by
this reference (the "Parcel") upon which Landlord constructed a certain fishing pier as more
particularly depicted in Exhibit B, a copy of which is also attached to this Lease and incorporated
by this reference (the "Pier").
2. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, a
portion of the Pier as more particularly described on Exhibit C, a copy of which is attached to
this Lease and by this reference made a part of it (the "Premises") for the purposes stated in this
Lease, subject to the terms and conditions of this Lease.
• NOW, THEREFORE, in consideration of the Premises and the mutual covenants
contained in this Lease, and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
The terms set forth below, when used in this Lease, shall be defined as follows:
(a) "Base Rent" shall be-the sum of ninety-six thousand dollars ($96,000.00) per year,
payable by Tenant to Landlord.
(b) "City" shall mean the City of Dania Beach in its capacity as a municipal
government, and not as Landlord under this Agreement.
(c) "County" shall mean Broward County, a political subdivision of the State.
(d) "Effective Date" shall mean , 2003.
(e) "Force Majeure" shall mean any event which results in the prevention or delay of
performance by either Landlord or Tenant of its obligations under this Lease and which is
beyond the reasonable control of such party including, but not limited to fire, earthquake,
hurricane, tornado, unusual storm, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
1
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 ("Initial Term") of this Lease shall begin on the Start Date and
shall terminate on the last day of the tenth (10'h) Lease Year of this"Lease, unless sooner
terminated as provided in this Lease.
(b) Renewal Options. If Tenant is not in default under this Lease, Tenant shall have
the option to extend the Initial Term of this Lease for two (2) separate, consecutive, additional
renewal term(s) of five (5) years each (each, a "Renewal Term"). Tenant shall exercise its option
to renew by giving Landlord written notice not less than six (6) months nor more than twelve
(12) months prior to the expiration of the Initial Term or the Renewal Term then in effect, as the
case may be. If Tenant fails to exercise its options in the time periods or in the manner provided
in this Lease, such options shall be deemed to have lapsed and terminated, and shall be of no
further force or effect without any action or notice required on the part of Landlord. All of the
terms and conditions of this Lease, except payment of rent, discussed below, shall remain in full
force and effect during any Renewal Term(s). If Tenant exercises its options as set forth above,
the Lease end date shall be the last day of the Renewal Term then in effect, unless sooner
terminated as provided in this Lease. The Initial Term of this Lease, as extended by any Renewal
Term(s), if applicable, shall be referred to as the "Term".
SECTION 4. RENT.
(a) Base Rent. Commencing on the Start 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.
(b) Base Rent for Renewal Terms. The Base Rent for any Renewal Term shall be the
same Base Rent which is payable during the Initial Term.
(c) Percentage Sum. (i) It is the intent of the parties that Tenant shall pay to
Landlord, as rent, the greater of the Base Rent or the Percentage Sum, which sum shall be
calculated on a yearly basis. 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 Start
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 Start 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 Start Date.
(ii) Tenant will furnish to Landlord unaudited financial statements of sales prepared in
• accordance with generally accepted accounting principles from Tenant and any Subtenant(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
4
(b) Operating Schedule. Tenant shall generally provide its services not less than six
(6) days a week except for any holidays as determined by Tenant, during such hours as follows:
7:00a.m. (EST)TO 10:00 p.m. (EST) and as otherwise permitted by applicable law. Tenant shall
be given the opportunity to apply for and obtain an "extended hours" license. allowing for the
sale of alcoholic beverages to 4:00 a.m. subject to compliance with the applicable City
ordinance. 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 since it is the intent of
the parties that the days and hours of operation meet the needs and desires of the residents of the
City and the economic practicality of Tenant, as mutually determined by the parties.
(c) Quality of Services. Tenant shall conduct its operations in a first class, 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.
(d) 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").
Exhibit D, a copy of which is attached to this Lease and incorporated by reference, 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
no additional cost. 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 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 (100) parking spaces.
Any increase to the aggregate number of parking spaces in the Employee Parking Area and
Customer Parking Area over one hundred (100) spaces shall be in Landlord's sole discretion.
Landlord and Tenant will develop a system to ensure that the parking spaces are restricted for
Tenant's use.
SECTION 8. OBLIGATIONS 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 use and
occupancy of the Premises or out of any operations conducted on them in accordance with
applicable law. Any items shall be kept in suitable garbage and waste receptacles, as approved in
10
writing by Landlord. When removing such waste, Tenant shall comply with all laws, ordinances,
rules, regulations and procedures of all applicable governmental authorities.
(b) Odor. Tenant shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
nuisance; provided, however, that fumes resulting from the normal operations of vehicles or
normal business operations shall be excepted from this provision, unless same constitutes a legal
nuisance or as otherwise prohibited by applicable law.
(c) SSA. 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, and
Landlord will cooperate with Tenant to provide additional directional signage to the Dania Beach
Park area from A-1-A, provided that such signage is consistent with Landlord's sign ordinances
requirements of the state of Florida and approved by all applicable governmental authorities
having jurisdiction. Any exterior signage other than the foregoing shall require the approval of
the Landlord. Notwithstanding anything in this Lease to the contrary, billboard signs are
expressly prohibited.
(d) 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. As
part of the Improvements, Tenant shall construct necessary facilities for the restriction of access
to the portion of the Pier east of the bait and tackle retail facility and 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 8(d), 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 accepted 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 as set forth
in of this Lease.
SECTION 9. 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 maybe 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
11
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 contained in this Lease 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 16. ASSIGNMENT AND SUBLETTING.
(a) Assignment. Tenant shall not sell, convey, transfer or assign (all of the foregoing
being deemed as an "Assignment") all or any portion of its interest in this Lease, the Premises,
or both, 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 under the Lease,
until Landlord has consented in writing to such Assignment. 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) when Tenant creates a corporation, except as set
forth below, any change (other than to affiliates of shareholders or partners of the individuals
first named as Tenant in the Lease) in ownership or power to vote a majority of the outstanding
voting stock thereof from those controlling the power to vote such stock on the date of the
Lease, or (iii) if Tenant is ever 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. Notwithstanding the foregoing, this Section shall not prevent the indi ,;d„�'�
the Tenant, Sven H. Jutz—and Ututeri, from assigning the4his interest in this
Lease to a business entity (for example, a corporation or limited liability company) provided
said individuals ownhe owns and COMFOlcontrols, in the aggregate, more than fifty percent
(50%) of the voting interests in such business entity.
The factors upon which Landlord may base its decision upon 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 and (iv) whether the
proposed assignee has prior related business experience for operating or owning property with
uses similar to those contemplated for the Premises.
(b) Subletting. Tenant shall not sublet portions or the whole of the Premises and the
Improvements, or grant licenses or concessions for them (all of the foregoing being deemed a
18
With a copy to:
® Weiss Scrota Helfinan Pastoriza& Guedes, P.A.
3107 Stirling Road
Suite 301
Hollywood, Florida 333.12
Attn: Thomas J. Ansbro, Esq.
FOR TENANT:
Sven H. Jutz ni,a U4e Stork
P.O. Box 4512
Ft. Lauderdale, FL 33338
All notices, approvals and consents required under this Lease must be in writing to be
effective.
SECTION 23. ENVIRONMENTAL COMPLIANCE
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.
® SECTION 24. NON-DISCRIMINATION.
(a) Americans with Disabilities Act. Tenant shall comply with Title I of the
Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
marital status, political affiliation, familial status or physical or mental disability. In addition,
Tenant shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
(b) Tenant shall take appropriate action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, familial status or physical or mental disability
during employment. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, 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.
23
CITY OF DANIA BEACH
MEMORANDUM
TO: Mayor and City Commissioners
CC: Ivan Pato, City Manager
FROM: Tom Ansbro, City Attorney
DATE: May 20, 2003
RE: Pier Lease; Revisions Proposed by Prospective Tenant
The prospective tenants have advised the City Manager that the final version of the
Lease I prepared and which was approved by the City Commission (as an attachment to an
authorizing ordinance adopted on Consent Agenda on first reading at the May 13, 2003 City
Commission meeting), does not reflect their offer to lease in two respects.
First, the tenants wish to have the option to renew to remain solely with them. I have
revised the Lease to return it to its original form, which provides that if the "Tenant" is not in
default, it will have the right to exercise a first five (5) year renewal after the end of the initial
ten (10) year term and again at their option, a second five (5) year renewal, for a total
maximum term not exceeding twenty (20) years.
Second, the tenants do not agree with my addition of a provision which would adjust
the Base Rent ($96,000.00 per year) at the time the first option is exercised (that is, effective
in year eleven, if of course, the option is so exercised). I based such an adjustment on a C.P.I.
formula. The tenants believe that the Base Rent should remain constant and that the City will
benefit since if they are successful by the end of the tenth year, the percentage rent (eight
percent (8%) of Gross Revenues) will be payable (since the rent to be paid is the minimum
base rent or the percentage rent, whichever is greater).
Both of the foregoing are not "legal" matters, but are business decisions. Commission
direction is, therefore, requested on both matters.
566.028
Pat Varney
October 31, 2002
Page 2
TJA:slw
Attachment
2
LEASE AGREEMENT
BETWEEN
CITY OF DANIA BEACH
AND
SVEN H. JUTZ AND UTE STORK
•
•
TABLE OF CONTENTS
SECTION 1. DEFINITIONS....................................................................................I
SECTION 2. LETTING............................................................................................3
SECTION3. TERM .................................................................................................4
SECTION4. RENT..................................................................................................4
SECTION 5. RIGHTS AND USES OF THE TENANT..........................................6
SECTION 6. CONSTRUCTION OF IMPROVEMENTS
BYTENANT .....................................................................................8
SECTION 7. OPERATIONAL REQUIREMENTS
OF THE TENANT; PARKING........................................................10
SECTION 8 OBLIGATIONS OF THE TENANT................................................11
• SECTION 9. COMPLIANCE WITH GOVERNMENTAL PROCEDURES........12
SECTION 10. MAINTENANCE AND REPAIR............................................I........13
SECTION 11. INSURANCE REQUIREMENTS FOR TENANT..........................14
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES.....................16
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY
FOR OTHER PUBLIC PURPOSES ................................................17
SECTION 14. INDEMNITY....................................................................................17
SECTION 15. RIGHTS OF ENTRY RESERVED..................................................18
SECTION 16. ASSIGNMENT AND SUBLETTING .............................................19
SECTION 17. DEFAULT; TERMINATION ..........................................................20
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE.........................................22
SECTION 19. SURRENDER...................................................................................22
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE..............................23
SECTION 21. REMOVAL OF PROPERTY...........................................................23
SECTION22. NOTICES..........................................................................................23
SECTION 23. ENVIRONMENTAL COMPLIANCE.............................................24
SECTION 24. NON-DISCRIMINATION...............................................................24
SECTION 25. MISCELLANEOUS ............................:............................................25
•
• LEASE AGREEMENT
THIS IS A LEASE AGREEMENT ("Lease") dated , 2003 (the
"Effective Date") 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 SVEN H. JUTZ and UTE STORK,jointly and severally, having an address
at P.O. Box 4512, , Fort Lauderdale, Florida 33338 ("Tenant").
RECITALS
1. Landlord owns certain real property located in Broward County, Florida as more
particularly described in Exhibit A, a copy of which is attached to this Lease and incorporated by
this reference (the "Parcel") upon which Landlord constructed a certain fishing pier as more
particularly depicted in Exhibit B, a copy of which is also attached to this Lease and incorporated
by this reference (the "Pier").
2. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, a
portion of the Pier as more particularly described on Exhibit C, a copy of which is attached to
this Lease and by this reference made a part of it (the "Premises") for the purposes stated in this
Lease, subject to the terms and conditions of this Lease.
NOW, THEREFORE, in consideration of the Premises and the mutual covenants
contained in this Lease, and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
The terms set forth below, when used in this Lease, shall be defined as follows:
(a) "Base Rent" shall be-the sum of ninety-six thousand dollars ($96,000.00)per year,
payable by Tenant to Landlord.
(b) "City" shall mean the City of Dania Beach in its capacity as a municipal
government, and not as Landlord under this Agreement.
(c) "County" shall mean Broward County, a political subdivision of the State.
(d) "Effective Date" shall mean , 2003.
(e) "Force Majeure" shall mean any event which results in the prevention or delay of
performance by either Landlord or Tenant of its obligations under this Lease and which is
beyond the reasonable control of such party including, but not limited to fire, earthquake,
hurricane, tornado, unusual storm, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
1
(f) "Gross Revenue" means all revenues (whether cash, credit or barter), paid to
Tenant (and any Subtenant(s) of tenant) derived from the operation of the Premises by Tenant
and any Subtenant(s) (and any party that succeeds to the interest of Tenant and any
Subtenant[s]). Gross Revenue shall expressly exclude all (i) insurance loss proceeds which are
applied toward restoration of the Improvements or otherwise not retained by Tenant or any
Subtenant(s); (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; (ill) the
Pier Admission Fee as defined in Section 9(e); (iv) sales taxes; and (v) employee meals, if free
or discounted for such employees and their immediate family members.
(g) "Improvements" means any fixtures, permanently affixed equipment, signs, up to
six (6) free-standing, removable, marina style kiosks (each consisting of approximately one
hundred fifty (150) square feet) and all other structures, improvements, and Alterations (as
defined in section 6[h]) constructed by the Tenant, its Subtenant(s), licenses, agents, and
contractors in connection with the Premises. The parties acknowledge and agree that the
Improvements to be installed by the Tenant prior to the Start Date include all furnishings,
fixtures and equipment necessary to operate the Premises as a restaurant pursuant to this Lease
including, but not limited to, stoves, sinks, coolers, refrigerators, freezers, dishwashers,
telecommunications and cash register systems.
(h) "Lease" or "Agreement" shall mean this Lease Agreement, including any
supplements, modifications or amendments to it.
® (i) "Lease Year" shall mean the twelve (12) month period beginning on the Start
Date and each anniversary thereafter.
0) "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 in Exhibit A.
(k) "Percentage Sum" shall mean eight percent (8%) of the amount of the Gross
Revenue derived from the Premises by Tenant and any Subtenant(s) (or any party who succeeds
to the interest of Tenant or any Subtenant[s]) in respect to any Lease Year.
(1) "Person" shall mean any individual, trust, estate, partnership, joint venture,
company, corporation, association, or any other legal entity or business enterprise.
(m) "Premises" shall mean that portion of the Pier containing approximately six
thousand two hundred fifty (6,250) square feet as more particularly described in Exhibit C
generally consisting of the restaurant area and bait shop as shown on Exhibit B, together with all
improvements to be constructed thereon by the Landlord pursuant to this Lease generally
consisting of the restaurant, as well as the improvements now existing or hereafter constructed
on that portion, the equipment permanently affixed in and to such portion, 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,
2
• conduits, equipment and fixtures together with all appurtenances, rights, privileges, permits and
easements benefiting, belonging or pertaining to them; provided, however, the Premises
specifically exclude any electrical, plumbing or other utilities owned by Landlord which service
the Pier. The Premises shall also include up to six (6) free-standing, removable marina style
kiosks.
(n) "Rent" shall mean the Base Rent (as such may be increased by the Percentage
Sum).
(o) "Start Date" shall mean the date which is three (3) months from the date Landlord
delivers possession of the Premises to Tenant, as evidenced in a written notice from the Landlord
to the Tenant to that effect. The written notice shall be delivered when the Premises are
completed to the point where Tenant can commence installation of its Improvements as
determined by the Landlord.
(p) "State" shall mean the State of Florida.
(q) "Subtenant" shall mean any Person that uses or occupies the Premises or any
portion of them pursuant to an agreement including, but not limited to, a Sublease as defined in
Section 17(b), license or concession, whether oral or written, between Tenant and such Person.
(r) "Tenant" shall mean Sven H. Jutz and Ute Stork,jointly and severally, having an
• address at P.O. Box 4512, Ft. Lauderdale, Florida, 33338 and successors and assigns as
permitted by this Lease.
(s) "Term of this Lease" or similar words means the term set forth in Section 3 of this
Lease.
SECTION 2. LETTING.
(a) Let. The Landlord lets to Tenant and Tenant leases the Premises from Landlord.
(b) License for In er�ss/E_gress. 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 to and from the Premises (expressly
including the Whiskey Creek Docks) and the Pier including, specifically, the ramp up to the Pier
as shown on Exhibit B. Such license shall continue only while this Lease is in effect and shall
terminate upon the termination of this Lease.
(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.
(d) As Is. Except as may be otherwise provided in this Lease, the Premises and all
• components of them, are leased in "AS IS CONDITION" provided, however Landlord
guarantees that the Premises may be used for the purposes permitted by this Lease.
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(e) Quiet Enjoyment. Tenant, upon paying the Rent specified 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 ("Initial Term") of this Lease shall begin on the Start Date and
shall terminate on the last day of the tenth (loth) Lease Year of this Lease, unless sooner
terminated as provided in this Lease.
(b) Renewal Options. If Tenant is not in default under this Lease, Tenant shall have
the option to extend the Initial Term of this Lease for two (2) separate, consecutive, additional
renewal term(s) of five (5) years each (each, a "Renewal Term"). Tenant shall exercise its option
to renew by giving Landlord written notice not less than six (6) months nor more than twelve
(12) months prior to the expiration of the Initial Term or the Renewal Term then in effect, as the
case may be. If Tenant fails to exercise its options in the time periods or in the manner provided
in this Lease, such options shall be deemed to have lapsed and terminated, and shall be of no
further force or effect without any action or notice required on the part of Landlord. All of the
terms and conditions of this Lease, except payment of rent, discussed below, shall remain in full
• force and effect during any Renewal Term(s). If Tenant exercises its options as set forth above,
the Lease end date shall be the last day of the Renewal Term then in effect, unless sooner
terminated as provided in this Lease. The Initial Term of this Lease, as extended by any Renewal
Term(s), if applicable, shall be referred to as the "Term".
SECTION 4. RENT.
(a) Base Rent. Commencing on the Start 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.
(b) Base Rent for Renewal Terms. The Base Rent for any Renewal Term shall be the
same Base Rent which is payable during the Initial Term.
(c) Percentage Sum. (i) It is the intent of the parties that Tenant shall pay to
Landlord, as rent, the greater of the Base Rent or the Percentage Sum, which sum shall be
calculated on a yearly basis. 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 Start
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 Start 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 Start Date.
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(ii) Tenant will furnish to Landlord unaudited financial statements prepared in
accordance with generally accepted accounting principles from Tenant and any Subtenant(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 three (3) months of Landlord's receipt of the Statement the Landlord shall have
the right at any time during business hours, and upon forty-eight (48) hours' prior notice to
Tenant and Subtenant(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
Subtenant(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.
(d) Licenses, Fees and Taxes. Tenant shall pay, on or before their respective due
dates, to the appropriate collecting authorities, all federal, State, County, and City taxes, licenses,
• permits, assessments, and fees, which are now or may subsequently be levied upon the Premises
or the leasehold estate granted by this document, or upon Tenant, or upon any of Tenant's
property used in connection with the Lease, or upon any rentals or other sums payable under this
Lease, including, but not limited to any applicable ad valorem, sales or excise taxes, and shall
maintain in current status all federal, State, County and City licenses and permits, now or
subsequently required for the operation of the business conducted by Tenant including, but not
limited to, occupational licenses.
(e) . Proration. Taxes, assessments and other expenses in connection with the
Premises shall be prorated as of the Start Date and the last day of the Term with Tenant being
responsible for its obligations pursuant to this Lease for the period between the Start Date and
the Termination Date.
(f) Utilities. From and after the date that Landlord provides written notice to the
Tenant that the Tenant can commence installation of Tenant's improvements, 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.
(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
5
• Tenant to pay same shall be in addition to and not in lieu of the right of the Landlord to enforce
other provisions in this Lease 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 for such address. All Rent (together with sales tax, if
applicable) 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 use the Premises for the following
uses ("Permitted Uses"):
(1) Restaurant and bar uses open to the general public 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
Subtenant(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 using the Premises for
the following:
(1) Adult arcade, adult bookstore/adult video store, adult booth, adult dancing
establishment, adult entertainment establishment, adult motel, or adult theater, as such terms are
defined in City Ordinances from time to time.
•
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(2) The sale or distribution of alcoholic beverages except as expressly
provided in Section 5(b) above.
(3) Any use that requires the storing of hazardous substances, materials or
both at the Premises in violation of applicable law.
(4) Any use of the Premises for residential purposes.
(5) Any use which is not a Permitted Use as set forth in Section 5(a) above.
(6) Any use prohibited by 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 very 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. 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 for, at least forty-five (45) days in advance 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 temporarily 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, then sale and distribution are prohibited. Notwithstanding anything in this Lease to
the contrary, Tenant shall not be 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
7
• indemnify Landlord for all property damage occurring to the Premises, Parcel and Pier as well as
personal injury and death of 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 OF IMPROVEMENTS BY TENANT.
(a) Schedule for Development of Premises. The Tenant agrees that the
Improvements shall be completed by the Start Date. Completion of the Improvements shall be
evidenced by a certificate of occupancy issued by the City. Tenant shall be responsible for all
costs and expenses for the planning, design, engineering, installation, and construction of the
Improvements. The parties acknowledge and agree that the Landlord's obligation is to complete
the Premises to shell construction with building systems consisting of plumbing, electric, HVAC,
access and emergency facilities (including emergency exits and fire suppression systems), sewer,
water, fuel, and gas, as applicable. All other further improvements necessary to place the
Premises in a condition for operation as a restaurant shall be the obligation of Tenant.
(b) 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 seq., and the Florida
Building Code.
(c) Ownership of Improvements. Unless otherwise set forth in this Lease, upon
completion all Improvements including, but not limited to, all restaurant equipment such as
stoves, sinks, coolers, refrigerators, freezers, dishwashers, and any additions and Alterations (as
defined in Section 6(h) (including those that are nailed, bolted, stapled, or otherwise affixed to
the Premises, but excluding unattached, movable trade fixtures, furnishings and equipment
owned by Tenant, but excluding restaurant equipment as set forth above) 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.
(d) Encumbrances. Tenant represents, warrants and covenants to the Landlord that
the fee simple title to the Premises shall be at all times kept free and clear of all liens, claims and
encumbrances created by or through Tenant (other than those created or consented to by
Landlord). If any lien or notice of lien shall be filed against the Premises created by or through
Tenant, the Tenant shall, within thirty (30) calendar days after notice of any such filing, 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 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
8
in the Public Records of Broward County in accordance with Chapters 255 and 713, Florida
Statutes.
(e) Required Governmental Approvals. Tenant, at its sole cost and expense, shall
obtain all required governmental approvals from all governmental agencies having jurisdiction
over the Premises for any Improvements constructed or to be constructed by Tenant, including
but not limited to departments, divisions or offices of the State, County, City, and the federal
government. Notwithstanding the foregoing, Landlord 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.
(f) Contractor Indemnity. The Tenant shall require any contractor performing any
work in connection with the Improvements to indemnify and hold the Landlord (including its
elected officials, officers, employees and agents) 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 such
contractor, its subcontractors, agents and employees in connection with performing such work..
(g) Contractor Insurance. The Tenant shall require any contractor performing work
on the Premises to provide, pay for and maintain in force, during the time such work is being
performed, the following insurance policies: (1) comprehensive general liability with minimum
limits of One Million Dollars ($1,000,000.00) per occurrence and One Million Dollars
($1,000,000.00) annual aggregate; (ii) a minimum of One Million Dollars (1,000,000.00)
combined single limit automotive liability; (iii) Workers' Compensation and employer's liability
insurance in the amounts specified in Section 11, below. With respect to the insurance to be
obtained, 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 insurance coverage as specified above and expressly
including the Landlord (including its elected officials, officers, employees and agents) as an
additional named insured as its interests may appear. If the initial insurance expires prior to the
completion of the improvements, renewal certificates of insurance shall be furnished thirty (30)
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. Carriers shall meet the insurance ratings specified in Section 11(b)
below.
(h) Alterations During the Term. Following the installation of the Improvements
installed prior to the Start Date, Tenant shall not cut, drill into, disfigure, deface or injure any
part of the Premises or perform or undertake any alteration, addition, improvement or
construction (each an "Alteration") to or in the Premises, other than minor or cosmetic alterations
which are interior and nonstructural in nature, without Landlord's prior written consent, which
consent shall neither be unreasonably withheld nor delayed except, however, that Landlord may
withhold or delay consent at Landlord's sole discretion, for any Alteration which (1) will alter or
affect any portion of the plumbing, heating, ventilating, air conditioning, mechanical, electrical
and other building systems, installations and facilities of the Premises or structure, facade, wall,
roof, or foundation of the Premises, the Pier or both; (ii) will detract from the use or character of
9
the Premises; (iii) will require amendment of any certificate of occupancy for the Premises; (iv)
or will require the consent of any insurer under any of Landlord's or Tenant's policies of
insurance covering the Premises. Any alterations by Tenant shall be performed at the sole cost
of Tenant.
(i) Requirements During the Term. The foregoing requirements set forth in this
Section 6 shall be applicable for the construction and installation of all Improvements and
Alterations during the Term of this Lease.
SECTION 7. OPERATIONAL REQUIREMENTS OF THE 'TENANT; PARKING.
(a) Name. The Premises, when operational, shall be identified by a name registered
with applicable governmental authorities 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) Operating Schedule. Tenant shall generally provide its services not less than six
(6) days a week except for any holidays as determined by Tenant, during such hours as follows:
7:00a.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 since it is the intent of the parties that the
• days and hours of operation meet the needs and desires of the residents of the City and the
economic practicality of Tenant, as mutually determined by the parties.
(c) Quality of Services. Tenant shall conduct its operations in a first class, 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.
(d) Parkin . 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").
Exhibit D, a copy of which is attached to this Lease and incorporated by reference, 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
no additional cost. 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 shall be included within Gross Revenues.
Tenant's rights under this Section 8(f) with respect to parking are appurtenant to this Lease and
10
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 (100) parking spaces.
Any increase to the aggregate number of parking spaces in the Employee Parking Area and
Customer Parking Area over one hundred (100) spaces shall be in Landlord's sole discretion.
SECTION 8. OBLIGATIONS 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 use and
occupancy of the Premises or out of any operations conducted on them in accordance with
applicable law. Any items shall be kept in suitable garbage and waste receptacles, as approved in
writing by Landlord. When removing such waste, Tenant shall comply with all laws, ordinances,
rules, regulations and procedures of all applicable governmental authorities.
(b) Odor. Tenant shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
nuisance; provided, however, that fumes resulting from the normal operations of vehicles or
normal business operations shall be excepted from this provision, unless same constitutes a legal
nuisance or as otherwise prohibited by applicable law.
(c) Sigmas. 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 the
foregoing shall require the approval of the Landlord. Notwithstanding anything in this Lease to
the contrary, billboard signs are expressly prohibited.
(d) 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. As
part of the Improvements, Tenant shall construct necessary facilities for the restriction of access
to the portion of the Pier east of the bait and tackle retail facility and 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 8(d), 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 accepted accounting
11
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 as set forth
in of this Lease.
SECTION 9. 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 provided in this Lease and available 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 10. 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 with respect to the Premises, except for structural and roof repairs
which are the responsibility of the Landlord as set forth in Section 10(b) below. 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 the 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 of the foregoing, Tenant shall:
(1) Keep and maintain the Premises at all times in a clean and orderly
condition and appearance.
(2) Provide and maintain all lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature required by any law, rule,
order, ordinance, resolution or regulation of any applicable governmental authority in good
working order.
(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,
12
electrical power and telephone conduits and lines, sanitary sewers and storm sewers which are
now or which may be subsequently located upon any portion of the Premises which are
controlled by Tenant.
(4) Provide adequate security for the Premises and all portions of them for the
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 repair or replacement of the roof or any portion
of it as well as any structural repairs or replacements to the Premises, Pier or both shall be
undertaken by the Landlord, unless 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 rights under this Lease.
(c) 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 on it) 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 Premises, 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
rights 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 10(a) above
and (ii) cleaning and refuse disposal as set forth in Section 10(a)(5) above.
SECTION 11. INSURANCE REQUIREMENTS FOR LANDLORD AND TENANT.
(a) Landlord's Casualty Insurance. Landlord shall, during the Term of this Lease,
insure and keep insured to the extent of not less than 100% of the insurable replacement value,
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 The City may meet the foregoing requirement
through a program of self-insurance or by adding the Premises to its master policy.
(b) Tenant's Insurance. During the Term of this Lease, Tenant shall pay for and
maintain in effect the following types of insurance policies, placed only with carriers carrying an
A.M. Best or equivalent rating of A-VII or better:
Comprehensive General Liability Insurance to protect against bodily injury, death and
property damage in an amount of not less than One Million Dollars ($1,000,000.00) per
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• occurrence and One Million Dollars ($1,000,000.00) annual aggregate. Coverage must be
afforded on a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the 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.
Business Automobile Liability Insurance in an amount not less than One Million Dollars
($1,000,000.00) combined single limit. Coverage must be afforded on a form no more restrictive
than the latest edition of the Business Automobile Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and must include: Owned, Non-owned
and Hired vehicles.
Workers' Compensation and Employer's Liability Insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws (part A, statutory limits and One Million Dollars ($1,000,000.00 for Part B,
Employers' Liability).
Rental Loss (Business Interruption) Insurance in an amount equal to twelve (12) months
of not less than eighty percent (80%) of the then applicable Base Rent, taxes, insurance and
utility charges.
Renter's or Contents Insurance in an amount not less than 100% of the insurable
. replacement value of all furnishings, fixtures and equipment owned by Tenant and located at the
Premises incuding but not limited to the Improvements.
Liquor Liability Policy in an amount of not less than Two Million Dollars
($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) annual aggregate.
Builder's Risk Insurance with respect to all Improvements and Alterations undertaken by
Tenant during the Term of this Lease.
The Tenant acknowledges and agrees that all insurance polices provided by Tenant shall
be deemed primary coverage. Additionally, Tenant acknowledges and agrees that the monetary
coverages specified above are the minimum acceptable coverages applicable solely to the
Premises without regard to any other business operations or locations insured by Tenant. In
particular, the specified"aggregate" coverages shall apply solely to the Premises.
(b) Certificates. The parties shall furnish to each other, certificates of insurance or
endorsements evidencing the insurance coverages specified by this Article prior to the-Start Date
of this Lease provided the coverage set forth in Section 11(a) shall not be required until the
certificate of occupancy is issued for the Premises as improved. The required certificates of
insurance shall name the types of policies provided, refer specifically to this Lease, and state that
such insurance is as required by this Lease. All policies of such insurance and renewals of them
(except for Workers' Compensation coverage) required to be provided by Tenant shall name the
Landlord (including its elected officials, officers, employees and agents), as additional named
• insureds as their interests may appear, and shall provide that the loss, if any, shall be adjusted
14
with and payable to the Tenant and Landlord (as their interests may appear), except as otherwise
provided in Section 12 of this Lease.
(c) Cancellation. Coverage is not to cease and is to remain in force (subject to
cancellation notice) throughout the term of this Lease and until the Term ends. 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.
(d) Deficiencies. When such policies or certificates have been delivered by Tenant to
Landlord as aforesaid and at anytime thereafter, Landlord may notify Tenant in writing that, in
the reasonable opinion of Landlord the insurance represented does not conform with the
requirements of this Section either because the amount or because the insurance company or for
any other reason does not comply, and the Tenant shall have thirty (30) calendar days to cure
such defect to the extent required pursuant to this Lease.
(e) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by Landlord (but no more frequently than every five (5) Lease
Years) and may be adjusted if Landlord reasonably determines that such adjustments are
necessary to protect Landlord's interest, provided such coverages shall not exceed the amount of
coverage required at the time of such review by similar quality projects in Broward County,
• Florida.
(f) 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.
(g) 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 12. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris. If the Improvements located on the Premises or any part of
them shall be damaged by fire, the elements, or other casualty, Tenant shall promptly remove, or
cause to be promptly removed, all debris resulting from such damage from the Premises, 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 shall be paid to Tenant for such
purpose.
(b) Minor Damage. If Improvements located on the Premises or any part of them
shall be damaged by fire, the elements, or other casualty but not rendered untenantable or
. 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, by and at the
15
expense of Tenant and, if such damage is covered by Tenant's insurance, the proceeds shall be
made available to Tenant for that purpose.
(c) Damage to or Destruction of the Premises, Pier. If the Premises, Pier, both of
them or any part of them shall be destroyed or so damaged by fire, the elements, or other
casualty as to render either or both untenantable or unusable, nothing in this Lease shall be
deemed or construed to require or obligate the Landlord to repair, rebuild, replace or restore
either or both or any portion of it; 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.
•
•
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SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) Total or Partial Taking. If the whole of the Premises, or such portion thereof as
will make the Premises unusable for the purposes leased hereunder, shall be taken by any public
authority under the power of eminent domain or sold to public authority under threat or in lieu of
such taking, the Term shall cease as of the day possession or title shall be taken by such public
authority, whichever is earlier ("Taking Date"), whereupon the Rent and all other charges shall
be paid up to the Taking Date with a proportionate refund by Landlord of any Rent and all other
charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises,
or less than such portion thereof as will make the Premises unusable for the purposes leased
hereunder is taken, the Term shall cease only as to the part so taken as of the Taking Date, and
Tenant shall pay Rent and other charges up to the Taking Date, with appropriate credit by
Landlord (toward the next installment of Rent due from Tenant) of any Rent or charges paid for
a period subsequent to the Taking Date. Base Rent, but not the Percentage Sum, shall be reduced
in proportion to the amount of the Premises taken.
(b) Award. All compensation awarded or paid upon a total or partial taking of the
Premises including the value of the leasehold estate created hereby shall belong to and be the
property of Landlord without any participation by Tenant; Tenant shall have no claim to any
such award based on Tenant's leasehold interest. However, nothing contained herein shall be
construed to preclude Tenant, at its cost, from independently prosecuting any claim directly
• against the condemning authority in such condemnation proceeding for damage to, or cost of
removal of, unattached movable trade fixtures, furniture, and other personal property belonging
to Tenant; provided, however, that no such claim shall diminish or otherwise adversely affect
Landlord's award.
SECTION 14. INDEMNITY.
Tenant shall indemnify and hold harmless the Landlord (including its elected officials,
officers, employees and agents) from and against any and all claims, costs, losses and damages
(including but not limited to all fees and charges of architects, attorneys, and other professionals,
and all court or other dispute resolution costs), liabilities, expenditures, or causes of action of any
kind (including negligent, reckless, or willful or intentional acts or omissions of the Tenant, any
Subtenant, any subcontractor, any supplier, any person or organization directly or indirectly
employed by any of them to perform or furnish any work or anyone for whose acts any of them
may be liable), arising from, relative to, or caused in connection with this Lease except, and only
to the extent, that such is 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 from them. Payment of any amount due pursuant to this Section 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
such 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
17
-� 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, 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, the prevailing party in any litigation shall recover all of their
attorneys' fees and costs at both trial and appellate levels.
Tenant agrees to also indemnify, defend, save and hold harmless the Landlord (including
its elected officials, officers, employees and agents), from all damages, liabilities, losses, claims,
fines and fees and from any and all suits and actions of every 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 15. 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 that, in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
During the last Lease Year period preceding the termination of this Lease, the Landlord may
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 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 of them and in connection with such maintenance.
18
(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 contained in this Lease 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 16. ASSIGNMENT AND SUBLETTING.
(a) Assignment. Tenant shall not sell, convey, transfer or assign (all of the foregoing
being deemed as an "Assignment") all or any portion of its interest in this Lease, the Premises,
or both, 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 under the Lease,
until Landlord has consented in writing to such Assignment. 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) when Tenant creates a corporation, except as set
forth below, any change (other than to affiliates of shareholders or partners of the individuals
first named as Tenant in the Lease) in ownership or power to vote a majority of the outstanding
voting stock thereof from those controlling the power to vote such stock on the date of the
Lease, or (iii) if Tenant is ever 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. Notwithstanding the foregoing, this Section shall not prevent the individuals
comprising the Tenant, Sven H. Jutz and Ute Stork, from assigning their interest in this Lease
to a business entity (for example, a corporation or limited liability company) provided said
individuals own and control, in the aggregate, more than fifty percent (50%) of the voting
interests in such business entity.
The factors upon which Landlord may base its decision upon 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 and (iv) whether the
19
proposed assignee has prior related business experience for operating or owning property with
uses similar to those contemplated for the Premises.
(b) Subletting. Tenant shall not sublet portions or the whole of the Premises and the
Improvements, or grant licenses or concessions for them (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 of this Lease,
including, but not limited to, all use restrictions.
(2) No Sublease shall relieve Tenant from liability for any of its obligations
under this Lease, and in the event of any such Sublease, Tenant shall continue to remain
primarily liable for and continue to make payments for the payments required to be made
pursuant to this Lease and for the performance and observance of the other agreements on its part
as contained in this Lease.
(3) The form of such Sublease shall be subject to the review and approval of
the Landlord and shall, at a minimum, contain all of the material provisions of this Lease with
respect to the obligations of Tenant.
SECTION 17. 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 interests of Landlord are 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 of such
lien, claim or encumbrance; 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
20
(4) The Tenant shall fail to make any other payment required under this Lease
when due to the Landlord and shall continue in its failure to make any such other payments
required under this Lease for a period of fifteen (15) calendar days after 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 (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
(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 it 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 in the Premises, such appointment is not
vacated or stayed on appeal or otherwise, or if, within thirty (30) days after the expiration of any
such stay, such appointment if not vacated.
(b) Remedy. Upon the occurrence of any event set forth in Section 17(a), above, or at
any time thereafter during the continuance of such event, the Landlord may at its option
immediately terminate the rights of Tenant under this Lease by giving written notice, which
termination shall be effective upon the date specified in such notice or Landlord may exercise
any and all other remedies available to Landlord under this Lease 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,
21
• 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
cumulatively and collectively, shall constitute a condition of noncurable default and grounds for
immediate termination of this Agreement. In the event of any such 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 of this Lease 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 18. REMEDIES TO BE NON-EXCLUSIVE.
(a) Cumulative Remedies. All rights and remedies of the parties under this Lease or
at law or in equity are cumulative, and the exercise of any right or remedy shall not be taken to
exclude or waive the right to the exercise of any other, subject to the express limitations set forth
in this Lease, if any. No waiver by either party of any failure to perform any of the terms,
covenants, and conditions under this Lease shall operate as a waiver of any other prior or
subsequent failure to perform any of the terms, covenants, or conditions contained in this Lease.
(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 19. 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.
22
® 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 20. ACCEPTANCE OF SURRENDER OF LEASE.
No agreement of surrender or to accept a surrender of this Lease shall be valid unless and
until the same shall have been reduced to writing and signed by the duly authorized
representatives of the Landlord and of the Tenant in a document of equal dignity and formality as
this Lease. Except as expressly provided in this Lease, neither the doing of nor any omission to
do any act or thing by any of the officers, agents or employees of the Landlord shall be deemed
an acceptance of a surrender of letting under this Lease.
SECTION 21. REMOVAL OF PROPERTY.
(a) Removal. The Tenant shall have the right at any time during the Term to remove
its unattached, movable trade fixtures and other personal property from the Premises excluding
any property owned by Landlord as set forth in this Lease. Tenant shall immediately repair any
damage to the structure or any portion of the Premises caused by its removal of any personal
property or unattached, movable trade fixtures. If the Tenant shall fail to remove its inventories,
unattached, movable trade fixtures, and personal property by the termination or expiration of this
Lease, then Tenant shall be considered to be holding over and subject to charges under Section
• 25(m), of this Lease, and after fourteen (14) calendar days following such termination or
expiration, at the Landlord's option: (1) 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 22. 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
•
23
the same as set forth in this Lease 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: Ivan Pato, City Manager
with a copy to:
Weiss Serota Helfman Pastoriza& Guedes, P.A.
3107 Stirling Road
Suite 301
Hollywood, Florida 33312
Attn: Thomas J. Ansbro, Esq.
FOR TENANT:
Sven H. Jutz and Ute Stork
P.O. Box 4512
Ft. Lauderdale, FL 33338
All notices, approvals and consents required under this Lease must be in writing to be
effective.
SECTION 23. ENVIRONMENTAL COMPLIANCE
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.
SECTION 24. NON-DISCRIMINATION.
(a) Americans with Disabilities Act. Tenant shall comply with Title I of the
Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
marital status, political affiliation, familial status or physical or mental disability. In addition,
Tenant shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
24
(b) Tenant shall take appropriate action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, familial status or physical or mental disability
during employment. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, 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 25. MISCELLANEOUS.
(a) Headings. The section and paragraph headings in this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision of this Lease.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Disputes shall be resolved in the 17th Judicial
Circuit Court of Broward County or in the federal courts in the Southern District of Florida,
whichever jurisdiction is appropriate.
(c) Severance. In the event this Lease or a portion of this Lease is found by a court of
. competent jurisdiction to be invalid, the remaining provisions shall continue to be effective to the
fullest extent permitted by law.
(d) Relationship of Parties/Independent Contractor. It is the intent of the parties that
the relationship of Landlord and Tenant under this Lease is the relationship of landlord and
tenant. 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 in this Lease shall
create or be deemed or construed to create a partnership, joint venture, joint enterprise or any
other agency or other similar such relationship between the parties to this Lease.
(e) Third Party Beneficiaries. Neither Tenant nor Landlord intend to directly or
substantially benefit a third party by this Lease. Therefore, the parties agree that there are no
third party beneficiaries to this Lease and that no third party shall be entitled to assert a claim
against either of them based upon this Lease.
(0 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 and in such event, the time for
performance shall be extended by the period of such Force Majeure event(s).
i
25
(g) Negotiated Lease. Both parties have substantially contributed to the negotiations
which resulted in the preparation of this Lease and this Lease shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties than any other. The
parties to this Lease acknowledge that they have thoroughly read this Lease, including all
Exhibits and attachments to it, and have sought and received (or had the means, ability and
ample opportunity to do so) whatever competent advice and counsel, legal or otherwise, which
was necessary for them to form a full and complete understanding of all rights and obligations
contained in this Lease.
(h) Incorporation by Reference. The truth and accuracy of each "Recital" clause set
forth above is acknowledged by the parties.
(i) Estoppel Statement. The parties agree that from time to time, upon not less than
fifteen (15) days prior request by a party to this Lease, the other party may deliver a statement in
writing certifying: (a) that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the Lease as modified is in full force and effect and stating the
modifications); (b) the dates to which the Rent and other charges have been paid; (c) that neither
party is in default under any provisions of this Lease, or, if in default, the nature of such default,
described in detail; and (d) such other information pertaining to this Lease as either party may
reasonably request.
(j) Amendments. No modification, amendment, or alteration in the terms or
® conditions contained in this Lease shall be effective unless contained in a written document
prepared with the same or similar formality as this Lease and executed by 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 in this Lease and the parties agree that there are no commitments, agreements
or understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms of the Lease shall be
predicated upon any prior representations or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or conditions contained in this
Lease shall be effective unless contained in a written document in accordance with subparagraph
above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise
requires. Whenever reference is made to a Section of this Lease, such reference is to the Section
as a whole, including all of the subsections and subparagraphs of such Section, unless the
reference is made to a particular subsection or subparagraph of such Section.
(m) Holdover. It is agreed and understood that any holding over of Tenant after the
termination of this Lease shall not renew and extend same, but shall operate and be construed as
a license from month to month. At the option of Landlord, upon written notice to Tenant, Tenant
shall be required to pay to the Landlord during any holdover period, monthly license fees which
26
• 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 under this Lease 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
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 in this Lease. 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 does agree to the process so served,
submits to the jurisdiction, and waives any and all objections and protest to such service.
(o) Waiver of Claims. Landlord shall not be liable for any loss, damage or injury of
any kind or character to any person or property (i) arising from any use of the Premises or any
part of them; (ii) caused by any defect in any building, structure, or other Improvements on them
or in any equipment or other facility located in them; (iii) caused by or arising from any act or
omission of Tenant, or of any of its agents, employees, licensees or invitees; (iv) arising from
any accident on the Premises or any fire or other casualty on them; (v) occasioned by Tenant's
failure to maintain the Premises in a safe condition; or (vi) arising from any other cause; unless,
in any of such events, caused by the gross negligence or willful act of Landlord. 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 appurtenances to them, 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
•
27
• contrary, in no event shall Landlord be liable for any consequential or punitive damages in
connection with this Lease.
(p) Drug-Free Workplace Certification. Tenant covenants and agrees to implement a
policy consistent with applicable laws with respect to maintaining a drug-free workplace and
otherwise to diligently try to provide and maintain during the Term of this Lease a drug-free
workplace at the Premises.
(q) Financial Interests. No elected official, officer, agent or employee of the City
shall have a financial interest directly or indirectly in this Lease or any compensation to be paid
under it, and further, no City employee who acts in the City as a "purchasing agent" as defined
by Section 112.312 (20), Florida Statutes, nor any elected or appointed officer of the City, nor
any spouse or child of such purchasing agent, employee or elected or appointed officer, may be a
partner, officer, director or proprietor of and, further, no such City purchasing agent, employee
or elected or appointed officer, or the spouse or child of any of them, alone or in combination,
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.
(r) Successors and Assigns Bound. This Lease shall be binding upon and inure to the
benefit of the successors and assigns of the parties to this Lease where permitted by this Lease.
(s) Time of Essence. Time is expressed to be of the essence of this Lease.
® (t) Written Approvals. All approvals and consents required to be obtained under this
Lease must be in writing to be effective. 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.
(u) Authority of Individuals. The individuals executing this Lease on behalf of
Tenant personally warrant that they have full authority to execute this Lease.
(v) Recordation of Memorandum of Lease. Landlord consents to Tenant recording a
Memorandum of this Lease in the Public Records of Broward County, Florida, which
Memorandum shall set forth, and shall only set forth: (i) the names of the parties; (ii) the
Effective Date and Term of the Lease, and (Ili) 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
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.
(w) No Set Off. The Tenant acknowledges that, as of the Effective Date of this Lease,
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 agrees that it is not entitled to
® setoff against any amounts payable by Tenant to Landlord which are payable pursuant to this
Lease.
28
® (x) Police/Regulatory Powers. Landlord cannot, and specifically does not, waive or
relinquish any of its regulatory approval or enforcement rights and obligations as they may relate
to regulations of general applicability which may govern the Premises, any improvements on
them, or any operations at the Premises. Nothing in this Lease shall be deemed to create an
affirmative duty of Landlord to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in accordance
with its zoning and land use codes, administrative codes, ordinances, rules and regulations,
federal laws and regulations, State laws and regulations, and grant agreements. In addition,
nothing in this Lease shall be considered zoning by contract.
(y) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it overtime. Levels of radon that exceed federal and State guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from the local public health unit.
(z) Broker. Each party represents and warrants to the other that it has not dealt with
any broker or finder in connection with the execution of this Lease.
(aa) Counterparts. This Lease may be executed in counterparts, each of which shall be
deemed to be an original.
® (bb) Joint and Several Liability. Notwithstanding anything to the contrary contained in
this Lease, if Tenant is two or more individuals or a general partnership or joint venture, any
individual, 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.
(cc) 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).
29
• IN WITNESS OF THE FOREGOING, the parties have made and executed this Lease
on the respective dates under each signature: City of Dania Beach as Landlord, acting through its
City Commission, signing by and through its Mayor, authorized to execute same by Commission
action on 2003; and
authorized to execute same.
CITY OF DANIA BEACH,through its
City Commission
ATTEST:
By:
Mayor
Charlene Johnson, City Clerk , 2003
Approved as to form and legality by (CITY SEAL)
Office of the City Attorney
By:
Thomas J. Ansbro, City Attorney
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on , 2003, 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:
30
WITNESSES:
TENANT:
Signature SVEN H. JUTZ
Print Name:
Signature
Print Name:
WITNESSES:
Signature UTE STORK
Print Name:
® Signature
Print Name:
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on 2003, before me, an officer duly
authorized to take acknowledgements in the State and County aforesaid, personally appeared
SVEN H. JUTZ and UTE STORK who (check one) [ ] are personally known to me or [ ] who
produced a as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
31
.._~-.i..� ....s...... i_....R .:,i Lr.i-.,......,�.YllAil.st).'?e,.ti.i7+A:1t •�t,.y,�}���.xSaL..�..6.1�:3r.` tl'i�.tif�ad3ii°d:�s7�L ;�i� ..'t1�tl� � '.eRa_.-.Hein t.. •n.. �.@K�i�l�J��..
SUN- SENTINEL
PUBLISHED DAILY -
FORT LAUDERDALE, BROWARD COUNTY,.FLORIDA
BOCA RATON, PALM BEACH COUNTY, FLORIDA
MIAMI, MIAMI DADE COUNTY, FLORIDA
STATE OF FLORIDA
COUNTY OF BROWARD/PALM BEACH/MIAMI DADE W rld of HEAfttlll4
BEFORE THE UNDJiRSIGNED AUTHORITY, PERSONALLY APPEARED '-'= `neEFORE CITY:'.
pr=MMISSION CITY ojr_.
jDAN�BLACHi ri_c"'A',
REGARDING ADOPTION
WHO,ON OATH,SAYS THAT , A OFTHEFOLLIr.OWING
HE/SHE IS A DULY AUTHO IZ D REPRESENTATIVE OF THE.CLASSIFIED PROPOSED oR,INANCE
i,,.
DEPARTMENT-OF THE SUN-SENTINEL,DAILY NEWSPAPER PUBLISHED NOTICE'IS`MEREeY'G1VEN
that the Clty Commission
IN BROWARD/PALM BEACH/MIAMI DADE COUNTY,FLORIDA, AND THAT'THE tof:the City of Dania Beach;
Elorida,on.May,g7;,;2003,
ATTACHED COPY OF ADVERTISEMENT,BEING A: at:.;7:00:"PM or.-as-soon
thereafter as the:matter
rtlay'be°heard;'wilC'colic
SVEN H JUTZ LEASE `duct a�ppublic nearing:in
the .,tc ty, "Commission
Chambers of the Dania
IN THE MATTER OF: Dania Re hall,Boulevard,
Dania Beach-Florida'to
consider. the :.proposed
Sven H Jutz Lease adoption of the'following
Ordinance entitled:_.;iW
Ak ORDINANCE OFTHE.
IN THE CIRCUIT COURT,WAS PUBLISHED IN SAID NEWSPAPER IN THE CITY COMMISSION OF THE
ISSUES OF: CITY. OF._,DANIV BEACH,
,FLORIDA..APPROVING EX-
ECUTION=..OF" At;�1EASE
_
AGREEMENT"- BETWEEN
5/16,1 11433435 THE CITY AND MR:SVEN H:
JUTZ.:AND`MS..UTE:STORK
PERTAINING TO PROPERTY
AFFIANT FURTHER SAYS THAT THE SAID SUN-SENTINEL IS A NEWSPAPER OWNED BY THE ClmAND
COMMONLY KNOW ;AS
PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY,FLORIDA, THE.DAN A:BEACHNPI R
AND THAT THE SAID NEWSPAPER HAS HERETOFORE BEEN CONTINUOUSLY RESTAURANT AND.,:
„BAIT
,SHOP -..PROPERTYaj9AU-
PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY,FLORIDA,. THORIZING'AND
DIRECT-ING THE.,EXECUTION.I-OF.
EACH DAY,AND HAS BEEN ENTERED AS SECOND CLASS MATTER AT THE THE LEASE BYTHEAPPRO-
POST OFFICE IN FORT LAUDERDALE,IN SAID BROWARD COUNTY,FLORIDA, IATE._;;CITY.`:OFF*CIAIS;
PRPOVIDiNG. FOR "uC.ONr
FOR A PERIOD OF ONE YEAR NEXT PRECEDING THE FIRST PUBLICATION OF FucrS;,,'PROVIDING.1 FUR
SEVERABILITY, FURTHER;
ATTACHED COPY OF ADVERTISEMENT;AND AFFIANT FURTHER SAYS THAT PROVIDING FOR AN.EF-
FEECTIIVV DATE�'��� i `
HE/SHE HAS NEITHER PAID,NOR PROMISED,ANY PERSON,FIRM, OR ..
CORPORATION,ANY DISCOUNT,REBATE,COMMISSION,OR REFUND,FOR THE A°copy of Ordinance s o is o proposee
n file in the
PURPOSE OF SECURING THIS ADVERTISEMENT FOR PUBLICATION IN SAID Office'ofi the City.Clerk;
City Hall;:100 West Dania
NEWSPAPER. Beach-Boulevard,-?Dania
Beach;"FIo(ida,°and may
be inspectetl by the public
'during normal,W rkin>
SI ATURE OF AF N hoours aes S
h
( � Interested parr ties may ap-
spear -,ate the.- aforesaid
rfteetmg�--and'-ber:heard
SWORN TO AND SUBSCRIBED BEFORE ME with respect to'ttie-,pro-
ON: 16-Ma -2003 , A.D. posed..Any person::who
y decides to.appeal:any de-
cision;;made'.by the;.,City
t/ Commission with respect
to;any,,=er considered
atthI hearing"will need a
record'of the proceedings
(SIGNATURE OF NOTARY PUBLIC) and,forsuch purpose may
need to ensure that a yer-
batim record'of the pro-
ceedings tQ'' Tara L Bezak is made,.whtch
• record includes the testis
MYCOMMISSIUN DD024939 EXPIRES many and'evidence.upan
'y Jury iQ 2005 which the appeal Is to be
BONDEDTHRU'RON�AINASURANCI,INC based,-
,,. ..
In^accOrdance',with the
American with Disabilities
(NAME OF NOTARY,TYPED,PRINTED, OR STAMPED) Act;,persons.needing:as;.
sistance:to.participateAn
any of_the proceedings
PERSONALLY KNOWN OR stiouid contact-'Charlene
Johnson City:Clerk;' 100
West:Dania.Beath.Boule'
PRODUCED IDENTIFICATION vard;.Dania Beach,.Florida,
33004; (954)-92413622-at
least-48 hours prior to the
meeting, A.
/s/Charlene Johnson�-A-'
CMC,City Clerk a