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BASIC LEASE INFORMATION
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DATE: April 7, 1997
LESSOR: CITY OF CORAL GABLES, A MUNICIPAL CORPORATION
LESSEE: Ciao Cucina Corporation
ARTICLE WITNESSETH:
ARTICLE 1(E): Rentable Area of Premises: 5,809 square feet
ARTICLE 2: Term Commencement:
ARTICLE 2: Rent Commencement:
ARTICLE 2: Term Expiration:
ARTICLE 5: Initial Base Rent: Per Year $72,612.50
Per Month: $12,102.08
ARTICLE 7: Security Deposit: $24,204.16
ARTICLE 36: Landlord's Address for Notice: Ciao Cucina Corp.
700 Walnut St./Ste. 300
Cincinnati, Ohio 455202
ADDENDUM 1: Landlord's Tenant Improvement Contribution
ADDENDUM 2: Percentage Rent
ADDENDUM 3: Option to Renew
EXHIBIT A: Legal Description of Building
EXHIBIT B: Location of Premises
EXHIBIT C: Landlord's Work
EXHIBIT C.1 Landlord's Work Letter of 3/31/97
EXHIBIT D: Tenant's Sign Criteria
EXHIBIT D.1: Signage Size and Location Requirements
EXHIBIT E: Tenant's Workletter
EXHIBIT F: Tenant's Space Plan
The Provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appears. Each such
reference shall incorporate the applicable Basic Lease Information. In the
event of any conflict between any Basic Lease Information and the Lease, the
latter shall control.
WITNESSES: LANDLORD: TENANT:
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MERRICK PLACE SHOPS AND PARKING
RETAIL LEASE
THIS LEASE, entered into this 28th day of April, 1997, between THE CITY OF
CORAL GABLES, a municipal corporation of the State of Florida ("Landlord") and
CIAO CUCINA CORPORATION an OHIO corporation ("Tenant").
WITNESSETH: Landlord, for and in consideration of the rent to be paid by
Tenant, and in consideration of the covenants herein to be kept and performed
by the Tenant, does hereby lease and demise unto the Tenant the following
described premises (the "Premises") situated in the City of Coral Gables,
County of Dade, State of Florida: a unit of approximately 5,809 sq. ft. located
at 10 GIRALDA, in the shopping and parking facility located at 1 Aragon Avenue,
Coral Gables, Florida, known as MERRICK PLACE SHOPS AND PARKING (the
"BUILDING"). THE APPROXIMATE LOCATION OF THE PREMISES IS OUTLINED IN RED ON
EXHIBIT B.
1. DEFINITIONS: Unless the context otherwise specifies or requires, the
following terms shall have the meanings herein specified.
(A) The term "Building" shall mean the land described on Exhibit "B"
attached hereto and the building constructed thereon known as Merrick Place
Shops and Parking, located at 1 Aragon Avenue (the "Building") and all other
improvements on or appurtenances to said parcel.
(B) The term "Premises" shall mean the portion of the Building located in
the Suite specified in the Basic Lease Information which is outlined in red on
the floor plan attached hereto as Exhibit "B".
(C) The term "Rent" shall mean the sum of the Base Rent, as defined in
Article 5 hereof, and any other additional rent as specified herein, or as may
be agreed to by the parties hereafter.
(D) The term "Rentable Area" of the "Premises" as used in this Lease means
all space within the inside surface of the glass portion of the permanent outer
Building walls, enclosing the tenant occupied portion of the floor and measured
to midpoint of the wall separating areas leased by or held for other tenants or
from areas devoted to
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corridors, elevator lobbies or any other Common Area, restrooms and other
similar facilities.
(E) The term "Common Area" shall mean the total area in the Building
consisting of restrooms, janitor, telephone and electrical closets, mechanical
areas, and public corridors providing access to tenant space, but excluding
public stairs, elevator shafts and pipe shafts, together with the enclosing
walls thereof.
2. TERM: The term of this lease ("LEASE COMMENCEMENT DATE") shall commence
upon DELIVERY OF THE SPACE TO TENANT FOR TENANT'S CONSTRUCTION. THE
ANTICIPATED DATE OF DELIVERY IS MAY 1, 1997. HOWEVER, AS IN ALL CONSTRUCTION,
THAT DATE IS SUBJECT TO CHANGE. CIAO CUCINA CORPORATION WILL BE GIVEN NO LESS
THAN 30 DAYS NOTICE OF THE SCHEDULED COMPLETION DATE; TENANT RESERVES THE
RIGHT TO TERMINATE THE LEASE IF THE PREMISES ARE NOT DELIVERED BY SEPTEMBER 1,
1997; and, Tenant's obligation to pay rent hereunder ("Rental Commencement
Date") shall commence ONE HUNDRED EIGHTY (180) DAYS AFTER THE LEASE
COMMENCEMENT DATE; and, ending at midnight, on FIFTEEN (15) YEARS AND SIX (6)
MONTHS AFTER THE LEASE COMMENCEMENT DATE. "RENTAL COMMENCEMENT DATE" as used
herein means the date which is ONE HUNDRED EIGHTY (180) number of days after
the Lease Commencement Date. Tenant shall be entitled to possession of the
Premises upon the Lease Commencement Date and such occupancy shall be subject
to all of the terms and conditions of this Lease except that Tenant shall not
be required to pay rent until the Rental Commencement Date. There shall be no
delay in the commencement of the Term of this Lease and, subject to the
provisions contained below regarding the performance and completion of the
"Tenant Improvements" (as hereinafter defined), there shall be no delay or
abatement of the payment of "Rent(s)" (as hereinafter defined) where Tenant
fails to occupy the Premises or if Tenant fails to complete any of Tenant's
Improvements, nor shall same operate to extend the initial Term beyond the
agreed expiration date hereof. All provisions of this Lease shall be in full
force and effect upon the Lease Commencement Date, notwithstanding the fact
that prior to opening the Premises for business, Tenant shall first perform
and complete the Tenant Improvements.
3. TENANT D.B.A.: Unless otherwise consented to in writing by Landlord, Tenant
agrees to conduct its business in the premises using the name: CIAO BABY
CUCINA. All signage and advertising will use this name. TENANT RESERVES THE
RIGHT TO CHANGE ITS
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NAME IN ITS DISCRETION, SO LONG AS IT IS FOR THE SAME TYPE OF USE, UNDER THE
SAME OWNERSHIP AND THE INITIAL GUARANTEE REMAINS THE SAME.
4. USE:
(A) During the term, the premises shall be used and occupied only for the
following purposes: AN ITALIAN MEDITERRANEAN RESTAURANT WITH INDOOR AND OUTDOOR
SEATING, OFFERING DISHES FROM THE ALL AREAS OF THE MEDITERRANEAN REGION,
OPENING MORNING THROUGH EVENING HOURS AND SELLING RETAIL ITEMS MADE ON THE
PREMISES INCLUDING BAKED GOODS and for no other purposes.
(B) Tenant agrees to operate 100% of the premises during the term of this
lease and to conduct its business at all times in a high class and reputable
manner, as shall be determined by Landlord in its sole discretion.
(C) Tenant shall keep the premises open for business not less than six
days per week, including legal holidays, and particularly during those evening
hours that Landlord and tenant mutually agree in writing from time to time to
promote a dinner trade.
(D) Tenant shall promptly comply with all laws, ordinances and lawful
orders and regulations affecting the premises, and the cleanliness, safety,
occupation and use of same. No auction, fire or bankruptcy sales shall be
conducted in the premises without Landlord's written consent. Tenant shall not
use the sidewalks adjacent to the premises for business purposes without
Landlord's written consent.
(E) In the event that the Tenant uses the Premises for purposes not
expressly permitted herein, the Landlord may, in addition to all other remedies
available to it, terminate this Lease or restrain said improper use by
injunction.
(F) Tenant shall not commit any nuisance; nor permit the emission of any
objectionable noise or odor, nor burn any trash or refuse within the Premises;
nor bring on, deposit or allow to be brought on or deposited on the Premises
any hazardous nor noxious materials or substances, as the same may be defined
by federal, state or local laws, codes, ordinances, rules, or regulation; nor
make any use of the Premises or any
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part thereof or equipment therein which is improper, offensive, a nuisance or
contrary to any state, local or federal law.
(G) Tenant agrees to strictly enforce all state, local or federal laws
including American with Disabilities Act and Florida Accessibility Code in the
operation of the Premises, including, without limitation, all restrictions
concerning the serving of alcoholic beverages, if applicable, in particular the
prohibitions against serving alcohol to minors (as such term is defined by
law).
5. RENT:
(A) BASE RENT: Tenant hereby agrees to pay to Landlord, at such place as
Landlord may designate in writing, rent for the premises as follows:
Lease Year One:
Months One-Six $ 0.00
Months Six-Twelve $12,102.08 per month
excluding 6.5% sales tax
Lease Years Two-Five: $12,102.08 per month
excluding 6.5% sales tax
Lease Years Six-Ten: $13,554.33 per month
excluding 6.5% sales tax
Lease Years Eleven-Fifteen: $15,490.67 per month
excluding 6.5% sales tax
Lease Year Sixteen: $15,490.67 per month
Months One-Six: excluding 6.5% sales tax
Payment is due each month in advance on the first day of each
month, without demand.
*PERCENTAGE RENT IS SPECIFIED IN ADDENDUM 2
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(C) TAXES ON RENT: Tenant shall also pay, as additional rent, all sales or
use or excise tax imposed, levied or assessed against the rent or any other
charge or payment required hereby any governmental authority having
jurisdiction there over, even though the taxing statute ordinance may purport
to impose such sales tax against the Landlord. The payment of sales tax shall
be made by Tenant on a monthly basis, concurrently with payment of the monthly
rental. All rent shall be paid without abatement, set off, or deduction.
(D) OPERATING EXPENSE REIMBURSEMENT: Tenant will not be required to pay
operating expenses during the term of this lease.
(E) SERVICE CHARGE: If any installment of Base Rent or additional rent
provided for in this Lease, or any part thereof, is not paid by the due date,
it shall be subject to a service charge of one and one-half percent (1 1/2%) of
the unpaid rent due for each month or fraction thereof (or such lesser
percentage as may be the maximum amount permitted by law) until paid.
(F) APPLICATION OF PAYMENTS: All sums due and payable pursuant to the
terms and provisions of this Lease shall be payable only in lawful money of the
United States of America which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment, and shall be applied in
the following order of priority:
(1) Charges and expenses resulting from Tenant's failure to timely
perform its obligations hereunder.
(2) Operating Expense Reimbursement, if any.
(3) Additional rent and charges except parking space rental and charges,
if any.
(4) Base rent including adjustments thereto.
(5) Parking space rental and charges, if any.
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6. UTILITY EXPENSES: Tenant shall not perform any acts or carry on any
practices which injure the building or be a nuisance or menace to other tenants
in the building in which the premises are located and shall keep the premises,
the sidewalks adjacent to the premises, the rear area of the premises and the
service area and corridors allocated for the use of Tenant, unobstructed, clean
and free from rubbish and dirt at all times. All trash and garbage shall be
stored in the designated garbage areas and Landlord shall arrange for the
regular pickup of such trash and garbage at Tenant's expense. The Landlord will
arrange for the regular pickup of trash and garbage through an authorized
collection agency, and Tenant will pay Landlord for its share of said cost.
Tenant shall pay all charges for water, janitorial, sewage disposal,
electricity and for all other utilities used in connection with the premises
and billed direct to the Tenant, not more that ten (10) days after the same
shall become due and payable. Tenant shall pay all utility impact fees, if any,
assessed against the premises based upon Tenant's use of the premises as set
forth above.
7. SECURITY DEPOSIT/ADVANCED RENT DEPOSIT/PERSONAL GUARANTEE: Landlord,
after satisfactory review of Tenant's financial statement, hereby acknowledges
receipt from Tenant of the sum of $12,102.08 which sum shall be held by
Landlord without liability for interest as a deposit for the first month's
rent. Landlord, after satisfactory review of Tenant's financial statement, AND
UPON LANDLORD'S DELIVERY OF PREMISES TO TENANT, hereby acknowledges receipt
from Tenant of the sum of $24,204.16 which sum shall be held by Landlord
without liability for interest as security for the faithful performance by
Tenant of all of the terms and conditions of this Lease. In the event Tenant
defaults under any of the terms and conditions of this Lease Landlord may, at
Landlord's option, apply the above security, or so much thereof as may be
necessary, to compensate Landlord for any loss or damages sustained by Landlord
due to such default on the part of Tenant, and Tenant shall forthwith upon
demand restore said security to the original sum deposited. Within thirty (30)
days after the expiration of this Lease, said security shall be returned in
full to Tenant, provided this Lease is in good standing and no outstanding
defaults exist hereunder. A Personal Guarantee may be required from Tenant upon
Landlord's review of Tenant's financial statement.
8. TERRACE AREA: Although not a part of the Premises, the Tenant shall have the
right to the use of a portion of the open air terrace located in the front
center portion of the first floor of the Building and appearing on the cross
hatched section of Exhibit
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"B" attached hereto and by this reference made a part hereof ("Terrace Area");
provided, however, that such use shall be limited to the placement of tables
and chairs for outdoor seating of the Tenant's patrons. Tenant shall be fully
responsible for the maintenance and repair of the Terrace Area. Tenant
acknowledges that there exists in the City of Coral Gables an ordinance or
ordinances regarding the placing of tables and chairs outdoors and that as with
all governmental ordinances, it shall be required to comply with same.
9. RESTAURANT FOOD AND BEVERAGE LICENSING: Tenant shall be solely responsible
for obtaining and maintaining all required licenses and permits for the
operation and maintenance of a restaurant facility, including, without
limitation, any and all licenses and permits required for the serving of
alcoholic beverages. Tenant shall further be responsible for complying with all
requirements and qualifications of all federal, state and local health and
rehabilitation service departments.
10. DELIVERY OF PREMISES BY LANDLORD: It is contemplated that the premises will
be ready for occupancy by Tenant on or about the date first above written.
However, in the event that Landlord is unable to deliver possession of the
premises to Tenant on or before said date, then Landlord agrees to deliver
possession of the premises to Tenant as soon as practicable thereafter, and the
rental under this lease will be abated proportionately and Tenant will be
relieved of the liability for paying same during such time Tenant does not have
possession. In no event shall Tenant have any claim for damages (except for the
abatement of rent as herein specified) on account of the failure of Landlord to
deliver possession of the premises to Tenant on or before said date.
11. ACCEPTANCE OF PREMISES.
(A) Tenant shall not permit or suffer any noise, disturbance or nuisance
whatsoever on the Premises detrimental to same or annoying to the neighbors,
and the Tenant acknowledges that, except as set forth in Paragraph 26 hereof,
the Premises have been received in good order, tenantable condition and repair,
of which the execution of this Lease, and taking Possession hereunder shall be
conclusive evidence; and that, except as set forth in Paragraph 26 hereof, no
representations as to the condition of the premises have been made by the
Landlord, or the Landlord's agent, and that no obligation as to the repairing,
adding to, or improving the premises has been assumed by the Landlord, and that
no oral arrangements have been entered into in consideration of making this
Lease and that this Lease contains a full statement of the obligation of both
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parties hereto. Any noise or disturbance caused by Tenant's preparing the
Premises for Tenant's use and occupancy will not be a default under the
provisions of this paragraph.
(B) The Premises shall, at all times, be kept in good order, condition,
and repair by Tenant and shall also be kept in a clean, sanitary and safe
condition in accordance with all directions, rules and regulations of the
health officer, fire marshall, building inspector or other proper officers of
the governmental agencies having jurisdiction, all at the sole cost and expense
of Tenant, during the term herein demised. Tenant shall permit no water damage
or injury to the premises, and Tenant shall at its own cost and expense replace
any glass windows, doors and door hardware in the premises which may be damaged
or broken.
(C) At the expiration of this lease, Tenant shall surrender the premises
in good condition, reasonable wear and tear, loss by fire or other unavoidable
casualty excepted.
12. SUBMISSION OF TENANT'S DRAWINGS: Tenant agrees that it shall submit to
Landlord two sets of Tenant construction drawings, two sets of Tenant fixture
drawings, interior layout, finish material samples, electronic data base if
available, and any other items Landlord may from time to time request, all of
which must be approved by Landlord in writing prior to the commencement of any
construction by Tenant in the Premises. Tenant shall not make changes to the
storefront without Landlord's consent.
13. SIGNAGE: Tenant shall not erect or install any exterior or interior window
or door signs or window or door lettering or placards without the previous
written consent of Landlord. Tenant agrees not to use loudspeakers, phonographs
or radio broadcasts in a manner to be heard outside the premises. Tenant agrees
that it will at its own expense, install exterior signs in places on the
premises to be designated by Landlord, which signs will advertise Tenant's name
or type of business, the form and design of which will be subject to Landlord's
approval. Tenant understands and agrees that Tenant is responsible for
compliance with all local or state sign ordinances. See Exhibit "D" for Sign
Criteria.
14. MAINTENANCE OF PREMISES BY TENANT: Other than the repairs which shall be
the obligation of Landlord as required pursuant to Article 5 hereof, Tenant
shall, at its own cost and expense, take good care of and make necessary
repairs, structural and otherwise, to the interior of the premises, and the
fixtures and equipment therein, including the exterior and interior windows,
doors, locks and entrances,
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storefronts, signs, showcases, floor coverings, interior walls, columns and
partitions, lighting fixtures, heating ventilating and air conditioning
equipment, and plumbing and sewage facilities. All parts of the premises shall
be painted or otherwise decorated by Tenant periodically as may be determined
by Landlord. Tenant agrees to keep and maintain in good condition the
electrical equipment in the premises and keep in force a standard maintenance
agreement with a company acceptable to Landlord on all air conditioning
equipment and provide a copy of said maintenance agreement to Landlord. Tenant
also shall pay for and maintain a termite and pest extermination service for
the premises. Tenant shall have the obligation to keep the exterior fronts,
sidewalks and rear of the premises in a neat and orderly condition, and free
from debris and rubbish at all times.
Notwithstanding the foregoing, Landlord agrees to make any and all repairs
required to the roof, the exterior walls, the foundation and structural portions
of the Premises. Landlord shall have thirty (30) days after receipt of written
notice from Tenant to perform such repairs of the items described in the
foregoing sentence, or such additional time as may be reasonably required for
the nature of the repair.
Without the prior written consent of the Landlord, which shall not be
unreasonably withheld, the Tenant shall make no alterations, additions or
improvements of a structural nature in or to the Premises. Except only furniture
and trade fixtures which shall be readily removable without injury to the
Premises, all additions, fixtures, carpets, and improvements shall be and remain
a part of the Premises at the expiration of this Lease.
It is further agreed that this Lease is made by the Landlord and accepted by the
Tenant with the distinct understanding and agreement that the Landlord shall
have the right and privilege to make and build additions to the Building of
which the Premises are a part, and make such alterations and repairs to said
Building as it may deem wise and advisable without any liability to the Tenant
therefor. The Landlord agrees to exercise efforts to avoid disturbing the Tenant
or the Premises during any such alterations or repairs and that such addition or
alteration shall not adversely affect the Tenant's frontage or access.
INTENTIONALLY LEFT BLANK
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15. MECHANICS LIENS: Tenant shall keep the Premises and all parts thereof at
all times free of mechanic's liens and any other lien for labor, services,
supplies, equipment or material purchased or procured, directly or indirectly,
by or for Tenant. Tenant further agrees that Tenant will promptly pay and
satisfy all liens of contractors, subcontractors, mechanics, laborers,
materialmen, and other items of like character, and will indemnify Landlord
against all expenses, costs and charges, including bond premiums for release of
liens and attorneys fees and costs reasonably incurred in and about the defense
of any suit in discharging the Premises, the Building, or any part thereof from
any liens, judgments, or encumbrances caused or suffered by Tenant. In the
event any such lien shall be made or filed, Tenant shall bond against or
discharge the same within ten (10) days after the same has been made or filed.
It is understood and agreed between the parties hereto that the expenses, costs
and charges above referred to shall be considered as rent due and shall be
included in any lien for rent.
The Tenant herein shall not have any authority to create any liens for labor or
material on the Landlord's interest in the Premises and all persons contracting
with the Tenant for the construction or removal of any facilities or other
improvements on or about the Leased Premises, and all materialmen, contractors,
mechanics, and laborers are hereby charged with notice that they must look only
to the Tenant and to the Tenant's interests in the Premises to secure the
payment of any bill for work done or material furnished at the request or
instruction of Tenant.
16. QUIET ENJOYMENT: Upon payment by Tenant of the Rents herein provided, and
upon the observance and performance of all terms and provisions, on Tenant's
part to be observed and performed, Tenant shall, subject to all of the terms and
provisions of this Lease, peaceably and quietly hold and enjoy the Premises for
the Term hereby demised.
17. DAMAGE TO PREMISES: The Tenant takes all risk of any damage to the Tenant's
property that may occur by reason of water or the bursting or leaking of any
pipes or waste water about the Premises, or from any act of negligence of any
co-tenant or occupants of the building, or any other person, or fire, or
hurricane, or other act of God, or from any cause whatsoever.
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18. LANDLORD'S WORK:
(A) Landlord agrees that it will supply at its own expense, its standard
store, as more particularly described in Exhibit "C", attached (the Landlord's
Work.)
(B) Landlord shall have no obligations to make improvements to the
premises. All improvements to the Premises will be performed by the Tenant at
Tenant's sole cost and expense. Tenant shall then have the obligation to
complete Tenant's work as expeditiously as possible. Landlord must approve any
contract entered into by Tenant for work in the premises prior to commencement
thereof. All such contracts must contain a waiver of lien by Tenant's
contractor against the Building. Tenant accepts premises in as is condition.
19. SERVICES: Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, corridors and restrooms, the
mechanical, plumbing and electrical equipment serving the Building, but not the
individual tenant's systems, and the structure itself in reasonably good order
and condition except for damage occasioned by the act of Tenant, which damage
shall be repaired by Landlord at Tenant's expense. Landlord shall furnish the
Premises with those fixtures and service as outlined in Exhibit C.
20. MAINTENANCE BY LANDLORD. Landlord shall keep the foundation, the outer
walls and roof of the building in which the premises are located in good
repair, except that Landlord shall not be called on to make any repairs caused
by the negligence of Tenant, its agents, employees, licensees and invitees.
Landlord shall not be called upon to make any other improvements or repairs of
any kind on the premises.
21. HOLD HARMLESS AND INDEMNIFICATION: The Tenant shall indemnify and save
harmless the Landlord from and against any and all claims, suits, actions,
damages and/or causes of action arising during the term of this Lease for any
personal injury, loss of life and/or damage to property sustained in or about
the Premises arising out of the Tenant's occupancy thereof or caused by Tenant's
negligence, and from and against any orders, judgments, and/or decrees which may
be entered thereon, and from and against all costs, counsel fees, including any
appellate proceedings, expenses and liabilities incurred in and about the
defense of any such claim and the investigation thereof, and shall obtain
insurance to satisfy the requirements of this section and City
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shall be named as "additional insured" in any such policy. All insurance
obtained by Tenant to satisfy the requirements of this section shall be primary
over any City self-insurance or insurance program.
22. LANDLORD'S LIEN: As security for Tenant's payment of rent, damages and all
other payments required to be made by this Lease, Tenant hereby grants to
Landlord a lien upon all property of Tenant now or subsequently located upon the
Premises. LANDLORD AGREES TO SUBORDINATE ITS LANDLORD LEASE RIGHTS TO THIRD
PARTY FINANCING OR LEASING OF EQUIPMENT FOR THE RESTAURANT. If Tenant abandons
or vacates any substantial portion of the Premises, or is in default in the
payment of any rentals, damages or other payments required to be made by this
Lease, Landlord may take any action it deems necessary, and may be available to
it in the State of Florida. The proceeds of the sale of the personal property
shall be applied by Landlord toward the cost of the sale and then toward the
payment of all sums then due by Tenant to Landlord under the terms of this
Lease. All alterations, additions, improvements and fixtures, other than trade
fixtures, which may be made or installed by either of the parties hereto upon
the premises and which in any manner are attached to the floors, walls or
ceilings, shall become the property of Landlord at the termination of this lease
and shall remain upon and be surrendered with the premises as a part thereof.
Any linoleum or other floor covering of similar character which may be
adhesively affixed to the floor of the premises shall become the property of
Landlord. No alterations or additions to the premises may be made without the
prior written consent of Landlord.
23. INSURANCE: From and after the date hereof, and thereafter at all times
during the term of this Agreement, Tenant shall provide and maintain insurance
as follows:
(A) "All risk" insurance, including flood and earthquake coverage, on all
buildings, contents, and structures above ground or subject to being damaged or
destroyed by an insurable peril, including without limitation, all Furnishings
and Equipment and all Tenant's Property, on a full replacement cost basis; said
policy or policies to be endorsed to reflect the hold harmless &
indemnification provision contained in Article 21.
(B) Comprehensive boiler and machinery insurance, with limits of not less
than $500,000; said policy or policies to be endorsed to reflect the hold
harmless provision contained in Article 21.
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(C) Comprehensive general liability insurance with broad form endorsement,
including automobile liability, liquor legal (dram shop) liability, completed
operation and products liability, contractual liability, severability of
interests with cross liability provision, and personal injury liability with
limits of $1,000,000 combined single limit per occurrence for bodily injury and
property damage. Said policy or policies shall be endorsed to name Landlord and
Tenant as additional insureds and shall reflect the hold harmless provision
contained in Article 21 Tenant.
(D) Worker's compensation for all employees of Operator as required by
Florida Statues 440, and employer's liability insurance with limits of not less
the $100,000; said policy or policies shall, to the extent possible, be
endorsed to name Landlord and Tenant as additional insureds and shall reflect
the hold harmless Provision contained in Article 12.
(E) Automobile Lability Insurance covering all owned, non-owned and hired
vehicles used in connection with the premises in an amount not less than
$100,000/$300,000 for bodily injury and property damage; said policy or
policies shall, to the extent possible, be endorsed to name Landlord and Tenant
as additional insureds and shall reflect the hold harmless provision contained
in Article 12.
(F) Other (or increased amounts of) insurance which Landlord shall from
time to time deem advisable or appropriate, it being reasonable for Landlord to
require commercially available insurance of the types and in the amounts
generally carried on business which are similar to the business subject to this
lease in size, style or character, such new or additional insurance to be
effective as of the later of 90 days after notice thereof or the next annual
renewal of any policy being increased (as applicable).
(G) All policies shall contain waiver of subrogation against Landlord and
Tenant where applicable, shall expressly provide that such policy or policies
are primary over any other collectible insurance that Landlord may have.
(H) All of the above insurance is to be placed with Best rated A-8 or
better insurance companies.
(I) Certified copies of all policies and related endorsements shall be
delivered to Landlord at or before the execution of this Agreement, except
that:
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(1) In the case of insurance relating to Site preparation, or
construction, repair, rehabilitation, furnishing or equipping the
business, certified copies shall be delivered not later than 10 days
prior to commencement of said activities;
(2) In the case of insurance required to be maintained during the term
hereof relating to liquor legal liability or completed operations,
certified copies shall be delivered not later than the earlier of 10
days prior to the Opening Date, or that date when the public actually
commence use of the business, whichever is earlier; and
(3) In all instances, certified copies shall be delivered not later than
30 days prior to the expiration date of any policy or policies of
insurance required to be maintained during the term hereof.
(J) All policies shall provide for 30 days notice to Landlord prior to
cancellation or material change.
(K) Tenant acknowledges that the insurance coverage requirement set forth
in this Article, in terms of both forms of insurance and amounts of coverage,
represent the minimum protection required by Landlord. Tenant agrees to make
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and to rely upon the reasonable determination of Landlord regarding what
additional forms of insurance or higher levels of coverage, if any, may be
desirable in order to furnish Landlord and Tenant proper and adequate
protection during the term hereof.
(L) Tenant shall have the option to increase the limits of coverage on
said policies or carry additional insurance.
(M) The amount of any deductible or self-insured retention shall be
subject to the reasonable approval of Landlord.
(N) Landlord reserves the right (but shall not be obligated) to provide
any or all of the minimum insurance coverages not provided by Tenant. In such
an event, the cost of the insurance shall be a reimbursable expense receivable
by Landlord from Tenant on demand.
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24. ASSIGNMENT AND SUBLETTING: Tenant agrees not to assign the Tenant's
interest in this Lease, nor sublet the whole or any part of the Premises
without first having obtained the written consent to such assignment or
subleasing from the Landlord, and the Tenant further covenants that the
premises will not be used for any unlawful purpose or for any purpose that will
invalidate any policies of insurance now or hereafter written on the Property,
or will increase the rate of premium thereof unless Tenant agrees to pay any
increase in insurance premiums.
25. HOLDING OVER: If the Tenant shall occupy the Premises with or with out the
consent of the Landlord after the expiration of this Lease, and the rent is
accepted from the Tenant during such period, such occupancy and payment shall be
construed as an extension of this Lease on a month-to-month basis only from the
date of such expiration unless other terms of such extension are endorsed hereon
in writing and signed by the parties hereto.
26. ENTRY BY LANDLORD: Tenant agrees to permit the Landlord, or the Landlord's
agent, at any reasonable time, and at all times in the event of an emergency,
to enter and inspect the Premises, and make repairs, if in the Landlord's sole
judgment, the Landlord should elect to do so.
27. EVENTS OF DEFAULT AND LANDLORD'S REMEDIES: If any one or more of the
following events (herein sometimes called "events of default" shall happen:
(A) If default shall be made in the payment of any rent or other charges
herein reserved upon the same become due and payable and such default continues
for a period of ten (10) days after written notice thereof from Landlord to
Tenant; or
(B) If default shall be made by Tenant in the performance of, or
compliance with, any of the covenants, agreements, or terms or conditions
contained in this Lease or default made by Tenant in compliance or
non-compliance with any and all municipal or county ordinances, resolutions or
codes and all state and federal statues, rules and regulations now in force or
which may hereafter be in force, and such default shall continue for a period
of ten (10) days after written notice thereof from Landlord to Tenant;
provided, however, that if Tenant is unable to cure such default within such
ten (10) day period and such default results solely from the failure to obtain
a building
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actions of Tenant, then, an in that event, Tenant shall have such additional
reasonable time as is necessary; or
(C) If the premises shall be seized under any levy, execution, attachment
or other process of court and the same shall not be promptly vacated or stayed
on appeal or otherwise, or if the Tenant's interest in the Premises is sold by
judicial sale and the sale is not promptly vacated or stayed on appeal or
otherwise; or
(D) If Tenant:
(1) Fails to take possession and open for business within thirty (30)
days after the Rent Commencement Date, or
(2) Should vacate, abandon, or desert the Premises, or
(3) Cease the continual operation of Tenant's business therein for
fifteen (15) continuous days and thirty (30) days (in the aggregate)
in any one year during the Lease Term.
(E) If the Tenant shall suffer to be filed against the Tenant an
involuntary petition in bankruptcy (and such petition is not dismissed within
(40) days there after or shall be adjudged a voluntary or involuntary bankrupt
or make an assignment for the benefit of creditors, or should there be
appointed a receiver to take charge of the Premises either in the State or
Federal courts.
(F) If the Tenant shall vacate or abandon the Premises prior to the end of
the term hereof, then: in any such events, (an "Event of Default) the Landlord
may, at the Landlord's option, terminate and end this Lease and reenter upon
the premises, where upon the term hereby granted, and at the Landlord's option,
all of the Tenant's right, title and interest in this Lease shall end and the
Tenant shall become a tenant at sufferance; or else the Landlord may, at the
Landlord's option, elect to declare the entire rent for the balance of the
term, or any part thereof, due and payable forthwith, and may proceed to
Collect the same by distress or otherwise, and thereupon the term hereof shall
terminate, at the option of the Landlord, or else the Landlord may take
Possession of the Premises and rent the same for the account of the Tenant. The
exercise of any options herein contained shall not be deemed to be exclusive
and the Landlord shall at all times in the
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event of the Tenant's default hereunder, have such remedies as may be provided
by the laws of the State of Florida; the expression "entire rent for the
balance of the term" as used herein, shall mean all of the rent prescribed to
be paid by the Tenant unto the Landlord, at present value, for the full term of
the Lease, less, however, any payments that shall have been made on account of
any rent due pursuant to the terms of the Lease.
28. WAIVER: The failure of the Landlord in one or more instances to insist upon
strict performance or observance of one or more of the covenants or conditions
hereof or to exercise any remedy, privilege or option herein conferred upon or
reserved to the Landlord, shall not operate or be construed as a relinquishment
or waiver for the future of such covenant or condition or of the right to
enforce the same or to exercise such privilege, option, or remedy, but the same
shall continue in full force and effect. The receipt by the Landlord of rent,
or additional rent, or any other payment required to be made by the Tenant, or
any part thereof, shall not be a waiver of any other additional rent or payment
then due, nor shall such receipt, though with knowledge of the breach of any
covenant or condition hereof, operate as or be deemed to be a waiver of such
breach, and no waiver by the Landlord of any of the provisions hereof, or any
of the Landlord's rights, remedies, privileges or options hereunder shall be
deemed to have been made unless made by the Landlord in writing. If the
Landlord shall consent to the assignment of this Lease or to a subletting of
all or a part of the premises, no further assignment or subletting shall be
made without the written consent of the Landlord first obtained. No surrender
of the premises for the remainder of the term hereof shall be valid unless
accepted by the Landlord in writing.
29. TRIAL BY JURY: It is mutually agreed by and between Landlord and Tenant
that the respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant, and Tenant's use or
occupancy of the Premises. Tenant further agrees that the provisions for
payment of Rent herein are independent covenants of Tenant and Tenant shall not
interpose any counterclaim or counterclaims in a summary proceeding or in any
action based upon non-payment of Rent or any other payment required of Tenant
hereunder.
30. SUBORDINATION: The Tenant agrees that this Lease shall be subject and
subordinate to any mortgage which may hereafter be made on account of any
proposed
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loan to be placed on the Premises by the Landlord to the full extent of all
debts and charges secured thereby, and to any renewals and extensions of all or
any part thereof, which the Landlord may hereafter at any time elect to place
on the Premises, and the Tenant agrees upon request to hereafter execute any
document which the Landlord may deem necessary to accomplish that end, and in
default of the Tenant's so doing, the Landlord is hereby empowered to execute
such document in the name of the Tenant and as the act and deed of the Tenant
and this authority is declared to be coupled with an interest and not
revocable. Landlord represents that the Premises is presently free and clear of
any mortgages. Landlord agrees that Landlord will use its best efforts to
obtain from any mortgagee who may hereafter hold a mortgage encumbering the
Premises, a non-disturbance agreement which in effect will provide that
Tenant's possession and rights hereunder will not be disturbed in the event of
a foreclosure of the mortgage so long as Tenant is not in default hereunder.
31. RELATIONSHIP OF PARTIES: Nothing herein contained to the contrary shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association whatsoever between Landlord and Tenant, it being expressly
understood and agreed that neither the computation of rent nor any other
provisions contained in this Lease nor any act or acts of the parties hereto
shall be deemed to create any relations between Landlord and Tenant other than
the relationship of landlord and tenant. Notwithstanding the fact that the City
of Coral Gables ("City") is the landlord under this Lease and that there exists
a landlord/tenant relationship between Landlord and Tenant, Tenant acknowledges
that this Lease does not grant Tenant any rights or create any exceptions to
its obligation to comply with and meet the requirements of all the City's
ordinances, resolutions and codes, and that the Landlord/Tenant relationship
shall have no effect upon the jurisdiction and governing rights of the City
over the Building and the Premises and Tenant shall be required to fulfill and
comply with all applicable laws, rules and regulations, ordinances and
resolutions of the City as though no such landlord/tenant relationship existed,
including, without limitation, all requirements of the City's Building and
Zoning Department.
32. BROKERAGE INDEMNITY: Tenant represents to Landlord that Tenant has no
knowledge of any real estate broker involved in this transaction who might be
entitled to a commission by reason hereof other than ESSLINGER, WOOTEN MAXWELL,
INC. ("Broker") and KONIVER STERN. Tenant agrees to indemnify Landlord and save
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Landlord harmless from any loss or damage in the event the foregoing
representation is untrue. Landlord agrees to pay any commissions due Broker
payment to a separate agreement between Landlord and Broker. Landlord
represents to Tenant that Landlord has no knowledge of any real estate broker
involved in this transaction who might be entitled to a commission by reason
hereof other than the Broker. Landlord agrees to indemnify Tenant and save
Tenant harmless from any loss or damage in the event the foregoing
representation is untrue.
33. FORCE MAJEURE: Whenever a period of time is herein prescribed for action to
be taken by either party, such party shall not be liable or responsible for and
there shall be excluded from computation of any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or any causes of any kind which
are beyond the reasonable control of the party required to take action.
34. ESTOPPEL CERTIFICATE: Tenant agrees at any time within ten days of
Landlord's written request, to execute, acknowledge and deliver to Landlord a
written statement certifying that this lease is unmodified and in full force
and effect for, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications, and the dates to
which the minimum rent and other charges have been paid in advance, if any, if
being intended that any such statement delivered pursuant to this paragraph may
be relied upon by any prospective purchaser or mortgagee of the Building.
35. RADON DISCLOSURE: In accordance with the requirements of Florida Statues
the following notice is hereby give to Tenant:
RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS
ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH
RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
36. NOTICE: Notice shall be deemed properly given hereunder when made in
writing and either delivered personally or deposited in the United States
certified or
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registered mails, with sufficient postage prepaid thereon to carry it to its
addressed destination; and the said notices shall be addressed as follows:
For the Landlord: H.C. Eads, Trustee City Manager
405 Biltmore Way
Coral Gables, FL 33134
With Copy to: Elizabeth Hernandez, Esquire City Attorney
405 Biltmore Way
Coral Gables, FL 33134
For the Tenant: Ciao Cucina Corp.
700 Walnut Street, Ste. 300
Cincinnati, Ohio 45202
Attn: Carl Bruggemeier
With a copy to: Katz Greenberger Norton
105 East 4th Street, 9th Floor
Cincinnati, Ohio 45202
Attn: Scott Kadish
or to such other address as shall from time to time be supplied in writing by
any party to the other. The effective date of such notice shall be the date of
delivery or refusal thereof.
37. ENTIRE AGREEMENT: This Lease contains the entire agreement between the
parties hereto and it may be modified only by an agreement in writing signed
and sealed by Landlord and tenant. No surrender of the Premises, or of the
remainder of the Term of this Lease, shall be valid unless accepted by Landlord
in writing. Tenant acknowledges and agrees that Tenant has not relied upon any
statement, representation, prior written or contemporaneous oral promises,
agreements or warranties except such as are expressed herein.
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IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered this
Lease in several counterparts each of which shall be deemed an original, but all
constituting a single agreement, at Dade County, Florida, as of the day and year
first above written.
CITY OF CORAL GABLES:
LANDLORD
By:____________________________
H.C. Eads, Jr., City Manager
ATTEST:
_____________________________
Virginia L. Paul, City Clerk
TENANT:
/S/ CARL A. BRUGGEMEIER
- --------------------------
President
CIAO Cucina, Inc.
Witnesses:
- ----------------------------
- ----------------------------
_______________________
City Attorney
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ADDENDUM 1
LANDLORDS'S TENANT IMPROVEMENT CONTRIBUTION
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The landlord shall contribute an amount of five hundred fifty eighty thousand
four hundred dollars ($558,400.00) towards tenant's buildout.
The tenant shall present to the landlord invoices of buildout costs for up to
five hundred fifty eighty thousand four hundred dollars ($558,400.00). Landlord
shall make payments on these invoices as the work is completed and landlord is
in receipt of said invoices.
Tenant will be investing an additional four hundred thousand dollars
($400,000.00) to five hundred thousand dollars ($500,000.00) in the building
improvements.
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ADDENDUM 2
PERCENTAGE RENT
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The tenant shall pay as additional rent, four percent (4%) of their gross sales
as set forth below. Tenant shall pay landlord within sixty (60) days of each
year's end.
4% OF GROSS SALES OVER:
-----------------------
Years 1-5 $2.3 Million
Years 6-10 $2.6 Million
Years 11-15 $2.9 Million
Tenant shall provide landlord with quarterly or annual sales tax reports.
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ADDENDUM 3
OPTION TO RENEW
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The landlord will grant two (2) five (5) year Options to Renew to begin
simultaneous with the expiration of the initial fifteen (15) years and six (6)
months term. Tenant must provide landlord with twelve (12) months written notice
of it's intent to exercise the Option to Renew. The Base Rent, at the time of
each renewal, will be based on an increase of three percent (3%) of the previous
year's base rent with annual increases of three percent (3%). The percentage
rent will continue throughout the renewals, based on the terms of Year 15. All
other terms and conditions remain the same.