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Exhibit 10.6
LEASE
THIS LEASE ("Lease") is made this _____ day of _________________, 2000
by and between PEERLESS DADE, INC. D/B/A DADE RECYCLING & DISPOSAL, A FLORIDA
CORPORATION, hereinafter referred to as "Lessor", and STAR SERVICES GROUP, INC.,
a Florida corporation or its assigns, hereinafter referred to as "Lessee" or
"Tenant".
WITNESSETH:
1. PROPERTY DESCRIPTION. The Lessor, for and in consideration of the
rents hereafter to be paid by the Lessee and the representations, covenants and
conditions herein to be made and kept by the parties, hereby demise and lease
unto the Lessee the parcels of real property on which Lessor's existing
materials recovery facility ("MRF") is located in Miami-Dade County, Florida
("Property"), more particularly described in Exhibit "A" attached hereto and
incorporated herein by reference. Lessor reserves the right to relocate the MRF,
at Lessor's sole discretion and cost, to other locations within the existing
boundaries of Lessor's other and adjacent property during the lease term. The
new location shall have equal or better truck access than the existing location
of the MRF on the Property. In the event of a relocation of the MRF, the Lessor
shall reimburse the Lessee for all costs associated with the relocation,
including costs associated with the transfer of any permits, the reconstruction
of the processing pad, relocation of equipment and any reasonable business
interruption expenses related to the MRF relocation.
2. LEASE TERM. The Lease shall be for a term commencing on the ______
day of _________, 2000 and continuing for a period of forty eight (48) months
until the _____ day of __________, 2004 unless terminated sooner as provided in
this Lease ("Lease Term"). Lessor, at its option and sole discretion, may extend
the Lease period for five (5) additional one (1) year periods.
3. RENTAL PAYMENTS. Lessee covenants and agrees to pay to Lessor as
rent for the Property the sum of Nine Thousand Dollars ($9000.00) per month on
or before the first day of each month, plus all applicable Florida state sales
tax on said amount, plus all utilities associated with the operation of the MRF,
plus any property taxes assessed against the Property. Lessee shall be solely
responsible for the payment of the property taxes assessed against the Property
and MRF during the term of this Lease or any extension. In the event the Lease
Term is extended by Lessor, the amount of the rent shall be increased to reflect
any changes in the cost of living as shown in the Consumer Price Index for the
Miami-Dade County, Florida Metropolitan Area since the commencement of the
original Lease Term.
4. Lessee will have sixty (60) days from the commencement date of the
Lease in which to put in place any financial assurance required for the MRF by
the Florida Department of Environmental Protection
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and/or the Miami-Dade County Department of Environmental Regulation and
Management. Until the Lessee's financial assurance is in place for the MRF, the
Lessor shall maintain its existing financial assurance.
5. LATE CHARGES. In the event the rental payment is not made by the
10th day of any month, there shall be added to the rental due a late charge
equal to five percent (5%) of the rental payment. If the rental payment is still
not made by the 15th day of any month, an additional five percent (5%) shall be
added to the rental due.
6. EVENTS OF DEFAULT. Each or any of the following events shall
constitute a default under this Lease:
A. If Lessee shall fail to pay to Lessor any rent due within
thirty (30) days after the rent is due and payable, without notice.
B. If Lessee or any successor or any assignee of Lessee, while
in possession, shall file a petition in bankruptcy or insolvency or for
reorganization or arrangement under the Bankruptcy Act, or shall voluntarily
take advantage of any such law or act or shall make an assignment for the
benefit of creditors.
C. If involuntary proceedings under any such bankruptcy law or
insolvency act shall be instituted against Lessee or such successor assignee, or
if a receiver or trustee shall be appointed of all or of substantially all of
the property of Lessee or any successor lessee or assignee.
D. If Lessee shall fail to perform any of the conditions on
Lessee's part to be performed (except the payment of rent due, which failure to
pay shall constitute a separate default under this agreement) and if such
nonperformance shall continue for a period of thirty (30) days after written
notice thereof by Lessor to Lessee or, if such performance cannot be reasonably
had within such thirty (30) day period, Lessee shall not in good faith have
commenced such performance within such thirty (30) day period and shall not
diligently proceed therewith to completion.
E. If Lessee shall vacate or abandon the demised premises for
a period of twenty (20) days or more.
F. If this Lease or the interest of Lessee hereunder shall be
transferred or assigned without the express prior written consent of the Lessor,
which is not to be unreasonably withheld.
G. If Lessee fails to operate the MRF in accordance with all
existing federal, state or local permits and/or fails to comply with federal,
state or local laws applicable to the operation of the MRF. Lessee's right to
cure as set forth in Section (D) above will also apply to any alleged violations
of federal, state or local environmental permits or approvals required for
operation of the MRF and will not be considered an event of default until there
has been a conclusive and non-appealable final order entered by a regulatory
agency regarding any alleged permit violations or non-compliance.
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H. Lessee shall operate the MRF under Lessor's permit,
however, if Lessee fails to keep all federal, state or local permits for the
operation of the MRF current and fails to provide for all closure and post
closure financial assurance required for the MRF by the Florida DEP or
Miami-Dade County Department of Environmental Regulation and Management.
Notwithstanding the foregoing, it is the responsibility of the Lessor to obtain
and maintain any stormwater, groundwater or surface water permits and U.S. Army
Corp of Engineers dredge and fill permits in full force and effect which may
relate to operation of the MRF.
7. LESSOR'S REMEDIES IN EVENT OF DEFAULT. In the event of default by
Lessee, Lessor will have the following cumulative rights, privileges, and
options in addition to all other remedies now or hereafter provided at law or in
equity:
A. To perform any act or do anything required under this Lease
to be performed by Lessee, and to recover the cost thereof from Lessee.
B. To accelerate the maturity of all rent due and; to become
due during the remainder of the term.
C. To terminate the Lease, re-enter, and relet the premises or
Property for the account of Lessor. Lessor will be entitled to recover from
Lessee all damages that result from Lessee's default.
D. To keep the Lease in force, re-enter, and relet the
premises or Property for the account of Lessee for a period equal to, or greater
or less than, the remainder of the term, at such rental and on such terms and
concessions as Lessor deem reasonable. Lessor will not be liable for failure to
relet the premises, or in the event of reletting, for failure to collect the
rent therefore.
E. To keep the Lease in force, and to recover from Lessee the
rent and any other sum due from Lessee each more or less frequently at the
election of Lessor, on to recover the entire sum due at the expiration of the
term.
F. To recover from Lessee all expenses, including reasonable
costs and charges for repairs to the premises, which amounts will become due
when incurred and will become payable to Lessor on demand.
G. To recover reasonable attorney's fees and costs in
connection with any action or proceeding to enforce this Lease, whether or not
the Lease has been terminated, or to secure any rights due Lessor under this
Lease, whether or not any action was instituted.
8. LESSEE'S REPRESENTATIONS REGARDING COMPLIANCE WITH LAWS. Lessee will
comply with, all federal, state and local laws, ordinances, orders, rules,
regulations, permits and other governmental requirements relating to the use,
operation, condition or occupancy of the Property and MRF, specifically
including, but not limited to, all applicable federal, state and local
environmental laws and
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regulations. Lessee will not use or occupy, or permit any portion of the
Property to be used or occupied in violation of any law, ordinance, order, rule,
regulation, permit, certificate of occupancy, or other governmental requirement,
or in any manner or for any business or purpose that would in any way violate,
suspend, void or increase the rate of fire or liability or any other insurance
of any kind at any time carried by Lessor upon all or any part of the building
or buildings located, on the Property or which would in any way result in
non-compliance with existing operating or other permits required for the
operation of the materials recovery facility ("MRF") located on the Property.
9. LESSOR'S REPRESENTATIONS. Lessor currently has all permits necessary
to operate the MRF, copies of which are attached hereto and incorporated herein
by reference as Exhibit "B". During the Lease Term, the Lessor will not
independently do anything to adversely impact or terminate the permits.
10. REPRESENTATIONS REGARDING HAZARDOUS MATERIALS.
A, Lessor has no knowledge of and did not permit any release,
discharge, disposal or spill of any "Hazardous Material", as that term is
defined in subparagraph B below, on, in, under or from the leased premises or
Property during the period of Lessor's ownership, use or possession of the
Property and/or its operation of the MRF. Lessee will not permit to occur any
release, generation, manufacture, storage, treatment, transportation or disposal
of "Hazardous Material", as that term is defined in subparagraph B, on, in,
under, or from the Property provided, however, that Lessee may utilize hazardous
materials in conjunction with Lessee's business, but only in compliance with all
laws, rules, orders and regulations applicable to such use. Lessee will promptly
notify Lessor, in writing, if Lessee has or acquires notice or knowledge that
any hazardous material has been or is threatened to be released, discharged,
disposed of, transported, or stored on, in, under, or from the premises; and if
any hazardous material is found on the premises as a result of the acts or
omissions of Lessee, Lessee, at its own cost and expense, will immediately take
such action as is necessary to detain the spread of and remove the hazardous
material to the complete satisfaction of Lessor and the appropriate governmental
authorities.
B. For purposes of this Lease, "Hazardous Material" means:
(1) "hazardous substances" or "toxic substances" as
those terms are defined by the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. 9601, et seq., or the
Hazardous Materials Transportation Act, 49 U.S.C. 1802, both as amended to this
date and as amended after this date;
(2) "hazardous wastes", as that term is defined by
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902, et seq., as
amended to this date and as amended after this date;
(3) any pollutant, contaminant or hazardous,
dangerous or toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation,
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ordinance or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic, or dangerous waste substance or material, all as amended to
this date or as amended after this date;
(4) crude oil or any fraction of it that is liquid at
standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute);
(5) any radioactive material, including any source,
special nuclear, or by-product material as defined at 42 U.S.C. 2011, et seq.,
as amended to this date or amended after this date;
(6) asbestos in any form or condition; and
(7) polychlorinated biphenyls (PCB's) or substances
or compounds containing PCB's.
11. UTILITIES. Lessee shall pay for all utilities furnished to the
Property and required for the operation of the MRF during the Lease Term or any
extension including, but not limited to, electricity, gas, water and telephone
service. Lessor represents that all of such services are currently available to
the Property and MRF and may be separately metered for Lessee to pay directly.
12. MAINTENANCE OF PROPERTY. Lessee will, at its sole cost and expense,
maintain the Property in the same condition as the Property was in at the
inception of this Lease. Lessee shall be responsible for the removal, disposal
and/or processing of any construction and demolition debris, solid waste or any
other materials stockpiled or located on the Property at the end of the Lease
Term.
13. INSURANCE. Lessee agrees to procure, at its expense, and maintain
in force, at all times during the term of this Lease, a policy or policies of
comprehensive general liability (minimum $2,000,000) and pollution legal
liability (minimum of $5,000,000) satisfactory to Lessor with Lessor as an
additional named insured. The form of such policies shall be reasonably
acceptable to Lessor.
14. ASSIGNMENT. Lessee may not assign this Lease in whole or in part or
sublease all or part of the premises without the Lessor's prior written consent,
such consent shall not be unreasonably withheld. Lessee may assign this Lease to
a subsidiary without Lessor's prior written consent. However, no such assignment
or sublease shall release Lessee from its obligations hereunder without the
specific release thereof by the Lessor.
15. ALTERATIONS TO MRF. Lessee will not make any alterations, additions
or improvements to the Property without Lessor's prior written consent, which
shall not be unreasonably withheld or delayed. All alterations, additions or
improvements shall be made with due diligence, in a good and workmanlike manner
and in compliance with all laws, ordinances, orders, permits, rules and
regulations. All permanent alterations, additions, fixtures and improvements,
made in or upon the Property by Lessee, unless removable as provided
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in Section 15 below, will immediately become Lessor's property at the end of the
term of this Lease. The interest of Lessor in the Property or MRF shall not be
subject to a lien for any work, labor or materials supplied to or on behalf of
Lessee, and Lessee shall indemnify and hold Lessor harmless from and against any
and all loss, cost or liability including, but, not limited to, reasonable
attorney's fees, incurred by Lessor and resulting from, arising out of, or
related to any work performed on the Property by or for Lessee.
16. CONDITION OF PROPERTY. At the end of this Lease, Lessee will
surrender the premises in good order and condition and rake clean. Lessee shall
remove from the premises any removable trade fixtures, equipment and movable
furniture placed in the premises by Lessee. Lessee will fully repair any damage
occasioned by the removal of any trade fixtures, equipment, furniture,
alterations, additions and improvements.
17. INDEMNIFICATION, WAIVER AND RELEASE.
A. LESSEE'S INDEMNIFICATION. Lessee will indemnify Lessor, its
shareholders, officers, directors, employees and agents, against and hold
Lessor, its shareholders, officers, directors, agents and employees harmless
from any and all demands, claims, causes of action, fines and penalties, damages
(including consequential damages), losses, liabilities, judgments and expenses
(including, without limitation, attorney's fees and court costs) incurred in
connection with or arising from or related to Lessee's actions under this Lease
or incurred as a result of Lessee's operation of the MRF after the effective
date of this Lease or in connection with other events or conditions which occur
after the effective date of this Lease and which relate to acts or omissions of
Lessee, its agents, employees, guests and invitees, excluding therefrom only
such loss as is proximately caused by the act, omission or negligence of Lessor.
If any action or proceeding is brought against Lessor, its employees or agents,
by reason of any such claims, Lessee, upon notice from Lessor, will defend the
claim at Lessee's expense with counsel reasonably satisfactory to Lessor. This
paragraph shall survive the expiration or earlier termination of this Lease.
X. XXXXXX'X INDEMNIFICATION. Lessor will indemnify Lessee, its
shareholders, officers, directors, employees and agents, against and hold
Lessee, its shareholders, officers, directors, agents and employees harmless
from any and all demands, claims, causes of action, fines and penalties, damages
(including consequential damages), losses, liabilities, judgments and expenses
(including, without limitation, attorney's fees and court costs) incurred in
connection with or arising from or related to Lessor's actions under this Lease
or incurred as a result of Lessor's operation of the MRF prior to the effective
date of this Lease or in connection with other events or conditions which occur
before the effective date of this Lease and which relate to acts or omissions of
Lessor, its agents, employees, guests and invitees, excluding therefrom only
such loss as is proximately caused by the act, omission or negligence of Lessee
during the Lease Term. If any action or proceeding is brought against Lessee,
its employees or agents, by reason of any such claims, Lessor, upon notice from
Lessee, will defend the claim at Lessor's expense with counsel
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reasonably satisfactory to Lessee. This paragraph shall survive the expiration
or earlier termination of this Lease.
18. PEACEFUL POSSESSION OF THE PROPERTY. So long as Lessee pays the
rent and performs all of its obligation in this Lease, Lessee's possession of
the premises will not be disturbed by Lessor or anyone else claiming by, through
or under Lessor.
19. TERMINATION OF LEASE. Lessor may terminate this lease upon sixty
(60) days written notice if Lessee fails to operate the MRF in compliance with
all local, state, and federal permits and if Lessee fails to cure any
non-compliance to the regulatory agency's satisfaction or fails to commence a
cure for the non-compliance within a reasonable period. Such non-compliance
shall be evidenced by any formal written notice of violation, written warning
notice, written inspection from any duly authorized regulatory agency stating
the MRF is in non-compliance. However, Lessor may not exercise its right to
terminate until a final and non-appeable administrative or judicial order is
entered that conclusively establishes Lessee's non-compliance.
20. NON-COMPETE. Lessor agrees it will not use, or allow others to use,
its permitted MRF located on Tract 46 at 00000 XX 00xx Xxxxxx, Xxxxx, Xxxxxxx in
competition with Lessor during the term of this lease; however, Lessor reserves
the right to use the permitted MRF on Tract 46 to process construction and
demolition debris that may result from its existing Landfill closure activities.
21. MISCELLANEOUS.
A. DISPOSAL OR PROCESSING OF LESSOR'S C&D DEBRIS. During the
term of this Lease, Lessee agrees to receive from Lessor, at Lessee's MRF,
suitable construction and demolition debris generated as a result of Lessor's
landfill closure activities at 00000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx. Lessor's
cost for disposal shall be the lowest rate Lessee charges its unaffiliated
thirty party customers for disposal or processing.
X. XXXXXX OFFICE SPACE. During the term of this Lease, Lessee
agrees to provide Lessor one (1) office with office furniture at 00000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx or at any site which the MRF operations are relocated by
Lessor.
C. NO WAIVER. No waiver of any condition or agreement in this
Lease by either Lessor or Lessee will imply or constitute a further waiver by
such party of any other condition or agreement in this Lease.
D. NOTICES. Any notice, request, demand, consent, approval or
other communication required or permitted under this Lease will be written and
will be deemed to have been given (1) when personally delivered, or (2) on the
fifth (5th) day after it is deposited in any depository regularly maintained by
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the United States postal service, postage prepaid, certified or registered mail,
return receipt requested, addressed to:
Lessee: Xxxxxxx X. Xxxxxxx, President
Star Services Group, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: G. Xxxxxxx Xxxxxxx, Esq.
Xxxxx, Longman & Xxxxxx, P.A.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Lessor: President, Peerless Dade, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxxx, LLP
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
FAX: (000) 000-0000
Either Lessor or Lessee may change their address or addressee for purposes of
this paragraph by giving ten (10) days' prior notice according to this
paragraph. Any notice from Lessor to Lessee will be deemed to have been given if
delivered to the Property, addressed to Lessee, whether or not Lessee has
vacated or abandoned the Property.
E. ATTORNEY'S FEES. If Lessor and Lessee litigate any
provision of this Lease or the subject matter of this Lease, the unsuccessful
litigant will pay to the successful or prevailing litigant all costs and
expenses, including reasonable attorney's fees and court costs, incurred by the
successful or prevailing litigant at trial and on any appeal.
F. BINDING EFFECT. This Lease will inure to the benefit of,
and will be binding upon, Lessee's and Lessor's successors and assigns.
G. TIME. Time is of the essence in this agreement.
H. GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State of Florida.
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I. This Lease supersedes any prior written or oral agreements
between the parties regarding the subject matter of the Lease and contains all
covenants and agreements between the parties with respect to the subject matter.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
on the day and year first above written.
SIGNED, SEALED AND DELIVERED IN THE LESSOR:
PRESENCE OF:
PEERLESS DADE, INC.
D/B/A DADE RECYCLING & DISPOSAL
By:
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Xxxxx X. Xxxx, Its President
Witness Date
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Witness
LESSEE:
STAR SERVICES GROUP, INC.
------------------
Witness
By:
------------------ -------------- --------------------------
Witness Date Xxxxxxx X. Xxxxxxx, Its President
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STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this _____
day of September, 2000 by Xxxxx X. Xxxx as President of Peerless Dade, Inc.
("Lessor") and Xxxxxxx X. Xxxxxxx as President of Star Services Group, Inc.
("Lessee") both of whom are personally known to me or produced Florida driver's
licenses as identification.
Sign Name:
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Print Name:
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NOTARY PUBLIC
(NOTARIAL SEAL)
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